Exhibit 3(ii)
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 and
April 8, 1998 (effective April 30, 1998)
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.
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 held at least sixty days prior to such
annual meeting. Candidates for such election also may be nominated by notice in
writing setting forth the name and address of each candidate, signed by a
shareholder or shareholders and received by the Secretary of the Company at
least thirty days before such annual meeting. If any nominee shall be unwilling
or unable to serve as a director if elected, a substitute nominee shall be
designated by the Board or may be designated by the said shareholder or
shareholders, as the case may be, and announcement of such designation shall be
made at the meeting of the shareholders prior to the voting upon election of
directors.
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 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,
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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./2/
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 Committee. The Executive Committee shall be composed
of such number of members of the
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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./3/
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 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.
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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./4/
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./3/
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./3/
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./3/
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 delegate his powers to the extent
provided in any resolution of the Board. Unless otherwise
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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./5/
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./6/
ARTICLE VII - LIMITATION OF DIRECTOR LIABILITY/7/
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, 1987/7/
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
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service to the Company or to another such enterprise at the request of the
Company to the 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.
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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 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
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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 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
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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 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.
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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 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./8/
ARTICLE X - NON-APPLICABILITY OF PROVISIONS
OF PENNSYLVANIA ACT NO. 36 of 1990/9/
SECTION 1. Non-Applicability. The following provisions of Pennsylvania Act
No. 36 of 1990 shall not be applicable to the Company;
A. Subsections (d) through (f) of Section 511 of Title 15 of the
Pennsylvania Consolidated Statutes.
B. Subsections (e) through (g) of Section 1721 of Title 15 of the
Pennsylvania Consolidated Statutes.
C. Subchapter G of Chapter 25 of Title 15 of the Pennsylvania
Consolidated Statutes.
D. Subchapter H of Chapter 25 of Title 15 of the Pennsylvania
Consolidated Statutes.
SECTION 2. Expressed Intention. Nothing in the foregoing paragraphs of
Section 1 of this Article X (including, without limitation, paragraphs A and B
thereof) is intended to limit, or shall limit or be deemed to limit, the right,
power or discretion of the Board of Directors, or of any committee of the Board
of Directors, or of any individual director, in discharging the duties of their
respective positions, to consider to the extent, if any, they
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deem, appropriate: (i) the effects of any action or proposed action (or of any
omission to act) upon any or all groups affected by such action (or omission to
act), including effects upon shareholders, employees, suppliers, customers and
creditors of the Company and upon communities in which offices or other
establishments of the Company are located; (ii) the short-term and/or long-term
interests of the Company, including benefits that may accrue or be expected to
accrue to the Company from its long-term or intermediate plans and strategies
(and/or the long-term or intermediate plans and strategies of one or more of its
affiliates) and the effect thereon of any action or proposed action (including,
without limitation, any proposed acquisition, divestiture or other transaction),
and the possibility that such short-term and/or longer-term interests might be
served by the continued independence of the Company; (iii) the resources, intent
and conduct (past, stated and potential) of any person seeking to acquire
control of the Company or proposing any transaction with the Company; and (iv)
all other factors deemed pertinent by the Board of Directors or any such
committee or individual director.
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.
ARTICLE XII - AMENDMENTS/10/
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 amended by the Board of Directors on October 12, 1994.
/3/ 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).
/4/ Section amended by the Board of Directors on June 13, 1979, July 10, 1996
and April 8, 1998 (effective April 30, 1998).
/5/ Section amended by the Board of Directors on July 11, 1979.
/6/ Section amended by the Board of Directors on November 9, 1977.
/7/ Article added by the Shareholders on September 9, 1987.
/8/ Section added by the Board of Directors on September 9, 1987.
/9/ Article added by the Board of Directors on July 6, 1990.
/10/ Article amended by the Board of Directors on September 9, 1987.
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