EXHIBIT 3(a)
ALCOA INC.
ARTICLES
(As Amended January 1999)
FIRST. The name of the corporation is Alcoa Inc.
SECOND. The location and post office address of the
corporation's current registered office is 201 Isabella Street,
Pittsburgh, Pennsylavania 15212-5858 [this paragraph reflects
the change in the registered office address made August 14, 1998
by the filing of a Statement of Change of Registered Office with
the Secretary of State of the Commonwealth of Pennsylvania; the
prior registered office address was 1501 Alcoa Building, Mellon
Square, Pittsburgh, Pennsylvania].
THIRD. The purpose or purposes of the corporation are: to
acquire and dispose of deposits of and rights to bauxite, clay,
ores and minerals of any sort or description, and to acquire,
extract, treat and dispose of any materials recovered or
recoverable therefrom; to reduce ores of aluminum and any and all
other ores to their basic metals; to manufacture, alloy and
fabricate any and all metals into articles of commerce; to
acquire, produce, transport, trade in and dispose of goods, wares
and merchandise of every class and description; to purchase,
lease, or otherwise acquire improved or unimproved real property,
leaseholds, easements and franchises, to manage, use, deal with
and improve the same or any part thereof, and to sell, exchange,
lease, sublease, or otherwise dispose of any of said property or
the improvements thereon or any part thereof; to acquire, use and
dispose of all land, minerals, materials, apparatus, machinery
and other agencies, means and facilities, to perform all
operations, and to do all things, necessary, convenient or
incident to the foregoing; and to carry on any business directly
or indirectly related thereto; and the corporation shall have
unlimited power to engage in and to do any lawful act concerning
any or all lawful business for which corporations may be
incorporated under the Pennsylvania Business Corporation Law.
FOURTH. The term for which the corporation is to exist is
perpetual.
FIFTH. The authorized capital of the corporation shall be
660,000 shares of Serial Preferred Stock of the par value of $100
per share, 10,000,000 shares of Class B Serial Preferred Stock of
the par value of $1.00 per share and 600,000,000 shares of Common
Stock of the par value of $1.00 per share.
Hereinafter in this Article Fifth, the term "Preferred
Stock" shall mean each of the Serial Preferred Stock and the
Class B Serial Preferred Stock.
A description of each class of shares which the corporation
shall have authority to issue and a statement of the rights,
voting powers, preferences, qualifications, limitations,
restrictions and the special or relative rights granted to or
imposed upon the shares of each class and of the authority vested
in the Board of Directors of the corporation to establish series
of the Preferred Stock and to fix and determine the variations in
the relative rights and preferences as between the series thereof
are as follows:
1. Establishment of Series of Preferred Stock. Preferred
Stock shall be issued in one or more series. Each series shall
be designated by the Board of Directors so as to distinguish the
shares thereof from the shares of all other series and classes.
The Board of Directors may, by resolution, from time to time
divide shares of Preferred Stock into series and fix and
determine the number of shares and, subject to the provisions of
this Article Fifth, the relative rights and preferences of any
series so established, provided that all shares of Preferred
Stock shall be identical except as to the following relative
rights and preferences, in respect of any or all of which there
may be variations between different series, namely: the rate of
dividend (including the date from which dividends shall be
cumulative and, with respect to Class B Serial Preferred Stock,
whether such dividend rate shall be fixed or variable and the
methods, procedures and formulas for the recalculation or
periodic resetting of any variable dividend rate); the price at,
and the terms and conditions on, which shares may be redeemed;
the amounts payable on shares in the event of voluntary or
involuntary liquidation; sinking fund provisions for the
redemption or purchase of shares in the event shares of any
series are issued with sinking fund provisions; and the terms and
conditions on which the shares of any series may be converted in
the event the shares of any series are issued with the privilege
of conversion. Each share of any series of Preferred Stock shall
be identical with all other shares of such series, except as to
date from which dividends shall be cumulative.
2. Dividends.
(a) The holders of Serial Preferred Stock of any series
shall be entitled to receive, when and as declared by the Board
of Directors, out of surplus or net profits legally available
therefor, cumulative dividends at the rate of dividend fixed by
the Board of Directors for such series as hereinbefore provided,
and no more, payable quarter yearly on the first days of January,
April, July and October in each year. The dividends on any
shares of Serial Preferred Stock shall be cumulative from such
date as shall be fixed for that purpose by the Board of Directors
prior to the issue of such shares or, if no such date shall be so
fixed by the Board of Directors, from the quarter yearly dividend
payment date next preceding the date of issue of such shares.
(b) The holders of Class B Serial Preferred Stock of any
series shall be entitled to receive, when and as declared by the
Board of Directors or any authorized committee thereof, out of
funds legally available therefor, cumulative dividends at the
rate of dividend fixed by the Board of Directors for such series
including any such rate which may be reset or recalculated from
time to time pursuant to procedures or formulas established
therefor by the Board of Directors, and no more; provided,
however, that no dividend shall be declared or paid on the Class
B Serial Preferred Stock so long as any of the Serial Preferred
Stock remains outstanding, unless all quarter yearly dividends
accrued on the Serial Preferred Stock and the dividend thereon
for the current quarter yearly dividend period shall have been
paid or declared and a sum sufficient for the payment thereof set
apart. The dividends on any shares of Class B Serial Preferred
Stock shall be cumulative from such date as shall be fixed for
that purpose by the Board of Directors prior to the issue of such
shares or, if no such date shall be so fixed by the Board of
Directors, from the dividend payment date for such series next
preceding the date of issue of such shares. If full cumulative
dividends on shares of a series of Class B Serial Preferred Stock
have not been paid or declared and a sum sufficient for the
payment thereof set apart, dividends thereon shall be declared
and paid pro rata to the holders of such series entitled thereto.
Accrued dividends shall not bear interest.
(c) The holders of Common Stock shall be entitled to
receive dividends, when and as declared by the Board of
Directors, out of surplus or net profits legally available
therefor, provided, however, that no dividend shall be declared
or paid on the Common Stock so long as any of the Preferred Stock
remains outstanding, unless all dividends accrued on all classes
of Preferred Stock and the dividend on Serial Preferred Stock for
the current quarter yearly dividend period shall have been paid
or declared and a sum sufficient for the payment thereof set
apart.
3. Liquidation. In the event of any liquidation,
dissolution or winding up of the corporation, whether voluntary
or involuntary, then before any payment or distribution shall be
made to the holders of Common Stock or Class B Serial Preferred
Stock the holders of Serial Preferred Stock shall be entitled to
be paid such amount as shall have been fixed by the Board of
Directors as hereinbefore provided, plus all dividends which have
accrued on the Serial Preferred Stock and have not been paid or
declared and a sum sufficient for the payment thereof set apart.
Thereafter, the holders of Class B Serial Preferred Stock of each
series shall be entitled to be paid such amount as shall have
been fixed by the Board of Directors as hereinbefore provided,
plus all dividends which have accrued on the Class B Serial
Preferred Stock and have not been paid or declared and a sum
sufficient for the payment thereof set apart. Thereafter, the
remaining assets shall belong to and be divided among the holders
of the Common Stock. The consolidation or merger of the
corporation with or into any other corporation or corporations or
share exchange or division involving the corporation in pursuance
of applicable statutes providing for the consolidation, merger,
share exchange or division shall not be deemed a liquidation,
dissolution or winding up of the corporation within the meaning
of any of the provisions of this subdivision.
4. Voting Rights. The holders of Preferred Stock shall
have no voting rights except as otherwise required by law or
hereinafter provided:
(a) If at any time the amount of any dividends on
Preferred Stock which have accrued and which have not been paid
or declared and a sum sufficient for the payment thereof set
apart shall be at least equal to the amount of four quarter
yearly dividends, the holders of Preferred Stock shall have one
vote per share, provided, however, that such voting rights of the
holders of Preferred Stock shall continue only until all quarter
yearly dividends accrued on the Preferred Stock have been paid or
declared and a sum sufficient for the payment thereof set apart.
(b) Without the consent of the holders of at least a
majority of the shares of Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or by
vote at a meeting called for that purpose at which the holders of
Preferred Stock shall vote as a class,
(i) no additional class of stock ranking on a
parity with the Preferred Stock as to dividends or assets shall
be authorized;
(ii) the authorized number of shares of Preferred
Stock or of any class of stock ranking on a parity with the
Preferred Stock as to dividends or assets shall not be increased;
and
(iii) the corporation shall not merge or
consolidate with or into any other corporation if the corporation
surviving or resulting from such merger or consolidation would
have after such merger or consolidation any authorized class of
stock ranking senior to or on a parity with the Preferred Stock
except the same number of shares of stock with the same rights
and preferences as the authorized stock of the corporation
immediately preceding such merger or consolidation.
(c) Except in pursuance of the provisions of
subdivision 4(b) (iii) of this Article Fifth, without the consent
of the holders of at least sixty-six and two-thirds (66-2/3) per
cent. of the number of shares of Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or by
a vote at a meeting called for that purpose at which the holders
of Preferred Stock shall vote as a class,
(i) no change shall be made in the rights and
preferences of the Preferred Stock as set forth in the Articles
of Incorporation or as fixed by the Board of Directors so as to
affect such stock adversely; provided, however, that if any such
change would affect any series of Preferred Stock adversely as
compared with the effect thereof upon any other series of
Preferred Stock, no such change shall be made without the
additional consent given as aforesaid of the holders of at least
sixty-six and two-thirds (66-2/3) per cent. of the number of
shares at the time outstanding of the Preferred Stock of the
series which would be so adversely affected;
(ii) no additional class of stock ranking senior
to the Preferred Stock as to dividends or assets shall be
authorized;
(iii) the authorized number of shares of any class
of stock ranking senior to the Preferred Stock as to dividends or
assets shall not be increased; and
(iv) the corporation shall not (a) sell, lease,
convey or part with control of all or substantially all of its
property or business or (b) voluntarily liquidate, dissolve or
wind up its affairs.
Notwithstanding the foregoing:
(i) except as otherwise required by law, the
voting rights of any series of Class B Serial Preferred Stock may
be limited or eliminated by the Board of Directors prior to the
issuance thereof; and
(ii) provided no shares of Serial Preferred Stock
are then outstanding, any series of Class B Serial Preferred
Stock may be issued with such additional voting rights in the
event of dividend arrearages as the Board of Directors may
determine to be required to qualify such series for listing on
one or more securities exchanges of recognized standing.
The holders of Common Stock of the corporation shall have
one vote per share.
5. Redemption.
(a) The corporation, at the option of the Board of
Directors, may redeem the whole or any part of the Serial
Preferred Stock, or the whole or any part of any series thereof,
at any time or from time to time, at such redemption price
therefor as shall have been fixed by the Board of Directors as
hereinbefore provided, plus all dividends which on the redemption
date have accrued on the shares to be redeemed and have not been
paid or declared and a sum sufficient for the payment thereof set
apart. Notice of every such redemption shall be published not
less than thirty (30) days nor more than sixty (60) days prior to
the date fixed for redemption in a daily newspaper printed in the
English language and published and of general circulation in the
Borough of Manhattan, City and State of New York, and in a daily
newspaper printed in the English language and published and of
general circulation in the City of Pittsburgh, Pennsylvania.
Notice of every such redemption shall also be mailed not less
than thirty (30) days nor more than sixty (60) days prior to the
date fixed for redemption to the holders of record of the shares
of Serial Preferred Stock to be redeemed at their respective
addresses as the same appear upon the books of the corporation;
but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the proceedings
for the redemption of any shares of Serial Preferred Stock. In
case of a redemption of a part only of any series of the Serial
Preferred Stock at the time outstanding, the corporation shall
select shares so to be redeemed in such manner, whether pro rata
or by lot, as the Board of Directors may determine. Subject to
the provisions herein contained, the Board of Directors shall
have full power and authority to prescribe the manner in which
and the terms and conditions on which the Serial Preferred Stock
shall be redeemed from time to time. If notice of redemption
shall have been published as hereinbefore provided and if before
the redemption date specified in such notice all funds necessary
for such redemption shall have been set apart so as to be
available therefor, then on and after the date fixed for
redemption the shares of Serial Preferred Stock so called for
redemption, notwithstanding that any certificate therefor shall
not have been surrendered for cancellation, shall no longer be
deemed outstanding and all rights with respect to such shares
shall forthwith cease and terminate except only the right of the
holders thereof to receive upon surrender of certificates
therefor the amount payable upon redemption thereof, but without
interest; provided, however, that if the corporation shall, after
the publication of notice of any such redemption and prior to the
redemption date, deposit in trust for the account of the holders
of the Serial Preferred Stock to be redeemed with a bank or trust
company in good standing, designated in such notice, organized
under the laws of the United States of America or of the State of
New York or of the Commonwealth of Pennsylvania, doing business
in the Borough of Manhattan, The City of New York, or in the City
of Pittsburgh, Pennsylvania, and having a capital, undivided
profits and surplus aggregating at least five million dollars
($5,000,000), all funds necessary for such redemption, then from
and after the time of such deposit the shares of Serial Preferred
Stock so called for redemption, notwithstanding that any
certificate therefor shall not have been surrendered for
cancellation, shall no longer be deemed outstanding and all
rights with respect to such shares shall forthwith cease and
terminate except only the right of the holders of such shares to
receive from such bank or trust company upon surrender of
certificates therefor the amount payable upon redemption thereof,
but without interest.
All shares of Serial Preferred Stock so redeemed shall be
cancelled and shall not be reissued.
(b) The terms and conditions under which the whole or any
part of any series of the Class B Serial Preferred Stock may be
redeemed shall be established by the Board of Directors prior to
the issuance thereof. Unless otherwise determined by the Board
of Directors, all shares of Class B Serial Preferred Stock so
redeemed or otherwise acquired by the corporation shall be
returned to the status of authorized but unissued shares.
6. Preemptive Rights. Neither the holders of the
Preferred Stock nor the holders of the Common Stock shall be
entitled to participate in any right of subscription to any
increased or additional capital stock of the corporation of any
kind whatsoever.
SIXTH. In each election of directors every shareholder
entitled to vote shall have the right to cast one vote for each
share of stock standing in his name on the books of the Company
for each of such number of candidates as there are directors to
be elected, but no shareholder shall have any right to cumulate
his votes and cast them for one candidate or distribute them
among two or more candidates.
SEVENTH. A. In addition to any affirmative vote required
by law, the Articles or the By-Laws of the corporation (the
"Company"), and except as otherwise expressly provided in Section
B of this Article Seventh, the Company shall not knowingly
engage, directly or indirectly, in any Stock Repurchase (as
hereinafter defined) from an Interested Shareholder (as
hereinafter defined) without the affirmative vote of not less
than a majority of the votes entitled to be cast by the holders
of all then outstanding shares of Voting Stock (as hereinafter
defined) which are beneficially owned by persons other than such
Interested Shareholder, voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage or separate
class vote may be specified, by law or in any agreement with any
national securities exchange or otherwise.
B. The provisions of Section A of this Article Seventh
shall not be applicable to any particular Stock Repurchase from
an Interested Shareholder, and such Stock Repurchase shall
require only such affirmative vote, if any, as is required by law
or by any other provision of the Articles or the By-Laws of the
Company, or any agreement with any national securities exchange
or otherwise, if the conditions specified in either of the
following Paragraphs (1) or (2) are met:
(1) The Stock Repurchase is made pursuant to a tender
offer or exchange offer for a class of Capital Stock (as
hereinafter defined) made available on the same basis to all
holders of such class of Capital Stock.
(2) The Stock Repurchase is made pursuant to an open
market purchase program approved by a majority of the Continuing
Directors (as hereinafter defined), provided that such repurchase
is effected on the open market and is not the result of a
privately negotiated transaction.
C. For the purposes of this Article Seventh:
(1) The term "Stock Repurchase" shall mean any
repurchase, directly or indirectly, by the Company or any
Subsidiary of any shares of Capital Stock at a price greater than
the then Fair Market Value of such shares.
(2) The term "Capital Stock" shall mean all capital
stock of the Company authorized to be issued from time to time
under Article FIFTH of the Articles of the Company, and the term
"Voting Stock" shall mean all Capital Stock which by its terms
may be voted on all matters submitted to shareholders of the
Company generally.
(3) The term "person" shall mean any individual, firm,
company or other entity and shall include any group comprised of
any person and any other person with whom such person or any
Affiliate or Associate of such person has any agreement,
arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Capital
Stock.
(4) The term "Interested Shareholder" shall mean any
person (other than the Company or any Subsidiary and other than
any savings, profit-sharing, employee stock ownership or other
employee benefit plan of the Company or any Subsidiary or any
trustee of or fiduciary with respect to any such plan when acting
in such capacity) who is on the date in question, or who was at
any time within the two year period immediately prior to the date
in question, the beneficial owner of Voting Stock representing
five percent (5%) or more of the votes entitled to be cast by the
holders of all then outstanding shares of Voting Stock.
(5) A person shall be a "beneficial owner" of any
Capital Stock (a) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; (b) which
such person or any of its Affiliates or Associates has, directly
or indirectly, (i) the right to acquire (whether such right is
exercisable immediately or subject only to 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 (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or (c) which is
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 Capital
Stock. For the purposes of determining whether a person is an
Interested Shareholder pursuant to Paragraph 4 of this Section C,
the number of shares of Capital Stock deemed to be outstanding
shall include shares deemed beneficially owned by such person
through application of Paragraph 5 of this Section C, but shall
not include any other shares of Capital Stock that may be
issuable pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options, or
otherwise.
(6) The terms "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2
under the Securities Exchange Act of 1934 as in effect on
March 8, 1985 (the term "registrant" in said Rule 12b-2 meaning
in this case the Company).
(7) The term "Subsidiary" shall mean any corporation
of which a majority of any class of equity security is
beneficially owned by the Company; provided, however, that for
the purposes of the definition of Interested Shareholder set
forth in Paragraph 4 of this Section C, the term "Subsidiary"
shall mean only a corporation of which a majority of each class
of equity security is beneficially owned by the Company.
(8) The term "Continuing Director" shall mean any
member of the Board of Directors of the Company (the "Board"),
while such person is a member of the Board, who is not an
Affiliate or Associate or representative of the Interested
Shareholder and was a member of the Board prior to the time that
the Interested Shareholder became an Interested Shareholder, and
any successor of a Continuing Director, while such successor is a
member of the Board, who is not an Affiliate or Associate or
representative of the Interested Shareholder and is recommended
or elected to succeed the Continuing Director by a majority of
Continuing Directors.
(9) The term "Fair Market Value" shall mean (a) in the
case of cash, the amount of such cash; (b) in the case of stock,
the closing sale price on the trading day immediately preceding
the date in question of a share of such stock on the Composite
Tape for New York Stock Exchange-Listed Stocks, or, if such stock
is not quoted on the Composite Tape, on the New York Stock
Exchange, or, if such stock is not listed on such Exchange, on
the principal United States securities exchange registered under
the Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the closing bid quotation with
respect to a share of such stock on the trading day immediately
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any
similar system then in use, or if no such quotation is available,
the fair market value on the date in question of a share of such
stock as determined by a majority of the Continuing Directors in
good faith; and (c) in the case of property other than cash or
stock, the fair market value of such property on the date in
question as determined in good faith by a majority of the
Continuing Directors.
D. The Board of Directors shall have the power and duty to
determine for the purposes of this Article Seventh, on the basis
of information known to them after reasonable inquiry, (a)
whether a person is an Interested Shareholder, (b) the number of
shares of Capital Stock or other securities beneficially owned by
any person, (c) whether a person is an Affiliate or Associate of
another and (d) whether the consideration to be paid in any Stock
Repurchase has an aggregate Fair Market Value in excess of the
then Fair Market Value of the shares of Capital Stock being
repurchased. Any such determination made in good faith shall be
binding and conclusive on all parties.
E. Nothing contained in this Article Seventh shall be
construed to relieve any Interested Shareholder from any
fiduciary obligation imposed by law.
F. Notwithstanding any other provisions of the Articles or
the By-Laws of the Company (and notwithstanding the fact that a
lesser percentage or separate class vote may be specified by law,
these Articles or the By-Laws of the Company), the affirmative
vote of the holders of not less than eighty percent (80%) of the
votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock, voting together as a single class, shall
be required to amend or repeal, or adopt any provisions
inconsistent with, this Article Seventh.
EIGHTH. A. The business and affairs of the corporation
(the "Company") shall be managed by a Board of Directors
comprised as follows:
(1) The Board of Directors shall consist of the number
of persons fixed from time to time by the Board of Directors
pursuant to a resolution adopted by a majority vote of the
directors then in office.
(2) Beginning with the Board of Directors to be
elected at the annual meeting of shareholders held in 1985,
directors shall be classified with respect to the time for which
they shall severally hold office by dividing them into three
classes, as nearly equal in number as possible. At such meeting,
each class of directors shall be elected in a separate election.
Directors of the first class shall be elected for a term of
office to expire at the 1986 annual meeting of shareholders,
those of the second class shall be elected for a term of office
to expire at the 1987 annual meeting of shareholders, and those
of the third class shall be elected for a term of office to
expire at the 1988 annual meeting of shareholders. At each
annual election held after the 1985 annual meeting of
shareholders the class of directors then being elected shall be
elected to hold office for a term of office to expire at the
third succeeding annual meeting of shareholders after their
election. Each director shall hold office for the term for which
elected and until his or her successor shall have been elected
and qualified, except in the case of earlier death, resignation
or removal.
(3) Nominations for the election of directors at an
annual meeting of the shareholders may be made by the Board of
Directors or a committee appointed by the Board of Directors or
by any shareholder entitled to vote in the election of directors
at the meeting. Shareholders entitled to vote in such election
may nominate one or more persons for election as directors only
if written notice of such shareholder's intent to make such
nomination or nominations has been given either by personal
delivery or by United States mail, postage prepaid, to the
Secretary of the Company not later than ninety days prior to the
anniversary date of the immediately preceding annual meeting.
Such notice shall set forth: (a) the name and address of the
shareholder who intends to make the nomination and of the persons
or person to be nominated; (b) a representation that the
shareholder is a holder of record of stock of the Company
entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the shareholder and each nominee and any
other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the
shareholder; (d) such other information regarding each nominee
proposed by such shareholder as would be required to be included
in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission as then in effect; and (e) the
consent of each nominee to serve as a director of the Company if
so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance
with the foregoing procedure.
(4) Any director, any class of directors, or the
entire Board of Directors may be removed from office by
shareholder vote at any time, with or without assigning any
cause, but only if shareholders entitled to cast at least 80% of
the votes which all shareholders would be entitled to cast at an
annual election of directors or of such class of directors shall
vote in favor of such removal.
(5) Vacancies in the Board of Directors, including
vacancies resulting from an increase in the number of directors,
shall be filled only by a majority vote of the remaining
directors then in office, though less than a quorum, except that
vacancies resulting from removal from office by a vote of the
shareholders may be filled by the shareholders at the same
meeting at which such removal occurs. All directors elected to
fill vacancies shall hold office for a term expiring at the
annual meeting of shareholders at which the term of the class to
which they have been elected expires. No decrease in the number
of directors constituting the Board of Directors shall shorten
the term of any incumbent director.
B. Notwithstanding any other provisions of the Articles or
the By-Laws of the Company (and notwithstanding the fact that a
lesser percentage or separate class vote may be specified by law,
these Articles or the By-laws of the Company), the affirmative
vote of not less than eighty percent (80%) of the votes which all
shareholders of the then outstanding shares of capital stock of
the Company would be entitled to cast in an annual election of
directors, voting together as a single class, shall be required
to amend or repeal, or adopt any provisions inconsistent with,
this Article Eighth.
NINTH. To the fullest extent that the laws of the
Commonwealth of Pennsylvania, as in effect on May 15, 1987 or as
thereafter amended, permit elimination or limitation of the
liability of directors, no director of the corporation shall be
personally liable for monetary damages for any action taken, or
any failure to take any action. This Article Ninth shall not
apply to any action filed prior to May 15, 1987, nor to any
breach of performance of duty or any failure of performance of
duty occurring prior to May 15, 1987. The provisions of this
Article shall be deemed to be a contract with each director of
the corporation who serves as such at any time while such
provisions are in effect, and each such director shall be deemed
to be serving as such in reliance on the provisions of this
Article. Any amendment or repeal of this Article or adoption of
any other provision of the Articles or By-laws of the corporation
which has the effect of increasing director liability shall
operate prospectively only and shall not affect any action taken,
or any failure to act, prior to such amendment, repeal or
adoption.
TENTH. Except as prohibited by law, the corporation may
indemnify any 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 or agent of
another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit
plan) and may take such steps as may be deemed appropriate by the
Board of Directors, including purchasing and maintaining
insurance, entering into contracts (including, without
limitation, contracts of indemnification between the corporation
and its directors and officers), creating a trust fund, granting
security interests or using other means (including, without
limitation, a letter of credit) to ensure the payment of such
amounts as may be necessary to effect such indemnification. This
Article shall be effective May 15, 1987.