Exhibit 3.1(h)
CERTIFICATE OF INCORPORATION
OF
JLG ACQUISITION CORPORATION
ARTICLE I
The name of the Corporation is JLG ACQUISITION CORPORATION.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name and address of the Corporation's
registered agent is The Corporation Trust Company, Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware.
ARTICLE III
CORPORATE PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock that the Corporation shall
have authority to issue is ten thousand (10,000) shares, which shall be shares
of Common Stock with the par value of one cent ($.01) each.
The following is a statement of the designations and the powers, privileges and
rights, and the qualifications, limitations or restrictions thereof in respect
of the capital stock of the Corporation.
1. Voting. The holders of the Common Stock are entitled to one vote for
each share held at all meetings of stockholders (and written actions in lieu of
meetings). There shall be no cumulative voting.
2. Dividends. Dividends may be declared and paid on the Common Stock from
funds lawfully available therefor as and when determined by the Board of
Directors.
3. Liquidation. Upon the dissolution or liquidation of the Corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders.
ARTICLE V
RESERVATION OF RIGHT TO AMEND BYLAWS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to adopt,
amend or repeal the bylaws of the Corporation.
ARTICLE VI
ELECTION OF DIRECTORS
The election of directors need not be conducted by written ballot except
and to the extent provided in the bylaws of the Corporation.
ARTICLE VII
COMPROMISE OR ARRANGEMENT BETWEEN CORPORATION
AND CREDITORS
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
ARTICLE VIII
LIMITATION ON LIABILITY
To the fullest extent permitted by the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended, a director of
this Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Any repeal,
modification or amendment of the provisions of this Article VIII by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of
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this Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal, modification or amendment.
ARTICLE IX
INDEMNIFICATION
Section 1. Discretionary Indemnification. Every person who was or is an
officer, employee or agent of the Corporation or was or is serving at the
request of the Corporation as a director, officer, employee or agent of any
other corporation, partnership, joint venture, trust or other enterprise, or any
other person connected with the business of the Corporation who the board of
directors may designate, may, in the discretion of the board of directors, be
indemnified by the Corporation against all liability and expenses actually and
reasonably incurred by such person in connection with or resulting from any
action, suit or proceeding in which such person may become involved, as a party
or otherwise, by reason of such person's having been or being an officer,
employee or agent of the Corporation or a director, officer, employee or agent
of such other corporation, partnership, joint venture, trust or other
enterprise, or by reason of such person's connection with the business of the
Corporation (including, without limitation, any suit brought by or in the name
of the Corporation to recover an advancement of expenses made by the Corporation
pursuant to an undertaking or otherwise), provided (a) that such action, suit or
proceeding is prosecuted to a final determination and such person defends
successfully on the merits or otherwise or, (b) in the absence of such a final
determination in such person's favor, that the Corporation determines that such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, that such person had no reasonable cause to
believe his conduct was unlawful. The determinations contemplated by subclause
(b) of the proviso clause of the preceding sentence shall be made, with respect
to a person who is a director or officer at the time of such determination, (i)
by the board of directors by a majority vote of the directors not parties to
such action, suit or proceeding, even though less than a quorum, or (ii) by a
committee of such directors designated by a majority vote of such directors,
even though less than a quorum, or (iii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion, or
(iv) by the stockholders. If a person meets the requirements set forth in the
proviso clause of the first sentence of this Section 1 with respect to some
matters in an action, suit or proceeding, but not with respect to others, he may
be entitled to indemnification as to the former. The provisions of this Section
1 are in addition to, and not by way of limitation of, the provisions of
Sections 2 and 3 of this Article IX.
Section 2. Mandatory Indemnification in General. To the extent that a
former or present Qualifying Person or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 of this Article IX, or in defense of any
claim, issue or matter therein, or in any action, suit or proceeding brought by
such person to enforce a right to indemnification or to advancement of expenses
hereunder, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith. The provisions of
this Section 2 are in addition to, and not by way of limitation of, the
provisions of Sections 1 and 3 of this Article IX.
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Section 3. Mandatory Indemnification of Qualifying Persons. Every person
who was or is a Qualifying Person of the Corporation shall be indemnified by the
Corporation against all liability and expenses actually and reasonably incurred
by such person in connection with or resulting from any action, suit or
proceeding in which such person may become involved, as a party or otherwise, by
reason of such person's having been or being a Qualifying Person, or by reason
of such person's connection with the business of the Corporation, provided that
the Corporation determines that such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that such
person had no reasonable cause to believe his conduct was unlawful.
Notwithstanding the provisions of the foregoing sentence, except as provided in
Section 2 of this Article IX with respect to actions, suits and proceedings to
enforce rights to indemnification or advancement of expenses, the Corporation
shall be required to indemnify a Qualifying Person in connection with an action,
suit or proceeding (or part thereof) initiated by such Qualifying Person only if
such action, suit or proceeding (or part thereof) was authorized by the board of
directors. The determinations contemplated by the proviso clause of the first
sentence of this Section 3 shall be made, with respect to a person who is a
director or officer at the time of such determination, (a) by the board of
directors by a majority vote of the directors who are not parties to such
action, suit or proceedings, even though less than a quorum, or (b) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (c) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (d)
by the stockholders. If a Qualifying Person meets the requirements set forth in
the proviso clause of the first sentence of this Section 3 with respect to some
matters in an action, suit or proceeding, but not with respect to others, he
shall be entitled to indemnification as to the former. The provisions of this
Section 3 are in addition to, and not by way of limitation of, the provisions of
Sections 1 and 2 of this Article IX.
Section 4. Actions by or in the Right of the Corporation. In the case of
any action, suit or proceeding by or in the right of the Corporation: (a) no
indemnification shall be made with respect to any claim, issue or matter as to
which the person seeking indemnification shall have been adjudged to be liable
to the Corporation unless, and only to the extent that, the Delaware Court of
Chancery or the court in which such action or suit was 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
indemnity for reasonable expenses as the Court of Chancery or such other court
shall deem proper; and (b) indemnification shall extend only to expenses and
specifically shall not extend to any liability.
Section 5. Advances of Expenses. Advances against expenses may be made by
the Corporation on terms fixed by the board of directors subject to an
obligation to repay if indemnification proves unwarranted. Expenses actually and
reasonably incurred by a person in defending any action, suit or proceeding in
which such person is involved as a party or otherwise by reason of such person's
having been or being a Qualifying Person or in any action, suit or proceeding
brought by such person to enforce a right to indemnification or to advancement
of expenses hereunder shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such person to repay such amounts if it is ultimately determined
that such person is not entitled to be indemnified by the Corporation.
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Section 6. Applicability. The indemnification provided by this Article IX
shall not be deemed exclusive of any other rights to which any person seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to hold the office entitling him to
indemnification hereunder and shall inure to the benefit of the heirs, executors
and administrators of such a person. This Article IX shall not be construed to
authorize indemnification in any case or for any liability or expense where such
indemnification would not be lawful. This Article IX shall be applicable to
actions, suits or proceedings made or commenced after the adoption hereof,
whether arising from acts or omissions to act occurring before or after the
adoption hereof.
Section 7. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who was or is a Qualifying Person, or on behalf of any
person connected with the business of the Corporation, against all liability and
expenses incurred by him in any such capacity, or arising out of his status as
such, whether or not such person may have a right to be indemnified by the
Corporation against such liability and expenses under this Article IX.
Section 8. Certain Definitions. For the purposes of this Article IX: (a)
"expenses" includes, but is not limited to, fees and disbursements of legal
counsel; (b) "liability" includes amounts of any judgment, fine or penalty, and
reasonable amounts paid in settlement; (c) "action, suit or proceeding" (unless
otherwise limited) includes every claim, action, suit or proceeding, whether
civil or criminal, derivative or otherwise, administrative or investigative, and
any appeal relating thereto, and any reasonable apprehension or threat of any
such action, suit or proceeding; (d) references to "other enterprises" includes
employee benefit plans, references to "fines" includes any excise taxes assessed
on a person with respect to any employee benefit plan, references to "serving at
the request of the Corporation" includes any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries, and a person who acted
in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation;" (e) "Qualifying Person" means a person who was or is (i) a
director of the Corporation or (ii) an officer of the Corporation or (iii) a
director, officer, employee or agent of any other corporation, partnership,
joint venture, trust or other enterprise at the request of the Corporation
simultaneously with holding office as a director or officer of the Corporation;
and (f) 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 conduct of the person
seeking indemnification did not meet the standard of conduct set forth in the
proviso clauses of the first sentences of Sections 1 and 3 of this Article IX.
ARTICLE X
RESERVATION OF RIGHT TO AMEND
CERTIFICATE OF INCORPORATION
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The Corporation reserves the right to amend, alter, restate, change or
repeal any provisions contained in this Certificate of Incorporation, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed by law and
all the provisions of this Certificate of Incorporation and all rights,
preferences, privileges and powers conferred in this Certificate of
Incorporation on stockholders, directors, officers or any other persons are
subject to the rights reserved in this Article X.
ARTICLE XI
BUSINESS COMBINATIONS WITH
INTERESTED STOCKHOLDERS
The Corporation expressly elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware, as it may be amended from time
to time.
ARTICLE XII
INCORPORATOR
The name and mailing address of the Incorporator are as follows:
Patrick H. McCaffery
c/o Covington & Burling
1201 Pennsylvania Avenue, NW
Washington, DC 20004
I, THE UNDERSIGNED, being the Incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this Certificate of Incorporation, hereby declaring
and certifying that the facts herein stated are true and, accordingly, have
hereunto set my hand this SEVENTH day of July, 2003.
/s/ Patrick H. McCaffery
-------------------------
Patrick H. McCaffery
Sole Incorporator
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
JLG ACQUISITION CORPORATION
JLG Acquisition Corporation, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: Article I of the Certificate of Incorporation be and it hereby is amended
to read as follows:
"The name of the Corporation is JLG OmniQuip, Inc."
SECOND: This Certificate of Amendment (the "Certificate") was duly adopted in
accordance with the provisions of section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by its Vice President and Assistant Secretary, this FIRST day of August,
2003.
JLG ACQUISITION CORPORATION
By: /s/ Thomas D. Singer
------------------------------
Name: Thomas D. Singer
Title: Vice President/Assistant
Secretary