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 meeting called 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
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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 3 and no
more than 15, 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 the
Corporation's stock that is then currently entitled to vote at a meeting called
for the election of directors. Any such nominations by persons other than the
Board of Directors must be received by the Secretary of the Corporation no later
than the anniversary of the date which shall have been ninety (90) days prior to
the date of the immediately preceding year's annual meeting accompanied by
written statements signed by each person so nominated setting forth all
information in respect of such person as would be required to be included in a
proxy statement filed with the Securities and Exchange Commission pursuant to
Rule 14(a) under the Securities Exchange Act of 1934, as amended, had such
person been nominated, or intended to be nominated, by the Board of Directors,
and stating that such person consents to such nomination and consents to serve
as a Director of the Corporation if elected. The Secretary shall promptly refer
all such proposed nominations to the Nominating Committee of the Board of
Directors. Within fifteen (15) days following the receipt by the Secretary of a
stockholder notice of nomination pursuant hereto, the Nominating Committee shall
instruct the Secretary of the Corporation to advise the notifying stockholder of
any deficiencies in the notice as determined by the Committee. The notifying
stockholder shall cure such deficiencies within fifteen (15) days of receipt of
such notice. No persons shall be eligible for election as a director of the
Corporation unless nominated in accordance herewith. Nominations not made in
accordance herewith may, in the discretion of the presiding officer at the
meeting and with the advice of the Nominating Committee, be disregarded by the
presiding officer and, upon his or her instructions, all votes cast for each
such nominee may be disregarded. The determinations of the presiding officer at
the meeting shall be conclusive and binding upon all stockholders of the
Corporation for all purposes. A person will be a "Qualified Nominee" if such
person (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 September 5, 1996, by any stock split, stock dividend,
reclassification or recapitalization by the Corporation (the "Minimum Shares"),
or (ii) commits to the Corporation 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.
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.
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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 the 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 which may 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.
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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 brought to 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.
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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.
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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
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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.
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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 to any 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
ordered 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
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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, officers 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
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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 to such time and shall inure to the benefit of
the heirs, executors, administrators and 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.