Exhibit 3.2
BYLAWS OF
MARLIN BUSINESS SERVICES CORP.
ARTICLE I - OFFICES
Section 1-1. Registered Office. The registered office of the
Corporation shall be located within the Commonwealth of Pennsylvania at such
place as the Board of Directors (hereinafter referred to as the "Board of
Directors" or the "Board") shall determine from time to time.
ARTICLE II - MEETINGS OF SHAREHOLDERS - ANNUAL
FINANCIAL STATEMENTS
Section 2-1. Place of Meetings of Shareholders. Meetings of
Shareholders shall be held at such places, within or without the Commonwealth of
Pennsylvania, as may be fixed from time to time by the Board of Directors. If no
such place is fixed by the Board of Directors, meetings of the shareholders
shall be held at the principal executive offices of the Corporation.
Section 2-2. Annual Meeting of Shareholders.
(a) Time. A meeting of the shareholders of the Corporation
shall be held in each calendar year, at such time and on such date as the Board
of Directors may determine, and if such day is a legal holiday, then such
meeting shall be held on the next business day. If the annual meeting is not
called and held within six months after the designated time, any shareholder may
call the meeting at any time thereafter.
(b) Election of Directors. At such annual meeting, there shall
be held an election of Directors.
Section 2-3. Nomination and Advance Notice Procedures.
(a) Nomination Procedures. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the corporation, except as may be otherwise provided in the
designations of classes or series of preferred stock of the Corporation (the
"Preferred Stock") adopted in accordance with the Pennsylvania Business
Corporation Law (the "Pennsylvania BCL") and the Articles of Incorporation of
the Corporation (the "Articles"). Nominations for the election of directors must
be (a) made by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) made by any shareholder of the Corporation
(i) who is a shareholder of record on the date of the giving of the notice
provided for in this Section 2-3 and on the record date for the determination of
shareholders entitled to vote at such meeting and (ii) who complies with the
notice procedures set forth in this Section 2-3.
In addition to any other applicable requirements, for a nomination to be
made by a shareholder, such shareholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation. To be timely, a
shareholder's notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Corporation (a) in the case
of an annual meeting, not less than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of shareholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice by the
shareholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure of the date
of the annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of shareholders called for the purpose of electing directors,
not later than the close of business on the tenth (10th) day following the day
on which notice of the date of the special meeting was mailed or public
disclosure of the date of the special meeting was made, whichever first occurs.
Public disclosure shall include, but not be limited to, information contained in
a document publicly filed by the Corporation with the Securities and Exchange
Commission under Section 13, 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
To be in proper written form, a shareholder's notice to the Secretary must
set forth:
(A) as to each person whom the shareholder proposes to nominate for
election as a director, (i) the name, age, business address and residence of the
person, (ii) the principal occupation or employment of the person, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by the person, and (iv) any other
information relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act, and the rules and regulations promulgated thereunder; and
(B) As to the shareholder giving the notice, (i) the name and record
address of such shareholder, (ii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
such shareholder, (iii) a description of all arrangements or understandings
between such shareholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such shareholder, (iv) a representation that such shareholder, or an
authorized representative of that shareholder, intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and (v) any
other information relating to such shareholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder; and if such shareholder of record is not the beneficial owner of the
shares of capital stock of the Corporation, the notice to the Secretary must
also include the name and address of the beneficial owner and the information
referred to in the immediately preceding clauses (iii) and (v), substituting the
beneficial owner for such shareholder.
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No person shall be eligible for election as a director of the corporation
unless nominated in accordance with the procedures set forth in this Section
2-3. If the Chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
(b) Advance Notice of Shareholder Business. To be properly
brought before an annual meeting, any business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a shareholder (i) who is a shareholder of record on the
date of the giving of notice provided for in this Section 2-3 and on the record
date for the determination of shareholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set forth in this
Section 2-3. For such nominations or other business to be considered properly
brought before the meeting by a shareholder, such shareholder must, in addition
to any other applicable requirements, have given timely notice and in proper
form of such intent to bring such business before such meeting. To be timely,
such shareholder's notice must be delivered to or mailed and received by the
Secretary of the Corporation at the principal executive offices of the
Corporation not less than one hundred and twenty (120) days prior to the date of
the Corporation's proxy statement released to shareholders in connection with
the previous year's annual meeting; provided, however, that in the event the
Corporation did not hold an annual meeting the previous year, or if the date of
the current year's annual meeting has been changed by more than thirty (30) days
from the date of the previous year's meeting, then notice by the shareholder to
be timely must be so received within a reasonable time before the Corporation
begins to print and mail its proxy materials. To be in proper form, a
shareholder's notice to the Secretary shall set forth (i) the name and record
address of the shareholder who intends to propose the business and the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such shareholder, (ii) a representation that the
shareholder has been a holder of record of capital stock of the Corporation
entitled to vote at such meeting for at least one year and that the shareholder
intends to contrive to hold the securities through the date of the meeting of
shareholders, and intends to appear in person or by proxy at the meeting to
introduce the business specified in the notice, (iii) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, and (iv) any material interest
of the shareholder in such business; provided that, if such shareholder of
record is not the beneficial owner of the shares of capital stock of the
Corporation, the notice to the Secretary must also include the name and address
of the beneficial owner and the information referred to in the immediately
preceding clauses (iii) and (v), substituting the beneficial owner for such
shareholder. To the extent that any provision of Rule 14a-8 of the Exchange Act,
or any successor provision thereto, is applicable, such provision shall
supercede and take precedence over this Section 2-3(d).
No business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section;
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provided, however, that, once business has been properly brought before the
annual meeting in accordance with such procedures, nothing in this Section shall
be deemed to preclude discussion by any shareholder of any such business. The
Chairman of the meeting may refuse to acknowledge the proposal of any business
not made in compliance with foregoing procedure.
(c) Exceptions. Provisions of this Section 2-3 do not apply to
any shares of Preferred Stock of the Corporation if otherwise provided in
designations of classes or series of such Preferred Stock.
Section 2-4. Special Meetings of Shareholders. Subject to the rights
of the holders of any class or series of Preferred Stock, special meetings of
the shareholders may be called only by either (i) the Board of Directors of the
Corporation, (ii) the Chairman of the Board or by the Board of Directors, if
there be one or (iii) the Chief Executive Officer of the Corporation. Upon the
written request of any person who has called a special meeting, under these
Bylaws or applicable law, which request specifies the general nature of the
business to be transacted at such meeting, it shall be the duty of the Secretary
to fix the time and place of such meeting, which shall be held not less than
five nor more than 60 days after the receipt of such request, and to give due
notice thereof as required by Section 2-5 hereof. If the Secretary neglects or
refuses to fix the time and place of such meeting, the person or persons calling
the meeting may do so.
Section 2-5. Notices of Meetings of Shareholders. Written notice,
complying with Article VI of these Bylaws, stating the place and time and, in
the case of special meetings, the general nature of the business to be
transacted at any meeting of the shareholders shall be given to each shareholder
of record entitled to vote at the meeting, except as provided in Section 1707 of
the Pennsylvania BCL, at least five days prior to the day named for the meeting,
provided that notice shall be given at lest ten days prior to the day named for
a meeting to consider a fundamental change under Chapter 19 of the Pennsylvania
BCL. Such notices may be given by, or at the direction of, the Secretary or
other authorized person. If the Secretary or other authorized person neglects or
refuses to give notice of a meeting, the person or persons calling the meeting
may do so.
Section 2-6. Waiver of Notice. Notice of any regular or special
meeting may be waived by any shareholder either before, at or after such meeting
orally or in a writing signed by such shareholder or a representative entitled
to vote the shares of such shareholder. A shareholder, by his attendance at any
meeting of shareholders, shall be deemed to have waived notice of such meeting,
except where the shareholder objects at the beginning of the meeting to the
transaction of business because the item may not lawfully be considered at that
meeting and does not participate in the consideration of the item at that
meeting.
Section 2-7. Organization and Conduct of Shareholder Meetings. At
every meeting of the shareholder, the Chairman of the Board, if there be one,
or, in the case of vacancy in office or absence of the Chairman of the Board,
one of the following persons present in order stated: The Vice Chairman of the
Board, the Chief Executive Officer, the President, the Chief
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Financial Officer or a person chosen by vote of the shareholders present, shall
act as Chairman of the meeting. The Secretary or, in the absence of the
Secretary, an assistant Secretary, or, in the absence of both the Secretary and
assistant secretaries, a person appointed by the Chairman of the meeting, shall
act as Secretary of the Meeting. The Chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such chairman, are appropriate for
conduct of the meeting. To the extent not prohibited by law, such rules,
regulations or procedures may include, without limitation, establishment of (i)
an agenda or order of business for the meeting and the method by which business
may be proposed, (ii) rules and procedures for maintaining order at the meeting
and the safety of those present, (iii) limitations on attendance at or
participation in the meeting to shareholders of record of the corporation, their
duly authorized proxies or such other persons as the Chairman of the meeting
shall determine, (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof and (v) limitations on the time allotted to
questions or comments by participants. Any proposed business contained in the
notice of a regular meeting is deemed to be on the agenda and no further motions
or other actions shall be required to bring such proposed business up for
consideration. Following completion of the business of the meeting as determined
by the Chairman of the meeting, the Chairman of the meeting shall have the
exclusive authority to adjourn the meeting.
Section 2-8. Quorum of and Action by Shareholders.
(a) General Rule. A meeting of shareholders of the Corporation
duly called shall not be organized for the transaction of business unless a
quorum is present. Except as provided in subsections (c), (d) and (e) of this
Section 2-8, the presence, in person or by proxy, of shareholders entitled to
cast at least a majority of the votes that all shareholders are entitled to cast
on a particular matter to be acted upon at the meeting shall constitute a quorum
for the purpose of consideration and action on the matter. Shares of the
Corporation owned, directly or indirectly, by the Corporation which are
controlled, directly or indirectly, by the Board of Directors shall not be
counted in determining the total number of outstanding shares for quorum
purposes at any given time. Unless the Pennsylvania BCL permits otherwise, this
Section 2-8(a) may be modified only by a Bylaw amendment adopted by the
shareholders.
(b) Action by Shareholders. Whenever any corporate action is
to be taken by vote of the shareholders of the Corporation at a duly organized
meeting of shareholders, it shall be authorized by a majority of the votes cast
at the meeting by the holders of shares entitled to vote thereon.
(c) Action Without Meeting. Shareholders of the Corporation
may not take action by written consent or partial written consent but must take
action at a duly called annual or special meeting of the shareholders.
(d) Withdrawal. The shareholders present at a duly organized
meeting can continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
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(e) Election of Directors at Adjournment Meetings. In the case
of any meeting called for the election of Directors, those shareholders who
attend a meeting called for the election of Directors that has been previously
adjourned for lack of a quorum, although less than a quorum as fixed in
subsection (a), shall nevertheless constitute a quorum for the purpose of
electing Directors.
(f) Conduct of Other Business at Adjourned Meetings. Those
shareholders entitled to vote who attend a meeting of shareholders that has been
previously adjourned for one or more periods aggregating at least 15 days
because of an absence of a quorum, although less than a quorum as fixed in
subsection (a), shall nevertheless constitute a quorum for the purpose of acting
upon any matter set forth in the notice of meeting if the notice states that
those shareholders who attend the adjourned meeting shall nevertheless
constitute a quorum for the purpose of acting upon the matter.
(g) Effect of Proxy on Quorum. The presence of, or vote at the
meeting of shareholders, by proxy of a shareholder shall constitute the presence
of, or vote by action by, the shareholder. If a proxy casts a vote on behalf of
a shareholder on any issue other than a procedural motion considered at the
meeting of shareholders, the shareholder shall be deemed to be present during
the entire meeting for purposes of determining whether a quorum is present for
consideration of any other issue.
Section 2-9. Adjournments.
(a) General Rule. Any regular or special meeting of
shareholders, including meetings at which directors are to be elected, may be
adjourned for such period as the shareholders present and entitle to vote shall
direct, or (ii) if no shareholder vote is taken, as the Chairman of the meeting
shall direct, until the directors have been elected.
(b) Lack of Quorum. If a meeting cannot be organized because a
quorum has not attended, those present may, except as otherwise provided in this
Section 2-8, adjourn the meeting to such time and place as they may determine.
(c) Notice of an Adjourned Meeting. When a meeting of
shareholders is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at an adjourned meeting,
other than by announcement at the meeting at which the adjournment is taken,
unless the Board fixes a new record date for the adjourned meeting.
Section 2-10. Voting List, Voting and Proxies.
(a) Voting List. (i) The officer or agent having charge of the
transfer books for shares of the Corporation shall make a complete list of the
shareholders entitled to vote at any meeting of shareholders, arranged in
alphabetical order, with the address of and the
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number of shares held by each. The list shall be produced and kept open at the
time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting for the purposes thereof except
that, if the Corporation has 5,000 or more shareholders, in lieu of the making
of a list the Corporation may make the information therein available at the
meeting by any other means.
(ii) Failure to comply with the requirements of this
section 2-10 shall not affect the validity of any action taken at a meeting
prior to a demand at the meeting by any shareholder entitled to vote thereat to
examine the list. The original share register or transfer book, or a duplicate
thereof kept in the Commonwealth of Pennsylvania, shall be prima facie evidence
as to who are the shareholders entitled to examine the list or share register or
transfer book or to vote at any meeting of shareholders.
(b) Voting. Except as otherwise specifically provided by law,
all matters coming before the meeting shall be determined by a vote of shares.
Such vote shall be taken by voice unless a shareholder demands, before the vote
begins, that it be taken by ballot.
(c) Proxies. At all meetings of shareholders, shareholders
entitled to vote may attend and vote either in person or by proxy. Every proxy
shall be executed in writing by the shareholder or by such shareholder's duly
authorized attorney-in-fact and filed with the Secretary of the Corporation. A
telegram, telex, cablegram, datagram or similar transmission from a shareholder
or attorney-in-fact, or a photographic, facsimile or similar reproduction of a
writing executed by a shareholder or attorney-in-fact (or other transmission as
permitted by law, including, without limitation, by internet, interactive voice
response system or other electronic means) shall be treated as properly executed
for the purposes of this Section; provided that such transmission sets forth a
confidential and unique identification number or other mark furnished by the
Corporation to the shareholder for the purposes of a particular meeting or
transaction or is otherwise submitted with information from which it can be
determined that the transmission was authorized by the shareholder. A proxy,
unless coupled with an interest (as defined in Section 1759(c) of the
Pennsylvania BCL), shall be revocable at will, notwithstanding any other
agreement or any provision in the proxy to the contrary, but the revocation of a
proxy shall not be effective until written notice thereof has been given to the
Secretary of the Corporation. An unrevoked proxy shall not be valid after three
years from the date of its execution unless a longer time is expressly provided
therein. A proxy shall not be revoked by the death or incapacity of the maker
unless, before the vote is counted or the authority is exercised, written notice
of the death or incapacity is given to the Secretary of the Corporation.
(d) Judges of Election. In advance of any meeting of
shareholders of the Corporation, the Board of Directors may appoint one or three
Judges of Election, who need not be shareholders and who will have such duties
as provided in Section 1765(3) of the Pennsylvania BCL, to act at the meeting or
any adjournment thereof. If one or three Judges of Election are not so
appointed, the presiding officer of the meeting may, and on the request of any
shareholder shall, appoint one or three Judges of Election at the meeting. In
case any person appointed as a Judge of Election fails to appear or refuses to
act, the vacancy may be filled by appointment made by the Board of Directors in
advance of the convening of the meeting or at the
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meeting by the presiding officer. A person who is a candidate for office to be
filled at the meeting shall not act as a Judge of Election. Unless the
Pennsylvania BCL permits otherwise, this Section 2-10(d) may be modified only by
a Bylaw amendment adopted by the shareholders.
Section 2-11. Participation in Meetings by Conference Telephone.
Unless determined to the contrary by the Board of Directors in advance of a
particular meeting with respect to that meeting, any person who is otherwise
entitled to participate in any meeting of the shareholders may attend, be
counted for the purposes of determining a quorum and exercise all rights and
privileges to which such person might be entitled were such person personally in
attendance, including the right to vote, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, if such communications equipment is present in
the meeting room.
Section 2-12. Voting by Fiduciaries and Pledgees. Shares of the
Corporation standing in the name of a trustee or other fiduciary and shares held
by an assignee for the benefit of creditors or by a receiver may be voted by the
trustee, fiduciary, assignee or receiver. A shareholder whose shares are pledged
shall be entitled to vote the shares until the shares have been transferred into
the name of the pledgee, or a nominee of the pledgee, but nothing in this
section shall affect the validity of a proxy given to a pledgee or nominee.
Section 2-13. Voting by Joint Holders of Shares. (a) General Rule.
Where shares of the Corporation are held jointly or as tenants in common by two
or more persons, as fiduciaries or otherwise:
(1) if only one or more of such persons is present in person or by
proxy, all of the shares standing in the names of such persons
shall be deemed to be represented for the purpose of
determining a quorum and the Corporation shall accept as the
vote of all the shares the vote cast by a joint owner or a
majority of them; and
(2) if the persons are equally divided upon whether the shares
held by them shall be voted or upon the manner of voting the
shares, the voting of the shares shall be divided equally
among the persons without prejudice to the rights of the joint
owners or the beneficial owners thereof among themselves.
(b) Exception. If there has been filed with the Secretary of the
Corporation a copy, certified by an attorney at law to be
correct, of the relevant portions of the agreement under which
the shares are held or the instrument by which the trust or
estate was created or the order of court appointing them or of
an order of court directing the voting of the shares, the
persons specified as having such voting power in the document
latest in date of operative effect so filed, and only those
persons, shall be entitled to vote the shares but only in
accordance therewith.
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Section 2-14. Voting By Corporate Shareholder. Any corporation that
is a shareholder of this Corporation may vote at meetings of shareholders of
this Corporation by any of its officers or agents, or by proxy appointed by any
officer or agent, unless some other person, by resolution of the board of
directors of the other corporation or a provision of its articles or bylaws, a
copy of which resolution or provision certified to be correct by one of its
officers has been filed with the Secretary of this Corporation, is appointed its
general or special proxy in which case that person shall be entitled to vote the
shares.
ARTICLE III - BOARD OF DIRECTORS
Section 3-1.
(a) General Powers. Except as otherwise provided by law and
these Bylaws, all powers of the Corporation shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed
under the direction of the Board of Directors. Unless the Pennsylvania BCL
permits otherwise, this Section 3-1(a) may be modified only by a Bylaw amendment
adopted by the shareholders.
(b) Number. The number of members of the Board of Directors
shall be the number of Directors serving at the time of adoption of this Section
3-1, or such other number as may thereafter from time to time (i) be determined
by the Board of Directors, or (ii) be set forth in a notice of a meeting of
shareholders called for the election of a full Board of Directors.
(c) Vacancies. Each Director shall hold office until the
expiration of the term for which he was selected and until his successor has
been selected and qualified or until his earlier death, resignation or removal.
Except as otherwise provided by the Articles or any amendments thereto, any
vacancies on the Board of Directors, including vacancies resulting from an
increase in the number of Directors, shall be filled by a majority vote of the
members of the Board of Directors then in office, and each person so selected
shall be a Director to serve for the balance of the unexpired term.
(d) Removal; Resignation. The right of the shareholders to
remove Directors shall be governed by the provisions of Section 1726 of the
Pennsylvania BCL as applicable to a classified Board of Directors established in
accordance with Section 1724(b) of the Pennsylvania BCL. Any Director may resign
at any time upon written notice to the Corporation. The resignation shall be
effective upon receipt thereof by the Corporation or at such subsequent time as
shall be specified in the notice of resignation.
(e) Qualification. A Director must be a natural person at
least 18 years of age.
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Section 3-2. Place of Meetings. Meetings of the Board of Directors
may be held at such place within or without the Commonwealth of Pennsylvania as
a majority of the Directors may appoint from time to time or as may be
designated in the notice of the meeting.
Section 3-3. Regular Meetings. A regular meeting of the Board of
Directors shall be held quarterly, with one meeting immediately following the
annual meeting of shareholders, at the place where such meeting of the
shareholders is held or at such other place and time as a majority of the
Directors in office after the annual meeting of shareholders may designate. At
the Board of Directors meeting that takes place immediately after the annual
meeting of shareholders, the Board of Directors shall elect officers of the
Corporation. In addition to such regular meetings, the Board of Directors shall
have the power to fix by resolution the place and time of other regular meetings
of the Board.
Section 3-4. Special Meetings. Special meetings of the Board of
Directors shall be held whenever ordered by the Chairman or Chief Executive
Officer of the Corporation, or by two or more Directors then in office.
Section 3-5. Participation in Meetings by Conference Telephone. Any
Director may participate in any meeting of the Board of Directors or of any
committee (provided such Director is otherwise entitled to participate), be
counted for the purpose of determining a quorum thereof and exercise all rights
and privileges to which such Director might be entitled were he or she
personally in attendance, including the right to vote, or any other rights
attendant to presence in person at such meeting, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other.
Section 3-6. Notices of Meetings of Board of Directors.
(a) Regular Meetings. No notice shall be required to be given
of any regular meeting, unless the same is held at other than the place or time
for holding such meeting as fixed in accordance with Section 3-3 of these
Bylaws, in which event five days' notice shall be given of the place and time of
such meeting complying with Article VI of these Bylaws.
(b) Special Meetings. Written notice stating the place and
time of any special meeting of the Board of Directors shall be sufficient if
given at least one day, as provided in Article VI, in advance of the time fixed
for the meeting.
Section 3-7. Organization of Meetings. At every meeting of the Board
of Directors, the Chairman of the Board, if there be one, or, in the case of a
vacancy in the office or absence of the Chairman of the Board, one of the
following officers present in the order stated: the Vice Chairman of the Board,
the Chief Executive Officer, the President, the Chief Financial Officer, or a
person chosen by a majority of the Directors present, shall act as Chairman of
the meeting. The Secretary or, in the absence of the Secretary and the assistant
secretaries, any person appointed by the Chairman of the meeting, shall act as
Secretary of the meeting.
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Section 3-8. Quorum; Action by the Board of Directors. 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 and
voting at a meeting at which a quorum is present shall be the acts of the Board
of Directors. If there is no quorum present at a duly convened meeting of the
Board of Directors, the majority of those present may adjourn the meeting from
time to time and place to place.
Section 3-9. Informal Action by the Board of Directors. Any action
required or permitted to be taken at a meeting of the Directors, or of the
members of any committee of the Board of Directors, may be taken without a
meeting if, prior or subsequent to the action, a written consent or consents
thereto by all of the Directors in office (or members of the committee with
respect to committee action) is filed with the Secretary of the Corporation. In
addition to other means of filing with the Secretary, insertion in the minute
book of the Corporation shall be deemed filing with the Secretary regardless of
whether the Secretary or some other authorized person has actual possession of
the minute book.
Section 3-10. Fundamental Transactions.--Where any provision of 15
Pa.C.S. Ch. 19 of the Pennsylvania BCL requires that an amendment of the
articles, a plan or the dissolution of the corporation be proposed or approved
by action of the Board of Directors, that requirement shall be construed to
authorize and be satisfied by the written agreement or consent of all of the
shareholders of the corporation entitled to vote thereon.
Section 3-11. Personal Liability of Directors.
(a) A Director shall not be personally liable, as such, for
monetary damages (including, without limitation, any judgment, amount paid in
settlement, penalty, punitive damages or expense of any nature (including,
without limitation, attorneys' fees and disbursements)) for any action taken, or
any failure to take any action, unless:
(i) the Director has breached or failed to perform the
duties of his or her office under Subchapter 17B of the Pennsylvania BCL (or any
successor provision); and
(ii) the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness.
(b) The provisions of subparagraph (a) shall not apply to the
responsibility or liability of a Director pursuant to any criminal statute, or
the liability of a director for the payment of taxes pursuant to local, state or
federal law.
Section 3-12. Notation of Dissent. A Director who is present at a
meeting of the Board of Directors, or of a committee of the Board, at which
action on any corporate matter is taken on which the Director is generally
competent to act, shall be presumed to have assented to
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the action taken unless his or her dissent is entered in the minutes of the
meeting or unless the Director files a written dissent to the action with the
Secretary of the meeting before the adjournment thereof or transmits the dissent
in writing to the Secretary of the Corporation immediately after the adjournment
of the meeting. The right to dissent shall not apply to a Director who voted in
favor of the action. Nothing in this Section 3-12 shall bar a Director from
asserting that minutes of the meeting incorrectly omitted his or her dissent if,
promptly upon receipt of a copy of such minutes, the Director notifies the
secretary, in writing, of the asserted omission or inaccuracy.
Section 3-13. Committees.
(a) Establishment and Powers. The Board of Directors of the
Corporation may, by resolution adopted by a majority of the directors in office,
establish one or more committees to consist of one or more Directors of the
Corporation. Any committee, to the extent provided in the resolution of the
Board of Directors or in the Bylaws, shall have and may exercise all of the
powers and authority of the Board of Directors, except that a committee shall
not have any power or authority as to the following:
(i) The submission to shareholders of any action
requiring approval of shareholders under Section 1731(a)(1) of the Pennsylvania
BCL.
(ii) The creation or filling of vacancies in the Board
of Directors.
(iii) The adoption, amendment or repeal of the Bylaws.
(iv) The amendment or repeal of any resolution of the
Board of Directions that by its terms is amendable or repealable only by the
Board of Directors.
(v) Action on matters committed by the Bylaws or
resolution of the Board of Directors to another committee of the Board of
Directors.
(b) Alternate Members. The Board of Directors 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 or for the purpose
of any written action by the committee. In the absence or disqualification of a
member and alternate member or members of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another Director to act
at the meeting in the place of the absent or disqualified member.
(c) Term. Each committee of the Board of Directors shall serve
at the pleasure of the Board of Directors.
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(d) Status of Committee Action. The term "Board of Directors"
or "Board," when used in any provision of these Bylaws relating to the
organization or procedures of or the manner of taking action by the Board of
Directors, shall be construed to include and refer to any executive or other
committee of the Board of Directors. Any provision of these Bylaws relating or
referring to action to be taken by the Board of Directors or the procedure
required therefor shall be satisfied by the taking of corresponding action by a
committee of the Board of Directors to the extent authority to take the action
has been delegated to the committee pursuant to this Section.
ARTICLE IV - OFFICERS
Section 4-1. Election and Office. The Corporation shall have a Chief
Executive Officer, a President, a Secretary, a Chief Financial Officer and a
Treasurer who shall be elected by the Board of Directors. The Board of Directors
may elect from among the members of the Board a Chairman of the Board and one or
more Vice Chairmen of the Board, who may both be, but need not be officers of
the Corporation. Any number of offices may be held by the same person. The
President and the Secretary shall be natural persons of the age of 18 years or
older. The Treasurer may be a corporation, but if a natural person shall be of
the age of 18 years or older.
Section 4-2. Term. The officers and assistant officers shall each
serve at the pleasure of the Board of Directors until the first meeting of the
Board of Directors following the next annual meeting of shareholders, unless
removed from office by the Board of Directors during their respective tenures.
Officers may, but need not, be Directors. Any officer may resign at any time
upon written notice to the Corporation. The resignation shall be effective upon
receipt thereof by the Corporation or at such subsequent time as may be
specified in the notice of resignation.
Section 4.3 Removal of Officers and Agents. Any officer or agent of
the Corporation may be removed by the Board of Directors or by the Chief
Executive Officer with or without cause. The removal shall be without prejudice
to the contract rights, if any, of any person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
Section 4-4. Subordinate Officer, Committees and Agents. The Board
of Directors may from time to time appoint such other officers and such
committees, employees or other agents as the business of the Corporation may
require, including one or more assistant secretaries, and one or more assistant
Treasurers, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these bylaws, or as the Board of
Directors may from time to time determine. The Board of Directors may delegate
to any officer or committee the power to appoint subordinate officers and to
retain or appoint employees or other agents, or committees thereof, and to
prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
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Section 4-5. Authority. All officers of the Corporation, as between
themselves and the Corporation, shall have such authority and perform such
duties in the management of the Corporation as may be provided by or pursuant to
resolutions or orders of the Board of Directors or, in the absence of
controlling provisions in the resolutions or orders of the Board of Directors,
as may be determined by or pursuant to these bylaws or in the absence of any
such controlling authority then as provided by the Chief Executive Officer.
Section 4-6. Powers and Duties of the Chief Executive Officer. The
Chief Executive Officer shall be the chief executive officer of the Corporation.
The CEO shall have general supervision over the business, finances, operations
and welfare of the Corporation, subject however, to the control of the Board of
Directors. The Chief Executive Officer shall sign, execute, and acknowledge, in
the name of the Corporation, deeds, mortgages, bonds, contracts or other
instruments, authorized by the Board of Directors, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors, or by these bylaws or by the Chief Executive Officer, to some other
officer or agent of the Corporation; and, in general, shall have all powers and
perform all duties incident to the position of a chief executive officer and
such other powers and duties as from time to time may be assigned by the Board
of Directors. The Chief Executive Officer shall from time to time make such
reports of the affairs of the Corporation as the Board may require and shall
present to the annual meeting of the shareholders a report of the business of
the Corporation for the preceding fiscal year.
Unless otherwise determined by the Board of Directors, the Chief
Executive Officer shall have full power and authority on behalf of the
Corporation to attend and to act and to vote at any meeting of the shareholders
of any corporation in which this Corporation may hold stock and, at any such
meeting, shall possess and may exercise any and all the rights and powers
incident to the ownership of such stock and which, as the owner thereof, the
Corporation might have possessed and exercised. The Chief Executive Officer
shall also have the right to delegate such power.
Section 4-7. Powers and Duties of the President. Unless otherwise
determined by the Board of Directors, the President shall have the usual duties
of an executive officer with general supervision over and direction of the
affairs of the Corporation. The President shall perform such duties as may from
time to time be assigned to him or her by the Chief Executive Officer.
Section 4-8. Powers and Duties of the Secretary. Unless otherwise
determined by the Board of Directors, the Secretary shall be responsible for the
keeping of the minutes of all meetings of the Board of Directors and the
shareholders, in books provided for that purpose, and for the giving and serving
of all notices for the Corporation. The Secretary shall perform all other duties
ordinarily incident to the office of Secretary. The minute books of the
Corporation may be held by a person other than the Secretary.
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Section 4-9. Powers and Duties of the Chief Financial Officer. The
Chief Financial Officer shall be the chief financial officer of the Corporation
and shall have general management and supervision of the fiscal affairs of the
Corporation under the direction and supervision of the Chief Executive Officer.
The Chief Financial Officer shall see that a full and accurate accounting of all
financial transactions is made; shall oversee the investment and reinvestment of
the capital funds of the Corporation; shall oversee the preparation of any
financial reports of the Corporation; shall cooperate in the conduct of the
annual audit of the Corporation's financial records by the Corporation's
certified public accountants; and, in general, shall discharge such other duties
as may from time to time be assigned by the Chief Executive Officer.
Section 4-10. Powers and Duties of the Treasurer. Unless otherwise
determined by the Board of Directors, the Treasurer shall perform the duties of
the Chief Financial Officer in the absence of the Chief Financial Officer or
provide for the custody of the funds or other property of the Corporation which
may come into such officer's hands. When necessary or proper, unless otherwise
determined by the Board of Directors, the Treasurer shall endorse for collection
on behalf of the Corporation checks, notes and other obligations, and shall
deposit the same to the credit of the Corporation to such banks or depositories
as the Board of Directors may designate and may sign all receipts and vouchers
for payments made to the Corporation. The Treasurer shall sign all checks made
by the Corporation, except when the Board of Directors shall otherwise direct.
The Treasurer shall be responsible for the regular entry in books of the
Corporation to be kept for such purpose of a full and accurate account of all
funds and securities received and paid by the Treasurer on account of the
Corporation. Whenever required by the Board of Directors, the Treasurer shall
render a statement of the financial condition of the Corporation. The Treasurer
shall have such other powers and shall perform the duties as may be assigned to
such officer from time to time by the Chief Executive Officer.
Section 4-11. Powers and Duties of the Chairman of the Board. Unless
otherwise determined by the Board of Directors, the Chairman of the Board, if
any, shall preside at all meetings of Directors. The Chairman of the Board shall
have such other powers and perform such further duties as may be assigned to
such officer by the Board of Directors, including, without limitation, acting as
chief executive officer of the Corporation. To be eligible to serve, the
Chairman of the Board must be a Director of the Corporation.
Section 4-12. Powers and Duties of Vice Chairmen of the Board, Vice
Presidents and Assistant Officers. Unless otherwise determined by the Board of
Directors, each Vice Chairman, Vice President and each assistant officer shall
have the powers and perform the duties of his or her respective superior
officer. Vice Presidents and assistant officers shall have such rank as may be
designated by the Board of Directors. Vice Presidents may be designated as
having responsibility for a specific area of the Corporation's affairs, in which
event such Vice President shall be superior to the other Vice Presidents in
relation to matters within his or her area. The Chairman of the Board shall be
the superior officer of the Vice-Chairman. The
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Treasurer and Secretary shall be the superior officers of the Assistant
Treasurers and Assistant Secretaries, respectively.
Section 4-13. Salaries. The salaries of the officers elected by the
Board of Directors shall be fixed from time to time by the Board of Directors or
by such committee or officer as may be designated by resolution of the Board, or
in the absence of such designation by the CEO. The salaries or other
compensation of any other officers, employees and other agents shall be fixed
from time to time by the Board, or by the officer or committee to which the
power to appoint such officers or to retain or appoint such employees or other
agents has been delegated pursuant to Section 6.03, or in the absence of such
designation by the CEO or other officer designated by the CEO. No officer shall
be prevented from receiving such salary or other compensation by reason of the
fact that the officer is also a director of the Corporation.
Section 4-14. Delegation of Office. The Board of Directors may
delegate the powers or duties of any officer of the Corporation to any other
person from time to time.
Section 4-15. Vacancies. The Board of Directors shall have the power
to fill any vacancies in any office occurring for any reason.
ARTICLE V - CAPITAL STOCK
Section 5-1. Share Certificates.
(a) Execution. Except as otherwise provided in Section 5-5,
the shares of the Corporation shall be represented by certificates. Unless
otherwise provided by the Board of Directors, every share certificate shall be
signed by two officers and sealed with the corporate seal, which may be a
facsimile, engraved or printed, but where such certificate is signed by a
transfer agent or a registrar, the signature of any corporate officer upon such
certificate may be a facsimile, engraved or printed In case any officer who has
signed, or whose facsimile signature has been placed upon, any share certificate
shall have ceased to be such officer because of death, resignation or otherwise,
before the certificate is issued, it may be issued with the same effect as if
the officer had not ceased to be such at the date of its issue. The provisions
of this Section 5-1 shall be subject to any inconsistent or contrary agreement
at the time between the Corporation and any transfer agent or registrar.
(b) Designations, etc. To the extent the Corporation is
authorized to issue shares of more than one class or series, every certificate
shall set forth upon the face or back of the certificate (or shall state on the
face or back of the certificate that the Corporation will furnish to any
shareholder upon request and without charge) a full or summary statement of the
designations, voting rights, preferences, limitations and special rights of the
shares of each class or series authorized to be issued so far as they have been
fixed and determined and the authority
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of the Board of Directors to fix and determine the designations, voting rights,
preferences, limitations and special rights of the classes and series of shares
of the Corporation.
(c) Fractional Shares. Except as otherwise determined by the
Board of Directors, shares or certificates therefor may be issued as fractional
shares for shares held by any dividend reinvestment plan or employee benefit
plan created or approved by the Corporation's Board of Directors, but not by any
other person.
Section 5-2. Transfer of Shares. Transfer of shares shall be made on
the books of the Corporation only upon surrender of the share certificate, duly
endorsed or with duly executed stock powers attached and otherwise in proper
form for transfer, which certificate shall be cancelled at the time of the
transfer.
Section 5-3. Determination of Shareholders of Record.
(a) Fixing Record Date. The Board of Directors of the
Corporation may fix a time prior to the date of any meeting of shareholders as a
record date for the determination of the shareholders entitled to notice of, or
to vote at, the meeting, which time, except in the case of an adjourned meeting,
shall be not more than 90 days prior to the date of the meeting of shareholders.
Only shareholders of record on the date fixed shall be so entitled
notwithstanding any transfer of shares on the books of the Corporation after any
record date fixed as provided in this subsection. The Board of Directors may
similarly fix a record date for the determination of shareholders of record for
any other purpose. When a determination of shareholders of record has been made
as provided in this section for purposes of a meeting, the determination shall
apply to any adjournment thereof unless the Board of Directors fixes a new
record date for the adjourned meeting.
(b) Determination when No Record Date Fixed. If a record date
is not fixed:
(i) The record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day immediately preceding
the day on which the meeting is held.
(ii) The record date for determining shareholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
(c) Certification by Nominee. The Board of Directors may adopt
a procedure whereby a shareholder of the Corporation may certify in writing to
the Corporation that all or a portion of the shares registered in the name of
the shareholder are held for the account of a specified person or persons. The
resolution of the Board of Directors may set forth:
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(i) the classification of shareholder who may certify;
(ii) the purpose or purposes for which the certification
may be made;
(iii) the form of certification and information to be
contained therein;
(iv) if the certification is with respect to a record
date, the time after the record date within which the certification must be
received by the Corporation; and
(v) such other provisions with respect to the procedure
as are deemed necessary or desirable.
Upon receipt by the Corporation of a certification
complying with the procedure, the persons specified in the certification shall
be deemed, for the purposes set forth in the certification, to be the holders of
record of the number of shares specified in place of the shareholder making the
certification.
Section 5-4. Lost, Destroyed or Mutilated Share Certificates. Unless
waived in whole or in part by the Board of Directors, any person requesting the
issuance of a new certificate in lieu of an alleged lost, destroyed, mislaid or
wrongfully taken certificate shall (a) give to the Corporation his or her bond
of indemnity with an acceptable surety, and (b) satisfy such other requirements
as may be imposed by the Corporation. Thereupon, a new share certificate shall
be issued to the registered owner or his or her assigns in lieu of the alleged
lost, destroyed, mislaid or wrongfully taken certificate, provided that the
request therefor and issuance thereof have been made before the Corporation has
notice that such shares have been acquired by a bona fide purchaser.
Section 5-5. Uncertificated Shares. Notwithstanding anything herein
to the contrary, any or all classes and series of shares, or any part thereof,
may be represented by uncertificated shares to the extent determined by the
Board of Directors, except that shares represented by a certificate that is
issued and outstanding shall continue to be represented thereby until the
certificate is surrendered to the Corporation. Within a reasonable time after
the issuance or transfer of uncertificated shares, the Corporation shall send to
the registered owner thereof, a written notice containing the information
required to be set forth or stated on certificates. The rights and obligations
of the holders of shares represented by certificates and the rights and
obligations of the holders of uncertificated shares of the same class and series
shall be identical. Notwithstanding anything herein to the contrary, the
provisions of Section 5-2 shall be inapplicable to uncertificated shares and in
lieu thereof the Board of Directors shall adopt alternative procedures for
registration of transfers.
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ARTICLE VI - NOTICES - COMPUTING TIME PERIODS
Section 6-1. Contents of Notice. Whenever any notice of a meeting is
required to be given pursuant to these Bylaws or the Articles or otherwise, the
notice shall specify the place and time of the meeting; in the case of a special
meeting of shareholders or where otherwise required by law or the Bylaws, the
general nature of the business to be transacted at such meeting; and any other
information required by law.
Section 6-2. Method of Notice. Whenever written notice is required
to be given to any person under the provisions of the Articles or these Bylaws,
a telegram, telex, cablegram, datagram or similar transmission from a
shareholder or attorney-in-fact, or a photographic, facsimile or similar
reproduction of a writing executed by a shareholder or attorney-in-fact (or
other transmission as permitted by law, including, without limitation, by
internet, interactive voice response system or other electronic means) shall be
treated as properly executed for the purposes of this such Articles or these
Bylaws; provided that a notice delivered either personally or by sending a copy
thereof by first class or express mail, postage prepaid, or courier service,
charges prepaid, to the address of such person requiring notice as appears on
the books of the Corporation or, in the case of Directors, as supplied by such
Director to the Corporation for the purpose of notice also shall be deemed to
have been properly executed for purposes of this Section when deposited in the
United States mail or with a courier service for delivery to that person.
Section 6-3. Computing Time Periods.
(a) Days to be Counted. In computing the number of days for purposes
of these Bylaws, all days shall be counted, including Saturdays, Sundays or a
holiday on which national banks are or may elect to be closed ("Holiday");
provided, however, that if the final day of any time period falls on a Saturday,
Sunday or Holiday, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or Holiday. In computing the number of days for the
purpose of giving notice of any meeting, the date upon which the notice is given
shall be counted but the day set for the meeting shall not be counted.
(b) One Day Notice. In any case where only one day's notice is being
given, notice must be given at least 24 hours in advance by delivery in person,
telephone, telex, TWX, Telecopier or similar means of communication.
Section 6-4. Waiver of Notice. Whenever any notice is required to be
given by law or the Articles or these Bylaws, a waiver thereof in writing,
signed by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of the notice.
Except as otherwise required by law or the next sentence, neither the business
to be transacted at, nor the purpose of, a meeting need be specified in the
waiver of notice of the meeting. In the case of a special meeting of
shareholders, the waiver of notice shall
19
specify the general nature of the business to be transacted. Attendance of a
person at any meeting shall constitute a waiver of notice of the meeting except
where a person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
was not lawfully called or convened.
Section 6-5. Exception to Requirement of Notice.
(a) General Rule. Whenever any notice or communication is
required to be given to any person under the provisions of the Business
Corporation Law or by the articles or these bylaws or by the terms of any
agreement or other instrument or as a condition precedent to taking any
corporate action and communication with that person is then unlawful, the giving
of the notice or communication to that person shall not be required.
(b) Shareholders Without Forwarding Addresses. Notice or
other communications need not be sent to any shareholder with whom the
Corporation has been unable to communicate for more than 24 consecutive months
because communications to the shareholder are returned unclaimed or the
shareholder has otherwise failed to provide the Corporation with a current
address. Whenever the shareholder provides the Corporation with a current
address, the Corporation shall commence sending notices and other communications
to the shareholder in the same manner as to other shareholders.
ARTICLE VII - LIMITATION OF DIRECTORS' LIABILITY AND
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS
Section 7-1. Scope of Indemnification.
(a) General Rule. The corporation shall indemnify an
indemnified representative against any liability incurred in connection with any
proceeding in which the indemnified representative may be involved as a party or
otherwise by reason of the fact that such person is or was serving in an
indemnified capacity, 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:
(1) where such indemnification is expressly prohibited
by applicable law;
(2) where the conduct of the indemnification
representative has been finally determined pursuant to Section 7-6
or otherwise:
(i) to constitute willful misconduct or
recklessness within the meaning of 15 Pa.C.S.Section
1746 (b) or any superseding provision of law sufficient
in the circumstances to bar indemnification against
liabilities arising from the conduct; or
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(ii) to be based upon or attributable to the
receipt by the indemnified representative from the
corporation of a personal benefit to which the
indemnified representative is not legally entitled; or
(3) to the extent such indemnification has been finally
determined in a final adjudication pursuant to Section 7-6 to be
otherwise unlawful.
(b) Partial Payment. If an indemnified 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 indemnified representative to the maximum extent for such portion of the
liabilities.
(c) Presumption. The termination of a proceeding by judgment,
order, settlement or conviction or upon a plea of nolo contendre or its
equivalent shall not of itself create a presumption that the indemnified
representative is not entitled to indemnification.
(d) Definitions. For purposes of this Article:
(1) "indemnified capacity" means any and all past,
present and future service by an indemnified representative in
one or more capacities as a director, officer, employee or
agent of the corporation, or, at the request of the
corporation, as a director, officer, manager, employee, agent,
fiduciary or trustee of another corporation, partnership,
limited liability company, joint venture, trust, employee
benefit plan or other entity or enterprise;
(2) "indemnified representative" means any and all
directors and officers of the corporation and any other person
designated as an indemnified representative by the board of
directors of the corporation (which may, but need not, include
any person serving at the request of the corporation, as a
director, officer, manager, employee, agent, fiduciary or
trustee of another corporation, partnership, limited liability
company, joint venture , trust, employee benefit plan or other
entity or enterprise);
(3) "liability" means any damage, judgment, amount paid
in settlement, fine, penalty, 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); and
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(4) "proceeding" means any threatened, pending or
completed action, suit, appeal or other proceeding of any
nature, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether brought
by or in the right of the corporation, a class of its security
holders or otherwise.
Section 7-2. Proceedings Initiated by Indemnified Representatives.
Notwithstanding any other provision of this Article, the Corporation shall not
indemnify under this Article an indemnified 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 section does not apply to reimbursement of expenses incurred in
successfully prosecuting or defending an arbitration under Section 7-6 or
otherwise successfully prosecuting or defending the rights of an indemnified
representative granted by or pursuant to this Article.
Section 7-3. Advancing Expenses. The Corporation shall pay the
expenses (including attorneys' fees and disbursements) incurred in good faith by
an indemnified representative in advance of the final disposition of a
proceeding described in Section 7-1 or the initiation of or participation in
which is authorized pursuant to Section 7-2 upon receipt of an undertaking by or
on behalf of the indemnified representative to repay the amount if it is
ultimately determined pursuant to Section 7-6 or otherwise that such person is
not entitled to be indemnified by the Corporation pursuant to this Article.
Neither action by the board of directors nor confirmation of the financial
ability of an indemnified representative to repay an advance shall be a
prerequisite to the making of such advance.
Section 7-4. Securing of Indemnification Obligations. 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, 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.
Section 7-5. Payment of Indemnification. An indemnified
representative shall be entitled to indemnification within 30 days after a
written request for indemnification has been delivered to the secretary of the
corporation.
Section 7-6. Arbitration.
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(a) General Rule. Any dispute related to the right to
indemnification, contribution or advancement of expenses as provided under this
Article, except with respect to indemnification for liabilities arising under
the Securities Act of 1933, as amended, that the Corporation has undertaken to
submit to a court for adjudication, shall be decided only by arbitration in the
metropolitan area in which the principal executive offices of the corporation
are located at the time, 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 indemnified 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 one of
the parties fails or refuses to select an arbitrator or the arbitrators selected
by the Corporation and the indemnified representative cannot agree on the
selection of the third arbitrator within 30 days after such time as the
Corporation and the indemnified 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 general jurisdiction in
such metropolitan area.
(b) Qualifications of Arbitrators. Each arbitrator selected as
provided herein is required to be or have been a director or executive officer
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 System.
(c) Burden of Proof. The party or parties challenging the
right of an indemnified representative to the benefits of this Article shall
have the burden of proof.
(d) Expenses. The Corporation shall reimburse an indemnified
representative for the expenses (including attorneys' fees and disbursements)
incurred in successfully prosecuting or defending such arbitration.
(e) Effect. 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,
except that the Corporation shall be entitled to interpose as a defense in any
such judicial enforcement proceeding any prior final judicial determination
adverse to the indemnified representative under Section 7-1(a)(2) in a
proceeding not directly involving indemnification under this Article. This
arbitration provision shall be specifically enforceable.
Section 7-7. Contribution. If the indemnification provided for in
this Article or otherwise is unavailable for any reason in respect of any
liability or portion thereof, the corporation shall contribute to the
liabilities to which the indemnified representative may be subject in such
proportion as is appropriate to reflect the intent of this Article or otherwise.
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Section 7-8. Mandatory Indemnification of Directors, Officers, etc.
To the extent that an authorized representative of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1741 or 1742 of the Business Corporation Law
or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection therewith.
Section 7-9. Contract Rights, Amendment or Repeal. All rights under
this Article shall be deemed a contract between the corporation and the
indemnified representative pursuant to which the corporation and each
indemnified 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.
Section 7-10. Scope of Article. The rights granted by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification, contribution or advancement of expenses may be entitled under
any statute, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in an indemnified capacity and as to action in any
other capacity. The indemnification, contribution and advancement of expenses
provided by or granted pursuant to this Article shall continue as to a person
who has ceased to be an indemnified 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.
Section 7-11. Reliance on Provisions. -- Each person who shall act
as an indemnified representative of the corporation shall be deemed to be doing
so in reliance upon the rights of indemnification, contribution and advancement
of expenses provided by this Article.
Section 7-12. Interpretation. -- The provisions of this Article are
intended to constitute bylaws authorized by 15 Pa.C.S.Section 1746 of the
Pennsylvania BCL.
Section 7-13. Changes in Pennsylvania Law. References in this
Article VII to Pennsylvania law or to any provision thereof shall be to such law
as it existed on the date this Article VII was adopted or as such law thereafter
may be changed; provided that (a) in the case of any change which expands the
liability of Directors or limits the indemnification rights or the rights to
advancement of expenses which the Corporation may provide, the rights to limited
liability, to indemnification and to the advancement of expenses provided in
this Article shall continue as theretofore to the extent permitted by law; and
(b) if such change permits the Corporation without the requirement of any
further action by shareholders or Directors to limit further the liability of
Directors (or limit the liability of officers) or to provide broader
indemnification rights or rights to the advancement of expenses than the
Corporation was permitted to provide prior to such change, then liability
thereupon shall be so limited and the rights to indemnification and the
advancement of expenses shall be so broadened to the extent permitted by law.
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ARTICLE VIII - FISCAL YEAR
Section 8-1. Determination of Fiscal Year. The Board of Directors
shall have the power by resolution to fix the fiscal year of the Corporation. If
the Board of Directors shall fail to do so, the President shall fix the fiscal
year.
ARTICLE IX - AMENDMENTS
Section 9-1. Except as otherwise expressly provided in Section 7-3:
(a) Shareholders. These Bylaws may be amended or repealed, or
new bylaws may be adopted by vote of the shareholders at any duly organized
annual meeting or special meeting of shareholders. In the case of a meeting of
shareholders to amend or repeal these Bylaws, written notice shall be given to
each shareholder that the purpose, or one of the purposes, of the meeting is to
consider the adoption, amendment or repeal of the Bylaws.
(b) Board of Directors. The Board of Directors (but not a
committee thereof), by a vote of the majority of Directors then in office, shall
have the power to alter, amend, and repeal these Bylaws, regardless of whether
the shareholders have previously adopted the Bylaw being amended or repealed,
subject to the power of the shareholders to change such action, provided that
the Board of Directors shall not have the power to amend these Bylaws on any
subject that is expressly committed to the shareholders by the express terms
hereof by Section 1504 of the Pennsylvania BCL or otherwise.
ARTICLE X - MISCELLANEOUS
Section 10-1. Checks. All checks, notes, bills of exchange or other
similar orders in writing shall be signed by such one or more officers or
employees of the Corporation as the Board of Directors may from time to time
designate.
Section 10-2. Contracts.
(a) General Rule. Except as otherwise provided in the Business
Corporation Law in the case of transactions that require action by the
shareholders, the Board of Directors may authorize any officer or agent to enter
into any contract or to execute or deliver any instrument on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
(b) Statutory Form of Execution of Instruments. Any note,
mortgage, evidence of indebtedness, contract or other document, or any
assignment or endorsement thereof,
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executed or entered into between the Corporation and any other person, when
signed by one or more officers or agents having actual or apparent authority to
sign it, or by the Chief Executive Officer, President, Senior Vice Presidents,
Chief Financial Officer, Vice Presidents, Secretary or assistant Secretary or
Treasurer or assistant Treasurer of the Corporation, shall be held to have been
properly executed for and in behalf of the Corporation, without prejudice to the
rights of the Corporation against any person who shall have executed the
instrument in excess of his or her actual authority.
Section 10-3. Deposits. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositaries as the Board of Directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees of the Corporation as the Board of Directors
shall from time to time designate.
Section 10-4. Corporate Records.
(a) Required Records. The Corporation shall keep complete and
accurate books and records of account, minutes of the proceedings of the
incorporators, shareholders and directors and a share register giving the names
and addresses of all shareholders and the number and class of shares held by
each. The share register shall be kept at either the registered office of the
Corporation in the Commonwealth of Pennsylvania or at its principal place of
business wherever situated or at the office of its registrar or transfer agent.
Any books, minutes or other records may be in written form or any other form
capable of being converted into written form within a reasonable time.
(b) Right of Inspection. Every shareholder shall, upon written
verified demand stating the purpose thereof, have a right to examine, in person
or by agent or attorney, during the usual hours for business for any proper
purpose, the share register, books and records of account, and records of the
proceedings of the incorporators, shareholders and directors and to make copies
or extracts therefrom. A proper purpose shall mean a purpose reasonably related
to the interest of the person as a shareholder. In every instance where an
attorney or other agent is the person who seeks the right of inspection, the
demand shall be accompanied by a verified power of attorney or other writing
that authorizes the attorney or other agent to so act on behalf of the
shareholder. The demand shall be directed to the Corporation at its registered
office in the Commonwealth of Pennsylvania or at its principal place of business
wherever situated.
Section 10-5. Corporate Seal. The Corporation shall have a
corporate seal in the form of a circle containing the name of the Corporation,
the year of incorporation and such other details as may be approved by the Board
of Directors. The affixation of the corporate seal shall not be necessary to the
valid execution, assignment or endorsement by the Corporation of any instrument
or document.
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ARTICLE XI - INTERPRETATION OF BYLAWS -- SEPARABILITY
Section 11-1. Interpretation. All words, terms and provisions of
these Bylaws shall be interpreted and defined by and in accordance with the
Pennsylvania BCL.
Section 11-2. Separability. The provisions of these Bylaws are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
ARTICLE XII - DETERMINATIONS BY THE BOARD
Section 12-1. Effect of Board Determinations. Any determination
involving interpretation or application of these Bylaws made in good faith by
the Board of Directors shall be final, binding and conclusive on all parties in
interest.
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