Exhibit 3.1
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CONRAIL INC.
A PENNSYLVANIA CORPORATION
AMENDED AND RESTATED
BYLAWS
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office
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of Conrail Inc. (the "Corporation") in the Commonwealth of
Pennsylvania shall be at Two Commerce Square, 2001 Market Street,
Philadelphia, Pennsylvania 19101 or at such other place as the
Board of Directors of the Corporation (the "Board") may specify in
a statement of change of registered office filed with the
Department of State of the Commonwealth of Pennsylvania.
Section 1.2. Other Offices. The Corporation may also
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have an office or offices at such other place or places either
within or without the Commonwealth of Pennsylvania as the Board
may from time to time determine or the business of the Corporation
requires.
ARTICLE II
MEETINGS OF THE SHAREHOLDERS
Section 2.1. Place. All meetings of the shareholders
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shall be held at such places, either within or without the
Commonwealth of Pennsylvania, as the Board may from time to time
determine. Shareholders are not permitted to act without a
meeting.
Section 2.2. Annual Meeting. A meeting of the
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shareholders for the election of directors and the transaction of
such other business as may be properly brought before the meeting
shall be held on the third Wednesday in April in each calendar
year or, if that be a legal holiday, on the first day thereafter
that is not a legal holiday, or on such other date as the Board
shall designate. If the annual meeting is not called and held
within six months after the third Wednesday in April, or such
other date as the Board has designated in any specific year, any
shareholder may call a meeting of shareholders for the election of
directors at any time after the expiration of the six-month period
commencing on the third Wednesday in April, or such designated
date, as the case may be. Elections of directors, whether at
annual meetings or special meetings, need not be by written
ballot, except upon demand by a shareholder entitled to vote at
the election and before the voting begins.
Section 2.3. Special meetings. Special meetings of
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the shareholders, for any purpose or purposes, may be called at
any time by the Chief Executive Officer of the Corporation or by
the Board, upon written request delivered to the Secretary of the
Corporation. In addition, an "interested shareholder" (as defined
in Section 2553 of the Pennsylvania Business Corporation Law of
1988 as it may from time to time be amended (the "1988 BCL")) may,
upon written request delivered to the Secretary of the
Corporation, call a special meeting for the purposes of approving
a business combination under either subsection (3) or (4) of
Section 2555 of the 1988 BCL. Any request for a special meeting
of shareholders shall state the general nature of the business to
be transacted at the meeting. Upon receipt of any such request,
it shall be the duty of the Secretary of the Corporation to give
notice, in a manner consistent with Section 2.5 of these Bylaws,
of a special meeting of the shareholders to be held at such time
as the Secretary of the Corporation may fix, which time may not
be, in the case of a special meeting of shareholders called
pursuant to a statutory right, more than sixty (60) days after
receipt by the Secretary of the Corporation of such request. If
the Secretary of the Corporation shall neglect or refuse to fix
the time of the meeting and give notice thereof, the person or
persons calling the meeting may do so.
Section 2.4. Scope of Special Meetings. Business
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transacted at any special meeting shall be confined to the
business stated in the notice.
Section 2.5. Notice. Written notice of any meeting of
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the shareholders, stating the place, the date and hour thereof and
the matters to be voted on at such meeting, shall be give in a
manner consistent with the applicable provisions of Section 14 of
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, or any successor act or regulation (the
"Exchange Act"), by, or at the direction of, the Secretary of the
Corporation or, in the absence of the Secretary of the
Corporation, any Assistant Secretary of the Corporation, at least
twenty (20) days before the date named for such meeting, to each
shareholder entitled to vote thereat on the date fixed as a record
date in accordance with Section 7.1 of these Bylaws, or if no
record date be fixed, then of record thirty (30) days next
preceding the date of the meeting, at such address as appears on
the transfer books of the Corporation. Any notice of any meeting
of shareholders shall state that, for purposes of any meeting that
has been previously adjourned for one or more periods aggregating
at least fifteen (15) days because of an absence of a quorum, the
shareholders entitled to vote who attend such a meeting, although
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less than a quorum pursuant to Section 2.6 of these Bylaws, shall
nevertheless constitute a quorum for the purposes of acting upon
any matter set forth in the original notice of the meeting which
was so adjourned.
Section 2.6. Quorum. The shareholders present in
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person or by proxy, entitled to cast 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
purposes of consideration and action on the matter. Shares of the
Corporation owned by it, directly or indirectly, and controlled by
the Board of Directors, directly or indirectly, shall not be
counted in determining the total number of outstanding shares for
quorum purposes. The shareholders present in person or by proxy
at a duly organized meeting of shareholders can continue to
conduct the business of the meeting until the adjournment thereof,
notwithstanding the withdrawal of enough shareholders to leave
less than a quorum. If a meeting of shareholders cannot be
organized because a quorum has not attended, the shareholders
present in person or by proxy may, except as otherwise provided by
the 1988 BCL and subject to the provisions of Section 2.7 of these
Bylaws, adjourn the meeting to such time and place as they may
determine.
Section 2.7. Adjournment. Any meeting of the
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shareholders, including one at which directors are to be elected,
may be adjourned for such period as the shareholders present in
person or by proxy and entitled to vote shall direct. Unless
otherwise provided in a bylaw adopted by the shareholders, the
shareholders entitled to vote present in person or by proxy,
although less than a quorum pursuant to Section 2.6 of these
Bylaws, shall nevertheless constitute a quorum for the purpose of
(i) electing directors at a meeting called for the election of
directors that has been previously adjourned for lack of a quorum,
and (ii) acting, at a meeting that has been previously adjourned
for one or more periods aggregating at least fifteen (15) days
because of an absence of a quorum, upon any matter set forth in
the original notice of the meeting that was adjourned, provided
that such original notice shall have complied with the last
sentence of Section 2.5 of these Bylaws. Other than as provided
in the last sentence of Section 2.5 of these Bylaws, no notice of
any adjourned meeting or the business to be conducted threat need
be give other than an announcement at the meeting at which the
adjournment is taken, unless the Board fixes a new record date for
the adjourned meeting. At any adjourned meeting at which a quorum
shall be present, any business may be transacted that might have
been transacted at the meeting as originally noticed.
Section 2.8. Majority Vote. Any matter brought before
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a duly organized meeting of shareholders for a vote of the
shareholders shall be decided by a majority of the votes cast at
such meeting by the shareholders present in person or by proxy and
entitled to vote thereon, unless the matter is one for which a
different vote is required by express provision of (i) the 1988
BCL, (ii) the Amended and Restated Articles of Incorporation of
the Corporation as they may from time to time be amended (the
"Articles") or (iii) a bylaw adopted by the shareholders, in any
of which cases such express provision shall govern and control the
decision on such matter.
Section 2.9. Voting Rights. Except as otherwise
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provided by statute or the Articles, at every meeting of the
shareholders every shareholder entitled to vote shall have the
right to one vote for each share having voting power standing in
his name on the books of the Corporation.
Section 2.10. Proxies. Every shareholder entitled to
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vote at a meeting of the shareholders may authorize another person
or persons to act for him by proxy. Every proxy shall be executed
in writing by the shareholder, or by the shareholder's duly
authorized attorney-in-fact, and filed with the Secretary of the
Corporation. The presence of, or vote or other action at a
meeting of shareholders by a proxy of, a shareholder shall
constitute the presence of, or vote or action by the shareholder.
A proxy, unless coupled with an interest, 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 notice thereof has been given to the Secretary of
the Corporation. No unrevoked proxy shall be valid after three
(3) 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, written notice of such death or incapacity is given to
the Secretary of the Corporation.
Section 2.11. Voting Lists. The officer or agent
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having charge of the transfer books for securities of the
Corporation shall either (i) make a complete list of the
shareholders entitled to vote at each meeting of shareholders,
arranged in alphabetical order, with the address of, and the
number of shares of stock held by, each shareholder, which 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, or (ii) otherwise make such
information available at the meeting.
Section 2.12. Judges of Election. In advance of any
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meeting of the shareholders, the Board may appoint judges of
election, who need not be shareholders, to act at such meeting or
any adjournment thereof. If judges of election are not so
appointed, the presiding officer of the meeting may, and on the
request of any shareholder or his proxy shall, make such
appointment at the meeting. The number of judges shall be one or
three, as determined by the Board. No person who is a candidate
for office shall act as a judge. The judges of election shall do
all such acts as may be proper to conduct the election or vote
with fairness to all shareholders, and shall make a written report
of any matter determined by them and execute a certificate of any
fact found by them, if requested by the presiding officer of the
meeting or any shareholder of the proxy of any shareholder. If
there be three judges of election, the decision, act or
certificate of a majority shall be effective in all respects as
the decision, act or certificate of all.
Section 2.13. No Participation by Conference Call. No
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shareholder may participate in any meeting of shareholders by
means of conference telephone or similar communications equipment.
Section 2.14. Presiding Officer. At each meeting of
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the shareholders, the Chairman of the Board, or, in his absence,
his designee, or, in their absence, a presiding officer chosen by
a majority of the votes cast by the shareholders present in person
or by proxy and entitled to vote at such meeting, shall act as
presiding officer of the meeting and shall have plenary power in
conducting the meeting with regard to setting an agenda, keeping
order, limiting debate and prescribing such rules of the meeting
as from time to time are useful and proper. The Secretary or an
Assistant Secretary of the Corporation, or, in the absence of the
Secretary and all Assistant Secretaries, a person whom the
presiding officer of such meeting shall appoint, shall act
as secretary of the meeting and keep the minutes thereof.
Section 2.15. Notice of Shareholder Business. At an
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annual meeting of the shareholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall
have been brought before the meeting (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of
the Board or (iii) by any shareholder of the Corporation who is a
shareholder of record at the time of giving of the notice provided
for in this Bylaw, who shall be entitled to vote at such meeting
and who complies with the notice procedures set forth in this
Section. For business to be properly brought before an annual
meeting by a shareholder, the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To
be timely, a shareholder's notice must be delivered to or mailed
to, postage prepaid, and received at the principal executive
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offices of the Corporation not less than 90 days nor more than 120
days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the
meeting is changed by more than 30 days from such anniversary
date, notice by the shareholder to be timely must be received no
later than the close of business on the 10th day following the
earlier of the day on which notice of the date of the meeting was
mailed or public disclosure was made. A shareholder's notice to
the Secretary shall set forth as to each matter the shareholder
proposes to bring before the meeting (1) a brief description of
the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (2) a
representation that the shareholder is a holder of record of
shares of the Corporation's capital stock entitled to vote at such
meeting and intends to appear in person or by proxy to bring such
matter before the meeting, (3) the name and address, as they
appear on the Corporation's books, of the shareholder proposing
such business, and the name and address of the beneficial owner,
if any, on whose behalf the proposal is made, (4) the class and
number of shares of the Corporation which are owned beneficially
and of record by such shareholder of record and by the beneficial
owner, if any, on whose behalf the proposal is made, (5) any
material interest of such shareholder of record and the beneficial
owner, if any, on whose behalf the proposal is made in such
business and (6) a description of all arrangements and
understandings between the shareholder of record and the
beneficial owner, if any, on whose behalf the proposal is made and
any other person or persons (naming such person or persons)
pursuant to which the proposal is to be made.
Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted, and no proposal shall be acted upon,
at an annual meeting except in accordance with the procedures set
forth in this Section. The presiding officer of the meeting
shall, if the facts warrant, determine and declare to the meeting
that business or a proposal was not properly brought before the
meeting in accordance with the procedures prescribed by these
Bylaws, and if he should so determine, he shall so declare to the
meeting and any such business or proposal not properly brought
before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section, a shareholder shall also
comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder
with respect to the matters set forth in this Section.
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ARTICLE III
DIRECTORS
Section 3.1. Number of Directors and Classification of
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Board. The Board shall consist of thirteen members. Except as
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provided in Section 3.4 of these Bylaws in the case of vacancies,
directors shall be elected by the shareholders. The directors
shall be classified with respect to the time for which they shall
severally hold office by dividing them into three classes, one of
which shall consist of five members and two of which shall consist
of four members each. Each class of directors shall serve for a
term of three years, which terms shall commence in three
consecutive years. At each annual meeting of the shareholders the
successors to the class of directors whose term expires that year
shall be elected to hold office for the term of three years and
until his successor is elected and qualified or until his earlier
death, resignation or removal, so that the term of office of one
class of directors shall expire in each year. If at any meeting
of shareholders, directors of more than one class are to be
elected, each class of directors shall be elected in a separate
election.
Section 3.2. Qualifications. Directors shall be
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natural persons of full age and need not be residents of the
Commonwealth of Pennsylvania or security holders of the
Corporation.
Section 3.3. Nominations of Directors. Subject to the
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rights of holders of any series of preferred stock or any other
class of capital stock of the Corporation (other than Common
Stock) then outstanding, only persons who are nominated in
accordance with the procedures set forth in this Section shall be
eligible to serve as directors. Nominations of persons for
election to the Board of the Corporation may be made at a meeting
of shareholders (i) by or at the direction of the Board, (ii) by
or at the direction of a committee of the Board to which the Board
has delegated the authority to make such nominations or (iii) by
any shareholder of the Corporation who is a shareholder of record
at the time of giving of notice provided for in this Section, who
shall be entitled to vote for the election of directors at the
meeting and who complies with the notice procedures set forth in
this Section. Such nominations, other than those made by or at
the direction of the Board or a committee of the Board, shall be
made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice shall be
delivered to or mailed to, postage prepaid, and received at the
principal executive offices of the Corporation (a) in the case of
an annual meeting, not less than 90 days nor more than 120 days
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prior to the first anniversary of the preceding year's annual
meeting (provided, however, that in the event that the date of the
annual meeting is changed by more than 30 days from such
anniversary date, notice by the shareholder to be timely must be
so received not later than the close of business on the 10th day
following the earlier of the day on which notice of the date of
the meeting was mailed or public disclosure was made), and (b) in
the case of a special meeting at which directors are to be
elected, not later than the close of business on the 10th day
following the earlier of the day on which notice of the date of
the meeting was mailed or public disclosure was made. Such
shareholder's notice shall set forth (1) as to each person whom
the shareholder proposes to nominate for election as a director,
(A) the name, age, business address and residence address of the
proposed nominee, (B) the principal occupation or employment of
the proposed nominee, (C) the class and number of shares of
capital stock of the Corporation which are beneficially owned by
the proposed nominee, (D) a description of all arrangements or
understandings between the shareholder and each proposed nominee
and any other persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the
shareholder, (E) all other information relating to such proposed
nominee that is required to be disclosed in solicitations of
proxies for election of directors pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended and (F) the
written consent of the proposed nominee to serve as a director of
the Corporation if so elected; (2) as to the shareholder giving
the notice (A) the name and address, as they appear on the
Corporation's books, of such shareholder, (B) a representation
that the shareholder is a holder of record of shares of the
Corporation's capital stock entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate
the proposed nominee or nominees specified in the notice and (C)
the class and number of shares of the Corporation which are
beneficially owned by such shareholder and also which are owned of
record by such shareholder; and (3) as to the beneficial owner, if
any, on whose behalf the nomination is made, (A) the name and
address of such person and (B) the class and number of shares of
the Corporation which are beneficially owned by such person. The
Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as a
director of the Corporation.
No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set
forth in this Section. The presiding officer of the meeting
shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures
prescribed by this Section, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this
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Section, a shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the
matters set forth in this Section.
Section 3.4. Vacancies. Vacancies in the Board shall
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be filled by a majority of the remaining members of the Board
though less than a quorum, and each director so elected shall
serve until the next selection of the class for which such
director was chosen, and until a successor has been selected and
qualified or until such director's earlier death, resignation or
removal. If one or more directors resign from the Board effective
at a future date, the directors then in office, including those
who have so resigned, shall have the power to fill the vacancies
by a majority vote, such vote to take effect when the resignations
become effective.
Section 3.5. Powers. The business and affairs of the
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Corporation shall be managed under the direction of the Board
which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the
Articles or by these Bylaws directed or required to be exercised
and done by the shareholders.
Section 3.6. Place of meetings. Meetings of the Board
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may be held at such places within or without the Commonwealth of
Pennsylvania as, in the case of a regular meeting, the Board may
from time to time designate, or, in the case of a special meeting,
as may be designated in the notice calling the meeting.
Section 3.7. First Meeting of Newly Elected Board.
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The first meeting of each newly elected Board shall be held as
soon as practicable after the meeting of shareholders at which
such directors were elected, and if held on the day and at the
place where the annual meeting of the shareholders was held, no
notice shall be required other than announcement at the annual
meeting of shareholders. If such first meeting of the newly-
elected Board is not so held, notice of such meeting shall be
given in the same manner as set forth in Section 3.8 of these
Bylaws with respect to notice of regular meetings of the Board.
Section 3.8. Regular Meetings of the Board. Regular
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meetings of the Board may be held at such times and places as
shall be determined from time to time by resolution of at least a
majority of the whole Board at a duly convened meeting, or by
unanimous written consent. Notice of each regular meeting of the
Board shall specify the date, place and hour of the meeting, as
well as the general nature of the business to be conducted at the
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meeting, and shall be given to each director, to his or her
address or telex, TWX, telecopier or telephone number as supplied
by such director to the Corporation for the purpose of notice, at
least twenty-four (24) hours before the meeting if given
personally or by telephone, telex, TWX (with answer back received)
or telecopier, at least forty-eight (48) hours before the meeting
if given by telegram (with messenger service specified), express
mail (postage prepaid) or courier service (charges prepaid), and
at least five (5) days before the meeting if given by first class
mail (postage prepaid). 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.
Section 3.9. Special Meetings of the Board. Special
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meetings of the Board may be called by the Chief Executive
Officer, and shall be called by the Chief Executive Officer or by
the Secretary on the written request of two directors. Notice of
the date, place and hour of each special meeting of the Board
shall be given within the same time and in the same manner
provided for notice of regular meetings in Section 3.8 of these
Bylaws, and shall also specify the general nature of the business
to be conducted at such meeting.
Section 3.10. Quorum of the Board. At all meetings of
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the Board the presence of a majority of the directors in office
shall constitute a quorum for the transaction of business, and the
acts of a majority of the directors present at the meeting at
which a quorum is present shall be the acts of the Board. If a
quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting. It shall not
be necessary to give any notice of the adjourned meeting or of the
business to be transacted thereat other than by announcement at
the meeting at which such adjournment is taken.
Section 3.11. Organization. The Secretary, or in his
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absence, an Assistant Secretary of the Corporation, or in the
absence of the Secretary and all Assistant Secretaries, a person
whom the chairman of such meeting shall appoint, shall act as
secretary of such meeting and keep the minutes thereof.
Section 3.12. Committees of Directors. The Board may,
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by resolution adopted by a majority of the directors in office,
establish one or more committees, each committee to consist of
three or more of the directors, and 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 purposes of any written action by the committee. Any
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such committee, to the extent provided in such resolution or in
these Bylaws, shall have and may exercise all of the powers and
authority of the Board; provided that no such committee shall have
any power or authority to (i) submit to the shareholders any
action requiring the approval of shareholders under the 1988 BCL,
(ii) create or fill vacancies on the Board, (iii) adopt, amend or
repeal Bylaws, (iv) amend or repeal any resolution of the Board
that by its terms in amendable or repealable only by the Board,
(v) act on any matter committed by these Bylaws or resolution of
the Board to another committee of the Board, (vi) adopt a plan or
an agreement of merger or consolidation, or (vii) amend the
Articles or adopt a resolution proposing an amendment to the
Articles. In the absence or disqualification of a member or
alternate member or members of a committee, the member or members
thereof present at any meeting of such committee and not
disqualified from voting, whether or not a quorum is present, may
unanimously appoint another director to act at the meeting in
place of any absent or disqualified member. Minutes of all
meetings of any committee of the Board shall be kept by the person
designated by such committee to keep such minutes. Copies of such
minutes and any writing setting forth an action taken by written
consent without a meeting shall be distributed to each member of
the Board promptly after such meeting is held or such action is
taken. Each committee of the Board shall serve at the pleasure of
the Board.
Section 3.13. Audit Committee. The Board shall
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designate an Audit Committee, consisting of three of more
directors, each of whom shall be independent of management and
free from any relationship that would interfere with the exercise
of independent judgment as a committee member. It shall be the
responsibility of the Audit Committee to evaluate for, and
recommend to, the Board, as appropriate, the selection of the
Corporation's independent auditors, the scope of the audits to be
conducted, and the purpose and adequacy of reserves; to monitor
and make recommendations in respect to the internal audit program;
and to review significant accounting policies, including any major
changes to those policies.
Section 3.14. Ethics Committee. The Board shall
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designate an Ethics Committee, consisting of three or more
members, each of whom shall be independent of management and free
from any relationship that would interfere with the independent
judgment as a committee member. It shall be the responsibility of
the Ethics Committee to review, and recommend to the Board, as
appropriate, matters relating to the business conduct of the
corporation and its employees and other matters of public
interest, including environmental quality, safety and equal
employment.
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Section 3.15. Nominating Committee. The Board shall
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designate a Nominating Committee consisting of three or more
members, each of whom shall be independent of management and free
from any relationship that would interfere with the independent
judgment as a committee member. It shall be the responsibility of
the Nominating Committee to recommend to the Board of Directors,
without regard to sex, race, religion or national origin,
individuals to be nominated for election to the Board of
Directors, including the position of Chairman, President, and
Chief Executive Officer; to periodically review Board procedures,
making such recommendations to the Board as may be appropriate,
and to provide for a process through which the performance of the
Board of Directors and its members is reviewed and evaluated,
reporting to the Board of Directors, as appropriate.
Section 3.16. Compensation Committee. The Board shall
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designate a Compensation Committee, consisting of three or more
members, each of whom shall be independent of management and free
from any relationship that would interfere with the independent
judgment as a committee member. It shall be the responsibility of
the Compensation Committee to review matters relating to
compensation policies and proposed significant changes in the
structure of the organization and personnel and, as appropriate,
make recommendations to the Board of Directors.
Section 3.17 Finance Committee. The Board shall
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designate a Finance Committee, consisting of five or more members.
It shall be the responsibility of the Finance Committee to review
matters relating to the financial condition and performance of the
corporation, including the financial aspects of pension matters
and, as appropriate, make recommendations to the Board of
Directors, and to exercise, to the extent permitted by the law of
Pennsylvania and the bylaws of the Corporation, the authority of
the Board of Directors in the management of the business and the
affairs of the Corporation on days other than those on which the
Board of Directors meets and to report such actions to the Board
of Directors.
Section 3.18. Participation in Board Meetings by
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Telephone. One or more directors may participate in a meeting of
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the Board or of a committee of the Board by means of conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
all directors so participating shall be deemed present to the
meeting.
Section 3.19. Action by Written Consent of Directors.
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Any action which may be taken at a meeting of the Board or of the
members of a committee of the Board may be taken without a meeting
if, prior or subsequent to the action, a consent or consents in
writing setting forth the action so taken shall be signed by all
of the directors or the members of the committee, as the case may
be, and filed with the Secretary of the Corporation.
Section 3.20. Compensation of Directors. The Board of
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Directors may, by resolution, fix the compensation of directors
for their services. A director may also serve the Corporation in
any other capacity and receive compensation therefor.
Section 3.21. Chairman of the Board. The Board shall
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appoint a Chairman of the Board who shall, if present, preside at
all meetings of the Board and at all meetings of the shareholders.
ARTICLE IV
OFFICERS
Section 4.1. Principal Officers. The principal
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officers of the Corporation shall be chosen by the Board, and
shall include a Chief Executive Officer, one or more Senior Vice
Presidents, one or more Vice Presidents, a Secretary, and a
Treasurer. The Board shall designate one officer (who need not be
a principal officer but shall not be an assistant officer) to be
the chief financial officer of the Corporation and another officer
(who need not be a principal officer but shall not be an assistant
officer) to be the chief accounting office of the Corporation.
All officers shall be natural persons of full age. Any number of
offices may be held by the same person.
Section 4.2. Election of Principal Officers. The
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Board, immediately after each annual meeting of the shareholders,
shall elect the principal officers of the Corporation, each of
whom shall hold office for a term of one year or such other term
as the Board may provide, and until his successor has been elected
and qualified or until his earlier death, resignation of removal.
Each principal officer shall have such authority and perform such
duties as the Board of Directors may from time to time determine.
Section 4.3. Other Officers. The Corporation may have
--------------
such other officers, assistant officers, agents and employees as
the Board or the Chief Executive Officer may deem necessary, each
of whom shall hold office for such period, have such authority and
perform such duties as the Board or the Chief Executive Officer
may from time to time determine. The Board may delegate to any
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principal officer the power to appoint or remove and set the
compensation of any such other officers and any such agents or
employees.
Section 4.4. Compensation of Officers. Except as
------------------------
provided in Section 4.3 of these Bylaws, the salaries of all
officers of the Corporation shall be fixed by the Board.
Section 4.5. Removal of Officers. Any officer or
-------------------
agent of the Corporation may be removed by the Board with or
without cause, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Vacancies of
any office shall be filled by the Board. Election or appointment
of an officer or agent shall not of itself create contract rights.
Section 4.6. Bonds. If required by the Board, any
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officer shall give the Corporation a bond, in such sum and with
such surety of sureties as may be satisfactory to the Board, for
the faithful discharge of the duties of his or her office and for
the restoration to the Corporation, in the case of his or her
death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind
in his or her possession or under his or her control belonging to
the Corporation.
ARTICLE V
SHARE CERTIFICATES
Section 5.1. Certificate for Shares. The certificates
----------------------
representing shares of the Corporation shall be numbered and
registered in a share register as they are issued. The share
register shall exhibit the names and addresses of all registered
holders and the number and class of shares and the series, if any,
held by each.
The certificates shall state that the Corporation is
incorporated under the laws of the Commonwealth of Pennsylvania,
the name of the registered holder and the number and class of
shares and the series, if any, represented thereby. If, under the
Articles, the Corporation is authorized to issue shares of more
than one class or series, each certificate shall set forth, or
shall contain a statement 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 to fix and determine
such rights.
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Section 5.2. Execution. Every share certificate shall
---------
be executed, by facsimile or otherwise, by or on behalf of the
Corporation by the Chief Executive Officer or by any Senior Vice
President or by the Secretary. In case any officer who has
executed, 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 by the Corporation with the same effect as if the
officer had not ceased to be such at the time of its issue.
ARTICLE VI
SHARE TRANSFER
Section 6.1. Transfer of Shares. Upon presentment to the
------------------
Corporation or its transfer agent of a share certificate duly
endorsed by the appropriate person or accompanied by proper
evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto and the
old certificate canceled and the transfer registered upon the
books of the Corporation, unless the Corporation or its transfer
agent has a duty to inquire as to adverse claims with respect to
such transfer that has not been discharged or unless the
Corporation or its transfer agent requests reasonable evidence of
the rightfulness of the transfer and such evidence is not
submitted. The Corporation shall have no duty to inquire into
adverse claims with respect to transfers of its securities or the
rightfulness thereof unless (a) the Corporation has received a
written notification of an adverse claim at a time and in a manner
that affords the Corporation a reasonable opportunity to act on it
before the issuance of a new, reissued or re-registered share
certificate and the notification identifies the claimant, the
registered owner and the issue of which the share or shares are a
part and provides an address for communications directed to the
claimant; or (b) the Corporation has required and obtained, with
respect to a fiduciary, a copy of a will, trust, indenture,
articles of co-partnership, bylaws or other controlling
instruments, for a purpose other than to obtain appropriate
evidence of the appointment or incumbency of the fiduciary, and
such documents indicate, upon reasonable inspection, the existence
of an adverse claim.
Section 6.2. Discharge of Duty of Inquiry. The
----------------------------
Corporation may discharge any duty of inquiry by any reasonable
means, including notifying an adverse claimant by registered or
certified mail at the address furnished by him or, if there is no
such address, at the claimant's residence or regular place of
business, that the security has been presented for registration of
transfer by a named person, and that the transfer will be
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registered unless within thirty (30) days from the date of mailing
the notification, either (a) an appropriate restraining order,
injunction or other process issues from a court of competent
jurisdiction or (b) an indemnity bond, sufficient in the
Corporation's judgment to protect the Corporation and any transfer
agent, registrar or other agent of the Corporation involved from
any loss that it or they may suffer by complying with the adverse
claim, is filed with the Corporation.
ARTICLE VII
RECORD DATE; IDENTITY OF SHAREHOLDERS
Section 7.1. Fixing Record Date. The Board may fix a
------------------
time, not more than ninety (90) days before the date of any
meeting of the shareholders (other than an adjourned meeting) or
the date set for any other purpose, including without limitation,
the payment of any dividend or distribution, the allotment of
rights, or any change or conversion or exchange of securities, as
a record date for the determination of the shareholders entitled
to notice of, and to vote at, any such meeting, or entitled to
receive payment of any such dividend or distribution, or to
receive any such allotment of rights, or to exercise the rights in
respect to any such change, conversion or exchange of securities.
Except as otherwise provided in Section 7.2 of these Bylaws, only
such shareholders as shall be shareholders of record on the date
so fixed shall be entitled to notice of, and to vote at, such
meeting or to receive payment of such dividend or distribution or
to receive such allotment of rights or to exercise such rights, as
the case may be, notwithstanding any transfer of any securities on
the books of the Corporation after any record date so fixed. When
a determination of shareholders of record has been made as
provided in this Section 7.1 for purposes of a meeting, the
determination shall apply to any adjournment of such meeting
unless the Board fixes a new record date for the adjourned
meeting.
Section 7.2. Certification of Nominee. The Board may
------------------------
adopt a procedure whereby a shareholder may certify in writing to
the Secretary of 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 Board, in adopting
such procedure, may specify (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 the
information to be contained therein, (iv) as to certifications
with respect to a record date, the date after the record date by
which the certification must be received by the Secretary of the
Corporation, and (v) such other provisions with respect to the
procedure as the Board deems necessary or desirable. Upon receipt
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by the Secretary of the Corporation of a certification complying
with the procedure, the persons specified in the certification
shall be deemed, for the purpose or purposes set forth in the
certification, to be the holders of record of the number of shares
specified instead of the person making the certification.
ARTICLE VIII
REGISTERED SHAREHOLDERS
Section 8.1. Registered Shareholders. Before due
-----------------------
presentment for transfer of any security, the Corporation shall
treat the registered owner thereof as the person exclusively
entitled to vote, to receive notifications and otherwise to
exercise all the rights and powers of an owner, and shall not be
bound to recognize any equitable or other claim or interest in
such securities, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the
Commonwealth of Pennsylvania or Section 7.2 of these Bylaws.
ARTICLE IX
LOST CERTIFICATES
Section 9.1. Lost Certificates. If the owner of a
-----------------
share certificate claims that it has been lost, destroyed, or
wrongfully taken, the Corporation shall issue a new certificate in
place of the original certificate if the owner so requests before
the Corporation has notice that the certificate has been acquired
by a bona fide purchaser, and if the owner has filed with the
Corporation an indemnity bond and an affidavit of the facts
satisfactory to the Board or its designated agent, and has
complied with such other reasonable requirements, if any, as the
Board may deem appropriate.
ARTICLE X
DISTRIBUTIONS
Section 10.1. Payment. Distributions upon the capital
-------
stock of the Corporation, whether by dividend, purchase or
redemption or other acquisition of its shares, together with stock
dividends and stock splits, may be declared by the Board at any
regular or special meeting of the Board, subject to the
limitations set forth in Section 1551 of the 1988 BCL and may be
paid in cash, in property, or in securities, including debt
securities, of the Corporation except that stock dividends and
stock splits may be paid only in the shares of the Corporation.
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Section 10.2. Reserves. Before the making of any
--------
distributions with respect to the capital stock of the
Corporation, there may be set aside out of any funds of the
Corporation available for distributions such sum or sums as the
Board from time to time, in its absolute discretion, deems proper
as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board shall deem
conducive to the interests of the Corporation, and the Board may
abolish any such reserve in the manner in which it was created.
ARTICLE XI
MISCELLANEOUS; LIABILITY AND INDEMNIFICATION
Section 11.1. Checks and Notes. All checks or demands
----------------
for money and notes of the Corporation shall be signed by such
officer or officers as the Board may from time to time designate.
Section 11.2. Fiscal Year. The fiscal year of the
-----------
Corporation shall be as determined by the Board.
Section 11.3. Seal. The corporate seal shall have
----
inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Pennsylvania." Such
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced. The affixation
of the corporate seal shall not be necessary to the valid
execution, assignment or endorsement of any instrument or other
document by the Corporation.
Section 11.4. Waiver of Notice. Whenever any notice is
----------------
required to be given by statute or by the Articles or by these
Bylaws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time
stated therein, shall be deemed the equivalent of the giving of
such notice. The business to be transacted at the meeting shall
be specified in the waiver of notice of such meeting. Attendance
of any person entitled to notice, either in person or by proxy, at
any meeting shall constitute a waiver of notice of such meeting,
except where any person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting was not lawfully called or
convened.
Section 11.5. Continuing Applicability. The provisions
------------------------
of Sections 11.6, 11.7 and 11.8 of these Bylaws shall continue as
to any person who has ceased to be a director, officer, other
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employee or agent of the Corporation and shall inure to the
benefit of the heirs and personal representatives of such person.
Section 11.6. Director's Liability. A director of the
--------------------
Corporation shall not be personally liable for monetary damages as
such for any action taken, or any failure to take any action,
unless (a) such director has breached or failed to perform the
duties of his office under Section 8363 of Title 42 of
Pennsylvania Consolidated Statutes, known as the Directors'
Liability Act, and (b) the breach or failure to perform
constitutes self-dealing, willful misconduct or recklessness, or
unless such liability is imposed pursuant to a criminal statute or
for the payment of taxes.
Section 11.7. Indemnification. The Corporation shall
---------------
indemnify any director or officer and shall have the power by
action of the Board of Directors to indemnify any employee or
agent other than an officer of the Corporation with respect to any
threatened, pending or completed action, suit or proceeding
(including actions by or in right of the Corporation to procure a
judgment in its favor) arising out of, or in connection with, any
actual or alleged act or omission or the status of such
indemnified person in his capacity as a director, officer,
employee or agent of the Corporation or in his capacity as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, if
requested to serve in such capacity by the Corporation, against
expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred,
unless the person's action or failure to act that gave rise to the
claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness. Expenses incurred
by any director or officer in defending a civil or criminal
action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified by the Corporation. Expenses incurred by any employee
or agent other than an officer in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or
proceeding upon approval of the Board of Directors and receipt of
an undertaking by or on behalf of such employee or agent to repay
such amount if it shall ultimately be determined that such
employee or agent is not entitled to be indemnified by the
Corporation. The Corporation may purchase and maintain insurance
or establish a separate fund for the purpose of satisfying its
indemnification obligations. This Section 11.7 and Section 11.6
shall not apply to any actions filed prior to their adoption nor
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to any breach or failure of performance of duty by any director or
officer occurring prior to their adoption.
Section 11.8. Mandatory Indemnification. Without
-------------------------
limiting the foregoing and applicable to any action filed at any
time, with respect to any act, omission or circumstance, the
Corporation shall indemnify any person who was or is a party or
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (including actions by or in
right of the Corporation to procure a judgment in its favor) by
reason of the fact that he is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and
reasonably incurred, if such person has been successful on the
merits or otherwise in any such action or upon a determination in
the specific case that such indemnification is proper in the
circumstances because he has met the applicable standard of
conduct set forth in the 1988 BCL. The Corporation may purchase
and maintain insurance for the purposes of indemnification on
behalf of any or all persons to the full extent permitted under
the 1988 BCL.
ARTICLE XII
BYLAW AMENDMENTS
Section 12.1. Amendments. These Bylaws may be altered,
----------
amended or repealed by a majority vote of the shareholders
entitled to vote thereon at any regular or special meeting duly
convened after notice to the shareholders of that purpose, or
except for a bylaw on a subject expressly committed to the
shareholders by the 1988 BCL, by a majority vote of the members of
the Board at any regular or special meeting duly convened, subject
always to the power of the shareholders to change such action by
the directors. Any change in these Bylaws shall take effect when
adopted, except as otherwise provided in the resolution effecting
the change.
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