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Exhibit 3.1
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.
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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.
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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
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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.
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
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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 Chief Executive Officer, a
Chief Operating Officer, a President, a Vice-President, a Secretary and a
Treasurer. The Board of Directors may also choose
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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
28.1 The Chairman of the Board shall provide leadership to the Board of
Directors in discharging its functions; shall preside at all meetings of the
Board of Directors and shareholders, shall act as a liaison between the Board of
Directors and the Corporation's management; and, with the Chief Executive
Officer, shall represent the Corporation to the shareholders, investors and
other external groups. The Chairman of the Board may sign certificates
representing stock of the Corporation the issuance of which shall have been
authorized by the Board of Directors. The Chairman of the Board shall be
ex-officio a member of all committees of the Board of Directors and shall
perform such other duties as are specified by these by-laws or as from time to
time may be assigned by the Board of Directors. If the Chairman of the Board is
absent or incapacitated, the President, if a director, or such other director
appointed by the Board of Directors, shall have the powers and duties of the
Chairman of the Board.
CHIEF EXECUTIVE OFFICER
28.2. The Chief Executive Officer shall be the Corporation's principal
executive officer, with responsibility for the general management of the
Corporation's business affairs, subject to the direction of the Board of
Directors. The Chief Executive Officer shall develop and recommend to the Board
of Directors long-term strategies for the Corporation, annual business plans and
budgets to
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support those strategies, and plans for management development and succession
that will provide the Corporation with an effective management team. The Chief
Executive Officer shall serve as the Corporation's chief spokesperson to
internal and external groups and may 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. The Chief
Executive Officer shall perform such other duties as are specified by these
by-laws or as may from time to time be assigned by the Board of Directors. If
the Chief Executive Officer is absent or incapacitated, the President shall have
the powers and duties of the Chief Executive Officer.
PRESIDENT
29.1. The President shall have such duties as are assigned by the Chief
Executive Officer or the Board of Directors. The President may sign certificates
of stock of the Corporation the issuance of which shall have been authorized by
the Board of Directors.
CHIEF OPERATING OFFICER
29.2. Under the direction of the Chief Executive Officer, the Chief
Operating Officer shall oversee the management of the Corporation's day-to-day
business in a manner consistent with the Corporation's financial and operating
goals and objectives. The Chief Operating Officer may 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. The
Chief Operating Officer shall perform such other duties as are specified by
these by-laws or as may from time to time be assigned by the Board of Directors.
VICE-PRESIDENT
30. In the absence of the President or the Chief Operating Officer to
perform the duties of such office (including, in the absence of the Chief
Executive Officer, the duties of that office), or in the event of each of such
officer's 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
Board of 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 Chief Operating Officer or President, as applicable. The
Vice-Presidents shall perform such other duties and
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have such other powers as may be prescribed by the Board of Directors, the Chief
Executive Officer, 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. The Secretary 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 Chief Executive Officer. The Secretary 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 Chief Executive Officer, and shall perform such other duties
and have such other powers as may be prescribed by the Board of Directors or
Chief Executive Officer.
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. The Treasurer 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 Chief Executive Officer 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 such officer's inability or
refusal to act, perform the duties and exercise the powers of the Treasurer,
under the supervision of the Chief Executive Officer, and shall perform such
other duties and have such other powers as may be prescribed by the Board of
Directors or Chief Executive Officer.
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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.
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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.
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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.
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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
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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 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
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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
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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
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 judgment 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:
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(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.
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