EXHIBIT 99
BYLAWS
OF
ACNB CORPORATION
These Bylaws are supplemental to the Pennsylvania Business
Corporation Law and other applicable provisions of law, as
the same shall from time to time be in effect.
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 101. Place Of Meetings. All meetings of the shareholders shall be
held at such place or places, within or without the Commonwealth of
Pennsylvania, as shall be determined by the Board of Directors from time to
time.
Section 102. Annual Meetings. The annual meeting of the shareholders for
the election of Directors and the transaction of such other business as may
properly come before the meeting shall be held at the Registered Corporate
Office, or any convenient place duly authorized by the Board of Directors, at
such time as the Board of Directors shall fix; but if no such election is held
on that day, it may be held at any regular adjournment of the meeting or at a
subsequent special meeting called in accordance with the provisions of the laws
of the Commonwealth of Pennsylvania. Any business which is a proper subject for
shareholder action may be transacted at the annual meeting, irrespective of
whether the notice of said meeting contains any reference thereto, except as
otherwise provided by applicable law.
Section 103. Special Meetings. Special meetings of the shareholders may be
called at any time by the Board of Directors, or by the shareholders entitled to
cast at least one-third (1/3) of the vote which all shareholders ate entitled to
cast at the particular meeting.
Section 104. Conduct of Shareholders' Meetings. The Chief Executive Officer
shall preside at all shareholders' meetings. In the absence of the Chief
Executive Officer, the Chairman of the Board shall preside, or in his absence,
any Officer designated by the Board of Directors. The Officer presiding over the
shareholders' meeting may establish such rules and regulations for the conduct
of the meeting as he may deem to be reasonably necessary or desirable for the
orderly and expeditious conduct of the meeting. Unless the Officer presiding
over the shareholders' meeting otherwise requires, shareholders need not vote by
ballot on any question.
Section 105. Fixing the Number of Directors to be Elected in Each Class of
Directors. The shareholders shall, at each meeting for the election of
Directors, determine by resolution of a majority of the shareholders at such
meeting, how many Directors shall be elected to serve in each class of Directors
to be elected at such meeting.
ARTICLE II
DIRECTORS AND BOARD MEETINGS
Section 201. Management by Board of Directors. The business and affairs of
the Corporation shall be managed by its Board of Directors. The Board of
Directors may exercise all such powers of the Corporation and do all such lawful
acts and things as are not, by statute, regulation, the Articles of
Incorporation or these Bylaws, directed or required to be exercised or done by
the shareholders.
Section 202. Nominations of Directors. Nominations for election to the
Board of Directors of the Corporation may be made by the Board of Directors or
by any shareholder of any outstanding class of capital stock of the Corporation
entitled to vote for the election of Directors. Any shareholder who intends to
nominate or cause to have nominated any candidate for election to the Board of
Directors, other than any candidate nominated by the Board of Directors of the
Corporation, shall so notify the Secretary of the Corporation in writing not
less than 14 days prior to the date of any meeting of shareholders of the
Corporation called for the election of Directors. In such notification, the
class of Directors to which each proposed nominee is nominated must be
specified, if more than one class of Directors is to be elected at any meeting
of the shareholders called for the election of Directors.
In addition, such notification shall contain the following information to
the extent known by the notifying shareholder: (a) the name and address of each
proposed nominee; (b) the age of each proposed nominee; (c) the principal
occupation of each proposed nominee; (d) the number of shares of stock of the
Corporation owned by each proposed nominee; (e) the total number of shares of
stock of the Corporation that to the knowledge of the notifying shareholder will
be voted for each proposed nominee; (f) the name and residence address of the
notifying shareholder; and (g) the number of shares of stock of the Corporation
owned by the notifying shareholder.
Any nomination for Director not made in accordance with this Section shall
be disregarded by the Chairman of the meeting, and votes cast for each such
nominee shall be disregarded by the judges of election. In the event that the
same person is nominated by more than one shareholder, if at least one
nomination for such person complies with this Section the nomination shall be
honored and all votes cast for such nominee shall be counted.
Section 203. Directors Must Be Shareholders. Every Director must be a
shareholder of the Corporation, and during the full term of his directorship,
shall own a minimum of One Thousand and 00/100 ($1,000.00) Dollars par value of
stock of the Corporation. Any Director shall forthwith cease to be a Director
when he no longer holds such shares, which fact shall be reported to the Board
of Directors by the Secretary, whereupon the Board of Directors shall declare
the seat of such Directors vacated.
Section 204. Vacancies. Vacancies in the Board of Directors, including
vacancies resulting from an increase in the number of Directors, may be filled
by the remaining members of the Board even though less than a quorum. Any
Director elected to fill a vacancy in the Board of Directors shall become a
member of the same Class of Directors in which the vacancy existed; but if the
vacancy is due to an increase in the number of Directors, a majority of the
members of the Board of Directors shall designate such directorship as belonging
to Class 1, Class 2 or Class 3 so as to maintain the three (3) classes of
Directors as nearly equal in number as possible. Each Director 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 duly called for that purpose and held prior thereto.
Section 205. Resignations. Any Director may resign at any time. Such
resignation shall be in writing, but the acceptance thereof shall not be
necessary to make it effective.
Section 206. Compensation of Directors. No Director shall be entitled to
any salary as such, but the Board of Directors may fix, from time to time, a
reasonable annual fee for acting as a Director and a reasonable fee to be paid
each Director for his services in attending meetings of the Board and meetings
of committees appointed by the Board. The Corporation may reimburse Directors
for expenses related to their duties as a member of the Board.
Section 207. Regular Meetings. Regular meetings of the Board of Directors
shall be held at the Registered Corporate Office, or any convenient place duly
authorized by the Board of Directors, at 2:00 p.m., prevailing time, on the same
day as the annual meeting of shareholders of the Corporation and bi-weekly
thereafter throughout each year. When any regular meeting of the Board falls
upon a holiday, the meeting shall be held on the next banking business day
unless the Board shall designate some other day. The Board of Directors shall
meet for reorganization at the first regular meeting following the annual
meeting of shareholders at which the Directors are elected. Notice need not be
given of regular meetings of the Board of Directors which are held at the time
and place designated by the Board of Directors. If a regular meeting is not to
be held at the time and place designated by the Board of Directors, notice of
such meeting, which need not specify the business to be transacted thereat and
which may be either verbal or in writing, shall be given by the Secretary to
each member of the Board at least twenty-four (24) hours before the time of the
meeting.
A majority of the members of the Board of Directors shall constitute a
quorum for the transaction of business. If, at the time fixed for the meeting,
including the meeting to organize the new Board following the annual meeting of
shareholders, a quorum is not present, the Directors in attendance may adjourn
the meeting from time to time until a quorum is obtained.
Except as otherwise provided herein, a majority of those Directors present
and voting at any meeting of the Board of Directors, shall decide each matter
considered. A Director cannot vote by proxy, or otherwise act by proxy at a
meeting of the Board of Directors.
Section 208. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President, or, at the request of
three (3) or more members of the Board of Directors. A special meeting of the
Board of Directors shall be deemed to be any meeting other than the regular
meeting of the Board of Directors. Notice of the time and place of every special
meeting, which need not specify the business to be transacted thereat and which
may be either verbal or in writing, shall be given by the Secretary to each
member of the Board at least twenty-four (24) hours before the time of such
meeting, excepting the Organization Meeting following the election of Directors.
Section 209. Chairman of the Board. The Board of Directors shall elect a
Chairman of the Board at the first regular meeting of the Board following each
annual meeting of shareholders at which Directors are elected. The Chairman of
the Board shall be a member of the Board of Directors; shall preside at the
meetings of the Board; shall be an ex officio member of all Committees of the
Corporation; and shall perform such other duties as may be prescribed by the
Board of Directors.
Section 210. Vice Chairmen of the Board. The Board of Directors may elect
one (1)or more Vice Chairmen of the Board as the Board of Directors may from
time to time deem advisable, The Vice Chairmen of the Board shall have such
duties as are prescribed by the Board of Directors or the Chairman of the Board.
Section 211. Reports and Records. The reports of officers and Committees
and the records of the proceedings of all Committees shall be filed with the
Secretary of the Corporation and presented to the Board of Directors, if
practicable, at its next regular meeting. The Board of Directors shall keep
complete records of its proceedings in a minute book kept for that purpose. When
a Director shall request it, the vote of each director upon a particular
question shall be recorded in the minutes.
ARTICLE III
COMMITTEES
Section 301. Committees and the Organization and Proceedings of Committees.
The Board of Directors may establish such Committee or Committees as the Board
of Directors in its discretion deems best. Each Committee of the Board of
Directors shall effect its own organization by the appointment of a Secretary
and such other Officers, except the chairman and Vice Chairman, as it may deem
necessary. A record of proceedings of all Committees shall be kept by the
Secretary of such Committee and filed and presented as provided in Section 211
of these Bylaws.
ARTICLE IV
OFFICERS
Section 401. Officers. The Officers of the Corporation shall be a
President, one (1) or more Vice Presidents, a Secretary, a Treasurer, and such
other Officers and Assistant Officers as the Board of Directors may from time to
time deem advisable. Except for the President, Secretary, and Treasurer, the
Board may refrain from filling any of the said offices at any time and from time
to time. The same individual may hold any two (2) or more offices, except both
the offices of President and Treasurer. The following Officers shall be elected
by the Board of Directors at the time, in the manner and for such terms as the
Board of Directors from time to time shall determine: President, Executive Vice
President, Senior Vice President, Administrative Vice President, Secretary, and
Treasurer. The President may, subject to change by the Board of Directors,
appoint such Officers and Assistant Officers as he/she may deem advisable,
provided such Officers or Assistant Officers have a title not higher than Vice
President, who shall hold office for such periods as the President shall
determine. Any Officer may be removed at any time, with or without cause, and
regardless of the term for which such Officer was elected, but without prejudice
to any contract right of such Officer. Each Officer shall hold his office for
the current year for which he was elected or appointed by the Board, unless he
shall resign, becomes disqualified, or be removed at the pleasure of the Board
of Directors.
Section 402. President. The President shall have general supervision of all
of the departments and business of the Corporation and shall prescribe the
duties of the other Officers and Employees and see to the proper performance
thereof. The President shall be responsible for having all orders and
resolutions of the Board of Directors carried into effect. The President shall
execute on behalf of the Corporation and may affix or cause to be affixed a seal
to all authorized documents and instruments requiring such execution, except to
the extent that signing and execution thereof shall have been delegated to some
other Officer or Agent of the Corporation by the Board of Directors or by the
President. The President shall be a member of the Board of Directors. In the
absence or disability of the Chairman of the Board or his refusal to act, the
President shall preside at meetings of the Board. In general, the President
shall perform all the duties and exercise all the powers and authorities
incident to such office or as prescribed by the Board of Directors. The
President of the Corporation shall be the Chief Executive Officer of the
Corporation and shall be an ex officio member of all committees of the
Corporation.
Section 403. Vice Presidents. The Vice Presidents shall perform such
duties, do such acts and be subject to such supervision as may be prescribed by
the Board of Directors or the President. In the event of the absence or
disability of the President or his refusal to act, the Vice Presidents, in the
order of their rank, and within the same rank in the order of their authority,
shall perform the duties and have the powers and authorities of the President,
except to the extent inconsistent with applicable law.
Section 404. Secretary. The Secretary shall act under the supervision of
the President or such other Officers as the President may designate. Unless a
designation to the contrary is made at a meeting, the Secretary shall attend all
meetings of the Board of Directors and all meetings of the shareholders and
record all of the proceedings of such meetings in a book to be kept for that
purpose, and shall perform like duties for the standing Committees when required
by these Bylaws or otherwise. The Secretary shall give, or cause to be given,
notice of all meetings of the shareholders and of the Board of Directors. The
Secretary shall keep a seal of the Corporation, and, when authorized by the
Board of Directors or the President, cause it to be affixed to any documents and
instruments requiring it. The Secretary shall perform such other duties as may
he prescribed by the Board of Directors, President, or such other Supervising
Officer as the President may designate.
Section 405. Treasurer. The Treasurer shall act under the supervision of
the President or such other Officer as the President may designate. The
Treasurer shall have custody of the Corporation's funds and such other duties as
may be prescribed by the Board of Directors, President or such other Supervising
Officer as the President may designate.
Section 406. Assistant Officers. Unless otherwise provided by the Board of
Directors, each Assistant Officer shall perform such duties as shall be
prescribed by the Board of Directors, the President or the Officer to whom he is
an Assistant. In the event of the absence or disability of an Officer or his
refusal to act, his Assistant Officer shall, in the order of their rank, and
within the same rank in the order of their seniority, have the powers and
authorities of such Officer.
Section 407. Compensation. Unless otherwise provided by the Board of
Directors, the salaries and compensation of all Officers and Assistant Officers,
except the President, shall be fixed by or in the manner designated by the
President.
Section 408. General Powers. The Officers are authorized to do and perform
such corporate acts as are necessary in the carrying on of the business of the
Corporation, subject always to the direction of the Board of Directors.
ARTICLE V
AS OF
MAY 19, 1987
RESERVED FOR FUTURE USE
ARTICLE VI
SHARES OF CAPITAL STOCK
Section 601. Authority to Sign Share Certificates. Every share certificate
of the Corporation shall be signed by the President and by the Secretary or one
of the Assistant Secretaries. Certificates may be signed by a facsimile
signature of the President and the Secretary or one of the Assistant Secretaries
of the Corporation.
Section 602. Lost or Destroyed Certificates. Any person claiming a share
certificate to be lost, destroyed or wrongfully taken shall receive a
replacement certificate if such person shall have: (a) requested such
replacement certificate before the Corporation has notice that the shares have
been acquired by a bona fide purchaser; (b) provided the Corporation with an
indemnity agreement satisfactory in form and substance to the Board of
Directors, or the President or the Secretary; and (c) satisfied any other
reasonable requirements (including providing an affidavit and a surety bond)
fixed by the Board of Directors, or the President or the Secretary.
ARTICLE VII
GENERAL
Section 701. Fiscal Year. The fiscal year of the Corporation shall begin
on the first (1st) day of January in each year and end on the thirty-first
(31st) day of December in each year.
Section 702. Record Date. The Board of Directors may fix a time, not more
than seventy (70) days prior to the date of any meeting of shareholders, or 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 notice of, or to vote at, any such meeting, or
entitled to receive payment of any such dividend or distribution, or to receive
any such allotment of rights, or to exercise the rights in respect to any such
change, conversion, or exchange of shares.
Section 703. Emergency Bylaws. In the event of any emergency resulting from
a nuclear attack or similar disaster, and during the continuance of such
emergency, the following Bylaw provisions shall be in effect, notwithstanding
any other provisions of the Bylaws:
(a) A meeting of the Board of Directors or of any Committee thereof may
be called by any Officer or Director upon one (1) hour's notice to all persons
entitled to notice whom, in the sole judgment of the notifier, it is feasible to
notify;
(b) The Director or Directors in attendance at the meeting of the Board
of Directors or of any Committee thereof shall constitute a quorum; and
(c) These Bylaws may be amended or repealed, in whole or in part, by a
majority vote of the Directors attending any meeting of the Board of Directors,
provided such amendment or repeal shall only be effective for the duration of
such emergency.
Section 704. Severability. If any provision of these Bylaws is illegal or
unenforceable as such, such illegality or unenforceability shall not affect any
other provision of these Bylaws and such other provisions shall continue in full
force and effect.
ARTICLE VIII
AMENDMENT OR REPEAL
Section 801. Amendment or Repeal by the Board of Directors. These Bylaws
may be amended or repealed, in whole or in part, by a majority vote of members
of the Board of Directors at any regular or special meeting of the Board duly
convened; provided ten (10) days notice of the proposed amendment has been given
to each member of the Board of Directors.
ARTICLE IX
INDEMNIFICATION OF OFFICERS AND EMPLOYEES
Section 901. The Corporation shall indemnify any officer and/or employee,
or any former officer and/or employee, who was or is a party to, or is
threatened to be made a party to, or who is called to be a witness in connection
with, any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that such person is or was
an officer and/or employee of the Corporation, or is or was serving at the
request of Corporation as a director, officer, employee or agent 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
Corporation, 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
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful.
Section 902. The Corporation shall indemnify any officer and/or employee,
who was or is a party to, or is threatened to be made a party to, or who is
called as a witness in connection with, any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director, officer,
and/or employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against amounts paid in settlement and expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of, or serving as a witness in, 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 Corporation and except
that no indemnification shall be made in respect of any such claim, issue or
matter as to which such person shall have been adjudged to be liable for
misconduct in the performance of his duty to the Corporation.
Section 903. Except as may be otherwise ordered by a court, there shall be
a presumption that any officer and/or employee is entitled to indemnification as
provided in Sections 901 and 902 of this Article unless either a majority of the
directors who are not involved in such proceedings ("disinterested directors")
or, if there are less than three disinterested directors, then the holders of
one-third of the outstanding shares of the Corporation determine that the person
is not entitled to such presumption by certifying such determination in writing
to the Secretary of the Corporation. In such event the disinterested director(s)
or, in the event of certification by shareholders, the Secretary of the
Corporation shall request of independent counsel, who may be the outside general
counsel of the Corporation, a written opinion as to whether or not the parties
involved are entitled to indemnification under Sections 901 and 902 of this
Article.
Section 904. Expenses incurred by an officer and/or employee in defending a
civil or criminal action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding as
authorized in the manner provided under Section 903 of this Article upon receipt
of an undertaking by or on behalf of the officer and/or employee to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation.
Section 905. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which a person seeking indemnification
may be entitled under any agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his official capacity while
serving as an officer and/or employee and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be an
officer and/or employee and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section 906. The Corporation may create a fund of any nature, which may,
but need not be, under the control of a trustee, or otherwise secure or insure
in any manner its indemnification obligations arising under this Article.
Section 907. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was an officer and/or employee of
the Corporation, or is or was serving at the request of the Corporation as an
officer and/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 Corporation would have the power to indemnify him against
such liability under the provisions of this Article.
Section 908. Indemnification under this Article shall not be made in any
case where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness.
ARTICLE X
INDEMNIFICATION OF DIRECTORS
Section 1001. A director of this Corporation shall stand in a fiduciary
relation to the Corporation and shall perform his duties as a director,
including his duties as a member of any committee of the board upon which he may
serve, in good faith, in a manner he reasonably believes to be in the best
interests of the Corporation, and with such care, including reasonable inquiry,
skill and diligence, as a person of ordinary prudence would use under similar
circumstances. In performing his duties, a director shall be entitled to rely in
good faith on information, opinions, reports or statements, including financial
statements and other financial data, in each case prepared or presented by any
of the following:
(a) One or more officers or employees of the Corporation whom the
director reasonably believes to be reliable and competent in the matters
presented.
(b) Counsel, public accountants or other persons as to matters which
the director reasonably believes to be within the professional or expert
competence of such person.
(c) A committee of the board upon which he does not serve, duly
designated in accordance with law as to matters within its designated authority,
which committee the director reasonably believes to merit confidence.
A director shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause his reliance to be
unwarranted.
Section 1002. In discharging the duties of their respective positions, the
board of directors, committees of the board, and individual directors may, in
considering the best interests of the Corporation, consider the effects of any
action upon employees, upon suppliers and customers of the Corporation and upon
communities in which offices or other establishments of the Corporation are
located, and all other pertinent factors. The consideration of those factors
shall not constitute a violation of Section 1001 of this Article.
Section 1003. Absent a breach of fiduciary duty, lack of good faith or
self-dealing, actions taken as a director or any failure to take any action
shall be presumed to be in the best interests of the Corporation.
Section 1004. A director of this Corporation shall not be personally liable
for monetary damages as such for any action taken or for any failure to take any
action, unless:
(a) the director has breached or failed to perform the duties of his
office under the provisions of Sections 1001 and 1002 of this Article, and
(b) the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
Section 1005. The provisions of Section 1004 of this Article shall not
apply to:
(a) the responsibility or liability of a director pursuant to a
criminal statute, or
(b) the liability of a director for the payment of taxes pursuant to
local, state or federal law.
Section 1006. The Corporation shall indemnify any director, or any former
director who was or is a party to, or is threatened to be made a party to, or
who is called to be a witness in connection with, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, 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 Corporation, 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
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful.
Section 1007. The Corporation shall indemnify any director who was or is a
party to, or is threatened to be made a party to, or who is called, as a witness
in connection with, any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer and/or employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against amounts paid in settlement and expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of, or serving as a witness in, 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 Corporation and except that no indemnification shall
be made in respect of any such claim, issue or matter as to which such Person
shall have been adjudged to be liable for misconduct in the performance of his
duty to the Corporation.
Section 1.008. Except as may be otherwise ordered by a court, there shall
be a presumption that any director is entitled to indemnification as provided in
Sections 1006 and 1007 of this Article unless either a majority of the directors
who are not involved in such proceedings ("disinterested directors") or, if
there are less than three disinterested directors, then the holders of one-third
of the outstanding shares of the Corporation determine that the person is not
entitled to such presumption by certifying such determination in writing to the
Secretary of the Corporation. In such event the disinterested director(s) or, in
the event of certification by shareholders, the Secretary of the Corporation
shall request of independent counsel, who may be the outside general counsel of
the Corporation, a written opinion as to whether or not the parties involved are
entitled to indemnification under Sections 1006 and 1007 of this Article.
Section 1009. Expenses incurred by a director in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized in the
manner provided under Section 1008 of this Article upon receipt of an
undertaking by or on behalf of the director, officer and/or employee to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article.
Section 1010. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which a person seeking indemnification
may be entitled under any agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his official capacity while
serving as a director 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 and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
Section 1011. The Corporation may create a fund of any nature, which may,
but need not be, under the control of a trustee, or otherwise secure or insure
in any manner its indemnification obligations arising under this Article.
Section 1012. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
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 Corporation
would have the power to indemnify him against such liability under the
provisions of this Article.
Section 1013. Indemnification under this Article shall not be made in any
case where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness.