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Exhibit 10.1
JLG INDUSTRIES, INC.
EXECUTIVE SEVERANCE PLAN
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Effective February 16, 2000
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JLG Industries, Inc.
Executive Severance Plan
TABLE OF CONTENTS
Page
Section 1. Establishment and Purpose of the Plan ..................... 1
1.1 Establishment.............................................. 1
1.2 Purpose ................................................... 1
Section 2. Participation by Eligible Executives....................... 1
2.1 Eligible Executives on Effective Date...................... 1
2.2 No Other Participants...................................... 1
2.3 Written Proof of Participation Required.................... 1
Section 3. Severance Benefits......................................... 1
3.1 Basic Benefits............................................. 1
3.2 Additional Benefits........................................ 2
3.3 Dismissal from Employment.................................. 2
3.4 Good Reason in Connection with Change in Control........... 2
Section 4. Nature of Participant's Interest in Plan................... 3
4.1 No Right to Assets......................................... 3
4.2 No Right to Transfer Interest.............................. 3
4.3 No Employment Rights....................................... 3
4.4 Withholding and tax Liabilities............................ 3
Section 5. Administration, Interpretation, and Modification of Plan... 4
5.1 Plan Administrator......................................... 4
5.2 Powers of Committee........................................ 4
5.3 Finality of Committee Determinations....................... 4
5.4 Incapacity................................................. 4
5.5 Amendment, Suspension, and Termination..................... 4
5.6 Power to Delegate Board Authority.......................... 4
5.7 Headings................................................... 4
5.8 Severability............................................... 4
5.9 Governing Law.............................................. 4
5.10 Complete Statement of Plan................................. 4
Section 6. Terms Used in the Plan..................................... 5
6.1 Gender and Number.......................................... 5
6.2 Definitions................................................ 5
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JLG INDUSTRIES, INC.
EXECUTIVE SEVERANCE PLAN
Effective February 16, 2000
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SECTION 1. ESTABLISHMENT AND PURPOSE OF THE PLAN.
1.1 ESTABLISHMENT. Effective June 1, 1995, the Company established the
Plan for the benefit of the Participants and to replace their severance pay
benefits under the Prior Plan.
1.2 PURPOSE. The Plan is an unfunded plan maintained primarily for the
purpose of providing severance pay benefits to a select group of management and
highly compensated employees.
SECTION 2. PARTICIPATION BY ELIGIBLE EXECUTIVES.
2.1 ELIGIBLE EXECUTIVES ON EFFECTIVE DATE. An employee who has an
agreement in effect on the Effective Date under the Prior Plan will become a
Participant in the Plan beginning on the Effective Date if he agrees in writing
to waive all rights he may have under the Prior Plan.
2.2 ELIGIBLE EXECUTIVES AFTER EFFECTIVE DATE. If an Eligible Executive
was not covered by an agreement under the Prior Plan on the Effective Date, the
Eligible Executive shall not become a Participant in the Plan unless the
Compensation Committee, in its sole discretion, permits him to do so. If the
Compensation Committee does permit him to participate in the Plan, the Eligible
Executive will become a Participant in the Plan on the date specified by the
Compensation Committee in its sole discretion.
2.3 WRITTEN PROOF OF PARTICIPATION REQUIRED. No employee will become a
Participant in the Plan unless he and the Company execute a copy of the Plan
document recognizing his participation in the Plan. The executed copy will
constitute an agreement between the Company and the employee that binds both of
them to the terms of the Plan. Their agreement will be binding on their heirs,
executors, administrators, successors, and assigns, both present and future. The
executed copy must be signed on the Company's behalf by an authorized officer
(other than the employee) and by the employee on his own behalf. In the case of
an employee who becomes a Participant under Section 2.1, the executed copy will
constitute the employee's written agreement to waive all rights he may have the
under the Prior Plan.
SECTION 3. SEVERANCE BENEFITS.
3.1 BASIS BENEFIT.
(a) LUMP-SUM BENEFIT. A Participant who is Dismissed from employment
with the Company is entitled to a Severance Benefit. The Severance Benefit will
be paid to the Participant in an immediate lump sum equal to the Applicable
Percentage of his base salary and cash bonus for the final twelve calendar
months of his employment with the Company, each including (i) amounts that are
contributed, at the election of a Participant, on behalf of the Participant to a
cafeteria plan or a cash or deferred arrangement and not included in the
Participant's gross income for federal income tax purposes by reason of section
125 or 402(e)(3) of the Code and (ii) compensation deferred under the JLG
Industries, Inc. Executive Deferred Compensation Plan (or any successor
thereto). If the Participant is Dismissed in connection with a Change in Control
as provided in Section 3.3 and prior to Participant completing twelve months of
employment, then the lump sum shall be equal to the Applicable Percentage of his
then current annual base salary rate and to the bonus he would have been
entitled to for that
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applicable fiscal year under the then current management incentive plan assuming
target objectives had been achieved. If the Participant dies after being
Dismissed from employment with the Company but before receiving his Severance
Benefit, the lump sum described in the preceding sentence will be paid to his
Beneficiary. Notwithstanding any other provision of this Section 3.1(a), a
participant will not be entitled to a Severance Benefit if he is entitled to a
retirement benefit under the SERP unless, at the time he is Dismissed from
employment with the Company, a Change in Control has occurred.
(b) APPLICABLE PERCENTAGE. A Participant's Applicable Percentage is the
percentage that is specified by the Compensation Committee with respect to the
Participant for purposes of the Plan and that is reflected in the written
agreement between the Company and the Participant executed in accordance with
Section 2.3.
3.2 ADDITIONAL BENEFIT. A Participant who is Dismissed from employment
with the Company in connection with a Change in Control is entitled to an
additional benefit under this Section 3.2 if the Participant is paid from any
plan, program or arrangement sponsored by the Company, in connection with the
Change in Control, a total amount that is an "excess parachute payment" within
the meaning of section 280G(b) of the Code and a tax is imposed on the
Participant under section 4999 of the Code. The additional benefit will be paid
to the Participant in an immediate lump sum equal to the amount of tax imposed
upon the Participant under section 4999 of the code in respect of the excess
parachute payment (but the additional benefit shall not include any amount in
respect of tax that the Participant will owe solely on account of the additional
benefit paid under this Section 3.2). If the Participant dies after being
Dismissed from employment with the Company but before receiving any additional
benefit that might be due under this Section 3.2, the lump sum described in the
preceding sentence will be paid to his Beneficiary.
3.3 DISMISSAL FROM EMPLOYMENT. A Participant is Dismissed from
employment with the Company if his employment with the Company is terminated
involuntarily by the Company for any reason other than disloyalty,
mismanagement, abdication of job responsibility, or conviction of a felony, any
one of which results in significant injury to the business of the Company. A
Participant also will be considered Dismissed from employment with the Company
is his employment with the Company is terminated for Good Reason in connection
with a Change in Control. For purposes of this Section 3.3, a Participant's
employment with the Company is not considered terminated merely because there is
a change in the ownership of the Company, or merely because all or part of the
Company is merged, consolidated, spun off, liquidated, or otherwise reorganized,
or merely because all or part of the tangible and intangible assets of the
Company are sold or otherwise transferred to new ownership, if the Participant
continues to be employed by the Company or a successor business immediately
following any of the foregoing transactions.
3.4 GOOD REASON IN CONNECTION WITH CHANGE IN CONTROL. A Participant's
employment with the Company is terminated for Good Reason in connection with a
Change in Control if his termination occurs no earlier than six months before
the Change in Control, no later than two years after the Change in Control, and
no later than six months after any of the following triggering events:
(a) a change in the Participant's status or position with the
Company that, in his reasonable judgment, represents a demotion from
his prior status or position with the Company;
(b) the assignment to the Participant of duties or
responsibilities that, in his reasonable judgment, are inconsistent
with his status or position with the Company;
(c) a reduction by the Company in the Participant's base
salary;
(d) a change in the terms of the compensation arrangements
applicable to the Participant that represents a significant reduction
in the value of such compensation arrangements to him;
(e) a material increase in the participant's responsibilities
or duties without a commensurate increase in his base salary;
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(f) the imposition of any requirement that the Participant be
based anywhere other than within 50 miles of where his principal office
was located;
(g) a material increase in the frequency or duration of the
Participant's business travel;
(h) the Company's failure to obtain the express assumption of
this Plan with respect to the Participant by any successor to the
Company; or
(i) any violation by the Company of any agreement with the
Participant (including any violation of the Participant's rights under
this Plan).
In addition, a Participant's employment with the Company will be deemed
terminated for Good Reason in connection with a Change in Control if the
Participant is the Chief Executive Officer of the Company immediately preceding
the Change in Control and his employment with the Company is terminated for any
reason within six months after the Change in Control. For purposes of this
Section 3.4, it is immaterial whether the Participant's employment with the
Company is terminated voluntarily by the Participant or involuntarily by the
Company (or its successor).
SECTION 4. NATURE OF PARTICIPANT'S INTEREST IN THE PLAN.
4.1 NO RIGHT TO ASSETS. Participation in the Plan does not create, in
favor of any Participant or Beneficiary, any right or lien in or against any
asset of the Company. Nothing contained in the Plan, and no action taken under
its provisions, will create or be construed to create a trust of any kind, or a
fiduciary relationship, between the Company and a Participant or any other
person. The Company's promise to pay benefits under the Plan will at all times
remain unfunded as to each Participant and Beneficiary, whose rights under the
Plan are limited to those of a general and unsecured creditor of the Company.
4.2 NO RIGHT TO TRANSFER INTEREST. Rights to benefits payable under the
Plan are not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, or encumbrance. However, the Administrative Committee may
permit a Participant or Beneficiary to enter into a revocable arrangement to pay
all or part of his benefits under the Plan to a revocable grantor trust (a
so-called "living trust"). In addition, the Administrative Committee may
recognize the right of an alternate payee named in a domestic relations order to
receive all or part of a Participant's benefits under the Plan, but only if (a)
the domestic relations order would be a "qualified domestic relations order"
within the meaning of section 414(p) of the Code (if section 414 (p) applied to
the Plan), (b) the domestic relations order does not attempt to give the
alternate payee any right to any asset of the Company, (c) the domestic
relations order does not attempt to give the alternate payee any right to
receive payments under the Plan at a time or in an amount that the Participant
could not receive under the Plan, and (d) the amount of the Participant's
benefits under the Plan are reduced to reflect any payments made or due the
alternate payee.
4.3 NO EMPLOYMENT RIGHTS. No provisions of the Plan an no action taken
by the Company, the Board of Directors, the Compensation Committee, or the
Administrative Committee will give any person any right to be retained in the
employ of the Company, and the Company specifically reserves the right and power
to dismiss or discharge any Participant.
4.4 WITHHOLDING AND TAX LIABILITIES. The amount of any withholdings
required to be made by any government or government agency will be deducted from
benefits paid under the Plan to the extent deemed necessary by the
Administrative Committee. In addition, the Participant or Beneficiary (as the
case may be) will bear the cost of any taxes not withheld on benefits provided
under the Plan, regardless of whether withholding is required.
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SECTION 5. ADMINISTRATION, INTERPRETATION, AND MODIFICATION OF PLAN.
5.1 PLAN ADMINISTRATOR. The Administrative Committee will administer
the Plan.
5.2 POWERS OF COMMITTEE. The Administrative Committee's powers include,
but are not limited to, the power to adopt rules consistent with the Plan; the
power to decide all questions relating to the interpretation of the terms and
provisions of the Plan; and the power to resolve all other questions arising
under the Plan (including, without limitation, the power to remedy possible
ambiguities, inconsistencies, or omissions by a general rule or particular
decision). The Administrative Committee has discretionary authority to exercise
each of the foregoing powers.
5.3 FINALITY OF COMMITTEE DETERMINATIONS. Determinations by the
Administrative Committee and any interpretation, rule, or decision adopted by
the Administrative Committee under the Plan or in carrying out or administering
the Plan will be final and binding for all purposes and upon all interested
persons, their heirs, and their personal representatives.
5.4 INCAPACITY. If the Administrative Committee determines that any
person entitled to benefits under the Plan is unable to care for his affairs
because of illness or accident, any payment due (unless a duly qualified
guardian or other legal representative has been appointed) may be paid for the
benefit of such person to his spouse, parent, brother, sister, or other party
deemed by the Administrative Committee to have incurred expenses for such
person.
5.5 AMENDMENT, SUSPENSION, AND TERMINATION. The Board of Directors has
the right by written resolution to amend, suspend, or terminate the Plan at any
time. However, no amendment, suspension, or termination will apply to an
employee who already is a Participant in the Plan without his express written
consent.
5.6 POWER TO DELEGATE BOARD AUTHORITY. The Board of Directors may, in
its sole discretion, delegate to any person or persons all or part of its
authority and responsibility under the Plan, including, without limitation, the
authority to amend the Plan.
5.7 HEADINGS. The headings used in this document are for convenience of
reference only and may not be given any weight in interpreting any provision of
the Plan.
5.8 SEVERABILITY. If any provision of the Plan is held illegal or
invalid for any reason, the illegality or invalidity of that provision will not
affect the remaining provisions of the Plan, and the Plan will be construed and
enforced as if the illegal or invalid provision had never been included in the
Plan.
5.9 GOVERNING LAW. The Plan will be construed, administered, and
regulated in accordance with the laws of the Commonwealth of Pennsylvania,
except to the extent that those laws are preempted by federal law.
5.10 COMPLETE STATEMENT OF PLAN. This Plan supersedes the Prior Plan
with respect to the Participants. This Plan contains a complete statement of its
terms. The Plan may be amended, suspended, or terminated only in writing and
then only as provided in Section 5.5. A Participant's right to any benefit of a
type provided under the Plan will be determined solely in accordance with the
terms of the Plan. No other evidence, whether written or oral, will be taken
into account in interpreting the provisions of the Plan. Notwithstanding the
preceding provisions of this Section 5.10, for purposes of determining benefits
with respect to a Participant, this Plan will be deemed to include (a) the
provisions of the written agreement between the Company and the Participant
executed in accordance with Section 2.3, and (b) the provisions of any other
written agreement between the Company and the Participant to the extent such
other agreement explicitly provides for the incorporation of some or all of its
terms into this Plan.
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SECTION 6. TERMS USED IN THE PLAN.
6.1 GENDER AND NUMBER. Words used in the masculine gender in the Plan
are intended to include the feminine and neuter genders, where appropriate.
Words used in the singular form in the Plan are intended to include the plural
form, where appropriate, and vice versa.
6.2 DEFINITIONS. When used in capitalized form in the Plan, the
following words and phrases have the following meanings, unless the context
clearly indicates that a different meaning is intended:
"ADMINISTRATIVE COMMITTEE" means the Administrative Committee
appointed to administer the JLG Industries, Inc. Employees' Retirement
Savings Plan. However, following a Change in Control, "Administrative
Committee" means the trustee under the grantor trust maintained by the
Company in connection with the Plan.
"APPLICABLE PERCENTAGE" has the meaning assigned to that term
in Section 3.1(b).
"ASSOCIATE" has the meaning assigned to that term for purposes
of Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act.
"BENEFICIAL OWNER" means the following: a Person is deemed to
be the "Beneficial Owner" of, to "Beneficially Own," and to have
"Beneficial Ownership" of, any securities:
(1) which such Person or any of such Person's
Securities Law Affiliates or Associates beneficially owns,
directly or indirectly;
(2) which such Person or any of such Person's
Securities Law Affiliates or Associates has (A) the right or
obligation to acquire (whether such right or obligation is
exercisable or effective immediately or only after the passage
of time) pursuant to any agreement, arrangement, or
understanding (whether or not in writing) or upon the exercise
of conversion rights, exchange rights, rights, warrants or
options, or otherwise; provided that a Person shall not be
deemed the "Beneficial Owner" of, or to "Beneficially Own," or
to have "Beneficial Ownership" of, securities tendered
pursuant to a tender or exchange offer made by such Person or
any of such Person's Securities Law Affiliates or Associates
until such tendered securities are accepted for purchase or
exchange; or (B) the right to vote pursuant to any agreement,
arrangement, or understanding (whether or not in writing);
provided that a Person shall not be deemed the "Beneficial
Owner" of, or to "Beneficially Own," or to have "Beneficial
Ownership" of, any security under this clause (B) if the
agreement, arrangement, or understanding to vote such security
(i) arises solely from a revocable proxy given in response to
a public proxy or consent solicitation made pursuant to, and
in accordance with, the applicable rules and regulations of
the Securities Exchange Act, and (ii) is not also then
reported by such Person on Schedule 13D under the Securities
Exchange Act (or any comparable or successor report); or
(3) which are beneficially owned, directly or
indirectly, by any other Person (or any Securities Law
Affiliate or Associate thereof) with which such Person or any
of such Person's Securities Law Affiliates or Associates has
any agreement, arrangement, or understanding (whether or not
in writing) or with which such Person or any of such Person's
Securities Law Affiliates or Associates have otherwise formed
a group for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in clause (B)(i) of
paragraph (2), above), or disposing of any securities of the
Company.
"BENEFICIARY" means the person designated in writing by a
Participant to receive his Severance Benefits under the Plan after he
dies. If a Participant fails to designate a Beneficiary or his
designated Beneficiary fails to survive him, his Beneficiary will be
the person to whom he is married at the time of his
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death, or if he is not married at that time, his Beneficiary will be
the executor of his will or the administrator of his estate. A
Participant may revoke in writing a prior designation of a Beneficiary
at any time before the Participant dies.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"CHANGE IN CONTROL" means the first to occur of the following
events:
(1) an acquisition (other than directly from the
Company) of securities of the Company by any Person,
immediately after which such Person, together with all
Securities Law Affiliates and Associates of such Person,
becomes the Beneficial Owner of securities of the Company
representing 25 percent or more of the Voting Power; provided
that, in determining whether a Change in Control has occurred,
the acquisition of securities of the Company in a Non-Control
Acquisition will not constitute an acquisition that would
cause a Change in Control; or
(2) three or more directors, whose election or
nomination for election is not approved by a majority of the
members of the Incumbent Board then serving as members of the
Board of Directors, are elected within any single 12-month
period to serve on the Board of Directors; provided that an
individual whose election or nomination for election is
approved as a result of either an actual or threatened
Election Contest or Proxy Contest, including by reason of any
agreement intended to avoid or settle any Election Contest or
Proxy Contest, will be deemed not to have been approved by a
majority of the Incumbent Board for purposes of this
definition; or
(3) members of the Incumbent Board cease for any
reason to constitute at least a majority of the Board of
Directors; or
(4) approval by shareholders of the Company of:
(A) a merger, consolidation, or
reorganization involving the Company, unless
(i) the shareholders of the
Company, immediately before the merger,
consolidation, or reorganization, own,
directly or indirectly immediately following
such merger, consolidation, or
reorganization, at least 75 percent of the
combined voting power of the outstanding
voting securities of the corporation
resulting from such merger, consolidation,
or reorganization in substantially the same
proportion as their ownership of the voting
securities immediately before such merger,
consolidation, or reorganization;
(ii) individuals who were members
of the Incumbent Board immediately prior to
the execution of the agreement providing for
such merger, consolidation, or
reorganization constitute at least a
majority of the board of the directors of
the Surviving Corporation; and
(iii) no Person (other than (1) the
Company or any Subsidiary thereof, (2) any
employee benefit plan (or any trust forming
a part thereof) maintained by the Company,
any Subsidiary thereof, or the Surviving
Corporation, or (3) any person who,
immediately prior to such merger,
consolidation, or reorganization, had
Beneficial Ownership of securities
representing 25 percent or more of the
Voting Power) has Beneficial Ownership of
securities representing 25 percent
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or more of the combined voting power of the
Surviving Corporation's then outstanding
voting securities;
(B) a complete liquidation or dissolution of
the Company; or
(C) an agreement for the sale or other
disposition of all or substantially all of the assets
of the Company to any Person (other than a transfer
to a Subsidiary of the Company).
"CODE" means the Internal Revenue Code of 1986, as amended and
in effect from time to time.
"COMPANY" means JLG Industries, Inc., and any successor to JLG
Industries, Inc. Employment with the Company includes employment with
any corporation, partnership, or other organization required to be
aggregated with the Company under sections 414(b) and (c) of the Code.
"COMPENSATION COMMITTEE" means the Compensation Committee of
the Board of Directors.
"DISMISSED" has the meaning assigned to that term in Section
3.3.
"EFFECTIVE DATE" means June 1, 1995.
"ELECTION CONTEST" means an election contest described in Rule
14a-11 promulgated under the Securities Exchange Act.
"ELIGIBLE EXECUTIVE" means an employee of the Company (i) who
was covered by an agreement under the Prior Plan on the Effective Date,
or (ii) who is an officer of the Company or who holds any other key
position designated by the Compensation Committee in its sole
discretion.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
"GOOD REASON" has the meaning assigned to that term in Section
3.4.
"INCUMBENT BOARD" means individuals who, as of the close of
business on the Effective Date, are members of the Board of Directors;
provided that, if the election, or nomination for election by the
Company's shareholders, of any new director was approved by a vote of
at least 75 percent of the Incumbent Board, such new director shall,
for purposes of the Plan, be considered as a member of the Incumbent
Board; provided further that no individual shall be considered a member
of the Incumbent Board if such individual initially assumed office as a
result of either an actual or threatened Election Contest or other
actual or threatened Proxy Contest, including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy
Contest.
"NON-CONTROL ACQUISITION" means an acquisition by (1) an
employee benefit plan (or a trust forming a part thereof) maintained by
(A) the Company or (B) any of its Subsidiaries, (2) the Company or any
of its Subsidiaries, or (3) any Person in connection with a Non-Control
Transaction.
"NON-CONTROL TRANSACTION" means any transaction described in
clauses (4)(A)(i) through (iii) of the definition of "Change in
Control."
"PARTICIPANT" means a member of a select group of management
or highly compensated employees of the Company who has become a
participant in the Plan under Section 2.
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"PERSON" means any individual, firm, corporation, partnership,
joint venture, association, trust, or other entity.
"PLAN" means the JLG Industries, Inc. Executive Severance Plan
as set forth in this document.
"PRIOR PLAN" means an individual agreement (customarily
denominated a "Deferred Compensation Benefit Agreement") between the
Company and the employee that provides for unfunded deferred
compensation benefits and certain other benefits specified in the
agreement.
"PROXY CONTEST" means a solicitation of proxies or consents by
or on behalf of a Person other than the Board of Directors.
"SECTION" means a section of this Plan. For example, a
reference to Section 2 includes a reference to Sections 2.1 through
2.3, while a reference to Section 2.1 is intended as a reference to
Section 2.1 only.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended and in effect from time to time.
"SECURITIES LAW AFFILIATE" means an "affiliate" as defined for
purposes of Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act.
"SERP" means JLG Industries, Inc. Supplemental Executive
Retirement Plan.
"SUBSIDIARY" of any Person means any corporation or other
entity of which at least 80 percent (or such lesser percentage as the
Administrative Committee may determine) of the voting power of the
voting equity securities or voting interest therein is owned, directly
or indirectly, by such Person.
"SURVIVING CORPORATION" means a corporation resulting from a
merger, consolidation, or reorganization described in paragraph
(4)(A)(i) of the definition of "Change in Control."
"VOTING POWER" means the voting power of all securities of the
Company then outstanding generally entitled to vote for the election of
directors of the Company.
JLG Industries, Inc.
Attest:________________________ By:_______________________________
Title:_________________________ Title:____________________________
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