Exhibit A-86
This instrument was prepared by Xxxxxxx X. Xxxxxxxxxx, Attorney at Law, 000 X.
00xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
ARTICLES OF INCORPORATION
OF
NORTH LAKE ENERGY CORPORATION
PURSUANT TO THE PROVISIONS OF THE
INDIANA BUSINESS CORPORATION LAW
ARTICLE I
Name
The name of the Corporation is North Lake Energy Corporation.
ARTICLE II
Purposes and Powers
Section 2.1. Purposes of the Corporation. The purposes for which the Corporation
is formed are to engage in the transaction of any or all lawful business for
which corporations may now or hereafter be incorporated under the Indiana
Business Corporation Law (hereafter referred as 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) a11 powers
authorized by or vested in the Corporation by the provisions of these Articles
of Incorporation or by the provisions of its By-Laws 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 Articles of Incorporation is 000 X. 00xx Xxx., Xxxxxxxxxxxx,
Xxxxxxx 00000. The name and address of its Resident Agent at the time of
adoption of these Articles of Incorporation is Xxxx X. Xxxxxx, 0000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
ARTICLE V
Shares
Section 5.1. Authorized Class and Number of Shares. The capital stock of the
Corporation shall be of one class and kind, which may be referred to as common
shares. The total number of shares which the Corporation has authority to issue
shall be 1,000 shares without par value.
Section 5.2. Voting Rights of Shares. Except as otherwise provided by the
Corporation Law, the Corporation's shares have unlimited voting rights and each
outstanding 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.
Section 5.3. Other Terms of Shares. The Corporation's 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). The holders of 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 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,
the holders of shares shall be entitled to share, ratably according to the
number of shares held by them, in all remaining assets of the Corporation
available for distribution to its shareholders.
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. The
Corporation shall have the power to issue shares as a share dividend or other
distribution in respect of issued and outstanding 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
thereof, 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. 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 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 to acquire such shares
by reason of their ownership of such other shares.
ARTICLE VI
Directors
Section 6.1. Number. The number of Directors comprising the Board of Directors
at the time of adoption of these Articles of Incorporation is three (3), and the
number of Directors shall be fixed by the By-Laws and may be changed from time
to time by amendment to the By-Laws.
The names and post office addresses of the members of the first Board of
Directors of the Corporation is as follows:
Xxxxxxx X. Xxxx, 000 X. 00xx Xxx., Xxxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx, 000 X. 00xx Xxx., Xxxxxxxxxxxx, XX 00000
Xxxx X. Xxxxx, 000 X. 00xx Xxx., Xxxxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx., 000 X. 00xx Xxx., Xxxxxxxxxxxx, XX 00000
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 the By-Laws or, if the By-Laws do not provide
for the filling of vacancies, in the manner provided by the Corporation Law. The
By-Laws may also provide that in certain circumstances specified therein,
vacancies occurring in the Board of Directors may be filled by vote of the
shareholders 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 or her duties as a Director,
including his duties as a member of any committee of the Board of Directors upon
which he or she 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 or her 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. Any one or more of the members of the Board
of Directors may be removed, with or without cause, only at a meeting of the
shareholders called expressly for that purpose, by the affirmative vote of the
holders of outstanding shares representing at least a majority of all the votes
then entitled to be cast at an election of Directors. No Director may be removed
except at provided in this Section 6.5.
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. By-Laws. The Board of Directors shall have the exclusive power to
make, alter, amend or repeal, or to waive provisions of, the By-Laws of the
Corporation by the affirmative vote of a majority of the entire number of
Directors at the time, except as expressly 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 Articles of Incorporation shall be stated in
the By-Laws. The Board of Directors may adopt Emergency By-Laws of the
Corporation and shall have the exclusive power (except as may otherwise by
provided therein) to make, alter, amend or repeal, or to waive provisions of,
the Emergency By-Laws by the affirmative vote of a majority of the entire number
of Directors at such time.
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:
(1) 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.
(2) The material facts of the transaction and Director's
interest were disclosed or known to the shareholders entitled
to vote and they authorized, approved, or ratified the
transaction.
(3) 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:
(1) Another entity in which the Director has a material
financial interest or in which the Director is a general partner
is a party to the transaction; or
(2) Another entity of which the Director is a director,
officer, or trustee is 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)(l), 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, but a transaction may not be authorized, approved, or ratified
under this section by a single Director. If a majority of the Directors 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)(l), if the transaction is
otherwise authorized, approved, or ratified as provided in such subsection.
(d) For purposes of Section 7.6(a)(2), a conflict of interest transaction is
authorized, approved, or ratified if it receives the affirmative vote of the
holders of shares representing a majority of the votes entitled to be cast.
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 any entity described in Section 7.6(b), may be counted in such a vote
of shareholders.
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) To the extent not inconsistent with applicable law, every Eligible
Person shall be indemnified by the Corporation against all Liability and
reasonable Expense that may be incurred by him or her 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), to have
acted in good faith, in what he or she reasonably believed to be the best
interests of the Corporation or at least not opposed to its best interests and,
in addition, with respect to any criminal claim is determined to have had
reasonable cause to believe that his or her conduct was lawful or had no
reasonable cause to believe that his or her 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
contenders, or its equivalent, shall not 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 or she was
acting in conformity with the requirements of such Act or he or she reasonably
believed his or her 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 or any
other corporation or otherwise), civil, criminal, administrative or
investigative, formal or informal, in which an Eligible Person may become
involved, as a party or otherwise:
(i) by reason of his or her being or having been an Eligible
Person, or
(ii) by reason of any action taken or not taken by him or her
in his or her capacity as an Eligible Person, whether or not
he or she continued in such capacity at the time such
Liability or Expense shall have been incurred.
(c) The term "Eligible Person" as used in this Section 7.8 shall mean every
person (and the estate, heirs and personal representatives of such person) who
is or was a Director, officer, employee or agent of the Corporation or 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
or her duties to the Corporation also imposed duties on, or otherwise involved
services by, him or her 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, counsel fees and disbursements and 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.
(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 any
finding of liability or guilt against him, (ii) approval by a court or agency,
with knowledge of the indemnity herein provided, of a settlement of any Claim,
or (iii) the expiration of a reasonable period of time after the threatened
making of any Claim without commencement of an action, suit or proceeding and
without any payment or promise made to induce a settlement.
(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 (i) if special independent legal counsel, which may be regular
counsel of the Corporation or other disinterested person or persons, in either
case selected by the Board of Directors, whether or not a disinterested quorum
exists (such counsel or person or persons being hereinafter called the
"Referee"), shall deliver to the Corporation a written finding that such
Eligible Person has met the standards of conduct set forth in Section
7.8(a)(ii), and (ii) if the Board of Directors, acting upon such written
finding, so determines. The Board of Directors shall, if an Eligible Person is
found to be entitled to indemnification pursuant to the preceding sentence, 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 or she
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 finding that are within the possession or control of the
Corporation.
(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 or the Board of Directors fails to make a
determination under Section 7.8(f) within a reasonable amount of time following
the selection of a Referee, the Eligible Person may apply for indemnification
with respect to a Claim to a 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 and giving the
Corporation ample opportunity to present to the court any information or
evidence relating to the claim for indemnification that the Corporation deems
appropriate, may order indemnification if it determines that 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). 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 be in
addition to any rights to which any Eligible Person may otherwise be entitled.
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 her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him against
such Liability.
(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 an undertaking by or on behalf of the Eligible Person to repay such
amount unless he or she is determined to be entitled to indemnification.
(j) The provisions of this Section 7.8 shall be deemed to be a contract
between the Corporation and each Eligible Person, and an Eligible Person's
rights hereunder shall not be diminished or otherwise adversely affected by any
repeal, amendment or modification of this Section 7.8 that occurs subsequent to
such person becoming an Eligible Person.
(k) The provisions of this Section 7.8 shall be applicable to Claims made or
commenced after the adoption hereof, whether arising from acts or omissions to
act occurring before or after the adoption hereof.
ARTICLE VIII
Miscellaneous Provisions
Section 8.1. Amendment or Repeal. Except as otherwise expressly provided for in
these 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 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 8.2. Headings. The headings of the Articles and Sections of these
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.
Section 8.3. Incorporator. The name and post office address of the incorporator
of the Corporation is as follows:
Xxxxxxx X. Xxxxxxxxxx, 000 Xxxx 00xx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, the undersigned, being the incorporator designated in
Article VIII, executes these Articles of Incorporation and affirms and verifies
subject to penalties of perjury the truth of the facts herein stated, this 18th
day of November, 1994.
/s/ Xxxxxxx X. Xxxxxxxxxx
This instrument was prepared by Xxxxxxx X. Xxxxxxxxxx, Attorney at Law, 000 X.
00xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
STATE OF INDIANA
OFFICE OF THE SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
NORTH LAKE ENERGY CORPORATION
I, XXXXXX X. XXXXXXX, Secretary of State of Indiana, hereby certify that
Articles of Incorporation of the above corporation have been presented to me at
my office accompanied by the fees prescribed by law; that I have found such
Articles conform to law; all as prescribed by the provisions of the Indiana
Business Corporation Law, as amended.
NOW, THEREFORE, I hereby issue to such corporation this Certificate of
Incorporation, and further certify that its corporate existence will begin
November 21, 1994.
[Seal of the State of Indiana]
In Witness Whereof, I have hereunto set my
hand and affixed the seal of the State of
Indiana, at the City of Indianapolis, this
Twenty-first day of November, 1994.
/s/ XXXXXX X. XXXXXXX, Secretary of State
