Exhibit 3.2
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
TOKHEIM CORPORATION
-----------------------
Tokheim Corporation (hereinafter referred to as the
"Corporation"), having duly elected to be governed by IC 23-1-18 through IC
23-1-54 (except for IC 23-1-18-3, IC 23-1-21 and IC 23-1-53-3) effective
April 10, 1986, and desiring to amend and restate its Articles of
Incorporation effective October 20, 2000, the date of filing with the
office of the Indiana Secretary of State, pursuant to the provisions of the
Indiana Business Corporation Law (hereinafter referred to as the
"Corporation Law"), submits the following Restated Articles of
Incorporation:
ARTICLE I
Name
The name of the Corporation is Tokheim Corporation.
ARTICLE II
Purposes and Powers
Section 2.1 Purposes of the Corporation. The purposes for
which the Corporation is formed are (a) to engage in the general business
of manufacturing and selling any and all devices, appliances and/or
articles of every kind and description, for whatever purpose or use and of
whatever material or substance made, and to carry on such activities of
every kind or nature as may be allied or incidental to such general
business and (b) to engage in the transaction of any or all lawful business
for which corporations may now or hereafter be incorporated under the
Corporation Law.
Section 2.2 Powers of the Corporation. The Corporation shall
have (a) all powers now or hereafter authorized by or vested in
corporations pursuant to the provisions of the Corporation Law, (b) all
powers now or hereafter vested in corporations by common law or any other
statute or act and (c) all powers authorized by or vested in the
Corporation by the provisions of these Restated Articles of Incorporation
or by the provisions of its Restated Bylaws as from time to time in effect.
ARTICLE III
Term of Existence
The period during which the Corporation shall continue is
perpetual.
ARTICLE IV
Registered Office and Agent
The street address of the Corporation's registered office at
the time of adoption of these Restated Articles of Incorporation is 10501
Corporate Drive, Fort Wayne, Indiana 46845 and the name of its Resident
Agent at such office at the time of adoption of these Restated Articles of
Incorporation is Norman L. Roelke.
ARTICLE V
Shares
Section 5.1 Authorized Classes and Number of Shares. The
total number of shares which the Corporation has authority to issue shall
be 35,000,000 shares, consisting of 30,000,000 common shares (the "Common
Shares") and 5,000,000 special shares (the "Special Shares"). The
Corporation's Common Shares do not have any par or stated value, except
that, solely for the purpose of any statute or regulation imposing any tax
or fee based upon the capitalization of the Corporation, each of the
Corporation's Common Shares shall be deemed to have a par value of $1.00
per share.
Section 5.2 General Terms of All Shares. The Corporation
shall have the power to acquire (by purchase, redemption or otherwise),
hold, own, pledge, sell, transfer, assign, reissue, cancel or otherwise
dispose of the shares of the Corporation in the manner and to the extent
now or hereafter permitted by the laws of the State of Indiana (but such
power shall not imply an obligation on the part of the owner or holder of
any share to sell or otherwise transfer such share to the Corporation),
including the power to purchase, redeem or otherwise acquire the
Corporation's own shares, directly or indirectly, and without pro rata
treatment of the owners or holders of any class or series of shares,
unless, after giving effect thereto, the Corporation would not be able to
pay its debts as they become due in the usual course of business or the
Corporation's total assets would be less than its total liabilities (and
without regard to any amounts that would be needed, if the Corporation were
to be dissolved at the time of the purchase, redemption or other
acquisition, to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights are superior to those of the holders
of the shares of the Corporation being purchased, redeemed or otherwise
acquired, unless otherwise expressly provided with respect to a series of
Special Shares in the provisions of these Restated Articles of
Incorporation adopted by the Board of Directors pursuant to Section 5.5
hereof describing the terms of such series). Except to the extent otherwise
provided for herein, shares of the Corporation purchased, redeemed or
otherwise acquired by it shall constitute authorized but unissued shares,
unless prior to any such purchase, redemption or other acquisition, or
within thirty (30) days thereafter, the Board of Directors adopts a
resolution providing that such shares constitute authorized and issued but
not outstanding shares.
The Board of Directors of the Corporation may dispose of,
issue and sell shares in accordance with, and in such amounts as may be
permitted by, the laws of the State of Indiana and the provisions of these
Restated Articles of Incorporation and for such consideration, at such
price or prices, at such time or times and upon such terms and conditions
(including the privilege of selectively repurchasing the same) as the Board
of Directors of the Corporation shall determine, without the authorization
or approval by any shareholders of the Corporation. Shares may be disposed
of, issued and sold to such persons, firms or corporations as the Board of
Directors may determine, without any preemptive or other right on the part
of the owners or holders of other shares of the Corporation of any class or
kind to acquire such shares by reason of their ownership of such other
shares.
When the Corporation receives the consideration specified in
a subscription agreement entered into before incorporation, or for which
the Board of Directors authorized the issuance of shares, as the case may
be, the shares issued therefor shall be fully paid and nonassessable.
The Corporation shall have the power to declare and pay
dividends or other distributions upon the issued and outstanding shares of
the Corporation, subject to the limitation that a dividend or other
distribution may not be made if, after giving it effect, the Corporation
would not be able to pay its debts as they become due in the usual course
of business or the Corporation's total assets would be less than its total
liabilities (and without regard to any amounts that would be needed, if the
Corporation were to be dissolved at the time of the dividend or other
distribution, to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights are superior to those of the holders
of shares receiving the dividend or other distribution, unless otherwise
expressly provided with respect to a series of Special Shares in the
provisions of these Restated Articles of Incorporation adopted by the Board
of Directors pursuant to Section 5.5 hereof describing the terms of such
series).
The Corporation shall have the power to issue shares of one
class or series as a share dividend or other distribution in respect of
that class or series or one or more other classes or series.
Pursuant to Section 1123(a)(6) of title 11 of the United
States Bankruptcy Code, as now in effect or hereafter amended (the
"Bankruptcy Code"), the Corporation is not authorized to issue any
nonvoting Common Stock, but only to the extent required by Section
1123(a)(6) of the Bankruptcy Code.
Section 5.3 Voting Rights of Shares.
(a) Common Shares. Except as otherwise provided by
the Corporation Law and subject to such shareholder disclosure and
recognition procedures (which may include voting prohibition sanctions) as
the Corporation may by action of its Board of Directors establish, the
Common Shares have unlimited voting rights and each outstanding Common
Share shall, when validly issued by the Corporation, entitle the record
holder thereof to one vote at all shareholders' meetings on all matters
submitted to a vote of the shareholders of the Corporation.
(b) Special Shares. Except as required by the
Corporation Law or by the provisions of these Restated Articles of
Incorporation adopted by the Board of Directors pursuant to Section 5.5
hereof describing the terms of Special Shares or a series thereof, the
holders of Special Shares shall have no voting rights or powers. Special
Shares shall, when validly issued by the Corporation, entitle the record
holder thereof to vote as and on such matters, but only as and on such
matters, as the holders thereof are entitled to vote under the Corporation
Law or under the provisions of these Restated Articles of Incorporation
adopted by the Board of Directors pursuant to Section 5.5 hereof describing
the terms of Special Shares or a series thereof (which provisions may
provide for special, conditional, limited or unlimited voting rights,
including multiple or fractional votes per share, or for no right to vote,
except to the extent required by the Corporation Law) and subject to such
shareholder disclosure and recognition procedures (which may include voting
prohibition sanctions) as the Corporation may by action of the Board of
Directors establish.
Section 5.4 Other Terms of Common Shares. The Common Shares
shall be equal in every respect insofar as their relationship to the
Corporation is concerned, but such equality of rights shall not imply
equality of treatment as to redemption or other acquisition of shares by
the Corporation. Subject to the rights of the holders of any outstanding
Special Shares issued under Section 5.5 hereof, the holders of Common
Shares shall be entitled to share ratably in such dividends or other
distributions (other than purchases, redemptions or other acquisitions of
shares by the Corporation), if any, as are declared and paid from time to
time on the Common Shares at the discretion of the Board of Directors. In
the event of any liquidation, dissolution or winding up of the Corporation,
either voluntary or involuntary, after payment shall have been made to the
holders of the Special Shares of the full amount to which they shall be
entitled under this Article V, the holders of Common Shares shall be
entitled, to the exclusion of the holders of the Special Shares of any and
all series, to share, ratably according to the number of shares of Common
Shares held by them, in all remaining assets of the Corporation available
for distribution to its shareholders.
Section 5.5 Other Terms of Special Shares.
(a) Special Shares may be issued from to time in one or
more series, each such series to have such distinctive designation and such
preferences, limitations and relative voting and other rights as shall be
set forth in these Restated Articles of Incorporation. Subject to the
requirements of the Corporation Law and subject to all other provisions of
these Restated Articles of Incorporation, the Board of Directors of the
Corporation may create one or more series of Special Shares and may
determine the preferences, limitations and relative voting and other rights
of one or more series of Special Shares before the issuance of any shares
of that series by the adoption of an amendment to the Restated Articles of
Incorporation that specifies the terms of the series of Special Shares. All
shares of a series of Special Shares must have preferences, limitations and
relative voting and other rights identical with those of other shares of
the same series and, if the description of the series set forth in these
Restated Articles of Incorporation so provides, no series of Special Shares
need have preferences, limitations or relative voting or other rights
identical with those of any other series of Special Shares.
Before issuing any shares of a series of Special Shares
(other than the Special Shares provided for in Articles X and XI hereof),
the Board of Directors shall adopt an amendment to these Restated Articles
of Incorporation, which shall be effective without any shareholder approval
or other action that sets forth the preferences, limitations and relative
voting and other rights of the series, and authority is hereby expressly
vested in the Board of Directors, by such amendment:
(i) To fix the distinctive designation of such
series and the number of shares which shall constitute such series,
which number may be increased or decreased (but not below the
number of shares thereof then outstanding) from time to time by
action of the Board of Directors;
(ii) To fix the voting rights of such series,
which may consist of special, conditional, limited or unlimited
voting rights, including multiple or fractional votes per share, or
no right to vote (except to the extent required by the Corporation
Law);
(iii) To fix the dividend or distribution rights
of such series and the manner of calculating the amount and time
for payment of dividends or distributions, including, but not
limited to:
(A) the dividend rate, if any, of
such series;
(B) any limitations, restrictions or
conditions on the payment of dividends or other
distributions, including whether dividends or other
distributions shall be noncumulative or cumulative or
partially cumulative and, if so, from which date or dates;
(C) the relative rights of priority,
if any, of payment of dividends or other distributions on
shares of that series in relation to Common Shares and
shares of any other series of Special Shares; and
(D) the form of dividends or other
distributions, which may be payable at the option of the
Corporation, to the shareholder or another person (and in
such case to prescribe the terms and conditions of
exercising such option), or upon the occurrence of a
designated event in cash, indebtedness, stock or other
securities or other property, or in any combination thereof,
and to make provisions, in the case of dividends or other
distributions payable in stock or other securities, for
adjustment of the dividend or distribution rate in such
events as the Board of Directors shall determine;
(iv) To fix the price or prices at which, and
the terms and conditions on which, the shares of such series may be
redeemed or converted, which may be:
(A) at the option of the Corporation,
the shareholder or another person or upon the occurrence of
a designated event;
(B) for cash, indebtedness,
securities, or other property or any combination thereof;
and
(C) in a designated amount or in an
amount determined in accordance with a designated formula or
by reference to extrinsic data or events;
(v) To fix the amount or amounts payable upon
the shares of such series in the event of any liquidation,
dissolution or winding up of the Corporation and the relative
rights of priority, if any, of payment upon shares of such series
in relation to Common Shares and shares of any other series of
Special Shares; and to determine whether or not any such
preferential rights upon dissolution need be considered in
determining whether or not the Corporation may make dividends,
repurchases or other distributions;
(vi) To determine whether or not the shares of
such series shall be entitled to the benefit of a sinking fund to
be applied to the purchase or redemption of such series and, if so
entitled, the amount of such fund and the manner of its
application;
(vii) To determine whether or not the issue of
any additional shares of such series or of any other series in
addition to such series shall be subject to restrictions in
addition to restrictions, if any, on the issue of additional shares
imposed in the provisions of these Restated Articles of
Incorporation fixing the terms of any outstanding series of Special
Shares theretofore issued pursuant to this Section 5.5 and, if
subject to additional restrictions, the extent of such additional
restrictions; and
(viii) Generally to fix the other preferences
or rights, and any qualifications, limitations or restrictions of
such preferences or rights, of such series to the full extent
permitted by the Corporation Law; provided, however, that no such
preferences, rights, qualifications, limitations or restrictions
shall be in conflict with these Restated Articles of Incorporation
or any amendment hereof.
(b) Except as otherwise provided in Articles X and XI
hereof, Special Shares of any series that have been redeemed (whether
through the operation of a sinking fund or otherwise) or purchased by the
Corporation, or which, if convertible, have been converted into shares of
the Corporation of any other class or series, may be reissued as a part of
such series or of any other series of Special Shares, subject to such
limitations (if any) as may be fixed by the Board of Directors with respect
to such series of Special Shares in accordance with subsection (a) of this
Section 5.5.
ARTICLE VI
Directors
Section 6.1 Number. The Board of Directors shall not be less
than seven (7) nor more than fifteen (15) and, at the time of adoption of
these Restated Articles of Incorporation is composed of seven (7) members,
and may be changed from time to time by amendment to these Restated
Articles of Incorporation, or as otherwise provided in these Restated
Articles of Incorporation. On the Effective Date, as defined in the
Company's Joint Prepackaged Plan of Reorganization (the "Effective Date")
as confirmed by the United States Bankruptcy Court for the District of
Delaware (the "Plan of Reorganization), the Board of Directors of the
Corporation shall include Douglas K. Pinner, four (4) temporary directors
(the "Temporary Directors") designated by an ad hoc committee of the
holders of the Corporation's Senior Subordinated Notes and Junior
Subordinated Notes (the "Bondholder Committee") and two (2) directors
designated by the holders of the Corporation's Series A Senior Preferred
Stock (the "Series A Preferred Stock"), as described in Article XI hereof.
The number of directors shall be automatically increased to
nine (9) when the Temporary Directors designate six (6) new directors. The
four (4) Temporary Directors shall resign at such time.
The Board of Directors shall be divided into three (3)
groups (with each group containing one-third (1/3) of the total members, as
near as may be) whose terms of office expire at different times, as
provided in the By-Laws.
Notwithstanding the first sentence of this Section 6.1, any
amendment to these Restated Articles of Incorporation that would affect any
increase in the number of Directors over such number as then in effect or
any elimination or modification of the groups or terms of office of the
Directors as the Articles of Incorporation then in effect may provide,
shall also be approved by the affirmative vote of a majority of the entire
number of Directors of the Corporation who then qualify as Continuing
Directors with respect to all Related Persons (as such terms are defined
for purposes of Article VIII hereof).
Section 6.2 Qualifications. Directors need not be
shareholders of the Corporation or residents of this or any other state in
the United States.
Section 6.3 Vacancies. Vacancies occurring in the Board of
Directors shall be filled in the manner provided in these Restated Articles
of Incorporation, including Section 6.6 and Article XI, or in the By-Laws
(or, if these Restated Articles of Incorporation or the Restated By-Laws do
not provide for the filling of vacancies, in the manner provided by the
Corporation Law). To the extent not otherwise provided for, vacancies shall
be filled by vote of the shareholders or holders of Special Shares, as
appropriate, at a special meeting called for that purpose or at the next
annual meeting of shareholders.
Section 6.4 Liability of Directors. A Director's
responsibility to the Corporation shall be limited to discharging his
duties as a Director, including his duties as a member of any Committee of
the Board of Directors upon which he may serve, in good faith, with the
care an ordinarily prudent person in a like position would exercise under
similar circumstances, and in a manner the Director reasonably believes to
be in the best interests of the Corporation, all based on the facts then
known to the Director.
In discharging his duties, a Director is entitled to rely on
information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by:
(a) One (1) or more officers or employees of the
Corporation whom the Director reasonably believes to be reliable and
competent in the matters presented;
(b) Legal counsel, public accountants or other
persons as to matters the Director reasonably believes are within such
person's professional or expert competence; or
(c) A Committee of the Board of which the Director is
not a member if the Director reasonably believes the Committee merits
confidence; but a Director is not acting in good faith if the Director has
knowledge concerning the matter in question that makes reliance otherwise
permitted by this Section 6.4 unwarranted. A Director may, in considering
the best interests of the Corporation, consider the effects of any action
on shareholders, employees, suppliers and customers of the Corporation, and
communities in which offices or other facilities of the Corporation are
located, and any other factors the Director considers pertinent.
A Director shall not be liable for any action taken as a
Director, or any failure to take any action, unless (a) the Director has
breached or failed to perform the duties of the Director's office in
compliance with this Section 6.4, and (b) the breach or failure to perform
constitutes willful misconduct or recklessness.
Section 6.5 Removal of Directors. Except as otherwise
provided herein, any or all of the members of the Board of Directors may be
removed, with or without cause, only at a meeting of the shareholders
called for that purpose, by the affirmative vote of the holders of
outstanding shares representing at least seventy-five percent (75%) of all
the votes then entitled to be cast at an election of Directors.
Section 6.6 Election of Directors by Holders of Special
Shares. The holders of one (1) or more series of Special Shares may be
entitled to elect a specified number of Directors, but only to the extent
and subject to limitations as may be set forth in the provisions of these
Restated Articles of Incorporation as adopted and as amended by the Board
of Directors pursuant to Section 5.5 hereof describing the terms of the
series of Special Shares.
ARTICLE VII
Provisions for Regulation of Business and
Conduct of Affairs of Corporation
Section 7.1 Meetings of Shareholders. Meetings of the
shareholders of the Corporation shall be held at such time and at such
place, either within or without the State of Indiana, as may be stated in
or fixed in accordance with the By-Laws of the Corporation and specified
in the respective notices or waivers of notice of any such meetings.
Section 7.2 Special Meetings of Shareholders. Special
meetings of the shareholders, for any purpose or purposes, unless otherwise
prescribed by the Corporation Law, may be called at any time by the Board
of Directors or the person or persons authorized to do so by the By-Laws
and shall be called by the Board of Directors if the Secretary of the
Corporation receives one (1) or more written, dated and signed demands for
a special meeting, describing in reasonable detail the purpose or purposes
for which it is to be held, from the holders of shares representing at
least twenty-five percent (25%) of all the votes entitled to be cast on any
issue proposed to be considered at the proposed special meeting. If the
Secretary receives one (1) or more proper written demands for a special
meeting of shareholders, the Board of Directors may set a record date for
determining shareholders entitled to make such demand.
Section 7.3 Meetings of Directors. Meetings of the Board of
Directors of the Corporation shall be held at such place, either within or
without the State of Indiana, as may be authorized by the By-Laws and
specified in the respective notices or waivers of notice of any such
meetings or otherwise specified by the Board of Directors. Unless the
By-Laws provide otherwise (a) regular meetings of the Board of Directors
may be held without notice of the date, time, place or purpose of the
meeting and (b) the notice for a special meeting need not describe the
purpose or purposes of the special meeting.
Section 7.4 Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or
shareholders, or of any committee of such Board, may be taken without a
meeting, if the action is taken by all members of the Board or all
shareholders entitled to vote on the action, or by all members of such
committee, as the case may be. The action must be evidenced by one (1) or
more written consents describing the action taken, signed by each Director,
or all the shareholders entitled to vote on the action, or by each member
of such committee, as the case may be, and, in the case of action by the
Board of Directors or a committee thereof, included in the minutes or filed
with the corporate records reflecting the action taken or, in the case of
action by the shareholders, delivered to the Corporation for inclusion in
the minutes or filing with the corporate records. Action taken under this
Section 7.4 is effective when the last director, shareholder or committee
member, as the case may be, signs the consent, unless the consent specifies
a different prior or subsequent effective date, in which case the action is
effective on or as of the specified date. Such consent shall have the same
effect as a unanimous vote of all members of the Board, or all
shareholders, or all members of the committee, as the case may be, and may
be described as such in any document.
Section 7.5 Bylaws. The Board of Directors shall have the
exclusive power to make, alter, amend or repeal, or to waive provisions of,
the Restated Bylaws of the Corporation by the affirmative vote of a
majority of the entire number of Directors at the time, except as provided
by the Corporation Law. All provisions for the regulation of the business
and management of the affairs of the Corporation not stated in these
Restated Articles of Incorporation shall be stated in the Restated Bylaws.
The Board of Directors may adopt Emergency Bylaws of the Corporation and
shall have the exclusive power (except as may otherwise be provided
therein) to make, alter, amend or repeal, or to waive provisions of, the
Emergency Bylaws by the affirmative vote of both (a) a majority of the
entire number of Directors at the time and (b) a majority of the entire
number of Directors who then qualify as Continuing Directors with respect
to all Related Persons (as such terms are defined for purposes of Article
VIII hereof).
Section 7.6 Interest of Directors.
(a) A conflict of interest transaction is a
transaction with the Corporation in which a Director of the Corporation has
a direct or indirect interest. A conflict of interest transaction is not
voidable by the Corporation solely because of the Director's interest in
the transaction if any one (1) of the following is true:
(i) The material facts of the transaction and
the Director's interest were disclosed or known to the Board of
Directors or a Committee of the Board of Directors and the Board of
Directors or Committee authorized, approved, or ratified the
transaction.
(ii) The material facts of the transaction and
the Director's interest were disclosed or known to the shareholders
entitled to vote and they authorized, approved, or ratified the
transaction.
(iii) The transaction was fair to the Corporation.
(b) For purposes of this Section 7.6, a Director of
the Corporation has an indirect interest in a transaction if:
(i) Another entity in which the Director has
material financial interest or in which the Director is a general
partner is party to the transaction; or
(ii) Another entity of which the Director is a
director, officer, or trustee in a party to the transaction and the
transaction is, or is required to be, considered by the Board of
Directors of the Corporation.
(c) For purposes of Section 7.6(a)(i), a conflict of
interest transaction is authorized, approved, or ratified if it receives
the affirmative vote of a majority of the Directors on the Board of
Directors (or on the Committee) who have no direct or indirect interest in
the transaction vote to authorize, approve or ratify the transaction, a
quorum shall be deemed present for the purpose of taking action under this
Section 7.6. The presence of, or a vote cast by, a Director with a direct
or indirect interest in the transaction does not affect the validity of any
action taken under Section 7.6(a)(i), if the transaction is otherwise
authorized, approved or ratified as provided in such subsection.
(d) Shares owned by or voted under the control of a
Director who has a direct or indirect interest in the transaction, and
shares owned by or voted under the control of an entity described in
Section 7.6(b), may be counted in a vote of shareholders to determine
whether to authorize, approve or ratify a conflict of interest transaction
under Section 7.6(a)(ii).
Section 7.7 Nonliability of Shareholders. Shareholders of
the Corporation are not personally liable for the acts or debts of the
Corporation, nor is private property of shareholders subject to the payment
of corporate debts.
Section 7.8 Indemnification of Officers, Directors and Other
Eligible Persons.
(a) Every Eligible Person, as a matter of right,
shall be indemnified by the Corporation against all Liability and
reasonable Expense that may be incurred by such Eligible Person in
connection with or resulting from any Claim,
(i) if such Eligible Person is Wholly
Successful with respect to the Claim, or
(ii) if not Wholly Successful, then if such
Eligible Person is determined, as provided in either Section 7.8(f)
or 7.8(g), with respect to the Claim, or any count, issue or matter
of the Claim, to have acted in good faith; and he reasonably
believed: (A) in the case of conduct in his official capacity with
the Corporation, that his conduct was in its best interests, and
(B) in all other cases, that his conduct was at least not opposed
to its best interests; and, in the case of any Claim of a criminal
nature, he either (A) had reasonable cause to believe his conduct
was lawful, or (B) had no reasonable cause to believe his conduct
was unlawful.
The termination of any Claim, by judgment, order, settlement
(whether with or without court approval), or conviction or upon a plea of
guilty or of nolo contendere, or its equivalent, shall not be determinative
nor create a presumption that an Eligible Person did not meet the standards
of conduct set forth in clause (ii) of this subsection (a). The actions of
an Eligible Person with respect to an employee benefit plan subject to the
Employee Retirement Income Security Act of 1974 shall be deemed to have
been taken in what the Eligible Person reasonably believed to be the best
interests of the Corporation or at least not opposed to its best interests
if the Eligible Person reasonably believed he was acting in conformity with
the requirements of such Act or he reasonably believed his actions to be in
the interests of the participants in or beneficiaries of the plan.
(b) The term "Claim" as used in this Section 7.8
shall include every pending, threatened or completed claim, action, suit or
proceeding and all appeals thereof (whether brought by or in the right of
this Corporation, any other corporation, partnership, joint venture, trust,
enterprise, organization, association, governmental agency, person or
otherwise), civil, criminal, administrative or investigative, formal or
informal, in which an Eligible Person may become or is threatened to become
involved, as a party or otherwise: (i) by reason of his being or having
been an Eligible Person or (ii) by reason of any action taken or not taken
by him in his capacity as an Eligible Person, whether or not he continued
in such capacity at the time such Liability or Expense shall have been
incurred, and further whether or not the action taken or not taken
antedated the adoption of this Section 7.8.
(c) The term "Eligible Person" as used in this
Section 7.8 shall mean every person (and the estate, heirs, executors,
administrators, and personal representatives of such person) who is or was
a Director or officer of the Corporation or a Director or officer of the
Corporation who is or was serving at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another foreign or
domestic corporation, partnership, joint venture, trust employee benefit
plan or other organization or entity, whether for profit or not. An
Eligible Person shall also be considered to have been serving an employee
benefit plan at the request of the Corporation if his duties to the
Corporation also imposed duties on, or otherwise involved services by, him
to the plan or to participants in or beneficiaries of the plan.
(d) The terms "Liability" and "Expense" as used in
this Section 7.8 shall include, but shall not be limited to, amounts of
judgments, fines or penalties against (including excise taxes assessed with
respect to an employee benefit plan), and amounts paid in settlement by or
on behalf of, an Eligible Person, attorney fees, accountant fees,
investment banker fees, and any other professional fees, disbursements,
travel, expert witness fees, and any other expense reasonably incurred in
defense of any Claim.
(e) The term "Wholly Successful" as used in this
Section 7.8 shall mean:
(i) Termination of any claim against the
Eligible Person in question without a finding of liability against
him, or guilt in a criminal Claim against him;
(ii) Approval by a court of a settlement of any
Claim, with a concurrent approval by the court of indemnification
pursuant to this Section 7.8; or
(iii) The expiration of the applicable statute
of limitations regarding the Claim.
(f) Every Eligible Person claiming indemnification
hereunder (other than one who has been Wholly Successful with respect to
any Claim) shall be entitled to indemnification if a disinterested person
or persons selected by the Board of Directors (the "Referee") shall
determine that such Eligible Person has met the standards of conduct set
forth in Section 7.8(a)(ii). In the event an Eligible Person is found to be
entitled to indemnification pursuant to the preceding sentence, the Referee
shall also determine the reasonableness of the Eligible Person's Expenses.
The Eligible Person claiming indemnification shall, if requested, appear
before the Referee, answer questions that the Referee deems relevant and
shall be given ample opportunity to present to the Referee evidence upon
which he relies for indemnification. The Corporation shall, at the request
of the Referee, make available facts, opinions or other evidence in any way
relevant to the Referee's determination that are within the possession or
control of the Corporation. The Referee shall not incur any liability as a
result of his decision.
(g) If an Eligible Person claiming indemnification
pursuant to Section 7.8(f) is found not to be entitled thereto, or if the
Board of Directors fails to select a Referee under Section 7.8(f) within a
reasonable amount of time following a written request of an Eligible Person
for the selection of a Referee, or if the Referee fails to make a
determination under Section 7.8(f) within a reasonable amount of time
following the selection of the Referee, the Eligible Person may apply for
indemnification with respect to a Claim or any count, issue or matter of a
Claim to any court of competent jurisdiction, including a court in which
the Claim is pending against the Eligible Person. On receipt of an
application, the court, after giving notice to the Corporation, may order
indemnification if it determines either that:
(i) The Eligible Person is entitled to
indemnification with respect to the Claim because such Eligible
Person met the standards of conduct set forth in Section
7.8(a)(ii); or
(ii) The Eligible Person is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the Eligible Person has met the
standard of conduct set forth in Section 7.8(a)(ii).
If the court determines that the Eligible Person is entitled to
indemnification, the court shall also determine the reasonableness of the
Eligible Person's Expenses.
(h) The rights of indemnification provided in this
Section 7.8 shall not be exclusive and shall be in addition to any rights
to which any Eligible Person may otherwise be entitled under any statute,
agreement, resolution of the Board of Directors of the Corporation or
otherwise. Irrespective of the provisions of this Section 7.8, the Board of
Directors may, at any time and from time to time:
(i) Approve indemnification of any Eligible
Person to the full extent permitted by the provisions of applicable
law at the time in effect, whether on account of past or future
transactions; and
(ii) Authorize the Corporation to purchase and
maintain insurance on behalf of any Eligible Person against any
Liability asserted against him or Liability or Expense incurred by
him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify
him against such Liability or Expense.
(i) Expenses incurred by an Eligible Person with
respect to any Claim may be advanced by the Corporation (by action of the
Board of Directors, whether or not a disinterested quorum exists) prior to
the final disposition thereof upon receipt of any undertaking by or on
behalf of the recipient to repay such amount unless he is determined to be
entitled to indemnification.
(j) In the event the Claim is the result of any
action taken, any action not taken or any alleged breach of duty or
obligation by the Board of Directors related to a proposed or actual tender
offer for shares of the Corporation; change in control of the Corporation;
merger, business combination or consolidation in which the Corporation is a
party; or the election of Directors of the Corporation, the Expense
incurred by an Eligible Person with respect to such Claim shall as a matter
of right be advanced to the Eligible Person by the Corporation prior to
final disposition of such Claim if:
(i) The Eligible Person furnishes the
Corporation a written affirmation of the Eligible Person's good
faith belief that he has met the standard of conduct described in
clause (ii) of Section 7.8(a); and
(ii) The Eligible Person furnishes the
Corporation a written undertaking, executed personally or on his
behalf, to repay the advance if it is ultimately determined that
the Eligible Person did not meet such standard of conduct.
(k) The indemnification provisions of this Section
7.8 shall be deemed to be a contract between the Corporation and each
Eligible Person.
(l) The provisions of this Section 7.8 shall be
applicable to all acts or failures to act occurring prior to the adoption
of this Section 7.8 or during the term of this Section 7.8 irrespective of
when the Claim relating to the occurrence is made or commenced.
(m) The Board of Directors shall have power on behalf
of the Corporation to grant indemnification in a manner consistent with
this Section 7.8 to any person other than an Eligible Person to such extent
as the Board of Directors may from time to time and at any time determine.
(n) If any provision of this Section 7.8 is adjudged
to be beyond the powers of the Corporation under the Indiana Business
Corporation Law, as amended, or any other applicable law, then such
identification shall nevertheless remain available, but shall be limited,
amended or construed only to the extent necessary to be within the powers
of the Corporation under the Indiana Business Corporation Law, as amended,
or any other applicable law, and such indemnification so limited, amended
or construed shall be available and provided pursuant to this Section 7.8.
ARTICLE VIII
Approval of Business Combinations
Section 8.1 Supermajority Vote. Except as provided in
Section 8.2 hereof, neither the Corporation nor its Subsidiaries, if any,
shall become a party to any Business Combination with a Related Person
without the prior affirmative vote at a meeting of the Corporation's
shareholders:
(a) Of not less than seventy-five percent (75%) of
all the votes entitled to be cast by the holders of the outstanding shares
of all classes of Voting Stock of the Corporation considered for purposes
of this Article VIII as a single class, and
(b) Of an Independent Majority of Shareholders.
Such favorable votes shall be in addition to any shareholder vote which
would be required without reference to this Section 8.1 and shall be
required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified by law or elsewhere in these
Restated Articles of Incorporation or the Restated By-Laws of the
Corporation or otherwise.
Section 8.2 Exceptions. The provisions of Section 8.1 hereof
shall not apply to a Business Combination if:
(a) The Continuing Directors of the Corporation by
not less than a seventy-five percent (75%) vote:
(i) Have expressly approved a memorandum of
understanding with the Related Person with respect to the Business
Combination prior to the time that the Related Person became a
Related Person and the Business Combination is effected on
substantially the same terms and conditions as are provided by the
memorandum of understanding; or
(ii) Have otherwise approved the Business
Combination (this provision is incapable of satisfaction unless
there is at least one Continuing Director); or
(b) The Business Combination is solely between the
Corporation and another corporation, one hundred percent (100%) of the
Voting Stock of which is owned directly or indirectly by the Corporation.
Section 8.3 Definitions. For purposes of this Article VIII:
(a) A "Business Combination" means:
(i) The sale, exchange, lease, transfer or
other disposition to or with a Related Person or any Affiliate or
Associate of such Related Person by the Corporation or any
Subsidiaries (in a single transaction or a Series of Related
Transactions) of all or substantially all, or any Substantial Part,
of its or their assets or business (including, without limitation,
securities issued by a Subsidiary, if any);
(ii) The purchase, exchange, lease or other
acquisition by the Corporation or any Subsidiaries (in a single
transaction or a Series of Related Transactions) of all or
substantially all, or any Substantial Part, of the assets or
business of a Related Person or any Affiliate or Associate of such
Related Person;
(iii) Any merger or consolidation of the
Corporation or any Subsidiary thereof into or with a Related Person
or any Affiliate or Associate of such Related Person or into or
with another Person which, after such merger or consolidation,
would be an Affiliate or an Associate of a Related Person, in each
case irrespective of which Person is the surviving entity in such
merger or consolidation;
(iv) Any reclassification of securities,
recapitalization or other transaction (other than a redemption in
accordance with the terms of the security redeemed) which has the
effect, directly or indirectly, of increasing the proportionate
amount of shares of Voting Stock of the Corporation or any
Subsidiary thereof which are Beneficially Owned by a Related
Person, or any partial or complete liquidation, spin-off or
split-up of the Corporation or any Subsidiary thereof; provided,
however, that this Section 8.3(a)(iv) shall not relate to any
transaction that has been approved by a majority of the Continuing
Directors; or
(v) The acquisition upon the issuance thereof
of Beneficial Ownership by a Related Person of shares of Voting
Stock or securities convertible into shares of Voting Stock or any
voting securities or securities convertible into voting securities
of any Subsidiary of the Corporation, or the acquisition upon the
issuance thereof of Beneficial Ownership by a Related Person of any
rights, warrants or options to acquire any of the foregoing or any
combination of the foregoing shares of Voting Stock or voting
securities of a Subsidiary, if any.
(b) A "Series of Related Transactions" shall be
deemed to include not only a series of transactions with the same Related
Person but also a series of separate transactions with a Related Person or
any Affiliate or Associate of such Related Person.
(c) A "Person" shall mean any individual, firm,
corporation or other entity and any partnership, syndicate or other group.
(d) "Related Person" shall mean any Person (other
than the Corporation or any Subsidiary of the Corporation or the Continuing
Directors, singly or as a group) who or that at any time described in the
last sentence of this first paragraph of this subsection (d):
(i) Is the Beneficial Owner, directly or
indirectly, of more than ten percent (10%) of the voting power of
the outstanding shares of Voting Stock and who has not been the
Beneficial Owner, directly or indirectly, of more than ten percent
(10%) of the voting power of the outstanding shares of Voting Stock
for a continuous period of two years prior to the date in question; or
(ii) Is an Affiliate of the Corporation and at
any time within the two-year period immediately prior to the date
in question (but not continuously during such two-year period) was
the Beneficial Owner, directly or indirectly, of ten percent (10%)
or more of the voting power of the then outstanding shares of
Voting Stock; or
(iii) Is an assignee of or has otherwise
succeeded to any shares of the Voting Stock which were at any time
within the two-year period immediately prior to the date in
question beneficially owned by any Related Person, if such
assignment or succession shall have occurred within the meaning of
the Securities Act of 1933, as amended.
A Related Person shall be deemed to have acquired a share of the
Corporation at the time when such Related Person became the Beneficial
Owner thereof. For the purposes of determining whether a Person is the
Beneficial Owner of ten percent (10%) or more of the voting power of the
then outstanding Voting Stock, the outstanding Voting Stock shall be deemed
to include any Voting Stock that may be issuable to such Person pursuant to
a right to acquire such Voting Stock and that is therefore deemed to be
Beneficially Owned by such Person pursuant to Section 8.3(e)(ii)(A). A
Person who is a Related Person at:
(i) The time any definitive agreement relating
to a Business Combination is entered into;
(ii) The record date for the determination of
shareholders entitled to notice of and to vote on a Business
Combination; or
(iii) The time immediately prior to the
consummation of a Business Combination,
shall be deemed a Related Person. A Related Person shall not include the
Board of Directors of the Corporation acting as a group. In addition, a
Related Person shall not include any Person who possesses more than ten
percent (10%) of the voting power of the outstanding shares of Voting Stock
of the Corporation at the time of filing these Restated Articles of
Incorporation.
(e) A Person shall be a "Beneficial Owner" of any
shares of Voting Stock:
(i) Which such Person or any of its Affiliates
or Associates beneficially owns, directly or indirectly; or
(ii) Which such Person or any of its Affiliates
or Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or
options, or otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) Which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
(f) An "Affiliate" of, or a person Affiliated with, a
specific Person, means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
(g) The term "Associate" used to indicate a
relationship with any Person, means:
(i) Any corporation or organization (other than
this Corporation or a majority-owned Subsidiary or this
Corporation) of which such Person is an officer or partner or is,
directly or indirectly, the Beneficial Owner of five percent (5%)
or more of any class of equity securities;
(ii) Any trust or other estate in which such
Person has a substantial beneficial interest or as to which such
Person serves as trustee or in a similar fiduciary capacity;
(iii) Any relative or spouse of such Person, or
any relative of such spouse, who has the same home as such Person;
or
(iv) Any investment company registered under
the Investment Company Act of 1940, as amended, for which such
Person or any Affiliate of such Person serves as investment
advisor.
(h) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly,
by the Corporation; provided, however, that for the purposes of the
definition of Related Person set forth in Section 8.3(d) hereof, the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(i) "Continuing Director" means any member of the
Board of Directors of the Corporation (the "Board") who is not associated
with the Related Person and was a member of the Board prior to the time
that the Related Person became a Related Person, and any successor of a
Continuing Director who is not associated with the Related Person and is
recommended to succeed a Continuing Director by not less than two-thirds of
the Continuing Directors then on the Board.
(j) "Independent Majority of Shareholders" shall mean
the holders of the outstanding shares of Voting Stock representing a
majority of all the votes entitled to be cast by all shares of Voting Stock
other than shares Beneficially Owned or controlled, directly or indirectly,
by a Related Person.
(k) "Voting Stock" shall mean all outstanding shares
of capital stock of the Corporation or another corporation entitled to vote
generally on the election of Directors, and each reference to a proportion
of shares of Voting Stock shall refer to such proportion of the votes
entitled to be cast by such shares. The Series A Preferred Stock shall not
be included as "Voting Stock" for purposes hereof but shall retain the
special voting rights contained in Article XI hereof.
(l) "Substantial Part" means properties and assets
involved in any single transaction or a Series of Related Transactions
having an aggregate fair market value of more than ten percent (10%) of the
total consolidated assets of the Person in question as determined
immediately prior to such transaction or Series of Related Transactions.
Section 8.4 Director Determinations. A majority of the
Continuing Directors shall have the power to determine for the purposes of
this Article VIII, on the basis of information known to them:
(a) The number of shares of Voting Stock of which any
Person is the Beneficial Owner;
(b) Whether a Person is an Affiliate or Associate of
another;
(c) Whether a Person has an agreement, arrangement or
understanding with another as to the matters referred to in the definition
of "Beneficial Owner";
(d) Whether the assets subject to any Business
Combination constitute a Substantial Part;
(e) Whether two or more transactions constitute a
Series of Related Transactions; and
(f) Such other matters with respect to which a
determination is required under this Article VIII.
Section 8.5 Nonmonetary Factors in Acquisition Proposals. In
connection with the exercise of its judgment in determining what is in the
best interests of the Corporation and its shareholders when evaluating a
proposal by another person or persons to acquire some material part or all
of the business or properties of the Corporation (whether by merger,
consolidation, purchase of assets, stock reclassification or
recapitalization, spin-off, liquidation or otherwise) or to acquire some
material part or all of the stock of the Corporation (whether by a tender
or exchange offer or some other means), the Board of Directors of the
Corporation shall, in addition to considering the adequacy of the
consideration to be paid in connection with any such transaction, consider
all of the following factors and any other factors that it deems relevant:
(a) The social and economic effects of the
transaction on the Corporation and its subsidiaries and their employees,
customers, creditors and communities in which the Corporation and its
subsidiaries operate or are located;
(b) The business and financial condition and earnings
prospects of the acquiring person or persons, including, but not limited
to, debt service and other existing or likely financial obligations of the
acquiring person or persons and their affiliates and associates, and the
possible effect of such conditions upon the Corporation and its
subsidiaries and the communities in which the Corporation and its
subsidiaries operate or are located; and
(c) The competence, experience, and integrity of the
acquiring person or persons and its or their management and affiliates and
associates.
Section 8.6 Amendment of Article VIII or Certain Other
Provisions. Any amendment, change or repeal of this Article VIII, or of
Sections 6.1, 6.5, 7.2, 7.5, 9.2 or 9.3, or any other amendment of these
Restated Articles of Incorporation which would have the effect of modifying
or permitting circumvention of this Article VIII or such other provisions
of these Restated Articles of Incorporation, shall require the affirmative
vote, at a meeting of shareholders of the Corporation:
(a) Of at least seventy-five percent (75%) of the
votes entitled to be cast by the holders of the outstanding shares of all
classes of Voting Stock of the Corporation considered for purposes of this
Article VIII as a single class; and
(b) Of an Independent Majority of Shareholders;
provided, however, that this Section 8.6 shall not apply to, and such vote
shall not be required for, any such amendment, change or repeal recommended
to shareholders by the favorable vote of not less than seventy-five percent
(75%) of the Directors who then qualify as Continuing Directors with
respect to all Related Persons and any such amendment, change or repeal so
recommended shall require only the vote, if any, required under the
applicable provisions of the Corporation Law.
Section 8.7 Fiduciary Obligations Unaffected. Nothing in
this Article VIII shall be construed to relieve any Related Person from any
fiduciary duty imposed by law.
Section 8.8 Article VIII Nonexclusive. The provisions of
this Article VIII are nonexclusive and are in addition to any other
provisions of law or these Restated Articles of Incorporation or the
By-Laws of the Corporation relating to Business Combinations, Related
Persons or similar matters.
ARTICLE IX
Miscellaneous Provisions
Section 9.1 Amendment or Repeal. Except as otherwise
expressly provided for in these Restated Articles of Incorporation, the
Corporation shall be deemed, for all purposes, to have reserved the right
to amend, alter, change or repeal any provision contained in these Restated
Articles of Incorporation to the extent and in the manner now or hereafter
permitted or prescribed by statute, and all rights herein conferred upon
shareholders are granted subject to such reservation.
Section 9.2 Redemption of Shares Acquired in Control Share
Acquisitions. If and whenever the provisions of IC 23-1-42 apply to the
Corporation, it is authorized to redeem its securities pursuant to IC
23-1-42-10.
Section 9.3 Election to be Subject to Five-Year Freeze
Statute. Unless the Corporation's By-Laws provide that it elects not be
governed by IC 23-1-43, the Corporation elects to have the provisions of
IC 23-1-43 apply to it regardless of whether or not it has a class of
voting securities registered with the Securities and Exchange Commission
under Section 12 of the Securities Exchange Act of 1934.
Section 9.4 Captions. The captions of the Articles and
Sections of these Restated Articles of Incorporation have been inserted for
convenience of reference only and do not in any way define, limit, construe
or describe the scope or intent of any Article or Section hereof.
ARTICLE X
Terms of ESOP Convertible Voting Preferred Stock
The designation, preferences, limitations and relative
voting and other rights of the first series of the authorized Special
Shares of the Corporation in addition to those set forth elsewhere in these
Restated Articles of Incorporation which are applicable to all series of
Special Shares are hereby fixed as follows:
Section 10.1 Designation and Amount; Special Purpose
Restricted Transfer Issue.
(a) The shares of such series shall be designated as
"ESOP Convertible Voting Preferred Stock" ("ESOP Preferred Stock") and the
number of shares constituting such series shall be 1,700,000.
(b) Shares of ESOP Preferred Stock shall be issued
only to the Bank of New York, as trustee (the "Trustee") of the Retirement
Savings Plan for Employees of Tokheim Corporation and Subsidiaries (the
"Plan"). All references to the holder of shares of ESOP Preferred Stock
shall mean the Trustee or any successor trustee under the Plan. In the
event of any transfer of record ownership of shares of ESOP Preferred Stock
to any person other than any successor trustee under the Plan, the shares
of ESOP Preferred Stock so transferred, upon such transfer and without any
further action by the Corporation or the holder thereof, shall be
automatically converted into shares of Common Shares on the terms otherwise
provided for the conversion of shares of ESOP Preferred Stock into shares
of Common Shares pursuant to Section 10.5 hereof and no such transferee
shall have any of the preferences, limitations and relative voting and
other rights, ascribed to shares of ESOP Preferred Stock hereunder but,
rather, only the powers and rights pertaining to the Common Shares into
which such shares of ESOP Preferred Stock shall be so converted. In the
event of such a conversion, the transferee of the shares of ESOP Preferred
Stock shall be treated for all purposes as the record holder of the shares
of Common Shares into which such shares of ESOP Preferred Stock have been
automatically converted as of the date of such transfer. Certificates
representing shares of ESOP Preferred Stock shall bear a legend to reflect
the foregoing provisions. Notwithstanding the foregoing provisions of this
paragraph (b) of Section 10.1, shares of ESOP Preferred Stock:
(i) May be converted into shares of Common
Shares as provided by Section 10.5 hereof and the shares of Common
Shares issued upon such conversion may be transferred by the holder
thereof as permitted by law; and
(ii) Shall be redeemable by the Corporation
upon the terms and conditions provided by Sections 10.6, 10.7 and
10.8 hereof.
Section 10.2 Dividends and Distributions.
(a) Subject to the provisions for adjustment
hereinafter set forth, the holders of shares of ESOP Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cash dividends ("Preferred
Dividends") in an amount per share equal to $1.9375 per share per annum,
and no more, payable quarterly in arrears, one-fourth on the first day of
March, June, September, and December of each year (each a "Dividend Payment
Date") commencing on September 1, 1989, to holders of record at the start
of business on such Dividend Payment Date. In the event that any Dividend
Payment shall fall on any day other than a "Business Day" (as hereinafter
defined), the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately preceding such Dividend Payment Date.
Preferred Dividends shall begin to accrue on outstanding shares of ESOP
Preferred Stock from the date of issuance of such shares of ESOP Preferred
Stock. Preferred Dividends shall accrue on a daily basis whether or not the
Corporation shall have earnings or surplus at the time, but Preferred
Dividends accrued after issuance on the shares of ESOP Preferred Stock for
any period less than a full quarterly period between Dividend Payment Dates
shall be computed on the basis of a 360-day year of 12 30-day months.
Accrued but unpaid Preferred Dividends shall cumulate as of the Dividend
Payment Date on which they first become payable, but not interest shall
accrue on accumulated but unpaid Preferred Dividends.
(b) So long as any shares of ESOP Preferred Stock
shall be outstanding, no dividend shall be declared or paid or set apart
for payment on any other series of stock ranking on a parity with the ESOP
Preferred Stock as to dividends, unless there shall also be or have been
declared and paid or set apart for payment on the ESOP Preferred Stock,
dividends for all dividend payment periods of the ESOP Preferred Stock
ending on or before the Dividend Payment Date of such parity stock, ratably
in proportion to the respective amounts of dividends accumulated and unpaid
through such dividend period on the ESOP Preferred Stock and accumulated
and unpaid on such parity stock through the dividend payment period on such
parity stock next preceding such Dividend Payment Date. In the event that
full cumulative dividends on the ESOP Preferred Stock have been declared
and paid or set apart for payment when due, the Corporation shall not
declare or pay or set apart for payment any dividends or make any other
distributions on, or make any payment on account of the purchase,
redemption or other retirement of any other class of stock or series
thereof of the Corporation ranking, as to dividends or as to distributions
in the event of a liquidation, dissolution or windup of the Corporation,
junior to the ESOP Preferred Stock until full cumulative dividends on the
ESOP Preferred Stock shall have been paid or declared and set apart for
payment; provided, however, that the foregoing shall not apply to (i) any
dividend payable solely in any shares of any stock ranking, as to dividends
and as to distributions in the event of a liquidation, dissolution or
windup of the Corporation, junior to the ESOP Preferred Stock or (ii) the
acquisition of shares of any stock ranking, as to dividends or as to
distributions in the event of a liquidation, dissolution or windup of the
Corporation, junior to the ESOP Preferred Stock in exchange solely for
shares of any other stock ranking, as to dividends and as to distributions
in the event of a liquidation, dissolution or windup of the Corporation,
junior to the ESOP Preferred Stock.
Section 10.3 Voting Rights. The holders of shares of ESOP
Preferred Stock shall have the following voting rights:
(a) The holders of ESOP Preferred Stock shall be
entitled to vote on all matters submitted to a vote of the shareholders of
the Corporation, voting together with the holders of Common Shares as one
class. The holder of each share of ESOP Preferred Stock shall be entitled
to a number of votes equal to the number of shares of Common Shares into
which such share of ESOP Preferred Stock could be converted on the record
date for determining the shareholders entitled to vote, rounded to the
nearest one-one-hundredth (1/100) of a vote; it being understood that
whenever the "Conversion Price" (as defined in Section 10.5 hereof) is
adjusted as provided in Section 10.9 hereof, the voting rights of the ESOP
Preferred Stock shall also be similarly adjusted.
(b) Except as otherwise required by law or set forth
herein, holders of ESOP Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Shares as set forth herein) for the
taking of any corporate action; provided, however, that the vote of at
least 66-2/3% of the outstanding shares of ESOP Preferred Stock, voting
separately as a series, shall be necessary to adopt any alteration,
amendment or repeal of any provision of these Restated Articles of
Incorporation of the Corporation, as amended (including any such
alteration, amendment or repeal effected by any merger or consolidation in
which the Corporation is the surviving or resulting corporation), if such
amendment, alteration or repeal would alter or change the preferences,
limitations, or relative voting or other rights of the shares of ESOP
Preferred Stock so as to affect them adversely.
Section 10.4 Liquidation, Dissolution or Windup.
(a) Upon any voluntary or involuntary liquidation,
dissolution or windup of the Corporation, the holders of ESOP Preferred
Stock shall be entitled to receive out of assets of the Corporation which
remain after satisfaction in full of all valid claims of creditors of the
Corporation and which are available for payment to shareholders, and
subject to the rights of the holders of any stock of the Corporation
ranking senior to or on a parity with the ESOP Preferred Stock in respect
of distributions upon liquidation, dissolution or windup of the
Corporation, before any amount shall be paid or distributed among the
holders of Common Shares or any other shares ranking junior to the ESOP
Preferred Stock in respect of distributions upon liquidation, dissolution
or windup of the Corporation, liquidating distributions in the amount of
$25.00 per share, plus an amount equal to all accrued and unpaid dividends
thereon to the date fixed for distribution, and no more. If upon any
liquidation, dissolution or windup of the Corporation, the amounts payable
with respect to the ESOP Preferred Stock and any other stock ranking as to
any such distribution on a parity with the ESOP Preferred Stock are not
paid in full, the holders of the ESOP Preferred Stock and such other stock
shall share ratably in any distribution of assets in proportion to the full
respective preferential amounts to which they are entitled. After payment
of the full amount to which they are entitled as provided by the foregoing
provisions of this paragraph 10.4(a), the holders of shares of ESOP
Preferred Stock shall not be entitled to any further right or claim to any
of the remaining assets of the Corporation.
(b) Neither the merger or consolidation of the
Corporation with or into any other corporation, nor the merger or
consolidation of any other corporation with or into the Corporation, nor
the sale, lease, exchange or other transfer of all or any portion of the
assets of the Corporation, shall be deemed to be a dissolution, liquidation
or windup of the affairs of the Corporation for purposes of this Section
10.4, but the holders of the ESOP Preferred Stock shall nevertheless be
entitled in the event of any such merger or consolidation to the rights
provided by Section 10.8 hereof.
(c) Written notice of any voluntary or involuntary
liquidation, dissolution or windup of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts
distributable to holders of ESOP Preferred Stock in such circumstances
shall be payable, shall be given by first-class mail, postage prepaid,
mailed not less than twenty (20) days prior to any payment date stated
therein, to the holders of ESOP Preferred Stock, at the address shown on
the books of the Corporation or any transfer agent for the ESOP Preferred
Stock.
Section 10.5 Conversion into Common Shares.
(a) A holder of shares of ESOP Preferred Stock shall
be entitled, at any time prior to the close of business on the date fixed
for redemption of such shares pursuant to Sections 10.6, 10.7 and 10.8
hereof, to cause any or all of such shares to be converted into shares of
Common Shares, initially at a conversion rate equal to the ratio of $25.00
to the amount which initially shall be $577.79 and which shall be adjusted
as hereinafter provided (and, as so adjusted, is hereinafter sometimes
referred to as the "Conversion Price") (that is, a conversion rate
initially equivalent to 0.04327 shares of Common Shares for each share of
ESOP Preferred Stock so converted, which is subject to adjustment as the
Conversion Price is adjusted as hereinafter provided).
(b) Any holder of shares of ESOP Preferred Stock
desiring to convert such shares into shares of Common Shares shall
surrender the certificate or certificates representing the shares of ESOP
Preferred Stock being converted, duly assigned or endorsed for transfer to
the Corporation (or accompanied by duly executed stock powers relating
thereto), at the principal executive office of the Corporation or the
offices of the transfer agent for the ESOP Preferred Stock or such office
or offices in the continental United States of an agent for conversion as
may from time to time be designated by notice to the holders of the ESOP
Preferred Stock by the Corporation or the transfer agent for the ESOP
Preferred Stock, accompanied by written notice of conversion. Such notice
of conversion shall specify (i) the number of shares of ESOP Preferred
Stock to be converted and the name or names in which such holder wishes the
certificate or certificates for Common Shares and for any shares of ESOP
Preferred Stock not to be so converted to be issued and (ii) the address to
which such holder wishes delivery to be made of such new certificates to be
issued upon such conversion.
(c) Upon surrender of a certificate representing a
share or shares of ESOP Preferred Stock for conversion, the Corporation
shall issue and send by hand delivery (with receipt to be acknowledged) or
by first class mail, postage prepaid, to the holder thereof or to such
holder's designee, at the address designated by such holder, a certificate
or certificates for the number of shares of Common Shares to which such
holder shall be entitled upon conversion. In the event that there shall
have been surrendered a certificate or certificates representing shares of
ESOP Preferred Stock, only part of which are to be converted, the
Corporation shall issue and deliver to such holder or such holder's
designee a new certificate or certificates representing the number of
shares of ESOP Preferred Stock which shall not have been converted.
(d) The issuance by the Corporation of shares of
Common Shares upon a conversion of shares of ESOP Preferred Stock into
shares of Common Shares made at the option of the holder thereof shall be
effective as of the earlier of (i) the delivery to such holder or such
holder's designee of the certificates representing the shares of Common
Shares issued upon conversion thereof or (ii) the commencement of business
on the second business day after the surrender of the certificate or
certificates for the shares of ESOP Preferred Stock to be converted, duly
assigned or endorsed for transfer to the Corporation (or accompanied by
duly executed stock powers relating thereto) as provided herein. On and
after the effective day of conversion, the person or persons entitled to
receive the Common Shares issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such shares of Common
Shares, but no allowance or adjustment shall be made in respect of
dividends payable to holders of Common Shares in respect of any period
prior to such effective date. The Corporation shall not be obligated to pay
any dividends which shall have been declared and shall be payable to
holders of shares of ESOP Preferred Stock on a Dividend Payment Date if
such Dividend Payment Date for such dividend is subsequent to the effective
date of conversion of such shares.
(e) The Corporation shall at all times reserve and
keep available out of its authorized and unissued Common Shares, solely for
issuance upon the conversion of shares of ESOP Preferred Stock as herein
provided, free from any preemptive rights, such number of shares of Common
Shares as shall from time to time be issuable upon the conversion of all
the shares of ESOP Preferred Stock then outstanding. Nothing contained
herein shall preclude the Corporation from issuing shares of Common Shares
held in its treasury upon the conversion of shares of ESOP Preferred Stock
into Common Shares pursuant to the terms hereof. The Corporation shall
prepare and shall use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be
required by law, and shall comply with all requirements as to registration
or qualification of the Common Shares, in order to enable the Corporation
lawfully to issue and deliver to each holder of records of ESOP Preferred
Stock such number of shares of its Common Shares as shall from time to time
be sufficient to effect the conversion of all shares of ESOP Preferred
Stock then outstanding and convertible into shares of Common Shares.
Section 10.6 Redemption at the Option of the Corporation.
(a) The ESOP Preferred Stock shall be redeemable, in
whole or in part, at the option of the Corporation at any time at $25.00
per share, plus, in each case, an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption. Payment of the
redemption price shall be made by the Corporation in cash or shares of
Common Shares, or a combination thereof, as permitted by paragraph (e) of
this Section 10.6. From and after the date fixed for redemption, dividends
on shares of ESOP Preferred Stock called for redemption will cease to
accrue, such shares will no longer be deemed to be outstanding and all
rights in respect of such shares of the Corporation shall cease, except the
right to receive the redemption price. If less than all of the outstanding
shares of ESOP Preferred Stock are to be redeemed, the Corporation shall
either redeem a portion of the shares of each holder determined pro rata
based on the number of shares held by each holder or shall select the
shares to be redeemed by lot, as may be determined by the Board of
Directors of the Corporation.
(b) Unless otherwise required by law, notice of
redemption will be sent to the holders of ESOP Preferred Stock at the
address shown on the books of the Corporation or any transfer agent for the
ESOP Preferred Stock by first class mail, postage prepaid, mailed not less
than twenty (20) days nor more than sixty (60) days prior to the redemption
date. Each such notice shall state: (i) the redemption date; (ii) the total
number of shares of the ESOP Preferred Stock to be redeemed and, if fewer
than all the shares held by such holder are to be redeemed, the number of
such shares to be redeemed from such holder; (iii) the redemption price;
(iv) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and
(vi) the conversion rights of the shares to be redeemed, the period within
which conversion rights may be exercised, and the Conversion Price and
number of shares of Common Shares issuable upon conversion of a share of
ESOP Preferred Stock at the time. Upon surrender of the certificate for any
shares so called for redemption and not previously converted (properly
endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the date fixed for redemption and
at the redemption price set forth in this Section 10.6.
(c) In the event of a change in the federal tax law
of the United States of America which has the effect of precluding the
Corporation from claiming any of the tax deductions for dividends paid on
the ESOP Preferred Stock when such dividends are used as provided under
Section 404(k)(2) of the Internal Revenue Code of 1986, as amended and in
effect on the date shares of ESOP Preferred Stock are initially issued, the
Corporation may, in its sole discretion and notwithstanding anything to the
contrary in paragraph (a) of this Section 10.6, elect to redeem any or all
of such shares for the amount payable in respect of the shares upon
liquidation of the Corporation pursuant to Section 10.4 hereof.
(d) In the event that the Plan is terminated in
accordance with its terms, and notwithstanding anything to the contrary in
paragraph (a) of this Section 10.6, the Corporation shall, as soon
thereafter as practicable, call for redemption all then outstanding shares
of ESOP Preferred Stock for the amount payable in respect of the shares
upon liquidation of the Corporation pursuant to Section 10.4 hereof.
(e) The Corporation, at its option, may make payment
of the redemption price required upon redemption of shares of ESOP
Preferred Stock in cash or in shares of Common Shares, or in a combination
of such shares and cash, any such shares of Common Shares to be valued for
such purposes at their Fair Market Value (as defined in paragraph (f) of
Section 10.9 hereof).
Section 10.7 Other Redemption Rights. Shares of ESOP
Preferred Stock shall be redeemed by the Corporation except to the extent
prohibited by law for shares of Common Shares, or if the Corporation so
elects, in cash, or a combination of such shares and cash, any such shares
of Common Shares to be valued for such purpose as provided by paragraph (e)
of Section 10.6, at a redemption price of $25.00 per share plus accrued and
unpaid dividends thereon to the date fixed for redemption, at the option of
the holder, at any time and from time to time upon notice to the
Corporation given not less than five (5) business days prior to the date
fixed by the holder in such notice for such redemption, upon certification
by such holder to the Corporation that redemption is necessary for such
holder to provide for distributions required to be made to participants
under, or to satisfy an investment election provided to participants in
accordance with, the Plan, or any successor plan.
Section 10.8 Consolidation, Merger, etc.
(a) In the event that the Corporation shall
consummate any consolidation or merger or similar business combination,
pursuant to which the outstanding shares of Common Shares are by operation
of law exchanged solely for or changed, reclassified or converted solely
into stock of any successor or resulting corporation (including the
Corporation) that constitutes "qualifying employer securities" with respect
to a holder of ESOP Preferred Stock within the meaning of Section
4975(e)(8) of the Internal Revenue Code of 1986, as amended, and Section
407(d)(5) of the Employee Retirement Income Security Act of 1974, as
amended, or any successor provisions of law, and, if applicable, for a cash
payment in lieu of fractional shares, if any, the shares of ESOP Preferred
Stock of such holder shall, in connection with such consolidation, merger
or similar business combination, be assumed by and shall become preferred
stock of such successor or resulting corporation, having in respect of such
corporation, insofar as possible, the same powers, preferences and
relative, participating, optional or other special rights (including the
redemption rights provided by Sections 10.6, 10.7 and 10.8 hereof), and the
qualifications, limitations or restrictions thereon, that the ESOP
Preferred Stock had immediately prior to such transaction, except that
after such transaction each share of the ESOP Preferred Stock shall be
convertible, otherwise on the terms and conditions provided by Section 10.5
hereof, into the number and kind of qualifying employer securities so
receivable by a holder of the number of shares of Common Shares into which
such shares of ESOP Preferred Stock could have been converted immediately
prior to such transaction; provided, however, that if by virtue of the
structure of such transaction, a holder of Common Shares is required to
make an election with respect to the nature and kind of consideration to be
received in such transaction, which election cannot practicably be made by
the holders of the ESOP Preferred Stock, then the shares of ESOP Preferred
Stock shall, by virtue of such transaction and on the same terms as apply
to the holders of Common Shares, be converted into or exchanged for the
aggregate amount of stock, securities, cash or other property (payable in
kind) receivable by a holder of the number of shares of Common Shares into
which such shares of ESOP Preferred Stock could have converted immediately
prior to such transaction if such holder of Common Shares failed to
exercise any rights of election to receive any kind or amount of stock,
securities, cash or other property (other than such qualifying employer
securities and a cash payment, if applicable, in lieu of fractional shares)
receivable upon such transaction (provided that, if the kind or amount of
qualifying employer securities receivable upon such transaction is not the
same for each nonelecting share, then the kind and amount so receivable
upon such transaction for each nonelecting share shall be the kind and
amount so receivable per share by the plurality of the nonelecting shares).
The rights of the ESOP Preferred Stock as preferred stock of such successor
or resulting corporation shall successively be subject to adjustment
pursuant to Section 10.9 hereof after any such transaction as nearly
equivalent as practicable to the adjustment provided for by such Section
prior to such transaction. The Corporation shall not consummate any such
merger, consolidation or similar transaction unless all then outstanding
shares of ESOP Preferred Stock be assumed and authorized by the successor
or resulting corporation as aforesaid.
(b) In the event that the Corporation shall
consummate any consolidation or merger or similar business combination,
pursuant to which the outstanding shares of Common Shares are by operation
of law exchanged for or changed, reclassified or converted into other stock
or securities or cash or any other property, or any combination thereof,
other than any such consideration which is constituted solely of qualifying
employer securities (as referred to in paragraph (a) of this Section 10.8)
and cash payments, if applicable, in lieu of fractional shares, outstanding
shares of ESOP Preferred Stock shall, without any action on the part of the
Corporation or any holder thereof (but subject to paragraph (c) of this
Section 10.8), be automatically converted by virtue of such merger,
consolidation or similar transaction immediately prior to such consummation
into the number of shares of Common Shares into which such shares of ESOP
Preferred Stock could have been converted at such time so that each share
of ESOP Preferred Stock shall, by virtue of such transaction and on the
same terms as apply to the holders of Common Shares, be converted into or
exchanged for the aggregate amount of stock, securities, cash or other
property (payable in like kind) receivable by a holder of the number of
shares of Common Shares into which such shares of ESOP Preferred Stock
could have been converted immediately prior to such transaction; provided,
however, that if by virtue of the structure of such transaction, a holder
of Common Shares is required to make an election with respect to the nature
and kind of consideration to be received in such transaction, which
election cannot practicably be made by the holders of the ESOP Preferred
Stock, then the shares of ESOP Preferred Stock, by virtue of such
transaction and on the same terms as apply to the holders of Common Shares,
be converted into or exchanged for the aggregate amount of stock,
securities, cash or other property (payable in kind) receivable by a holder
of the number of shares of Common Shares into which such shares of ESOP
Preferred Stock could have been converted immediately prior to such
transaction if such holder of Common Shares failed to exercise any rights
of election as to the kind or amount of stock, securities, cash or other
property receivable upon such transaction (provided that, if the kind or
amount of stock, securities, cash or other property receivable upon such
transaction is not the same for each nonelection share, then the kind and
amount of stock, securities, cash or other property receivable upon such
transaction for each nonelecting share shall be the kind and amount so
receivable per share by a plurality of the nonelecting shares).
(c) In the event the Corporation shall enter into any
agreement providing for any consolidation or merger or similar business
combination described in paragraph (b) of this Section 10.8, then the
Corporation shall as soon as practicable thereafter (and in any event at
least ten (10) Business Days before consummation of such transaction) give
notice of such agreement and the material terms thereof to each holder of
ESOP Preferred Stock and each such holder shall have the right to elect, by
written notice to the Corporation, to receive, upon consummation of such
transaction (if and when such transaction is consummated), from the
Corporation or the successor of the Corporation, in redemption and
retirement of such ESOP Preferred Stock, a cash payment equal to the amount
payable in respect of shares of ESOP Preferred Stock upon liquidation of
the Corporation pursuant to Section 10.4 hereof. No such notice of
redemption shall be effective unless given to the Corporation prior to the
close of business on the fifth business day prior to consummation of such
transaction, unless the Corporation or the successor of the Corporation
shall waive such prior notice, but any notice of redemption so given prior
to such time may be withdrawn by notice of withdrawal given to the
Corporation prior to the close of business on the fifth Business Day prior
to consummation of such transaction.
Section 10.9 Anti-dilution Adjustments.
(a) In the event the Corporation shall, at any time
or from time to time while any of the shares of the ESOP Preferred Stock
are outstanding, (i) pay a dividend or make a distribution in respect of
the Common Shares in shares of Common Shares, (ii) subdivide the
outstanding shares of Common Shares, or (iii) combine the outstanding
shares of Common Shares into a smaller number of shares, in each case
whether by reclassification of shares, recapitalization of the Corporation
(including a recapitalization effected by a merger or consolidation to
which Section 10.8 hereof does not apply) or otherwise, the Conversion
Price in effect immediately prior to such action shall be adjusted by
multiplying such Conversion Price by a fraction, the numerator of which is
the number of shares of Common Shares outstanding immediately before such
event, and the denominator of which is the number of shares of Common
Shares outstanding immediately after such event. An adjustment made
pursuant to this paragraph 10.9(a) shall be given effect, upon payment of
such a dividend or distribution, as of the record date for the
determination of stockholders entitled to receive such dividend or
distribution (on a retroactive basis and in the case of a subdivision or
combination shall become effective immediately as of the effective date
thereof.
(b) In the event the Corporation shall, at any time
or from time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue to holders of shares of Common Shares as a dividend or
distribution, including by way of a reclassification of shares on a
recapitalization of the Corporation, any right or warrant to purchase
shares of Common Shares (but not including as such a right or warrant any
security convertible into or exchangeable for shares of Common Shares) at a
purchase price per share less than the Fair Market Value (as hereinafter
defined) of a share of Common Shares on the date of issuance of such right
or warrant, then, subject to the provisions of paragraphs (d) and (e) of
this Section 10.9, the Conversion Price shall be adjusted by multiplying
such Conversion Price by a fraction, the numerator of which shall be the
number of shares of Common Shares outstanding immediately before such
issuance of rights or warrants plus the number of shares of Common Shares
which could be purchased at the Fair Market Value of a share of Common
Shares at the time of such issuance for the maximum aggregate consideration
payable upon exercise in full of all such rights or warrants, and the
denominator of which shall be the number of shares of Common Shares
outstanding immediately before such issuance of rights or warrants plus the
maximum number of shares of Common Shares that could be acquired upon
exercise in full of all such rights and warrants.
(c) In the event the Corporation shall, at any time
or from time to time while any of the shares of ESOP Preferred Stock are
outstanding, make an Extraordinary Distribution (as hereinafter defined) in
respect of the Common Shares, whether by dividend, distribution,
reclassification of shares or recapitalization of the Corporation
(including a recapitalization or reclassification effected by a merger or
consolidation to which Section 10.8 hereof does not apply) or effect a Pro
Rata Repurchase (as hereinafter defined) of Common Shares, the Conversion
Price in effect immediately prior to such Extraordinary Distribution or Pro
Rata Repurchase shall, subject to paragraphs (d) and (e) of this Section
10.9, be adjusted by multiplying such Conversion Price by the fraction the
numerator of which is (i) the product of (x) the number of shares of Common
Shares outstanding immediately before such Extraordinary Distribution or
Pro Rata Repurchase multiplied by (y) the Fair Market Value of a share of
Common Shares on the day before the ex-dividend date with respect to an
Extraordinary Distribution which is paid in cash and on the distribution
date with respect to an Extraordinary Distribution which is paid other than
in cash, or on the applicable expiration date (including all extensions
thereof) of any tender offer which is a Pro Rata Repurchase, or on the date
of purchase with respect to any Pro Rata Repurchase which is not a tender
offer, as the case may be, minus (ii) the Fair Market Value of the
Extraordinary Distribution or the aggregate purchase price of the Pro Rata
Repurchase, as the case may be, and the denominator of which shall be the
product of (a) the number of shares of Common Shares outstanding
immediately before such Extraordinary Dividend or Pro Rata Repurchase
minus, in the case of a Pro Rata Repurchase, the number of shares of Common
Shares repurchased by the Corporation multiplied by (b) the Fair Market
Value of a share of Common Shares on the day before the ex-dividend date
with respect to an Extraordinary Distribution which is paid in cash and on
the distribution date with respect to an Extraordinary Distribution which
is paid other than in cash, or on the applicable expiration date (including
all extensions thereof) of any tender offer which is a Pro Rata Repurchase
or on the date of purchase with respect to any Pro Rata Repurchase which is
not a tender offer, as the case may be. The Corporation shall send each
holder of ESOP Preferred Stock (i) notice of its intent to make any
dividend or distribution and (ii) notice of any offer by the Corporation to
make a Pro Rata Repurchase, in each case at the same time as, or as soon as
practicable after, such offer is first communicated (including by
announcement of a record date in accordance with the rules of any stock
exchange on which the Common Shares is listed or admitted to trading) to
holders of Common Shares. Such notice shall indicate the intended record
date and the amount and nature of such dividend or distribution, or the
number of shares subject to such offer for a Pro Rata Repurchase and the
purchase price payable by the Corporation pursuant to such offer, as well
as the Conversion Price and the number of shares of Common Shares into
which a share of ESOP Preferred Stock may be converted at such time.
(d) Notwithstanding any other provisions of this
Section 10.9, the Corporation shall not be required to make any adjustment
to the Conversion Price unless such adjustment would require an increase or
decrease of at least one percent (1%) in the Conversion Price. Any lesser
adjustment shall be carried forward and shall be made no later than the
time of, and together with, the next subsequent adjustment which, together
with any adjustment or adjustments so carried forward, shall amount to an
increase or decrease of at least one percent (1%) in the Conversion Price.
(e) If the Corporation shall make any dividend or
distribution on the Common Shares or issue any Common Shares, other capital
stock or other security of the Corporation or any rights or warrants to
purchase or acquire any such security, which transaction does not result in
an adjustment to the Conversion Price pursuant to the foregoing provisions
of this Section 10.9, the Board of Directors of the Corporation shall
consider whether such action is of such a nature that an adjustment to the
Conversion Price should equitably be made in respect of such transaction.
If in such case the Board of Directors of the Corporation determines that
an adjustment to the Conversion Price should be made, an adjustment shall
be made effective as of such date, as determined by the Board of Directors
of the Corporation. The determination of the Board of Directors of the
Corporation as to whether an adjustment to the Conversion Price should be
made pursuant to the foregoing provisions of this paragraph 10.9(e) and, if
so, as to what adjustment should be made and when, shall be final and
binding on the Corporation and all shareholders of the Corporation. The
Corporation shall be entitled to make such additional adjustments in the
Conversion Price, in addition to those required by the foregoing provisions
of this Section 10.9, as shall be necessary in order that any dividend or
distribution in shares of capital stock of the Corporation, subdivision,
reclassification or combination of shares of stock of the Corporation or
any recapitalization of the Corporation shall not be taxable to the holders
of the Common Shares.
(f) As used herein, the following definitions shall
apply:
"Business Day" shall mean each day that is not a Saturday,
Sunday or a day on which state or federally chartered banking institutions
in New York, New York are not required to be open.
"Current Market Price" of publicly traded shares of Common
Shares or any other class of Capital Stock or other security of the
Corporation or any other issuer for any day shall mean the last reported
sales price, regular way, or, in the event that no sale takes place on such
day, the average of the reported closing bid and asked prices, regular way,
in either case as reported on the New York Stock Exchange Composite Tape
or, if such security is not listed or admitted to trading on the New York
Stock Exchange, on the principal national securities exchange on which such
security is listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange, on the NASDAQ National Market
System or, if such security is not quoted on such National Market System,
the average of the closing bid and asked prices on each such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices
for such security on each such day shall not have been reported through
NASDAQ, the average of the bid and asked prices for such day as furnished
by any New York Stock Exchange member firm regularly making a market in
such security selected for such purpose by the Board of Directors of the
Corporation or a committee thereof, in each case, on each trading day
during the Adjustment Period. "Adjustment Period" shall mean the period of
five (5) consecutive trading days preceding, and including, the date as of
which the Fair Market Value of a security is to be determined. The "Fair
Market Value" of any security which is not publicly traded or of any other
property shall mean the fair value thereof as determined by an independent
investment banking or appraisal firm experienced in the valuation of such
securities or property selected in good faith by the Board of Directors of
the Corporation or a committee thereof, or, if no such investment banking
or appraisal firm is in good faith judgment of the Board of Directors or
such committee available to make such determination, as determined in good
faith by the Board of Directors of the Corporation or such committee.
"Extraordinary Distribution" shall mean any dividend or
other distribution to holders of Common Shares (effected while any of the
shares of ESOP Preferred Stock are outstanding) (i) of cash, where the
aggregate amount of such cash dividend or distribution, together with the
amount of all cash dividends and distributions made during the preceding
period of 12 months, when combined with the aggregate amount of all Pro
Rata Repurchases (for this purpose, including only that portion of the
aggregate purchase price of such Pro Rata Repurchase which is in excess of
the Fair Market Value of the Common Shares repurchased as determined on the
applicable expiration date (including all extensions thereof) of any tender
offer or exchange offer which is a Pro Rata Repurchase, or the date of
purchase with respect to any other Pro Rata Repurchase which is not a
tender offer or exchange offer made during such period), exceeds fifteen
percent (15%) of the aggregate Fair Market Value of all shares of Common
Shares outstanding on the day before the ex-dividend date with respect to
such Extraordinary Distribution which is paid in cash and on the
distribution date with respect to an Extraordinary Distribution which is
paid other than in cash, and/or (ii) of any shares of capital stock of the
Corporation (other than shares of Common Shares), other securities of the
Corporation (other than securities of the type referred to in paragraph (b)
or (c) of this Section 10.9), evidences of indebtedness of the Corporation
or any other person or any other property (including shares of any
subsidiary of the Corporation) or any combination thereof. The Fair Market
Value of an Extraordinary Distribution for purposes of paragraph (d) of
this Section 10.9 shall be equal to the sum of the Fair Market Value of
such Extraordinary Distribution plus the amount of any cash dividends which
are not Extraordinary Distributions made during such 12-month period and
not previously included in the calculation of an adjustment pursuant to
paragraph (d) of this Section 10.9.
"Fair Market Value" shall mean, as to shares of Common
Shares or any other class of capital stock or securities of the Corporation
or any other issuer which are publicly traded, the average of the Current
Market Prices of such shares or securities for each day of the Adjustment
Period.
"Non-Dilutive Amount" in respect of an issuance, sale or
exchange by the Corporation of any right or warrant to purchase or acquire
shares of Common Shares (including any security convertible into or
exchangeable for shares of Common Shares) shall mean the remainder of:
(i) The product of the Fair Market Value of a
share of Common Shares on the day preceding the first public
announcement of such issuance, sale or exchange multiplied by the
maximum number of shares of Common Shares which could be acquired
on such date upon the exercise in full of such rights and warrants
(including upon the conversion or exchange of all such convertible
or exchangeable securities), whether or not exercisable (or
convertible or exchangeable) at such date, minus
(ii) The aggregate amount payable pursuant to
such right or warrant to purchase or acquire such maximum number of
shares of Common Shares;
provided, however, that in no event shall the Non-Dilutive Amount be less
than zero. For purposes of the foregoing sentence, in the case of a
security convertible into or exchangeable for shares of Common Shares, the
amount payable pursuant to a right or warrant to purchase or acquire shares
of Common Shares shall be the Fair Market Value of such security on the
date of the issuance, sale or exchange of such security by the Corporation.
"Pro Rata Repurchase" shall mean any purchase of shares of
Common Shares by the Corporation or any subsidiary thereof, whether for
cash, shares of capital stock of the Corporation, other securities of the
Corporation, evidences of indebtedness of the Corporation or any other
person or any other property (including shares of a subsidiary of the
Corporation), or any combination thereof, effected while any of the shares
of ESOP Preferred Stock are outstanding, pursuant to any tender offer or
exchange offer subject to Section 13(e) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any successor provision of law,
or pursuant to any other offer available to substantially all holders of
Common Shares; provided, however, that no purchase of shares by the
Corporation, or any subsidiary thereof made in open market transactions
shall be deemed a Pro Rata Repurchase. For purposes of this paragraph
10.9(f), shares shall be deemed to have been purchased by the Corporation
or any subsidiary thereof "in open market transactions" if they have been
purchased substantially in accordance with the requirements of Rule 10b-18
as in effect under the Exchange Act, on the date shares of ESOP Preferred
Stock are initially issued by the Corporation or on such other terms and
conditions as the Board of Directors of the Corporation or a committee
thereof shall have determined are reasonably designed to prevent such
purchases from having a material effect on the trading market for the
Common Shares.
(g) Whenever an adjustment to the Conversion Price
and the related voting rights of the ESOP Preferred Stock is required
hereunder, the Corporation shall forthwith place on file with the transfer
agent for the Common Shares and the ESOP Preferred Stock, and with the
Secretary of the Corporation, a statement signed by two officers of the
Corporation stating the adjusted Conversion Price determined as provided
herein and the resulting conversion ratio, and the voting rights (as
appropriately adjusted), of the ESOP Preferred Stock. Such statement shall
set forth in reasonable detail such facts as shall be necessary to show the
reason and the manner of computing such adjustment, including any
determination of Fair Market Value involved in such computation. Promptly
after each adjustment to the Conversion Price and the related voting rights
of the ESOP Preferred Stock, the Corporation shall mail a notice thereof
and of the then prevailing conversion ratio to each holder of shares of the
ESOP Preferred Stock.
Section 10.10 Ranking; Retirement of Shares.
(a) The ESOP Preferred Stock shall rank senior to the
Common Shares as to the payment of dividends and the distribution of assets
on liquidation, dissolution and windup of the Corporation, and, unless
otherwise provided in these Restated Articles of Incorporation of the
Corporation, as the same may be amended, relating to a subsequent series of
Preferred Stock of the Corporation, the ESOP Preferred Stock shall rank
junior to the Series A Preferred Stock (as defined in Article XI) and all
subsequent series of the Corporation's Preferred Stock as to the payment of
dividends and the distribution of assets on liquidation, dissolution or
windup.
(b) Any shares of ESOP Preferred Stock acquired by
the Corporation by reason of the conversion or redemption of such shares as
provided herein, or otherwise so acquired, shall be retired as shares of
ESOP Preferred Stock and restored to the status of authorized but unissued
shares of Special Shares of the Corporation, undesignated as to series, and
may thereafter be reissued as part of a new series of such Special Shares
as permitted by law.
Section 10.11 Miscellaneous.
(a) All notices referred to herein shall be in
writing, and all notices hereunder shall be deemed to have been given upon
the earlier of receipt thereof or three (3) business days after the mailing
thereof if sent by registered mail (unless first-class mail shall be
specifically herein permitted for such notice) with postage prepaid,
addressed: (i) if to the Corporation, to its office at 10501 Corporate
Drive, Fort Wayne, Indiana 46845 (Attention: Secretary), or to the transfer
agent for the ESOP Preferred Stock, or other agent of the Corporation
designated as permitted herein or (ii) if to any holder of the ESOP
Preferred Stock or Common Shares, as the case may be, to such holder at the
address of such holder as listed in the stock record books of the
Corporation (which may include the records of any transfer agent for the
ESOP Preferred Stock or Common Shares, as the case may be) or (iii) to such
other address as the Corporation or any such holder, as the case may be,
shall have designated by notice similarly given.
(b) The term "Common Shares" as used in this Article
means the Corporation's Common Shares, as the same exists at the date of
filing these Restated Articles of Incorporation relating to the ESOP
Preferred Stock. In the event that, at any time as a result of an
adjustment made pursuant to Section 10.9, the holder of any shares of the
ESOP Preferred Stock upon thereafter surrendering such shares for
conversion, shall become entitled to receive any shares or other securities
of the Corporation other than shares of Common Shares, the Conversion Price
in respect of such other shares or securities so receivable upon conversion
of shares of ESOP Preferred Stock shall thereafter be adjusted, and shall
be subject to further adjustment from time to time, in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
Common Shares contained in Section 10.9 hereof, and the provisions of
Sections 10.1 through 10.8, 10.10 and 10.11 hereof with respect to the
Common Shares shall apply on like or similar terms to any such other shares
or securities.
(c) The Corporation shall pay any and all stock
transfer and documentary stamp taxes that may be payable in respect of any
issuance or delivery of shares of ESOP Preferred Stock or shares of Common
Shares or other securities issued on account of ESOP Preferred Stock
pursuant hereto or certificates representing such shares or securities. The
Corporation shall not, however, be required to pay any such tax which may
be payable in respect of any transfer involved in the issuance or delivery
of shares of ESOP Preferred Stock or Common Shares or other securities in a
name other than that in which the shares of ESOP Preferred Stock with
respect to which such shares or other securities are issued or delivered
were registered, or in respect of any payment to any person with respect to
any such shares or securities other than a payment, to the registered
holder thereof, and shall not be required to make any such issuance,
delivery or payment unless and until the person otherwise entitled to such
issuance, delivery or payment has paid to the Corporation the amount of any
such tax or has established, to the satisfaction of the Corporation, that
such tax has been paid or is not payable.
(d) In the event that a holder of shares of ESOP
Preferred Stock shall not by written notice designate the name in which
shares of Common Shares to be issued upon conversion of such shares should
be registered or to whom payment upon redemption of shares of ESOP
Preferred Stock should be made or the address to which the certificate or
certificates representing such shares, or such payment, should be sent, the
Corporation shall be entitled to register such shares, and make such
payment, in the name of the holder of such ESOP Preferred Stock as shown on
the records of the Corporation and to send the certificate or certificates
representing such shares, or such payment, to the address of such holder
shown on the records of the Corporation.
(e) Unless otherwise provided in these Restated
Articles of Incorporation, as the same may be amended, of the Corporation,
all payments in the form of dividends, distributions on voluntary or
involuntary dissolution, liquidation or windup or otherwise made upon the
shares of ESOP Preferred Stock and any other stock ranking on a parity with
the ESOP Preferred Stock with respect to such dividend or distribution
shall be pro rata, so that amounts paid per share on the ESOP Preferred
Stock and such other stock shall in all cases bear to each other the same
ratio that the required dividends, distributions or payments, as the case
may be, then payable per share on the shares of the ESOP Preferred Stock
and such other stock bear to each other.
(f) The Corporation may appoint, and from time to
time discharge and change, a transfer agent for the ESOP Preferred Stock.
Upon any such appointment or discharge of a transfer agent, the Corporation
shall send notice thereof by first-class mail, postage prepaid, to each
holder of record of ESOP Preferred Stock.
ARTICLE XI
PREFERENCES AND RIGHTS OF SERIES A SENIOR PREFERRED STOCK
The voting powers, preferences and relative, participating,
optional and other special rights of the shares of Series A Senior
Preferred Stock, and the qualifications, limitations or restrictions
thereof, are as follows:
Section 11.1 Designation and Amount.
The designation of this series of shares shall be "Series A
Senior Preferred Stock" (the "Series A Preferred Stock"); the stated value
per share shall be $10 (the "Stated Value"); and the number of authorized
shares constituting such series shall be 25,000 (twenty five thousand).
Additional shares of Series A Preferred Stock (other than as
issued pursuant to the Plan of Reorganization) may not be issued, except as
dividends on the Series A Preferred Stock issued in accordance with the
Plan of Reorganization.
Section 11.2 Rank.
(a) Dividends. With respect to dividend rights, the
Series A Preferred Stock shall rank prior to the Common Shares, all of the
Corporation's other Special Shares (the "Other Special Shares") and all
other classes and series of capital stock of the Corporation hereafter
issued by the Corporation. With respect to dividends, all equity securities
of the Corporation to which the Series A Preferred Stock ranks senior,
including the Common Shares and the Other Special Shares, are collectively
referred to herein as the "Junior Dividend Securities."
(b) Liquidation. With respect to the distribution of
assets upon liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the Series A Preferred Stock shall rank
prior to the Common Shares, the Other Special Shares and all other classes
and series of capital stock of the Corporation hereafter issued by the
Corporation. With respect to the distribution of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, all equity securities of the Corporation to which the Series A
Preferred Stock ranks senior, including the Common Shares and the Other
Special Shares, are collectively referred to herein as "Junior Liquidation
Securities."
(c) New Issues. The Corporation may issue Junior
Dividend Securities and Junior Liquidation Securities (collectively,
"Junior Securities").
Section 11.3 Dividends. Except as provided in Section
11.5(A), shares of Series A Preferred Stock shall accumulate dividends at a
rate of 16.0% per annum. Until the Debt Repayment Date, dividends will
cumulate, but the Corporation may, at its option, pay dividends in lieu of
accumulating them by issuing additional fully paid and non-assessable
shares of Series A Preferred Stock having an aggregate liquidation
preference equal to the amount of such dividend. Dividends will be based on
the aggregate Liquidation Preference (as defined below) outstanding for
that quarter. Dividends shall be paid in four equal quarterly installments
on the last day of February, May, August and November of each year,
commencing on November 30, 2000, or if any such date is not a Business Day
(as hereinafter defined), the Business Day next preceding such day (each
such date, regardless of whether any dividends have been paid or declared
and set aside for payment on such date, a "Dividend Payment Date"), to
holders of record (the "Registered Holders") as they appear on the stock
record books of the Corporation on the thirtieth day prior to the relevant
Dividend Payment Date (the "Record Date"). Dividends shall begin to
accumulate on outstanding shares of Series A Preferred Stock, including
shares issued as payment of dividends, from the date of issuance and shall
be deemed to accumulate from day to day whether or not earned or declared
until the shares of Series A Preferred Stock on which such dividends are
being accumulated shall have been redeemed in accordance with Section 11.5
hereof. Dividends shall accumulate on the basis of a 360-day year
consisting of twelve 30-day months (four 90-day quarters) and the actual
number of days elapsed in the period for which payable. The additional
shares of Series A Preferred Stock issued in payment of dividends shall be
valued per share at the Stated Value per share (which, upon issuance, shall
be fully paid and nonassessable).
So long as any of the shares of Series A Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart for
payment by the Corporation and no other distribution of cash or other
property shall be declared or made directly or indirectly by the
Corporation with respect to any class or series of Junior Dividend
Securities for any period unless dividends equal to the full amount of
accumulated, accrued and unpaid dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment
thereof, in cash or additional shares of Series A Preferred Stock as
provided for in this Article XI, has been or contemporaneously is set apart
for such payment on the Series A Preferred Stock for all periods
terminating on or prior to the most recent Dividend Payment Date.
Section 11.4 Liquidation Preference. In the event of a
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of then-outstanding shares of Series
A Preferred Stock shall be entitled to receive out of the assets of the
Corporation, whether such assets are capital or surplus of any nature, an
amount per share equal to the sum of (i) the dividends, if any, accumulated
or deemed to have accumulated thereon to the date of final distribution to
such holders, whether or not such dividends are declared, and (ii) the
Stated Value thereof, and no more, before any payment or distribution shall
be made or set aside or any assets distributed to or set aside for the
holders of any Junior Liquidation Securities (the foregoing dividends plus
Stated Value being the "Liquidation Preference"). After any such payment in
full, the holders of Series A Preferred Stock shall not, as such, be
entitled to any further participation in any distribution of assets of the
Corporation.
If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of Series A Preferred Stock shall be
insufficient to pay in full the Liquidation Preference to the holders of
Series A Preferred Stock, then such assets, or the proceeds thereof, shall
be distributed among the holders of Series A Preferred Stock ratably in the
same proportion as the respective amounts that would be payable on such
Series A Preferred Stock if all amounts payable thereon were paid in full.
Neither a consolidation or merger of the Corporation with or
into any other Person or Persons, nor a sale, conveyance, lease, exchange
or transfer of all or part of the Corporation's assets for cash, securities
or other property to a Person or Persons shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for purposes of
this Section 11.4, but the holders of shares of Series A Preferred Stock
shall nevertheless be entitled from and after any such consolidation,
merger or sale, conveyance, lease, exchange or transfer of all or part of
the Corporation's assets to the same rights and preferences provided by
this Section 11.4 following any such transaction. Notice of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation,
stating the payment date or dates when, and the place or places where, the
amounts distributable to each holder of shares of Series A Preferred Stock
in such circumstances shall be payable, shall by Overnight Delivery be
delivered not less than 30 days prior to any payment date stated therein,
to holders of record as they appear on the stock record books of the
Corporation as of the date such notices are first delivered.
Section 11.5 Redemption
(a) Mandatory Redemption. Upon the occurrence of a
Mandatory Redemption Event, the Corporation shall redeem (a "Mandatory
Redemption") all outstanding shares of Series A Preferred Stock by paying
an amount per share equal to 100% of the Liquidation Preference (the
"Mandatory Redemption Price"). In addition to paying the Mandatory
Redemption Price, the Corporation shall pay an additional amount per share
in connection with any Mandatory Redemption caused by the Special Loans
(but not all of the Term Loans) being prepaid, which per share amount shall
be equal to the following percentage of Liquidation Preference depending on
the date of the Mandatory Redemption Event as set forth below:
Date Percentage
---- ----------
Date hereof - 11/30/01 2.0%
12/1/01 - 2/28/02 1.5%
3/1/02 - 5/31/02 1.0%
6/1/02 - 8/31/02 0.5%
If the Mandatory Redemption Price is not paid on the
Redemption Date (as hereinafter defined), dividends shall accrue daily at
19% per annum and will be paid in cash out of funds legally available for
that purpose on a quarterly basis from the Redemption Date until the Series
A Preferred Stock is redeemed.
(b) Notice and Redemption Procedures. Notice of the
redemption of shares of Series A Preferred Stock pursuant to Paragraph (a)
hereof (a "Notice of Redemption") shall be sent to the holders of record of
the shares of Series A Preferred Stock to be redeemed by Overnight
Delivery, at each such holder's address as it appears on the stock record
books of the Corporation not more than five (5) Business Days following the
occurrence of a Mandatory Redemption Event, which Notice of Redemption
shall set forth a date for redemption which date shall be within 10
Business Days of the date of such notice with respect to a Mandatory
Redemption (the "Redemption Date"); provided that failure to give such
Notice of Redemption to any holder, or any defect in such Notice of
Redemption to any holder shall not affect the validity of the proceedings
for the redemption of any shares of Series A Preferred Stock held by any
other holder. In order to facilitate the redemption of shares of Series A
Preferred Stock, the Board of Directors may fix a record date for the
determination of the holders of shares of Series A Preferred Stock to be
redeemed, in each case, not more than 30 days prior to the date the Notice
of Redemption is delivered. On or after the Redemption Date, each holder of
the shares called for redemption shall surrender the certificate evidencing
such shares to the Corporation at the place designated in such notice and
shall thereupon be entitled to receive payment of the Mandatory Redemption
Price from the place where funds have been deposited as set forth in such
notice. From and after the Redemption Date, all dividends on shares of
Series A Preferred Stock shall cease to accumulate and all rights of the
holders thereof as holders of Series A Preferred Stock shall cease and
terminate, except to the extent the Corporation shall default in payment
thereof on the Redemption Date.
(c) Deposit of Funds. The Corporation shall, on or
prior to any Redemption Date pursuant to this Section 11.5, deposit with
its Transfer Agent or other redemption agent in the Borough of Manhattan,
The City of New York having a capital and surplus of at least $500,000,000
selected by the Board of Directors, as a trust fund for the benefit of the
holders of the shares of Series A Preferred Stock to be redeemed, cash that
is sufficient in amount to redeem the shares to be redeemed in accordance
with the Notice of Redemption, with irrevocable instructions and authority
to such transfer agent or other redemption agent to pay to the respective
holders of such shares, as evidenced by a list of such holders certified by
an officer of the Corporation, the Mandatory Redemption Price upon
surrender of their respective share certificates. Such deposit shall be
deemed to constitute full payment of such shares to the holders, and from
and after the date of such deposit, all rights of the holders of the shares
of Series A Preferred Stock that are to be redeemed as stockholders of the
Corporation with respect to such shares, except the right to receive the
Mandatory Redemption Price upon the surrender of their respective
certificates, shall cease and terminate. No dividends shall accumulate on
redeemed shares of Series A Preferred Stock after the Redemption Date for
such shares (unless the Corporation shall fail to deposit cash sufficient
to redeem all such shares). In case holders who were given notice in
accordance with subsection (b) of any shares of Series A Preferred Stock
called for redemption shall not, within 90 days after such deposit, claim
the cash deposited for redemption thereof, such transfer agent or other
redemption agent shall, upon demand, pay over to the Corporation the
balance so deposited. Thereupon, such transfer agent or other redemption
agent shall be relieved of all responsibility to the holders thereof and
the sole right of such holders, with respect to shares to be redeemed,
shall be to receive the Mandatory Redemption Price as general creditors of
the Corporation. Any interest accrued on any funds so deposited shall
belong to the Corporation, and shall be paid to it from time to time on
demand.
Section 11.6 Voting Rights
(a) General. The holders of shares of Series A
Preferred Stock shall have no voting rights except as set forth below or as
otherwise from time to time required by law.
(b) Number of Votes. So long as any shares of the
Series A Preferred Stock are outstanding, a holder of Series A Preferred
Stock shall be entitled to one vote per share of Series A Preferred Stock
with respect to: (i) the election of directors, as provided in Paragraphs C
and D below; and (ii) amendments to the terms of the Series A Preferred
Stock, as provided in Section 11.7 hereof.
(c) Directors. The holders of a majority of the
outstanding Series A Preferred Stock shall be entitled to elect 2 of the 9
members of the Board of Directors of the Corporation, voting as a separate
class. The right of the holders of the Series A Preferred Stock to appoint
2 directors shall terminate upon the redemption of the Series A Preferred
Stock and any such appointed directors shall resign at such time. For so
long as there are any shares of Series A Preferred Stock outstanding, the
number of members of the Board of Directors shall be not more than nine
(9), except as provided in clause (d) below.
(d) Majority of Directors. Upon a Payment Default,
the Company's Board of Directors shall automatically be increased to 15 and
the holders of a majority of the shares of Series A Preferred Stock (voting
as a separate class) shall be entitled to elect a majority of the directors
on the Board of Directors of the Corporation ("Majority Directors").
Majority Directors shall continue as directors and such additional voting
right shall continue until such time as the redemption of the Series A
Preferred Stock (or the setting aside of all necessary funds for payment
thereof).
(e) Procedures. (i) The foregoing rights of holders
of shares of Series A Preferred Stock to take any action as provided in
this Section 11.6 may be exercised at any annual meeting of stockholders or
at a special meeting of stockholders held for such purpose as hereinafter
provided or at any adjournment thereof, or by the written consent,
delivered to the Secretary of the Corporation, of the holders of the
minimum number of shares required to take such action. So long as such
right to vote continues (and unless such right has been exercised by
written consent of the minimum number of shares required to take such
action), the Chairman of the Board of Directors may call, and upon the
written request of holders of record of 20% of the outstanding shares of
Series A Preferred Stock, addressed to the Secretary of the Corporation at
the principal office of the Corporation, shall call, a special meeting of
the holders of shares entitled to vote as provided herein. The Corporation
shall use its best efforts to hold such meeting within 60 days after
delivery of such request to the Secretary, at the place and upon the notice
provided by law and in the Restated Bylaws for the holding of meetings of
stockholders.
(ii) In case any vacancy shall occur among the
directors elected pursuant to Paragraphs C or D hereof, such
vacancy may be filled for the unexpired portion of the term by vote
of the remaining director or directors theretofore elected by such
holders (or such director's or directors' successor in office), if
any. If any such vacancy is not so filled within 20 days after the
creation thereof or if all of the directors so elected shall cease
to serve as directors before their term shall expire, the holders
of the shares of Series A Preferred Stock then outstanding and
entitled to vote for such director pursuant to the provisions of
Paragraphs C and D hereof may elect successors to hold office for
the unexpired terms of any vacant directorships, by written consent
as herein provided, or at a special meeting of such holders called
as provided herein. The holders of a majority of the shares of
Series A Preferred Stock entitled to vote for directors pursuant to
Paragraphs C and D hereof shall have the right to remove with or
without cause at any time and replace any directors such holders
have elected pursuant to such section, by written consent as herein
provided, or at a special meeting of such holders called as
provided herein.
Section 11.7 Amendments; Other. Without the consent or
affirmative vote of the holders of at least a majority of the outstanding
shares of Series A Preferred Stock, voting separately as a class, the
Corporation shall not, and shall not permit its subsidiaries to, amend,
alter or repeal any provision of these Restated Articles of Incorporation
or the Restated Bylaws if the amendment, alteration or repeal alters or
changes the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely.
Section 11.8 Additional Definitions
For the purposes of this Article 11 regarding Series A
Preferred Stock, the following terms shall have the meanings indicated:
"Agents" are the Administrative Agent, which is ABN AMRO
Bank N.V., and the Documentation Agent, which is AmSouth Bank.
"Affiliate" has the meaning set forth in Rule 12b-2 under
the Exchange Act. The term "Affiliated" has a correlative meaning.
"Business Day" means any day, other than a Saturday, Sunday
or a day on which banking institutions in the State of Indiana are
authorized or obligated by law or executive order to close.
"Change of Control" means such time as:
(a) any Person or group of Persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934, but
excluding any Specified Person (as defined below) shall acquire beneficial
ownership (within the meaning of Rule 13d-3 promulgated under such Act) of
more than 40% of the outstanding securities (on a fully diluted basis and
taking into account any securities or contract rights exercisable,
exchangeable or convertible into equity securities, but excluding any
Series A Preferred Stock) of the Company having voting rights in the
election of directors under normal circumstances; or
(b) a majority of the members of the Board of
Directors of the Company shall cease to be Continuing Members.
(c) For purposes of the foregoing,
(i) "Continuing Member" means a member of the
Board of Directors who either (a) was a member of the Company's
Board of Directors on the date hereof and has been such
continuously thereafter, (b) became a member of such Board of
Directors after the Closing Date (as defined in the New Credit
Agreement) and whose election or nomination for election was
approved by a vote of the majority of the Continuing Members then
members of the Company's Board of Directors, or (c) was designated
by the holders of the Series A Preferred Stock; and
(ii) "Specified Person" means any beneficial
holder of Senior Subordinate Note Claims (under and as defined in
the Plan of Reorganization) immediately prior to the time the Plan
of Reorganization becomes effective.
"Debt Repayment Date" means the date upon which all of the
following conditions shall be satisfied: (i) all obligations under the New
Credit Agreement shall have been irrevocably paid in full in cash; (ii) no
further obligations, (contingent or otherwise) to the Agents or any of the
Lenders shall remain outstanding under the New Credit Agreement or any of
the other New Credit Documents, other than any contingent obligation of the
Corporation to indemnify the Agents and the Lenders and any other
obligation which under the term of the New Credit Documents survives the
repayment of the Obligations; and (iii) the Lenders' commitments to make
Loans and to issue letters of credit under the New Credit Agreement shall
have been irrevocably terminated.
"Exchange Act" means the U.S. Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder,
from time to time.
"Lenders" means those certain lenders from time to time
party to the New Credit Agreement.
"Mandatory Redemption Event" means the first to occur of: (i) a
Change of Control, and (ii) the payment in full of the Special Loans.
"New Credit Agreement" means that certain Post-Confirmation
Credit Agreement dated as of October 20, 2000, among the Corporation,
various subsidiaries thereof as borrowers, various financial institutions,
AmSouth Bank, as documentation agent, and ABN AMRO Bank N.V., as
administrative agent, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"New Credit Documents" means the "Loan Documents" (as
defined in the New Credit Agreement.
"Obligations" means all loans, debts, liabilities,
obligations, covenants and duties owing by the Corporation or any of its
subsidiaries to the Lenders or the Agents or any indemnitee arising under
the New Credit Documents, of any kind or nature whether now existing or
hereafter created, whether due or to become due.
"Overnight Delivery" means next business day delivery by a
nationally recognized overnight delivery service.
"Payment Default" means a default in the payment when due of
the principal of any Special Loan provided that such default shall only be
a Payment Default hereunder if the holders of a majority of the shares of
Series A Preferred Stock shall notify the Corporation that they are
exercising their rights hereunder.
"Person" means any individual, corporation, company,
association, partnership, joint venture, trust or unincorporated
organization, or a government or any agency or political subdivision
thereof.
"Plan of Reorganization" means the Joint Prepackaged Plan of
Reorganization of the Company and its subsidiary debtors as filed with and
approved by the United States Bankruptcy Court for the District of Delaware
dated as of August 16, 2000.
"Restated Bylaws" means the Restated Bylaws of the Corporation.
"Securities Act" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder, from time to
time.
"Special Loans" shall have the meaning set forth in the New
Credit Agreement.
"Term Loans" shall have the meaning set forth in the New
Credit Agreement.
Section 11.9 Miscellaneous
(a) Notices. Any notice referred to herein shall be
in writing and, shall be deemed to have been given upon hand delivery
thereof, or upon Overnight Delivery thereof addressed as follows:
(i) if to the Corporation, to its office at 10501
Corporate Drive, Fort Wayne, Indiana 46845, facsimile number (219)
484-1110;
(ii) if to a holder of the Series A Preferred
Stock, to such holder at the address of such holder as listed in
the stock record books of the Corporation (which may include the
records of any transfer agent for the Series A Preferred Stock); or
(iii) to such other address as the Corporation
or such holder, as the case may be, shall have designated by notice
similarly given.
(b) Reacquired Shares. Any shares of Series A
Preferred Stock redeemed, purchased or otherwise acquired by the
Corporation, directly or indirectly, in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof (and shall not
be deemed to be outstanding for any purpose) and, if necessary to provide
for the lawful redemption or purchase of such shares, the capital
represented by such shares shall be reduced in accordance with the
Corporation Law.
(c) Restrictions. The Series A Preferred Stock shall
not be detachable from the Special Loans and shall not be sold,
transferred, pledged or assigned unless there shall occur simultaneously a
sale, transfer, pledge or assignment of a ratable portion of the Special
Loans to the same Persons. Any attempted sale, transfer, pledge or
assignment in violation of this Section 11.9(C) shall be null and void and
shall not be recorded on the records of the Company.
(d) Enforcement. Any registered holder of shares of
Series A Preferred Stock may proceed to protect and enforce its rights and
the rights of such holders by any available remedy by proceeding at law or
in equity to protect and enforce any such rights, whether for the specific
enforcement of any provision in this Article XI or in aid of the exercise
of any power granted herein, or to enforce any other proper remedy.
(e) Transfer Agent. The Corporation may appoint, and
from time to time discharge and change, a transfer agent for the Series A
Preferred Stock (the "Transfer Agent"). Upon any such appointment or
discharge of a transfer agent, the Corporation shall send notice thereof by
Overnight Delivery to each holder of record of shares of Series A Preferred
Stock.
(f) Record Dates. In the event that the Series A
Preferred Stock shall be registered under either the Securities Act or the
Exchange Act, the Corporation shall establish appropriate record dates with
respect to payments and other actions to be made with respect to the Series
A Preferred Stock.
