Exhibit 3
BY-LAWS
OF
H. J. HEINZ COMPANY
(INCORPORATED UNDER THE LAWS OF PENNSYLVANIA)
[HEINZ LOGO]
Approved by the Board of Directors: June 10, 1970
Adopted by the Shareholders: September 9, 1970
Amended by the Board of Directors: June 13, 1973, November 9, 1977,
June 13, 1979, July 11, 1979,
September 9, 1987, July 6, 1990,
October 12, 1994, July 10, 1996,
April 8, 1998 (effective April 30, 1998),
September 8, 1999 and June 12, 2002
Amended by the Shareholders: September 9, 1987
BY-LAWS OF H. J. HEINZ COMPANY
ARTICLE I - IDENTIFICATION
SECTION 1. PRINCIPAL OFFICE. The principal office of the Company shall
be at such place in the Commonwealth of Pennsylvania as the Board of Directors
shall by resolution from time to time designate.
SECTION 2. SEAL. The Company shall have a corporate seal in such form
as the Board of Directors shall by resolution from time to time prescribe.
SECTION 3. FISCAL YEAR. The fiscal year shall end on the Wednesday
nearest to April 30 of each year and begin on the following day.
ARTICLE II - SHAREHOLDERS' MEETING
SECTION 1. PLACE OF MEETINGS. Meetings of the shareholders of the
Company shall be held at the principal office of the Company or at such other
place within or without the Commonwealth of Pennsylvania as may be fixed by the
Board of Directors.
SECTION 2. ANNUAL MEETING. The annual meeting of the shareholders shall
be held on the second Wednesday in September each year at two o'clock p.m., or
on such other day or at such other time as may be fixed by the Board of
Directors. The shareholders at the annual meeting shall: (i) elect a Board of
Directors; (ii) elect independent certified public accountants to examine the
annual financial statements of the Company and to report on such examination to
the shareholders; and (iii) transact such other business as may properly be
brought before such meeting.
SECTION 3. CHAIRMAN OF MEETING. All meetings of shareholders shall be
called to order and presided over by the Chairman of the Board or in his
absence, by the President, or in the absence of both, by the person designated
in writing by the Chairman or President.(1)
SECTION 4. DETERMINATION OF RECORD DATES. The Board of Directors shall
fix a time, not less than ten or more than seventy days, prior to the date of
any meeting of shareholders, as a record date for the determination of the
shareholders entitled to notice of and to vote on such meeting.
SECTION 5. NOTICE TO SHAREHOLDERS. Written notice of every meeting of
the shareholders shall be given by, or at the direction of, the person or
persons authorized to call the meeting, to each shareholder of record entitled
to vote at the meeting: (i) at least thirty days prior to the date fixed for the
annual meeting; (ii) at least ten days prior to the date fixed for any special
meeting, unless, in either case, a greater period of notice is required by law
to be given in advance of such particular meeting. Written notice shall be
deemed to be
sufficient if given to the shareholder personally, or by sending a copy thereof
through the mail to his address appearing on the books of the Company, or
supplied by him to the Company for the purpose of notice. The notice required by
this By-Law shall specify the place, date and hour of the meeting, and in case
of a special meeting, the general nature of the business to be transacted.
SECTION 6. NOMINATIONS AND BUSINESS AT MEETINGS. At any annual meeting
of shareholders, only persons who are nominated or business that is proposed in
accordance with the procedures set forth in this Section 6 shall be eligible for
election as Directors or considered for action by shareholders. Nominations of
persons for election to the Board of Directors of the Company may be made or
business proposed at a meeting of shareholders (i) by or at the direction of the
Board of Directors or (ii) by any shareholder of the Company entitled to vote at
the meeting who complies with the notice and other procedures set forth in this
Section 6. Such nominations or business proposals, other than those made by or
at the direction of the Board of Directors, shall be made pursuant to timely
notice in writing to the Secretary of the Company and such proposals must, under
applicable law, be a proper matter for shareholder action. To be timely, a
shareholder's notice shall be delivered to or mailed and received at the
principal office of the Company not less than 120 days nor more than 210 days in
advance of the date which is the anniversary of the date the Company's proxy
statement was released to shareholders in connection with the previous year's
annual meeting or if the date of the applicable annual meeting has been changed
by more than 30 days from the date contemplated at the time of the previous
year's proxy statement, not less than 90 days before the date of the applicable
annual meeting; provided, however, that in the event that less than 90 days'
notice or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be received not later
than the close of business on the 15th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made,
whichever first occurs.
Such shareholder's notice shall set forth (i) as to each person who
such shareholder proposes to nominate for election or reelection as a Director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a Director if elected); (ii) as to any
other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the annual
meeting, the reasons for conducting such business at the annual meeting and any
material interest in such business of such person on whose behalf such proposal
is made; and (iii) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (a) the name
and address of such shareholder and beneficial owner, if any, (b) the class and
number of shares of the Company which are beneficially owned, (c) a description
of all arrangements or understandings between such shareholder and each proposed
nominee and any other person or persons (including their names) with respect to
any such nomination(s) or proposal(s) and (d) a representation that such
shareholder intends to appear in person or by proxy at the meeting to nominate
the person(s) named, or move the proposal identified, in its
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notice. The Company may require any proposed nominee to furnish such other
information as may reasonably be required by the Company to determine the
eligibility of such proposed nominee to serve as a director of the Company. No
person shall be eligible for election as a Director of the Company and no
business shall be conducted at the annual meeting of shareholders, other than
those made by or at the direction of the Board of Directors, unless nominated or
proposed in accordance with the procedures set forth in this Section 6. The
Chairman of the meeting may, if the facts warrant, determine and declare to the
meeting that a nomination or proposal was not made in accordance with the
provisions this Section 6 and, if he should so determine, he shall so declare to
the meeting and the defective nomination or proposal shall be disregarded.(2)
ARTICLE III - DIRECTORS
SECTION 1. GENERAL POWERS OF BOARD OF DIRECTORS. The business and
affairs of the Company shall be managed by its Board of Directors which is
hereby authorized and empowered to exercise all corporate powers of the Company.
SECTION 2. QUALIFICATION AND NUMBER. The Board of Directors shall have
the power to fix the number of directors and from time to time by proper
resolution to increase or decrease the number thereof without a vote of the
shareholders provided that the number so determined shall not be less than
three.
SECTION 3. ELECTION AND TERM. Except as provided in the Company's
Restated Articles of Incorporation as amended, the shareholders shall at each
annual meeting elect directors each of whom shall serve until the annual meeting
of shareholders next following his election and until his successor is elected
and shall qualify.
SECTION 4. VACANCIES. Vacancies on the Board of Directors, including
vacancies from any increase in the number of directors, shall be filled by a
majority of the remaining members of the Board though less than a quorum, and
each person so elected shall be a director until his successor is elected by the
shareholders who may make such election at the next annual meeting of the
shareholders or at any special meeting to be called for that purpose and held
prior thereto.
SECTION 5. NOMINATION OF DIRECTORS. Candidates for election to the
Board of Directors at an annual meeting of the shareholders shall be nominated
at a regular or special meeting of the Board. Candidates for such election also
may be nominated by any shareholder entitled to vote at the meeting in
accordance with Article II-Section 6. If any nominee chosen by the Board shall
be unwilling or unable to serve as a director if elected, a substitute nominee
shall be designated by the Board, and announcement of such designation shall be
made at the meeting of the shareholders prior to the voting upon election of
directors.(3)
SECTION 6. ORGANIZATION MEETING OF BOARD OF DIRECTORS. The Board of
Directors shall without notice meet each year upon adjournment of the annual
meeting of the
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shareholders at the principal office of the Company, or at such other time or
place as shall be designated in a notice given to all nominees for director, for
the purposes of organization, fixing of times and places for regular meetings of
the Board for the ensuing year, election of officers and consideration of any
other business that may properly be brought before the meeting.
SECTION 7. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as shall be fixed at the
organization meeting of the Board or as may be otherwise determined by the
Board.
SECTION 8. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President or the
Secretary and shall be called by the Secretary at the written request of any two
directors.(1)
SECTION 9. NOTICE OF REGULAR AND SPECIAL MEETINGS. No notice of a
regular meeting of the Board of Directors shall be necessary if the meeting is
held at the time and place fixed by the Board at its organization meeting or at
the immediately preceding Board meeting. Notice of any regular meeting to be
held at another time or place and of all special meetings of the Board, setting
forth the time and place of the meeting, and in the case of a special meeting
the purpose or purposes thereof, shall be given by letter or other writing
deposited in the United States mail not later than during the third day
immediately preceding the day for such meeting, or by telephone, telex,
facsimile or other oral, written or electronic means, received not later than
during the day immediately preceding the day for such meeting or such shorter
period as the person or persons calling such meeting may deem necessary or
appropriate under the circumstances.(4)
SECTION 10. QUORUM. A majority of the directors in office shall be
necessary to constitute a quorum for the transaction of business, and the acts
of the majority of the directors present at a meeting at which a quorum is
present shall be the acts of the Board of Directors. If at any meeting a quorum
shall not be present, the meeting may adjourn from time to time until a quorum
shall be present.
SECTION 11. WRITTEN CONSENT. Any action which may be taken at a meeting
of the Board of Directors or at a meeting of the executive or other committee as
hereinafter provided may be taken without a meeting, if a consent or consents in
writing setting forth the action so taken shall be signed by all the directors
or the members of the committee, as the case may be, and shall be filed with the
Secretary of the Company.
SECTION 12. PARTICIPATION BY CONFERENCE TELEPHONE. One or more
directors may participate in a meeting of the Board of Directors or of a
committee of the Board as hereinafter provided for by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other.
SECTION 13. EXECUTIVE COMMITTEE. The Board of Directors may, by
resolution adopted by a majority of the whole Board, constitute, abolish or
reconstitute an Executive
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the Board as the Board may determine, but in no event less than three, and shall
include the President. The other members of the Executive Committee shall be
appointed and may be removed by the Board. The President shall act as Chairman
of such Committee, and in his absence, the Committee shall select one of its
members to act as Chairman.(5)
The Chairman of the Committee shall have power to vote on all
questions. The members of the Committee shall hold office until the first
meeting of the Board of Directors after the next succeeding annual meeting of
the shareholders and until their successors are appointed.
The Board of Directors shall fill any vacancy in the Executive
Committee, and it shall be its duty to keep the membership of such Committee
full.
The Executive Committee shall keep proper minutes and records of its
proceedings, and all actions of the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such actions, and when the
Board is not in session the Executive Committee shall have all powers and rights
of the Board unless limited by a resolution of the Board.
A quorum of the Executive Committee shall consist of three of its
members. All questions shall be decided by the vote of the majority of the
members of such Committee present.
SECTION 14. OTHER COMMITTEES. The Board of Directors may, by
resolution adopted by a majority of the whole Board, designate one or more
committees, each committee to consist of three or more directors.
SECTION 15. COMPENSATION OF OFFICERS AND ASSISTANT OFFICERS. Unless
otherwise determined by resolution adopted by the majority of the entire Board
of Directors, the Chief Executive Officer of the Company or such officer as he
may designate shall have the authority to determine, fix and change the
compensation of all officers and assistant officers of the Company elected or
appointed by the Board.
ARTICLE IV - OFFICERS
SECTION 1. NUMBER AND ELECTION. The Board of Directors shall elect a
Chairman of the Board, a President, a Secretary and a Treasurer, and may elect
such other officers and assistant officers as the Board may deem appropriate.(1)
SECTION 2. TERM OF OFFICE. The term of office for all officers shall be
until the organization meeting of the Board of Directors following the next
annual meeting of shareholders or until their respective successors are elected
and shall qualify, but any officer may be removed from office, either with or
without cause, at any time by the affirmative vote
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of the majority of the members of the Board then in office. A vacancy in any
office arising from any cause may be filled for the unexpired term by the Board.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders and of the Board of Directors at
which he is present. He may be a member of any of the committees of the
Board.(6)
SECTION 4. PRESIDENT. The President shall be the Chief Executive
Officer and shall have general supervision over the business and affairs of the
Company. He shall be a member of the Executive Committee and may be a member of
the other committees of the Board. In the absence of the Chairman, he shall have
the powers of the Chairman of the Board. In addition, he shall perform all
duties as may be assigned to him by the Board of Directors.(5)
SECTION 5. SECRETARY. The Secretary shall attend meetings of the
shareholders, the Board of Directors and the Executive Committee, shall keep
minutes thereof in suitable books, and shall send out all notices of meetings as
required by law or by these By-Laws. He shall, in general, perform all duties
incident to the office of the Secretary and perform such other duties as may be
assigned to him by the Board, the Chairman of the Board or the President.(1)
SECTION 6. TREASURER. The Treasurer shall have charge and custody of
and be responsible for all funds and deposit all sums in the name of the Company
in banks, trust companies or other depositories; he shall receive and give
receipts for money due and payable to the Company from any source whatsoever,
and in general shall perform all the duties incident to the office of the
Treasurer and such other duties as may be assigned to him by the Board of
Directors, the President or by any officer to whom the President has directed
him to report.(5)
SECTION 7. OTHER OFFICERS. The powers and duties of other officers
shall be such as may, from time to time, be prescribed by the Board of
Directors, the Chairman of the Board or the President.(1)
SECTION 8. DELEGATION OF DUTIES OF OFFICERS. In case of the absence of
any officer of the Company or for any other reason that the Board of Directors
may deem sufficient, the Board, or in the absence of action by the Board, the
President, or in his absence, the Chairman of the Board, may delegate for the
time being the powers and duties of any officer to any other officer or to any
director.(5)
ARTICLE V - EXECUTION OF WRITTEN INSTRUMENTS
The Board of Directors shall, from time to time, designate the
officers, employees or agents of the Company who shall have power in its name to
sign and endorse checks and other negotiable instruments, and to borrow money
for the Company and in its name to make notes or other evidence of indebtedness.
Any officer so designated by the Board may further
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delegate his powers to the extent provided in any resolution of the Board.
Unless otherwise authorized by the Board, all contracts, leases, deeds and deeds
of trust, mortgages, powers of attorney to transfer stock and all other
documents requiring the seal of the Company shall be executed for and on behalf
of the Company by the Chairman of the Board, the President or any Vice
President, and shall be attested by the Secretary or an Assistant Secretary.(1)
ARTICLE VI - CERTIFICATES OF STOCK AND TRANSFERS OF STOCK
SECTION 1. FORM OF SHARE CERTIFICATES AND TRANSFER. Share certificates
representing the capital stock of the Company shall be in such form as the Board
of Directors may from time to time determine. Each certificate shall be signed
by the Chairman of the Board, the President or one of the Vice Presidents or
other officer designated by the Board and shall be countersigned by the
Treasurer or an Assistant Treasurer and sealed with the seal of the Company. If
such certificates of stock are signed or countersigned by a corporate transfer
agent and a corporate registrar of the Company, such signature of the Chairman
of the Board, the President or other officer, and the countersignature of the
Treasurer or Assistant Treasurer, and such seal, or any of them, may be a
facsimile, engraved or printed.(1)
SECTION 2. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint an incorporated bank or trust company in the City of Pittsburgh and a
similar institution in the City of New York to act as transfer agents for the
Company's capital stock with such duties and powers as may be prescribed by the
Board in the resolutions appointing them; and an incorporated bank or trust
company in the City of Pittsburgh and a similar institution in the City of New
York to act as registrars of the Company's capital stock. A share certificate of
the Company shall not be valid or binding unless countersigned by a transfer
agent and registered before issue by a registrar.
SECTION 3. REGISTERED SHAREHOLDERS. The Company shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person, whether or
not it shall have express or other notice thereof, save as expressly provided by
the laws of Pennsylvania.
SECTION 4. LOST CERTIFICATE. Any person claiming a certificate of stock
to be lost or destroyed shall make an affidavit or affirmation of that fact and
advertise the same in such manner as the Board of Directors may require, and
shall, if the directors so require, give the Company a bond of indemnity, in
form and with one or more sureties satisfactory to the Board, whereupon a new
certificate may be issued of the same tenor and for the same number of shares as
the one alleged to be lost or destroyed.(7)
SECTION 5. DETERMINATION OF SHAREHOLDERS ENTITLED TO DIVIDENDS,
DISTRIBUTIONS OR RIGHTS. The Board of Directors may fix a time not more than
fifty days prior to the date fixed for the payment of any dividend or
distribution or the date for the allotment of rights or the date when any change
or conversion or exchange of shares will be made or go into effect as a record
date for the determination of the shareholders entitled to receive payment of
any
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such dividend or distribution or to receive any such allotment or rights or to
exercise the rights in respect to any such change, conversion or exchange of
shares.(8)
ARTICLE VII - LIMITATION OF DIRECTOR LIABILITY(9)
To the fullest extent that the laws of the Commonwealth of
Pennsylvania, as in effect on January 27, 1987 or as thereafter amended, permit
elimination or limitation of the liability of directors, no director of the
Company shall be personally liable for monetary damages as such for any action
taken, or any failure to take any action, as a director. This Article shall not
apply to any action filed prior to January 27, 1987, nor to any breach of
performance of duty or any failure of performance of duty by any director
occurring prior to January 27, 1987. The provisions of this Article shall be
deemed to be a contract with each director of the Company 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. This
Article shall not be amended, altered or repealed without the affirmative vote
of the holders of at least 80% of the voting power (without consideration of the
rights of any class of stock to elect directors by a separate class) of the then
outstanding shares of Capital stock of the Company entitled to vote in an annual
election of directors, voting together and not as separate classes, unless such
amendment, alteration or repeal is first recommended and approved by a majority
of the entire Board of Directors in which case only a majority shareholder vote
shall be required. Such affirmative vote shall be required notwithstanding the
fact that no vote is required, or that a lesser percentage may be specified, by
law or in any agreement with any national securities exchange or otherwise. Any
amendment to, alternation, or repeal or adoption of this Article which has the
effect of increasing director liability shall operate prospectively only and
shall not have any effect with respect to any action taken, or any failure to
act, by a director prior thereto.
ARTICLE VIII - ADDITIONAL INDEMNIFICATION PROVISIONS APPLICABLE TO
PROCEEDINGS BASED ON ACTS OR OMISSIONS ON OR AFTER JANUARY 27, 1987(9)
SECTION 1. RIGHT OF INDEMNIFICATION. Except as prohibited by law, every
director and officer of the Company shall be entitled as of right to be
indemnified by the Company against reasonable expenses and any liability paid or
incurred by such person in connection with any actual, threatened or completed
claim, action, suit or proceeding, civil, criminal, administrative,
investigative or other, whether brought by or in the right of the Company or
otherwise, in which he or she may be involved, as a party or otherwise, by
reason of such person being or having been a director or officer of the Company
or by reason of the fact that such person is or was serving at the request of
the Company as a director, officer, employee, fiduciary or other representative
of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise (such claim, action, suit or proceeding hereinafter being
referred to as an "action"); provided, however, that no such right of
indemnification shall exist with respect to an action brought by a director or
officer against the Company other than a suit for indemnification as provided in
Section 3. Persons or classes of persons who are not directors or officers of
the Company may be similarly indemnified in respect of service to the Company or
to another such enterprise at the request of the Company to the
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extent the Board of Directors at any time denominates such person or such class
of persons as entitled to the benefits of this Article. As used herein,
"expenses" shall include fees and expenses of counsel selected by such person;
and "liability" shall include amounts of judgments, excise taxes, fines,
penalties, and amounts paid in settlement.
SECTION 2. RIGHT TO ADVANCEMENT OF EXPENSES. Indemnification under
Section 1 shall include the right to have expenses incurred by such person in
connection with an action (other than an action brought by such person against
the Company) paid in advance by the Company prior to final disposition of such
action, subject to such conditions as may be prescribed by law or by a provision
in the Company's Related Articles of Incorporation, these By-Laws, agreement or
otherwise to reimburse the Company in certain events.
SECTION 3. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 1
or Section 2 of this Article is not paid in full by the Company within thirty
days after a written claim has been received by the Company, the claimant may at
any time thereafter bring suit against the Company to recover the unpaid amount
of the claim, and, if successful in whole or in part, the claimant shall also be
entitled to be paid the expense of prosecuting such claim. It shall be a defense
to any such action that the conduct of the claimant was such that under
Pennsylvania law the Company would be prohibited from indemnifying the claimant
for the amount claimed, but the burden of proving such defense shall be on the
Company. Neither the failure of the Company (including its Board of Directors,
independent legal counsel and its shareholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because the conduct of the claimant was not such
that indemnification would be prohibited by law, nor an actual determination by
the Company (including its Board of Directors, independent legal counsel or its
shareholders) that the conduct of the claimant was such that indemnification
would be prohibited by law, shall be a defense to the action or create a
presumption that the conduct of the claimant was such that indemnification would
be prohibited by law. The only defense to any such action to receive payment of
expenses in advance under Section 2 of this Article shall be failure to make an
undertaking to reimburse if such undertaking is required by law or by a
provision in the Company's Restated Articles of Incorporation, these By-Laws,
agreement or otherwise.
SECTION 4. INSURANCE AND FUNDING. The Company may purchase and maintain
insurance to protect itself and any person eligible to be indemnified hereunder
against any liability or expense asserted or incurred by such person in
connection with any action, whether or not the Company would have the power to
indemnify such person against such liability or expense by law or under the
provisions of this Article. The Company may create a trust fund, grant a
security interest, cause a letter of credit to be issued or use other means
(whether or not similar to the foregoing) to ensure the payment of such sums as
may become necessary to effect indemnification as provided herein.
SECTION 5. NON-EXCLUSIVITY, NATURE AND EXTENT OF RIGHTS. The rights of
indemnification and advancement of expenses provided for herein (i) shall not be
deemed exclusive of any other rights, whether now existing or hereafter created,
to which those
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seeking indemnification hereunder may be entitled under any agreement, by-law or
charter provision, vote of shareholders or directors or otherwise, (ii) shall be
deemed to create contractual rights in favor of persons entitled to
indemnification hereunder, (iii) shall continue as to persons who have ceased to
have the status pursuant to which they were entitled or were denominated as
entitled to indemnification hereunder and shall inure to the benefit of the
heirs and legal representatives of persons entitled to indemnification and (iv)
shall be applicable to actions, suits or proceedings commenced after the
adoption hereof, whether arising from acts or omissions occurring before or
after the adoption hereof.
SECTION 6. EFFECTIVE DATE. This Article shall apply to every action
other than an action filed prior to January 27, 1987, except that it shall not
apply to the extent that Pennsylvania law prohibits its application to any
breach of performance of duty or any failure of performance of duty by a
claimant occurring prior to January 27, 1987.
SECTION 7. INDEMNIFICATION Agreement. The Company may enter into
agreements with any director, officer or employee of the Company, which
agreements may grant rights to any person eligible to be indemnified hereunder
or create obligations of the Company in furtherance of, different from, or in
addition to, but not in limitation of, those provided in this Article, without
shareholder approval of any such agreement. Without limitation of the foregoing,
the Company may obligate itself (i) to maintain insurance on behalf of any
person eligible to be indemnified hereunder against certain expenses and
liabilities and (ii) to contribute to expenses and liabilities incurred by such
person in accordance with the application of relevant equitable considerations
to the relative benefits to, and the relative fault of, the Company.
SECTION 8. PARTIAL Indemnification. If any person is entitled under any
provision of this Article to indemnification by the Company of a portion, but
not all, of the expenses or liability resulting from an action, the Company
shall nevertheless indemnify such person for the portion thereof to which he is
entitled.
SECTION 9. SEVERABILITY. If any provision of this Article shall be held
to be invalid, illegal or unenforceable for any reason (i) such provision shall
be invalid, illegal or unenforceable only to the extent of such prohibition and
the validity, legality and enforceability of the remaining provisions of this
Article shall not in any way be affected or impaired thereby, and (ii) to the
fullest extent possible, the remaining provisions of this Article shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
SECTION 10. AMENDMENT, ALTERATION OR REPEAL. This Article may be
amended, altered or repealed at any time in the future by vote of the majority
of the entire Board of Directors without shareholder approval; provided that any
amendment, alteration or repeal, or adoption of any Article of the Restated
Articles of Incorporation or any By-Law of the Company, which has the effect of
limiting the rights granted under this Article, shall require the affirmative
vote of the holders of at least 80% of the voting power (without consideration
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of the rights of any class of stock to elect directors by a separate class) of
the then outstanding shares of capital stock of the Company entitled to vote in
an annual election of directors, voting together and not as separate classes,
unless such amendment, alteration or repeal is first recommended and approved by
a majority of the entire Board of Directors in which case only a majority
shareholder vote shall be required. Such affirmative vote shall be required
notwithstanding the fact that no vote is required, or that a lesser percentage
may be specified, by law or in any agreement with any national securities
exchange or otherwise. Any amendment to, alteration or repeal of this Article,
or such other Article or other By-Law, which has the effect of limiting the
rights granted under this Article shall operate prospectively only, and shall
not limit in any way the indemnification provided for herein with respect to any
action taken, or failure to act, occurring prior thereto.
ARTICLE IX - INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. INDEMNIFICATION FOR ACTIONS, ETC., OTHER THAN BY OR IN THE
RIGHT OF THE COMPANY. The Company shall indemnify any person who was or is a
party or is threatened with being made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action, suit or proceeding by or in the right of
the Company) by reason of the fact that he is or was a director or officer of
the Company, or is or was serving at the request of the Company as a director,
officer or employee of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not of itself create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
SECTION 2. INDEMNIFICATION FOR ACTIONS, ETC., BY OR IN THE RIGHT OF THE
COMPANY. The Company shall indemnify any person who was or is a party or is
threatened with being made a party to any threatened, pending or completed
action or suit by or in the right of the Company to procure a judgment in its
favor by reason of the fact that he is or was a director or officer of the
Company, or is or was serving at the request of the Company as a director,
officer or employee of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the Company and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Company unless and only to the
extent that the court or body in or before which such action, suit or proceeding
was finally brought shall
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determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses which the court of competent
jurisdiction shall deem proper.
SECTION 3. DETERMINATION OF RIGHT TO INDEMNIFICATION. To the extent
that a director or officer of the Company has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
(1) and (2) of this Article or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
Any indemnification under Sections (1) or (2) of this Article (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of a director or officer
is proper in the circumstances because he has met the applicable standard of
conduct set forth in this Article. Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or
(b) If such a quorum is not obtainable, or, even if obtainable
a majority vote of a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or
(c) By the shareholders.
SECTION 4. PAYMENT OF EXPENSES. Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the Company in advance of
the final disposition of such action, suit or proceeding as authorized in the
manner provided in Section 3 of this Article upon receipt of an undertaking by
or on behalf of the director or officer, to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the Company as
authorized in this Article.
SECTION 5. INDEMNIFICATION OF MANAGERIAL AND RETIRED EMPLOYEES. Each
employee of the Company acting in a managerial capacity (and each retired
employee who is or was, after retirement, a party to an agreement under which he
is or was obligated to render services to the Company or such other entity)
shall be reimbursed and indemnified in the same manner and to the same extent as
provided in this Article for a director or officer in connection with any
proceeding in which he may be involved or to which he may be a party by reason
of his being or having been such employee or a party to any such agreement or by
reason of any action alleged to have been taken or omitted by him in any such
capacity.
SECTION 6. OTHER RIGHTS AND REMEDIES. The indemnification provided by
this Article shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action
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in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director or officer, and shall inure to the benefit of
the heirs, executors and administrators of such a person.
SECTION 7. INSURANCE. To the extent permitted by law, the Board of
Directors may at its discretion from time to time purchase and maintain
insurance on behalf of any person who is or was a director, officer or employee
of the Company or is or was serving at the request of the Company as a director,
officer or employee of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Company would have power to indemnify him against such liability under the
provisions of this Article.
SECTION 8. APPLICABILITY. The indemnification and reimbursement
provided under this Article shall continue to be provided to all persons
described herein unless such persons have received the benefits of
indemnification under Article VIII of these By-Laws.(10)
ARTICLE X - NON-APPLICABILITY OF PROVISIONS
OF PENNSYLVANIA ACT NO. 36 OF 1990(11)
The following provisions of Pennsylvania Act No. 36 of 1990 shall not
be applicable to the Company:
A. Subchapter G of Chapter 25 of Title 15 of the Pennsylvania
Consolidated Statutes.
B. Subchapter H of Chapter 25 of Title 15 of the Pennsylvania
Consolidated Statutes.
ARTICLE XI - BY-LAWS SUBJECT TO PROVISIONS OF ARTICLES OF
INCORPORATION
In case of any conflict between the provisions of these By-Laws and the
Company's Restated Articles of Incorporation as amended from time to time, the
provisions of the Articles of Incorporation shall control, and with respect to
any provisions required to be set forth in the By-Laws, the applicable
provisions of the Articles of Incorporation are and shall be incorporated herein
by reference and shall be deemed a part of these By-Laws.
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ARTICLE XII - AMENDMENTS(12)
Except as otherwise provided in Articles VII and VIII, these By-Laws
may be altered, amended, added to or repealed by the Board of Directors at any
meeting of the Board duly convened with or without notice of that purpose,
subject to the power of the shareholders to change such action.
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(1) Section amended by the Board of Directors on June 13, 1973 and June 13,
1979.
(2) Section added by the Board of Directors on September 8, 1999.
(3) Section amended by the Board of Directors on September 8, 1999.
(4) Section amended by the Board of Directors on October 12, 1994.
(5) Section amended by the Board of Directors on June 13, 1973, June 13,
1979, July 10, 1996 and April 8, 1998 (effective April 30, 1998).
(6) Section amended by the Board of Directors on June 13, 1979, July 10, 1996
and April 8, 1998 (effective April 30, 1998).
(7) Section amended by the Board of Directors on July 11, 1979.
(8) Section amended by the Board of Directors on November 9, 1977.
(9) Article added by the Shareholders on September 9, 1987.
(10) Section added by the Board of Directors on September 9, 1987.
(11) Article added by the Board of Directors on July 6, 1990 and amended by
the Board of Directors on June 12, 2002.
(12) Article amended by the Board of Directors on September 9, 1987.
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