EXHIBIT 3.2(b)
BYLAWS OF
THE BON-TON DEPARTMENT STORES, INC.
AS IN EFFECT UPON THE DIVISION OF THE BON-TON STORES, INC. INTO
THE BON-TON STORES, INC.
AND
THE BON-TON DEPARTMENT STORES, INC.
ON JANUARY 31, 1996
BYLAWS OF
THE BON-TON STORES, INC.
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
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 1992, at such time as
the Board off Directors may determine, or if the Board of Directors fails to set
a time, on the 4th Friday of June at 10:00 o'clock am., if not a holiday on
which national banks are or may elect to be closed ("Holiday"), and if such day
is a Holiday, then such meeting shall be held on the next business day.
(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 such officer
serving as the Chief Executive Officer of the Corporation; or
(b) the Board of Directors.
Upon the written request of any person who has called a special meeting and
is entitled to do so, 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 no more than 60 days after the receipt off such
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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
within one day after receipt of such request, the person or persons calling the
meeting may do so.
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 from time to time (the
(the "Pennsylvania BCL"), at least five days prior to the day named for the
meeting, provided that notice shall be given at least 10 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 within one day after the
date, time and place of the meeting have been fixed, 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.
(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) 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, including one at which directors are to be elected, may be
taken for such periods as the shareholders present and entitled to vote shall
direct.
(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 5-6, 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. At the discretion of the presiding officer of a
meeting of shareholders, (i) in elections for directors, voting need not be by
ballot but may be taken by voice unless a shareholder demands, before the vote
begins, that it be taken by ballot and (ii) with respect to any other action to
be taken by vote at the meeting, as set forth in Section 2-5(b), voting need not
be by ballot but may be taken by voice, to the fullest extent permitted by
applicable law (including the Pennsylvania BCL).
(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
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not be shareholders and who will have such duties as provided in Section 1765(a)
(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 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.
(e) 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.
(f) Action by Less than Unanimous Consent of Shareholders. If the
Corporation's Articles of Incorporation (the "Articles") so provide, 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 become effective immediately, provided that prompt written notice
of such action shall have been given to each shareholder entitled to vote
thereon who has not consented thereto.
Section 2-8. Participation in Meetings by Conference Telephone. The Board
may provide by resolution with respect to a particular meeting that one or more
persons may participate in that meeting of the shareholders, 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. Unless the Board so permits by resolution, or the
presiding officer of such meeting so permits, no person may participate in a
meeting of the shareholders by means of conference telephone or similar
communications equipment.
Section 2-9. Business at Meetings of Shareholders. Except as otherwise
provided by law or in these Bylaws, or except as permitted by the presiding
officer of the meeting in the exercise of such officer's sole discretion in any
specific instance, the business which shall be conducted at any meeting of the
shareholders shall (a) have been specified in the written notice of the meeting
(or any supplement thereto) given by the Corporation, or (b) be brought before
the
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meeting at the direction of the Board of Directors or the presiding officer of
the meeting, or (c) have been specified in a written notice (a "Shareholder
Meeting Notice") given to the Corporation, in accordance with all of the
following requirements, by or on behalf of any shareholder who shall have been a
shareholder of record on the record date for such meeting and who shall continue
to be entitled to vote thereat. Each Shareholder Meeting Notice must be
delivered personally to, or be mailed to and received by, the Corporation,
addressed to the attention of the President at the principal executive offices
of the Corporation in accordance with the time periods set forth in Rule l4a-8
of the Securities Exchange Act of 1934, as amended (the "Act") or any successor
provisions to Rule 14a-8, except that for the 1996 annual meeting of
shareholders, the Shareholder Meeting Notice must be received by the Corporation
by March 29, 1996. Each Shareholder Meeting Notice shall set forth a general
description of each item of business proposed to be brought before the meeting,
the name and address of the shareholder proposing to bring such item of business
before the meeting and a representation that the shareholder intends to appear
in person or by proxy at the meeting. The presiding officer of the meeting may
refuse to consider any business that shall be brought before any meeting of
shareholders of the Corporation otherwise than as provided in this Section 2-9.
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.
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 or any individual director may be
removed from office with or without assigning any cause, by vote of the
shareholders entitled to elect directors. 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 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 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, by such officer
serving as the Chief Executive Officer of the Corporation, 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 one day's 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.
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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 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
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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.
Section 3-10. Nomination. Notwithstanding the provisions of Section 2-9
(dealing with the business at shareholder meetings), nominations for the
election of directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or by any shareholder of record entitled to
vote in the election of directors generally at the record date of the meeting
and also on the date of the meeting at which directors are to be elected.
However, any shareholder entitled to vote in the election of directors generally
may nominate one or more persons for election as directors at a meeting only if
written notice of such shareholder's intention to make such nomination or
nominations has been delivered personally to, or been mailed to and received by
the Corporation at, the principal executive offices of the Corporation addressed
to the attention of the President, (a) with respect to an election to be held at
an annual meeting of shareholders, not less than 120 days in advance of the date
which is the one year anniversary of the prior year's annual meeting of
shareholders, except that for the 1992 annual meeting of shareholders, such
notice must be received by the Corporation by March 29, 1992, and (b) with
respect to an election to be held at a special meeting of shareholders for the
election of directors, such notice must be received by the Corporation by the
close of business on the seventh day following the date on which notice of such
meeting is given to the shareholders. Each such notice shall set forth: (a) the
name and address of the shareholder intending to make the nomination and of the
person or persons to be nominated; (b) a representation that the shareholder
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) the address and principal occupation for
the past five years of each nominee; and (d) the written consent of each nominee
to serve as a director of the Corporation if so elected. The presiding officer
of the meeting may declare invalid any nomination not made in compliance with
the foregoing procedure.
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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 l8 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 Chief Executive Officer. Unless
otherwise determined by the Board of Directors, the Chief Executive Officer
shall have the usual duties of an executive officer with general supervision
over and direction of the affairs of the Corporation. Unless otherwise
designated by the Board, the Chairman of the Board shall be the Chief Executive
Officer of the Corporation, but if there is no Chairman of the Board, the
President shall be the Chief Executive Officer. If the Chairman of the Board is
serving as Chief Executive Officer, the President shall be the chief operating
officer of the Corporation. In the exercise of these duties and subject to the
actions of the Board of Directors, the Chief Executive Officer 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 he or she shall be present and shall
preside at all meetings of the Board of Directors. The Chief Executive Officer
shall also do and perform such other duties as from time to time may be assigned
to the chief Executive Officer by the Board of Directors.
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 4-4. 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.
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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
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 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 Presidents and Assistant Officers.
Unless otherwise determined by the Board of Directors, each 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. Unless
determined otherwise by the Chief Executive Officer, the President shall be the
superior officer of the Vice Presidents. 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
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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 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.
Section 5-2. Transfer of Shares. Except as provided in Section 5-4,
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.
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(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 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, the Chairman of the Board, President or any officer
designated by the Chairman or President, 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
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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.
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, 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 Holidays; 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.
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(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 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 Subchapter B
of Chapter 17 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
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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, 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 VII 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
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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 VII 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.
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 Chief Executive Officer 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.
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(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.
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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