EXHIBIT 3.12(b)
BYLAWS
OF
THE BON-TON STORES OF LANCASTER, INC.
BYLAWS OF
THE BON-TON STORES OF LANCASTER, INC.
(Formerly: W & S Acquisition Corp.)
(C) Copyright 1989 Wolf, Block, Schorr and Solis-Cohen. All Rights Reserved.
BYLAWS
TABLE OF CONTENTS
PAGE
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ARTICLE I - OFFICES...................................................... 1
Section 1.1. Registered Office....................................... 1
ARTICLE II - MEETINGS OF SHAREHOLDERS - ANNUAL FINANCIAL STATEMENTS...... 1
Section 2.1. Place of Meetings of Shareholders....................... 1
Section 2.2. Annual Meeting of Shareholders.......................... 1
(a) Time.................................................... 1
(b) Election of Directors................................... 1
Section 2.3. Special Meetings of Shareholders........................ 1
Section 2.4. Notices of Meetings of Shareholders..................... 2
Section 2.5. Quorum of and Action by Shareholders.................... 2
(a) General Rule............................................ 2
(b) Action by Shareholders.................................. 2
(c) Withdrawal.............................................. 2
(d) Election of Directors at Adjourned Meetings............. 2
(e) Conduct of other Business at Adjourned Meetings......... 2
Section 2.6. Adjournments............................................ 3
(a) General Rule............................................ 3
(b) Lack of Quorum.......................................... 3
(c) Notice of an Adjourned Meeting.......................... 3
Section 2.7. Voting List, Voting and Proxies......................... 3
(a) Voting List............................................. 3
(b) Voting.................................................. 3
(c) Proxies................................................. 3
(d) Judges of Election...................................... 3
Section 2.8. Participation in Meetings by Conference Telephone....... 4
Section 2.9. Action by Unanimous Consent of Shareholders............. 4
Section 2.10. Action by Less than Unanimous Consent of Shareholders... 4
Section 2.11. Annual Financial Statements............................. 4
(C) Copyright 1989 Wolf, Block, Schorr and Solis-Cohen. All Rights Reserved.
ARTICLE III - BOARD OF DIRECTORS......................................... 5
Section 3.1........................................................... 5
(a) General Powers.......................................... 5
(b) Number.................................................. 5
(c) Vacancies............................................... 5
(d) Removal................................................. 5
(e) Qualification........................................... 6
Section 3.2. Place of Meetings....................................... 6
Section 3.3. Regular Meetings........................................ 6
Section 3.4. Special Meetings........................................ 6
Section 3.5. Participation in Meetings by Conference Telephone....... 6
Section 3.6. Notices of Meetings of Board of Directors. ............. 6
(a) Regular Meetings........................................ 6
(b) Special Meetings........................................ 6
Section 3.7. Quorum; Action by the Board of Directors................ 6
Section 3.8. Informal Action by the Board of Directors............... 6
Section 3.9. Committees.............................................. 7
(a) Establishment and Powers................................ 7
(b) Alternate Members....................................... 7
(c) Term.................................................... 7
(d) Status of Committee Action.............................. 7
ARTICLE IV - OFFICERS.................................................... 8
Section 4.1. Election and Office..................................... 8
Section 4.2. Term.................................................... 8
Section 4.3. Powers and Duties of the President...................... 8
Section 4.4. Powers and Duties of the Secretary...................... 8
Section 4.5. Powers and Duties of the Treasurer...................... 8
Section 4.6. Powers and Duties of the Chairman of the Board.......... 9
Section 4.7. Powers and Duties of Vice Chairmen of the Board, Vice
Presidents and Assistant Officers....................... 9
Section 4.8. Delegation of Office.................................... 9
(ii)
Section 4.9. Vacancies............................................... 9
ARTICLE V - CAPITAL STOCK................................................ 9
Section 5.1. Share Certificates...................................... 9
(a) Execution............................................... 9
(b) Designations, etc....................................... 10
(c) Fractional Shares....................................... 10
Section 5.2. Transfer of Shares...................................... 10
Section 5.3. Determination of Shareholders of Record................. 10
(a) Fixing Record Date...................................... 10
(b) Determination when No Record Date Fixed................. 10
(c) Certification by Nominee................................ 11
Section 5.4. Lost Share Certificates................................. 11
Section 5.5. Uncertificated Shares................................... 11
ARTICLE VI - NOTICES - COMPUTING TIME PERIODS............................ 12
Section 6.1. Contents of Notice...................................... 12
Section 6.2. Method of Notice........................................ 12
Section 6.3. Computing Time Periods.................................. 12
(a) Days to be Counted...................................... 12
(b) One Day Notice.......................................... 12
Section 6.4. Waiver of Notice........................................ 12
ARTICLE VII - LIMITATION OF DIRECTORS' LIABILITY AND INDEMNIFICATION OF
DIRECTORS, OFFICERS AND OTHER PERSONS...................... 13
Section 7.1. Limitation of Directors' Liability...................... 13
Section 7.2. Indemnification and Insurance........................... 13
(a) Indemnification of Directors and Officers............... 13
(b) Indemnification of Employees and Other Persons.......... 14
(c) Non-Exclusivity of Rights............................... 14
(d) Insurance............................................... 14
(e) Fund For Payment of Expenses............................ 14
Section 7.3. Amendment............................................... 14
Section 7.4. Changes in Pennsylvania Law............................. 15
(iii)
ARTICLE VIII - FISCAL YEAR............................................... 15
Section 8.1. Determination of Fiscal Year............................ 15
ARTICLE IX - AMENDMENTS.................................................. 15
Section 9.1........................................................... 15
(a) Shareholders............................................ 15
(b) Board of Directors...................................... 15
ARTICLE X - INTERPRETATION OF BYLAWS - SEPARABILITY...................... 15
Section 10.1. Interpretation.......................................... 15
Section 10.2. Separability............................................ 15
ARTICLE XI - DETERMINATIONS BY THE BOARD................................. 16
Section 11.1. Effect of Board Determinations.......................... 16
(iv)
BYLAWS OF
THE BON-TON STORES OF LANCASTER, INC.
(Formerly: W & S Acquisition 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 registered office 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, commencing with the year 1993, at such time as the Board of
Directors may determine, or if the Board of Directors fails to set a time, on
the third Tuesday of May at 11:00 o'clock a.m., if not a legal holiday, 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. Special Meetings of Shareholders. Except as expressly required by
law, special meetings of the shareholders may be called at any time only by:
(a) the Chairman of the Board, if any, if such officer is serving as the
chief executive officer of the Corporation, and otherwise the President of the
Corporation;
(b) the Board of Directors; or
(c) shareholders entitled to cast at least 20% of the votes that all
shareholders are entitled to cast at the particular special meeting.
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 2-4 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.
(C) Copyright 1989 Wolf, Block, Schorr and Solis-Cohen. All Rights Reserved.
Section 2.4. 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 Business Corporation Law of 1988, as amended (the "Pennsylvania
BCL"), at least five days prior to the day named for the meeting, provided that
notice shall be given at least 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 2.5. Quorum of and Action by Shareholders.
(a) General Rule. Except as provided in subsections (c), (d) and (e) of
this Section 2-5, 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. Unless the
Pennsylvania BCL permits otherwise, this Section 2-5(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.
Unless the Pennsylvania BCL permits otherwise, this Section 2-5(b) may be
modified only by a Bylaw amendment adopted by the shareholders.
(c) 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.
(d) Election of Directors at Adjourned 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.
(e) 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.
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Section 2.6. Adjournments.
(a) General Rule. Adjournments of any regular or special meeting of
shareholders may be taken, but any meeting at which directors are to be elected
shall be adjourned only from day to day, or for such longer periods not
exceeding 15 days each as the shareholders present and entitled to vote 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
2-6, 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 2.7. Voting List, Voting and Proxies.
(a) Voting List. 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 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 the list the Corporation may make the
information therein available at the meeting by any other means.
(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 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 1755(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
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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 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 2-7(d) may be modified only by a Bylaw amendment adopted
by the shareholders.
Section 2.8. 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 2.9. Action by Unanimous Consent of Shareholders. Any action required or
permitted to be taken at a meeting of the shareholders or a class of
shareholders may be taken without a meeting if, prior or subsequent to the
action, a consent or consents thereto in writing (executed personally or by
proxy), shall be signed by all of the shareholders who would be entitled to vote
at a meeting for such purpose and shall be 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 2.10. Action by Less than Unanimous Consent of Shareholders. Any action
required or permitted to be taken at a meeting of the shareholders or of a class
of shareholders may be taken without a meeting upon the written consent of
shareholders who would have been entitled to cast the minimum number of votes
that would be necessary to authorize the action at a meeting at which all
shareholders entitled to vote thereon were present and voting. The consents
shall be 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. The
action shall not become effective until after at least ten days' written notice
of such action shall have been given to each shareholder entitled to vote
thereon who has not consented thereto.
Section 2.11. Annual Financial Statements. Unless otherwise agreed between the
Corporation and a shareholder, the Corporation shall furnish to its shareholders
annual financial statements, including at least a balance sheet as of the end of
each fiscal year and statement of income and expenses for the fiscal year. The
financial statements shall be prepared on the basis of generally accepted
accounting principles, if the Corporation prepares financial statements for the
fiscal year on that basis for any purpose, and may be consolidated statements of
the Corporation and one or more of its subsidiaries.
The financial statements shall be mailed by the Corporation to each of its
shareholders entitled thereto within 120 days after the close of each fiscal
year and, after the mailing and upon
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request, shall be mailed by the Corporation to any shareholder or beneficial
owner entitled thereto to whom a copy of the most recent annual financial
statements has not previously been mailed. Statements that are audited or
reviewed by a public accountant shall be accompanied by the report of the
accountant; in other cases, each copy shall be accompanied by a statement of the
person in charge of the financial records of the Corporation (i) stating such
person's reasonable belief as to whether or not the financial statements were
prepared in accordance with generally accepted accounting principles and, if
not, describing the basis of presentation, and (ii) describing any material
respects in which the financial statements were not prepared on a basis
consistent with those prepared for the previous year.
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 within a range of two (2) to eleven (11), 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. Any vacancies on
the Board of Directors, including vacancies resulting from an increase in the
number of Directors, may be filled by a majority vote of the remaining members
of the Board (though less than a quorum) or by a sole remaining Director or by
the shareholders and each person so selected shall be a Director to serve for
the balance of the unexpired term.
(d) Removal. The entire Board of Directors or any individual Director may
be removed from office without assigning any cause by vote of shareholders.
Notwithstanding the foregoing, if the Board is classified with respect to the
power to select Directors or with respect to staggered terms as provided in
Section 1724(b) of the Pennsylvania BCL, the right of the shareholders to remove
Directors shall be governed by the provisions of Section 1726 of the
Pennsylvania BCL. An individual Director shall not be removed (unless the entire
board or class of the Board is removed) from the Board if shareholders are
entitled to vote cumulatively for the Board or a class of the Board and if votes
are cast against the resolution for his removal which, if cumulatively voted at
an annual or other regular election of Directors, would be sufficient to elect
one or more Directors to the Board (or to the class). Unless the Pennsylvania
BCL permits otherwise, this Section 3-1(d) may be modified only by a Bylaw
amendment adopted by the shareholders.
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(e) Qualification. A Director must be a natural person at least 18 years of
age.
Section 3.2. Place of Meetings. Meetings of the Board of Directors maybe 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 annually, immediately following the annual meeting of the 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 such meeting, the Board of Directors shall
elect officers of the Corporation. In addition to such regular meeting, 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 of the Board, if any, by the President,
by a majority of the executive committee, if any, or by a majority of the
Directors 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 three (3) 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. 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 3.8. 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
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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 3.9. 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
Directors 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.
(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.
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ARTICLE IV - OFFICERS
Section 4.1. Election and Office. The Corporation shall have a President, a
Secretary and a Treasurer who shall be elected by the Board of Directors. The
Board of Directors may elect as additional officers a Chairman of the Board, one
or more Vice Chairmen of the Board, one or more Vice Presidents, and one or more
other officers or assistant officers. 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.
Section 4.3. 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 be the chief executive officer of the
Corporation unless the Chairman of the Board is serving as chief executive
officer, in which event the President-shall be chief operating officer of the
Corporation. In the exercise of these duties and subject to the actions of the
Board of Directors, the President may appoint, suspend, and discharge employees,
agents and assistant officers, fix the compensation of all officers and
assistant officers, shall preside at all meetings of the shareholders at which
the President shall be present and, unless there is a Chairman of the Board,
shall preside at all meetings of the Board of Directors. The President shall
also do and perform such other duties as from time to time may be assigned to
the President by the Board of Directors.
Unless otherwise determined by the Board of Directors, the President 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 President shall also have the right to delegate such power.
Section 4.4. 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 and shall have such other powers and perform
such other duties as may be assigned to the Secretary by the Board of Directors.
The minute books of the corporation may be held by a person other than the
Secretary.
Section 4.5. Powers and Duties of the Treasurer. Unless otherwise determined by
the Board of Directors, the Treasurer shall have charge of all the funds and
securities 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
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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 Board of Directors. The Treasurer shall give such bond, if any, for the
faithful performance of the duties of such office as shall be required by the
Board of Directors.
Section 4.6. 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 4.7. 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 President shall be the superior officer
of the Vice Presidents. The Chairman of the Board shall be the superior officer
of the Vice Chairmen. The Treasurer and Secretary shall be the superior officers
of the Assistant Treasurers and Assistant Secretaries, respectively.
Section 4.8. 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 4.9. 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,
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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 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 entitled to express
consent or dissent to corporate action in writing without a meeting, when prior
action by the Board of
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Directors is not necessary, shall be the close of business on the day on which
the first written consent or dissent is filed with the Secretary of the
Corporation.
(iii) 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:
(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 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
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inapplicable to uncertificated shares and in lieu thereof the Board of Directors
shall adopt alternative procedures for registration of transfers.
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 of Incorporation (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, it may be
given to the person either personally or by sending a copy thereof by first
class or express mail, postage prepaid, or by telegram (with messenger service
specified), telex or TWX (with answerback received) or courier service, charges
prepaid, or by telecopier, to such person's address (or to such person's telex,
TWX, telecopier or telephone number) appearing on the books of the Corporation
or, in the case of Directors, supplied by such Director to the Corporation for
the purpose of notice. If the notice is sent by mail, telegraph or courier
service, 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 or courier
service for delivery to that person or, in the case of telex or TWX, when
dispatched. Except as otherwise provided herein, or as otherwise directed by the
Board of Directors, notices of meetings may be given by, or at the direction of,
the Secretary.
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 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
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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.
ARTICLE VII - LIMITATION OF DIRECTORS' LIABILITY AND
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS
Section 7.1. Limitation of Directors' Liability. No Director of the Corporation
shall be personally liable for monetary damages as such for any action taken or
any failure to take any action unless: (a) the Director has breached or failed
to perform the duties of his or her office under Section 1721 of the
Pennsylvania BCL, and (b) the breach or failure to perform constitutes
self-dealing, wilful misconduct or recklessness; provided, however, that the
provisions of this Section shall not apply to the responsibility or liability of
a Director pursuant to any criminal statute, or to the liability of a Director
for the payment of taxes pursuant to local, Pennsylvania or Federal law.
Section 7.2. Indemnification and Insurance.
(a) Indemnification of Directors and Officers.
(i) Each Indemnitee (as defined below) shall be indemnified and held
harmless by the Corporation for all actions taken by him or her and for all
failures to take action (regardless of the date of any such action or failure to
take action) to the fullest extent permitted by Pennsylvania law against all
expense, liability and loss (including without limitation attorneys fees,
judgments, fines, taxes, penalties, and amounts paid or to be paid in
settlement) reasonably incurred or suffered by the Indemnitee in connection with
any Proceeding (as defined below). No indemnification pursuant to this Section
shall be made, however, in any case where the act or failure to act giving rise
to the claim for indemnification is determined by a court to have constituted
wilful misconduct or recklessness.
(ii) The right to indemnification provided in this Section shall
include the right to have the expenses incurred by the Indemnitee in defending
any Proceeding paid by the Corporation in advance of the final disposition of
the Proceeding to the fullest extent permitted by Pennsylvania law; provided
that, if Pennsylvania law continues so to require, the payment of such expenses
incurred by the Indemnitee in advance of the final disposition of a Proceeding
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of the Indemnitee, to repay all amounts so advanced without interest if
it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified under this Section or otherwise.
(iii) Indemnification pursuant to this Section shall continue as to an
Indemnitee who has ceased to be a Director or officer and shall inure to the
benefit of his or her heirs, executors and administrators.
(iv) For purposes of this Article, (A) "Indemnitee" shall mean each
Director or officer of the Corporation who was or is a party to, or is
threatened to be made a party to, or is otherwise involved in, any Proceeding,
by reason of the fact that he or she is or was a Director or officer of the
Corporation or is or was serving in any capacity at the request or for the
benefit of the Corporation as a Director, officer, employee, agent, partner, or
fiduciary of, or in any other capacity for, another corporation or any
partnership, joint venture, trust, employee benefit plan,
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or other enterprise; and (B) "Proceeding" shall mean any threatened, pending or
completed action, suit or proceeding (including without limitation an action,
suit or proceeding by or in the right of the Corporation), whether civil,
criminal, administrative, investigative or through arbitration.
(b) Indemnification of Employees and Other Persons. The Corporation may, by
action of its Board of Directors and to the extent provided in such action,
indemnify employees and other persons as though they were Indemnitees. To the
extent that an employee or agent of the Corporation has been successful on the
merits or otherwise in defense of any Proceeding or in defense of any claim,
issue or matter therein, the Corporation shall indemnify such person against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(c) Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses provided in this Article shall not be exclusive of any
other rights that any person may have or hereafter acquire under any statute,
provision of the Articles or Bylaws, agreement, vote of shareholders or
Directors, or otherwise.
(d) Insurance. The Corporation may purchase and maintain insurance, at its
expense, for the benefit of any person on behalf of whom insurance is permitted
to be purchased by Pennsylvania law against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
under Pennsylvania or other law. The Corporation may also purchase and maintain
insurance to insure its indemnification obligations whether arising hereunder or
otherwise.
(e) Fund For Payment of Expenses. The Corporation may create a fund of any
nature, which may, but need not be, under the control of a trustee, or otherwise
may secure in any manner its indemnification obligations, whether arising
hereunder, under the Articles, by agreement, vote of shareholders or Directors,
or otherwise.
Section 7.3. Amendment. The provisions of this Article VII relating to the
limitation of Directors' liability, to indemnification and to the advancement of
expenses shall constitute a contract between the Corporation and each of its
Directors and officers which may be modified as to any Director or officer only
with that person's consent or as specifically provided in this Section.
Notwithstanding any other provision of these Bylaws relating to their amendment
generally, any repeal or amendment of this Article VII which is adverse to any
Director or officer shall apply to such Director or officer only on a
prospective basis, and shall not reduce any limitation on the personal liability
of a Director of the Corporation, or limit the rights of an Indemnitee to
indemnification or to the advancement of expenses with respect to any action or
failure to act occurring prior to the time of such repeal or amendment.
Notwithstanding any other provision of these Bylaws, no repeal or amendment of
these Bylaws shall affect any or all of this Article so as either to reduce the
limitation of Directors' liability or limit indemnification or the advancement
of expenses in any manner unless adopted by (a) the unanimous vote of the
Directors of the Corporation then serving, or (b) the affirmative vote of
shareholders entitled to cast not less than a majority of the votes that all
shareholders are entitled to cast in the election of Directors; provided that no
such amendment shall have retroactive effect inconsistent with the preceding
sentence.
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Section 7.4. 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.
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. The shareholders entitled to vote thereon shall have
the power to alter, amend, or repeal these Bylaws, by the vote of shareholders
entitled to cast at least a majority of the votes which all shareholders are
entitled to cast thereon, at any regular or special meeting, duly convened after
notice to the shareholders of such purpose. 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 - INTERPRETATION OF BYLAWS - SEPARABILITY
Section 10.1. Interpretation. All words, terms and provisions of these Bylaws
shall be interpreted and defined by and in accordance with the Pennsylvania BCL.
Section 10.2. 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.
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ARTICLE XI - DETERMINATIONS BY THE BOARD
Section 11.1. 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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