EXHIBIT 3.2
BY-LAWS
OF JLG INDUSTRIES, INC.
(A Pennsylvania Corporation)
OFFICES
1. The registered office shall be at P.O. Box 695, McConnellsburg,
Pennsylvania 17233.
2. The Corporation may also have offices at such other places as the Board
of Directors may from time to time appoint or the business of the Corporation
may require.
SEAL
3. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Pennsylvania".
SHAREHOLDERS' MEETING
4. All meetings of the shareholders shall be held at such place within or
without the Commonwealth of Pennsylvania as the Board of Directors may
designate from time to time and in the absence of such designation shall be
held at the principal office of the Corporation in Ayr Township, Pennsylvania.
5. The annual meeting of the shareholders shall be held on the fourth
Monday of November in each year, or at such other date as may be fixed by the
Board of Directors, in order to elect the Board of Directors of the Corporation
and transact such other business as may properly be brought before the meeting.
If the annual meeting shall not be called and held within six months after the
fourth Monday in November, any shareholder may call such meeting.
6. The presence, in person or by proxy, of the holders of a majority of the
outstanding shares entitled to vote, shall constitute a quorum at all meetings
of the shareholders for the transaction of business except as otherwise
provided by law, by articles of incorporation or by these by-laws. If however,
such quorum shall not be present or represented at any meeting of the
shareholders, those entitled to vote thereat, present in person or represented
by proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until the requisite number of
shares shall be present. In the case of any meetingcalled for the election of
directors, adjournment or adjournments may be taken only from day to day until
such directors have been elected, and those who attend the second of
such adjourned meetings, although less than a quorum, shall nevertheless
constitute a quorum for the purpose of electing directors.
7. At each meeting of the shareholders every shareholder having the right
to vote shall be entitled to vote in person or by proxy appointed by an
instrument in writing subscribed by such shareholder and delivered to the
Secretary at or prior to the meeting. No unrevoked proxy shall be valid
after eleven months from the date of its execution, unless a longer time is
expressly provided therein, but in no event shall a proxy, unless coupled
with an interest, be voted on after three years from the date of
its execution. In all elections for directors cumulative voting shall not be
permitted. No share shall be voted at any meeting upon which any installment
is due and unpaid. The original share ledger or transfer book, or a duplicate
thereof kept in this Commonwealth shall be prima facie evidence of the right of
the person named therein to vote thereon.
8. Written notice of the annual meeting shall be mailed to each shareholder
entitled to vote thereat, at such address as appears on the books of the
Corporation, at least five days prior to the meeting.
9. In advance of any meeting of shareholders, the Board of Directors may
appoint judges of election, who need not be shareholders, to act at such
meeting or any adjournment thereof. If judges of election be not so appointed,
the chairman of any such meeting may, and on the request of any shareholders or
his proxy, shall make such appointment at the meeting. The number of judges
may be one or three. If appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares present and entitled to vote
shall determine whether one or three judges are to be appointed. On request of
the chairman of the meeting, or of any shareholder or his proxy, the judges
shall make a report in writing of any challenge or question or matter
determined by them, and execute a certificate of any fact found by them. No
person who is a candidate for office shall act as a judge.
10. Special meetings of the shareholders may be called at any time by
resolution adopted by the Board of Directors. At any time upon adoption of a
resolution by the Board of Directors to call a special meeting, it shall be the
duty of the Secretary to call a special meeting of the shareholders, to be held
at such time as the Secretary may fix, not less than 10 nor more than 60 days
after receipt of the request.
11. Business transacted at all special meetings shall be confined to the
objects stated in the call and matters germane thereto.
12. Written notice of a special meeting of the shareholders, stating the
time and place and object thereof, shall be mailed, postage prepaid, to each
shareholder entitled to vote thereat at such address as appears on the books of
the Corporation, at least five days before such meeting, unless a greater
period of notice is required by statute in a particular case.
VOTING LIST
13. The officer or agent having charge of the transfer books shall make a
complete list of the shareholders entitled to vote at the meetings, arranged in
alphabetical order, with the address of and the number of shares held by each.
Such list shall be produced and kept open at the time and places of the
meeting, and shall be subject to the inspection of any such shareholder during
the whole time of the meeting. The original share ledger or transfer book, or
a duplicate thereof kept in this Commonwealth, shall be prima facie evidence as
to who are the shareholders entitled to examine such list or share ledger or
transfer book, or to vote in person or by proxy, at any meeting of
shareholders.
DIRECTORS
14. The business of this Corporation shall be managed by its Board of
Directors, which shall consist of such number of persons, not less than three
and nor more than fifteen, as may be determined from time to time by the Board
of Directors; provided that no determination by the Board of Directors may
reduce the term of office of any incumbent director. Directors shall be
elected by the shareholders at the annual meeting of shareholders of the
Corporation. Any person to be eligible for election by the shareholders must
meet the requirements of a "Qualified Nominee" as defined below in this Section
and must be nominated by either the Board of Directors or by a shareholder
or group of shareholders that own, as reflected on the Corporation's share
register, at least one share of company stock that is then currently entitled
to vote. Any such nominations by persons other than the Board of Directors
must be received by the Secretary of the Corporation no later than such date
determined by the Board of Directors not more than 90 days prior to the date of
the annual meeting accompanied by written statements signed by each person so
nominated setting forth all information in respect of such person required
by Items 401, 403, 404 and 405 of Regulation S-K promulgated by the Securities
and Exchange Commission and stating that such person consents to such
nomination and consents to serve as a Director of the Corporation if
elected. A person will be a "Qualified Nominee" if such person (A)(i)
beneficially owns at least one thousand shares of the Corporation's Common
Stock, par value $.20 per share, such amount to be adjusted from time to time
following November 22, 1993, by any stock split, stock dividend,
reclassification or recapitalization by the Corporation (the "Minimum Shares"),
or (ii) commits to the Company in writing to purchase the Minimum Shares
within 18 months of being nominated as a director candidate, provided that any
person who fails to acquire the Minimum Shares within 18 months of being
nominated may not be considered a Qualified Nominee until such person
beneficially owns the Minimum Shares, and (B) will not reach age 70 prior to
the next scheduled annual meeting of shareholders; provided, that any incumbent
Director as of November 22, 1993, who at that date is age 68 or older shall
remain a Qualified Nominee so long as he shall not reach age 72 prior to the
next scheduled meeting of shareholders; provided, further, that any incumbent
Director as of November 22, 1993, who at that date is age 72 shall remain a
Qualified Nominee so long as he shall not reach age 73 prior to the next
scheduled annual meeting of shareholders.
15. In addition to the powers and authorities by these by-laws expressly
conferred upon them, the Board may exercise all such powers of the Corporation
and do all such lawful acts and things as are not be statute or by the articles
of incorporation or by these by-laws directed or required to be exercised or
done by the shareholders.
MEETINGS OF THE BOARD OF DIRECTORS
16. The meetings of the Board of Directors may be held at such place within
this Commonwealth, or elsewhere, as a majority of the directors may from time
to time appoint, or as may be designated in the notice calling the meeting.
17. Each newly elected Board may meet at such place and time as shall be
fixed by the shareholders at the meeting at which such directors are elected,
and no notice shall be necessary to the newly elected directors in order
legally to constitute the meeting, or they may meet at such place and time as
may be fixed by the consent in writing of all the directors.
18. Regular meetings of the Board shall be held without notice at such time
and place as shall be determined by the Board.
19. Special meetings of the Board may be called by the Chairman of the
Board on at least three days notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the Chairman of the
Board of Secretary in a like manner and on like notice on the written request
of two directors, or more.
20. A majority of the directors in office shall be necessary to constitute
a quorum for the transaction of business, and the acts of a majority of the
directors present at a meeting at which a quorum is present shall be the acts
of the Board of Directors. If all the directors shall severally or
collectively consent in writing to any action to be taken by the Corporation,
such action shall be as valid corporate action as though it had been authorized
at a meeting of the Board of Directors.
21. The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of two
or more of he directors of the Corporation. The Board may designate one or
more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided by resolution of the Board of Directors,
shall have and shall exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation,and may authorize
the seal of the Corporation to be affixed to all papers require it. In the
absence or disqualification of any member of any such committee or committees,
the member of members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may, by unanimous
vote, appoint another member of the Board of Directors to act at the meeting
in place of any such absent or disqualified member.
LIABILITY OF DIRECTORS
22. A director, as such, shall not be personally liable for monetary
damages for any action taken, or any failure to take any action, unless the
director has breached or failed to perform the duties of his or her office
under 42 Pa. C.S. Section 8363 and the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness. The provisions of this
Section shall not apply to the responsibility or liability of a director
pursuant to any criminal statue or the liability of a director
for the payment of taxes pursuant to local, state or federal law.
COMPENSATION OF DIRECTORS
23. Directors as such, shall not receive any stated salary for their
services, but by resolution of the Board, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board PROVIDED, that nothing herein contained shall be construed
to preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
OFFICERS
24. The officers of the Corporation shall be chosen by the Board of
Directors and shall be a Chairman of the Board, a President, a Vice-President,
a Secretary and a Treasurer. The Board of Directors may also choose additional
Vice-Presidents, and one or more Assistant Secretaries and Assistant
Treasurers. Any number of offices may be held by the same person. It shall
not be necessary for the officers to be directors.
25. The Board of Directors shall fix the salaries of all officers of the
Corporation.
26. The officers of the Corporation shall hold office for one year and until
their successors are chosen and have qualified. Any officer elected or
appointed by the Board of Directors may be removed by the Board of Directors
whenever in their judgment the best interests of the Corporation will be served
thereby.
LIABILITY OF OFFICERS
27. An officer, as such, shall not be personally liable to the Corporation
or its shareholders, for monetary damages, unless the officer has breached or
failed to perform the duties of his or her office under the Corporation's
articles of incorporation, these by-laws or applicable provisions of law, and
the breach or failure to perform constitutes self-dealing, willful misconduct
or recklessness. The provisions of this Section shall not apply to the
responsibility or liability of an officer pursuant to any criminal statute or
the liability of an officer for the payment of taxes pursuant to local, state
or federal law.
CHAIRMAN OF THE BOARD
28. The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors, and shall see that all orders and
resolutions of the Board of Directors are carried into effect. He may sign
certificates representing stock of the Corporation the issuance of which shall
have been authorized by the Board of Directors. From time to time he shall
report to the Board of Directors all matters within his knowledge which the
interests of the Corporation may require to be broughtto their notice. He
shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation. He shall be ex-officio a member of all
committees of the Board of Directors. He shall perform such other duties as
are given to him by these by-laws or as from time to time may be assigned to
him by the Board of Directors.
PRESIDENT
29. The President shall be the chief executive officer of the Corporation,
and subject to the direction of the Board of Directors, shall have general
supervision over the business and affairs of the Corporation and over its
officers and agents and general management and control of all of its
properties. In the absence of the Chairman of the Board, he shall preside at
all meetings of the stockholders or of the Board of Directors at which he is
present. He may sign certificates of stock of the Corporation the issuance of
which shall have been authorized by the Board of Directors. He shall execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall
be expressly delegated by the Board of Directors to some other officer or agent
of the Corporation. He shall perform such other duties as are given to him by
these by-laws or as may from time to time be assigned to him by the Board of
Directors.
VICE-PRESIDENT
30. In the absence of the President to perform the duties of chief
executive officer of the Corporation, or in the event of his inability to act,
the Vice-President (or in the event there be more than one Vice-President, the
Vice-Presidents in the order designated by the directors, or in the absence of
any designation, then in the order of their election) shall have all the powers
of and be subject to all the restrictions upon the President. The Vice-
Presidents, under the supervision of the President, shall perform such other
duties and have such other powers as may be prescribed by the Board of
Directors or the President.
SECRETARY
31. The Secretary shall attend all sessions of the Board and all meetings
of the shareholders and act as clerk thereof, and record all the votes of the
Corporation and the minutes of all its transactions in a book to be kept for
that purpose; and shall perform like duties for all committees of the Board of
Directors when required. He shall give, or cause to be given, notice of all
meetings of the shareholders and of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or President,
and under whose supervision he shall be. He shall keep in safe custody the
corporate seal of the Corporation, and when authorized by the Board, affix the
same to any instrument requiring it.
32. The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there be
no such determination, then in the order of their election) shall, in the
absence of the Secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Secretary, under the
supervision of the President, and shall perform such other duties and have such
other powers as may be prescribed by the Board of Directors or President.
TREASURER
33. The Treasurer shall have custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation, and shall keep the moneys of the
Corporation in a separate book account to the credit of the Corporation.
34. He shall disburse the funds of the Corporation as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and directors, at the regular meetings of the Board, or whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation.
35. The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurer in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the Treasurer, under the
supervision of the President, and shall perform such other duties and have such
other powers as may be prescribed by the Board of Directors or President.
VACANCIES
36. If the office of any officer or agent, one or more, becomes vacant for
any reason, the Board of Directors may choose a successor or successors, who
shall hold office for the unexpired term in respect of which such vacancy
occurred.
Vacancies in the Board of Directors shall be filled, by persons who are
Qualified Nominees as defined in Section 14 of those By-Laws, by the vote of 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 duly called for that purpose and held
prior thereto.
CORPORATE RECORDS
37. There shall be kept at the principal office of the Corporation an
original or duplicate record of the proceedings of the shareholders and of the
directors, and the original or a copy of its by-laws, including all amendments
or alterations thereto to date, certified by the Secretary of the Corporation.
An original or duplicate share register shall also be kept at the principal
office, or at the office of a transfer agent or registrar within this
Commonwealth, giving the names of the shareholders in alphabetical order, and
showing their respective addresses and the number and classes of shares held by
each.
SHARE CERTIFICATES
38. The share certificates of the Corporation shall be numbered and
registered in the transfer books of the Corporation, as they are issued. They
shall be signed by either the Chairman of the Board or the President and by the
Secretary and shall bear the corporate seal. Any or all signatures on the
certificates may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
TRANSFERS OF SHARES
39. Assuming no conflict with valid share transfer restrictions, transfers
of shares shall be made on the books of the Corporation upon surrender of the
certificates therefor, endorsed by the person named in the certificate or by
his attorney, lawfully constituted in writing.
CLOSING TRANSFER BOOKS OR FIXING RECORD DATE
40. The Board of Directors may fix a time, not less than ten or more than
ninety 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, 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, and 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
change, conversion or exchange of shares. In such cases,only such shareholders
as shall be shareholders of record on the date so fixed shall be entitled to
notice of, and to vote at, such meeting, or to receive payment of such
dividend or distribution, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Corporation after any record date fixed, as
aforesaid. The Board of Directors may close the books of the Corporation
against transfers of shares during the whole or any part of such period, and
in such case written or printed notice thereof shall be mailed at least ten
days before the closing thereof to each shareholder of record at the address
appearing on the records of the Corporation or supplied by him to the
Corporation for the purpose of notice. While the stock transfer books of the
Corporation are closed, no transfer of shares shall be made thereon. If no
record date is fixed for the determination of shareholders entitled to receive
notice of, or vote at, a shareholders meeting, transferees of shares which are
transferred on the books of the Corporation within ten days next preceding the
date of such meeting shall not be entitled to notice of or vote at such
meeting.
LOST CERTIFICATE
41. Any person claiming a share certificate to be lost or destroyed shall
make an affidavit or affirmation of that fact and advertise the same in such
manner as the Corporation may require, and shall, if required by the
Corporation, give the Corporation a bond of indemnity with sufficient surety to
protect the Corporation or any person injured by the issue of a new certificate
from any liability or expense which it or they may incur by reason of the
original certificate remaining outstanding, 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, but always subject to the approval of the Corporation.
CHECKS
42. All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers as the Board of Directors may from time to
time designate.
FISCAL YEAR
43. The fiscal year shall begin the 1st day of August of each year.
DIVIDENDS
44. Subject to the provisions of the statutes, the Board of Directors may
declare and pay dividends upon the outstanding shares of the Corporation out of
its surplus from time to time and to such extent as they deem advisable, in
cash, property or in shares of the Corporation.
Before payment of any dividend there may be set aside out of the net
profits of the Corporation such sum or sums as the directors, from time to
time, in their absolute discretion, think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the directors shall
think conducive to the interests of the Corporation, and the directors may
abolish any such reserve in the manner in which it was created.
DIRECTORS' ANNUAL STATEMENT
45. The Chairman of the Board and Board of Directors shall present at each
annual meeting a full and complete statement of the business and affairs of the
Corporation for the preceding year. Such statement shall be prepared and
presented in whatever manner the Board of Directors shall deem advisable and
need not be verified by a certified public accountant.
NOTICES
46. Whenever written notice is required to be given to any person, it may
be given to such person, either personally or by sending a copy thereof through
the mail, or by telegram, charges prepaid, to his address appearing on the
books of the Corporation, or supplied by him to the Corporation for the purpose
of notice. If the notice is sent by mail or by telegraph, it shall be deemed
to have been given to the person entitled thereto when deposited in the United
States mail or with a telegraph office for transmission to such person. Such
notice shall specify the place, day and hour of the meeting and, in the case of
a special meeting, the general nature of the business to be transacted.
Any shareholder or director may waive any notice required to be given under
these by-laws.
INDEMNIFICATION
47.A. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to 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 he is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director, officer
or member 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 toany criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
B. The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to 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 he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer or member 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 in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Corporation;
provided, however, that no indemnification shall be made in respect of
any claim, issue or matter as to be which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the court of common pleas of the
county in which the registered office of the Corporation is located 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 circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court of common pleas or such other court shall deem proper.
C. To the extent that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraphs A or B of this Section 47 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.
D. Any indemnification under paragraphs A or B of this Section 47 (unless
rdered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because he had met the applicable
standard of conduct set forth in such paragraph. Such determination shall be
made (1) 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 (2)
if such 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 (3) by the shareholders.
E. Expenses incurred 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 in
paragraph D of this Section 47 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
Corporation as authorized in this Section 47.
F. The indemnification provided by this Section 47 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.
48.A. The Corporation shall indemnify any person who was or is an
"authorized representative" of the Corporation (which shall mean for purposes
of this Section a director or officer of the Corporation, or a person serving
at the request of the Corporation as a director, officer, partner, trustee or
fiduciary of another corporation, partnership, joint venture, trust, employee
benefit plan or other entity or enterprise) and who was or is a party (which
shall mean for purposes of this Section any threatened, pending or completed
action, suit, appeal or proceeding of any nature, whether civil, criminal,
administrative, or investigative, whether formal or informal, including an
action by or in the right of the Corporation or a class of its security
holders) by reason of the fact that he or she was or is an authorized
representative of the Corporation, against any liability (which shall mean for
purposes of this Section any damage, judgment, penalty, fine, amount paid in
settlement, punitive damages, excise tax assessed with respect to an employee
benefit plan, or cost or expense of any nature including, without limitation,
attorneys' fees and disbursements) including, without limitation, liabilities
resulting from any actual or alleged breach or neglect of duty, error,
misstatement or misleading statement, negligence, gross negligence or act
giving rise to strict or products liability, except where such indemnification
is for acts or failures to act constituting self-dealing, willful misconduct or
recklessness. If an authorized representative is entitled to indemnification
in respect of a portion, but not all, of any liabilities to which such person
may be subject, the Corporation shall indemnify such authorized representative
to the maximum extent for such portion of the liabilities. The termination of
any proceeding by judgment, order, settlement, indictment or conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the authorized representative is not entitled to
indemnification.
B. Notwithstanding any other provision of this Section, the Corporation
shall not indemnify under this Section an authorized representative for any
liability incurred in a proceeding initiated (which shall not be deemed to
include counter-claims or affirmative defenses) or participated in as an
intervenor or amicus curiae by the person seeking indemnification unless such
initiation of or participation in the proceeding is authorized, either before
or after its commencement, by the affirmative vote of a majority of the
directors in office. This paragraph does not apply to reimbursement of
expenses incurred in successfully prosecuting or defending the rights of an
authorized representative granted by or pursuant to this Section.
C. Expenses (including attorneys' fees and disbursements) incurred in
good faith shall be paid by the Corporation on behalf of an authorized
representative in advance of the final disposition of a proceeding described in
paragraph A of this Section upon receipt of an undertaking by or on behalf of
the authorized representative to repay such amount if it shall ultimately be
determined pursuant to paragraph F of this Section that such person is not
entitled to be indemnified by the Corporation as authorized in this Section.
The financial ability of such authorized representative to make such repayment
shall not be a prerequisite to the making of an advance.
D. To further effect, satisfy or secure the indemnification obligations
provided herein or otherwise, the Corporation may maintain insurance, obtain a
letter of credit, act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification agreements,
pledge or grant a security interest in any assets or properties of the
Corporation, or use any other mechanism or arrangement whatsoever in such
amounts, at such costs, and upon such other terms and conditions as the Board
of Directors shall deem appropriate. Absent fraud, the determination of the
Board of Directors with respect to such amounts, costs, terms and conditions
shall be conclusive against all security holders, office and directors and
shall not be subject to voidability.
E. An authorized representative shall be entitled to indemnification
within 30 days after a written request for indemnification has been received by
the Secretary of the Corporation.
F. Any dispute related to the right to indemnification or advancement of
expenses as provided under this Section, except with respect to indemnification
for liability arising under the Securities Act of 1933 which the Corporation
has undertaken to submit to a court for adjudication, shall be decided only by
arbitration, to be conducted at the Corporation's executive offices (or such
other location to which the Corporation has given its consent), in accordance
with the commercial arbitration rules then in effect of the American
Arbitration Association, before a panel of three arbitrators, one of whom shall
be selected by the Corporation, the second of whom shall be selected by the
authorized representative and the third of whom shall be selected by the other
two arbitrators. In the absence of the American Arbitration Association or if
for any reason arbitration under the arbitration rules of the American
Arbitration Association cannot be initiated, or if the arbitrators selected by
the Corporation and the authorized representative cannot agree on the selection
of the third arbitrator within 30 days after such time as the Corporation
and the authorized representative have each been notified of the selection of
the other's arbitrator, the necessary arbitrator or arbitrators shall be
selected by the presiding judge of the Court of Common Pleas of Fulton County,
Pennsylvania (or of the court of general jurisdiction in the municipality in
which the Corporation's executive offices are located). Each arbitrator
selected as provided herein is required to be or have been a director of a
corporation whose shares of common stock were listed during at least one year
of such service on the New York Stock Exchange or the American Stock Exchange
or quoted on the National Association of Securities Dealers Automated
quotations Systems. The party or parties challenging the right of an
authorized representative to the benefits of this Section shall have the burden
of proof. The Corporation shall reimburse an authorized representative for the
expenses (including attorneys' fees and disbursements) incurred in successfully
prosecuting or defending such arbitration. Any award entered by the
arbitrators shall be final, binding and nonappealable, and judgement may be
entered thereon by any party in accordance with applicable law in any court of
competent jurisdiction. This arbitration provision shall be specifically
enforceable.
G. An authorized representative shall be deemed to have discharged such
person's duty to the Corporation if he or she has relied in good faith on
information, advice or an opinion, report or statement prepared by:
(1) one or more officers or employees of the Corporation whom such
authorized representative reasonably believes to be reliable and competent
with respect to the matter presented;
(2) legal counsel, public accountants or other persons as to matters
that the authorized representative reasonably believes are within the
person's professional or expert competence; or
(3) a committee of the Board of Directors on which he or she does not
serve as to matters within its area of designated authority, which
committee he or she reasonably believes to merit confidence.
H. All rights to indemnification under this Section shall be deemed a
contract between the Corporation and the authorized representative pursuant to
which the Corporation and each authorized representative intend to be legally
bound. Any repeal, amendment or modification hereof shall be prospective only
and shall not affect any rights or obligations then existing.
I. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under any statute, certificate or articles of incorporation,
by-law, agreement, vote of shareholders or directors or otherwise, both as to
action in his or her official capacity and as to action in any other capacity,
and shall continue as to a person who has ceased to be an authorized
representative in respect of matters arising prior tosuch time and shall inure
to the benefit of the heirs, executors, administrator personal representatives
of such a person.
J. Each person who shall act as an authorized representative of the
Corporation shall be deemed to be doing so in reliance upon the rights of
indemnification provided by this Section.
AMENDMENTS
49. Except as otherwise provided by the Business Corporation Law, these
by-laws may be amended (i) at any regular or special meeting of the Board of
Directors by the affirmative vote of a majority of the members of the Board, or
(ii) at any annual or special meeting of the shareholders by the affirmative
vote of shareholders entitled to cast at least a majority of the votes which
all shareholders are entitled to cast thereon, provided that in the case of any
such meeting of the shareholders, notice of the proposed amendment shall have
been contained in the notice of such meeting and provided further that the
shareholders shall always have the power to change any such action by the
Board.