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EXHIBIT 3.120
B Y - L A W S
OF
BROCKWAY REALTY CORPORATION
(a Pennsylvania Corporation)
...ooOoo...
ARTICLE I
Offices and Fiscal Year
Section 1.01. REGISTERED OFFICE. The registered office of the
corporation in the Commonwealth of Pennsylvania shall be at McCullough Avenue,
Brockway, PA 15824 until otherwise established by a vote of a majority of the
board of directors, and a statement of such change is filed with the Department
of State.
Section 1.02. OTHER OFFICES. The corporation may also have offices at
such other places within or without the Commonwealth of Pennsylvania as the
board of directors may from time to time appoint or the business of the
corporation require.
Section 1.03. FISCAL YEAR. The fiscal year of the corporation shall
begin on the first day of January in each year.
ARTICLE II
Meetings of Shareholders
Section 2.01. PLACE OF MEETING. All meetings of the shareholders of
the corporation shall be held at the registered office of the corporation unless
another place is designated by the board of directors in the notice of such
meeting.
Section 2.02. ANNUAL MEETING. The board of directors may fix the date
and time of the annual meeting of the shareholders, but if no such date and time
is fixed by the board the meeting for any calendar year shall be held on the
Fourth Tuesday of April in such year, if not a legal holiday under the laws of
Pennsylvania, and, if a legal holiday, then on the
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next succeeding business day, not a Saturday, at ten o'clock a.m., and at said
meeting the shareholders then entitled to vote shall elect directors and shall
transact such other business as may properly be brought before the meeting. If
the annual meeting shall not have been called and held during such calendar
year, any shareholder may call such meeting at any time thereafter.
Section 2.03. SPECIAL MEETINGS. Special meetings of the shareholders
of the corporation for any purpose or purposes may be called at any time by the
president or by the board of directors, or by shareholders entitled to cast at
least one-fifth of the votes which all shareholders are entitled to cast at the
particular meeting.
At any time, upon written request of any person or persons who have
duly called a special meeting, which written request shall state the object of
the meeting, it shall be the duty of the secretary to fix the date of the
meeting to be held at such date and time as the secretary may fix, not less than
five nor more than 60 days after the receipt of the request, and to give due
notice thereof. If the secretary shall neglect or refuse to fix the date and
time of such meeting and give notice thereof, the person or persons calling the
meeting may do so.
Section 2.04. NOTICE OF MEETINGS. Written notice of every meeting of
the shareholders, whether annual or special, shall be given to each shareholder
of record entitled to vote at the meeting, at least five days (ten days in the
case of any annual or special meeting at which there is to be considered any
amendment to the articles of the corporation, the sale of all or substantially
all of its assets, or its merger with or consolidation into any other
corporation) prior to the day named for the meeting. Every notice of a special
meeting shall state briefly the purpose or purposes thereof, and no business,
other than that specified in such notice and matters germane thereto, shall be
transacted at any special meeting without further notice to shareholders not
present in person or by proxy.
Whenever the language of a proposed resolution is included in a
written notice of a meeting of shareholders the resolution may be adopted at
such meeting with such clarifying or other amendments as do not enlarge its
original purpose without further notice to shareholders not present in person or
by proxy.
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Section 2.05. QUORUM, MANNER OF ACTING AND ADJOURNMENT. The presence
in person or by proxy of shareholders entitled to cast a majority of the votes
which all shareholders are entitled to cast on the particular matter shall
constitute a quorum for the purpose of considering such matter. Treasury shares
shall not be counted in determining the total number of outstanding shares for
voting purposes at any given time. The shareholders present in person or by
proxy at a duly organized meeting can continue to do business until adjournment,
notwithstanding withdrawal of enough shareholders to leave less than a quorum.
If a meeting cannot be organized because a quorum has not attended,
the shareholders entitled to vote and present in person or represented by proxy
may adjourn the meeting to such time and place as they may determine. At any
such adjourned meeting at which a quorum may be present such business may be
transacted as might have been transacted at the meeting as originally called. No
notice of any adjourned meeting of the shareholders of the corporation shall be
required to be given, except by announcement at the meeting. In case of any
meeting called for the election of directors, those who attend the second of
such adjourned meetings, although less than a quorum, shall nevertheless
constitute a quorum for the purpose of electing directors. Any meeting at which
directors are to be elected shall be adjourned only from day to day, or for such
longer periods not exceeding 15 days each, as may be directed by shareholders
who are present in person or by proxy and who are entitled to cast at least a
majority of the votes which all such shareholders would be entitled to cast at
an election of directors, until such directors are elected.
Except as otherwise specified in the articles or these by-laws or
provided by statute, the acts, at a duly organized meeting, of the shareholders
present, in person or by proxy, entitled to cast at least a majority of the
votes which all shareholders present in person or by proxy are entitled to cast
shall be the acts of the shareholders.
Section 2.06. ORGANIZATION. At every meeting of the shareholders, the
chairman of the board, if there be one, or in the case of vacancy in office or
absence of the chairman of the board, one of the following officers present in
the order stated: the vice chairman of the board, if there be one, the
president, the vice presidents in their order of rank and seniority, or a
chairman chosen by the shareholders entitled to cast a majority of the votes
which all shareholders present in person or by proxy are entitled to cast, shall
act as
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chairman, and the secretary, or, in the absence of the secretary, an assistant
secretary, or in the absence of both the secretary and assistant secretaries, a
person appointed by the chairman, shall act as secretary.
Section 2.07. VOTING. Every shareholder entitled to vote at a meeting
of shareholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for the
shareholder 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. 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 11 months from the date of
its execution, unless a longer time is expressly provided therein, but in no
event shall any proxy, unless coupled with an interest, be voted on after three
years from the date of its execution. 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 such death or incapacity is given to the
secretary of the corporation. A shareholder shall not sell a vote or execute a
proxy to any person for any sum of money or anything of value. A proxy coupled
with an interest shall include an unrevoked proxy in favor of a creditor of a
shareholder and such a proxy shall be valid as long as the debt owed by the
shareholder to the creditor remains unpaid.
Every shareholder of record except the holder of shares which have
been called for redemption and with respect to which an irrevocable deposit of
funds has been made, shall have the right, at every shareholders' meeting, to
such a vote for every share, and to such a fraction of a vote with respect to
every fractional share, of stock of the corporation standing in such
shareholder's name on the books of the corporation as may be provided in the
articles, and to one vote for every share, and to a fraction of a vote equal to
every fractional share, if no express provision for voting rights is made in the
articles. Treasury shares shall not be voted, directly or indirectly, at any
meeting of shareholders or be counted in connection with the expression of
consent or dissent to corporate action in writing without a meeting.
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Section 2.08. VOTING LISTS. The officer or agent of the corporation
having charge of the transfer books for shares of the corporation shall make, at
least five days before each meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting, arranged in alphabetical order,
with the address of and the number of shares held by each, which list shall be
kept on file at the registered office of the corporation, and shall be subject
to inspection by any shareholder at any time during usual business hours. If the
corporation has less than 5000 shareholders, such list shall also 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. The original
share ledger or transfer book, or a duplicate thereof, kept in Pennsylvania,
shall be prima facie evidence as to who are the shareholders entitled to examine
such list or share ledger or transfer book, or to vote, in person or by proxy,
at any meeting of shareholders.
Section 2.09. JUDGES OF ELECTION. The vote upon any matter, including
the election of directors, need not be by ballot. In advance of any meeting of
shareholders the board of directors may appoint judges of election, who need not
be shareholders, to act at such meeting or any adjournment thereof. If judges of
election are not so appointed, the chairman of any such meeting may, and upon
the demand of any shareholder or the shareholder's proxy at the meeting and
before voting begins shall, appoint judges of election. The number of judges
shall be either one or three, as determined, in the case of judges appointed
upon demand of a shareholder, by shareholders present entitled to cast a
majority of the votes which all shareholders present are entitled to cast
thereon. No person who is a candidate for office shall act as a judge. In case
any person appointed as judge fails to appear or fails 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 chairman of the
meeting.
If judges of election are appointed as aforesaid, they shall determine
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes or ballots, hear and determine all
challenges and questions in any way arising in connection with the right to
vote, count and tabulate all votes, determine the result, and do such acts as
may be proper to conduct the election or vote with fairness to all shareholders.
If there be three judges of election, the decision, act or certificate of a
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majority shall be effective in all respects as the decision, act or certificate
of all.
On request of the chairman of the meeting or of any shareholder or the
shareholder's proxy, the judges shall make a report in writing of any challenge
or question or matter determined by them, and execute a certificate of any fact
found by them.
Section 2.10. DETERMINATION OF SHAREHOLDERS OF RECORD. The board of
directors may fix a date, not more than 50 days preceding the date of any
meeting of shareholders, or the date fixed for the payment of any dividend or
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of shares will be made or go into effect, as a
record date for the determination of the shareholders entitled to notice of, or
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
shares; and in such case, if otherwise entitled, all shareholders of record on
the date so fixed, and no others, shall be entitled to notice of, or to vote at,
such meeting, or to receive payment of such dividend or distribution or to
receive such allotment of rights, or exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
any such record date fixed as aforesaid.
Unless a record date is fixed by the board of directors for such
purpose, transferees of shares which are transferred on the books within ten
days next preceding the date of such meeting shall not be entitled to notice of,
or to vote at, such meeting.
Section 2.11. CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any action
which may be taken at a meeting of the shareholders or of a class of
shareholders of the corporation may be taken without a meeting if a consent or
consents in writing, setting forth the action so taken, shall be signed by all
the shareholders who would be entitled to vote at a meeting of the shareholders
or of a class of shareholders for such purpose and shall be filed with the
secretary of the corporation.
If the articles so provide any action (except any action with respect
to an amendment of articles or plan under which a class or classes of
shareholders are by statute entitled
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to claim the right to valuation of and payment for their shares) which may be
taken at a meeting of shareholders or of a class of shareholders may be taken
without a meeting, if a consent or consents in writing to such action, setting
forth the action so taken, shall be signed by shareholders entitled to cast
two-thirds of the total number of votes which all shareholders of the
corporation or of a class of shareholders are entitled by the articles to cast
upon such action and shall be filed with the secretary of the corporation. Such
action shall not become effective until after at least ten days' written notice
of such action shall have been given to each shareholder of record entitled to
vote thereon.
ARTICLE III
Board of Directors
Section 3.01. POWERS. The board of directors shall have full power to
conduct, manage, and direct the business and affairs of the corporation; and all
powers of the corporation, except those specifically reserved or granted to the
shareholders by statute or by the articles or these by-laws, are hereby granted
to and vested in the board of directors.
Section 3.02. QUALIFICATION AND ELECTION. All directors of the
corporation shall be natural persons of full age, but need not be residents of
Pennsylvania or shareholders of the corporation. Except in the case of
vacancies, directors shall be elected by the shareholders. Upon the demand of
any shareholder or the shareholder's proxy at any meeting of shareholders for
the election of directors the chairman of the meeting shall call for and shall
afford a reasonable opportunity for the making of nominations for the office of
director. If the board of directors is classified with respect to the power to
elect directors or with respect to the terms of directors and if, due to a
vacancy or vacancies, or otherwise, directors of more than one class are to be
elected, each class of directors to be elected at the meeting shall be nominated
and elected separately. Any shareholder or the shareholder's proxy may nominate
as many persons for the office of director as there are positions to be filled.
If nominations for the office of director have been called for as herein
provided only candidates who have been nominated in accordance therewith shall
be eligible for election.
Unless the articles provide for straight voting, in all elections for
directors every shareholder entitled to vote
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shall have the right to multiply the number of votes to which such shareholder
may be entitled by the total number of directors to be elected in the same
election by the holders of the class of shares of which his or her shares are a
part, and may cast the whole number of such votes for one candidate or may
distribute them among any two or more candidates. The candidates receiving the
highest number of votes from each class or group of classes entitled to elect
directors separately up to the number of directors to be elected in the same
election by such class or group of classes shall be elected.
Section 3.03. NUMBER AND TERM OF OFFICE. The board of directors shall
consist of such number of directors, not less than one nor more than three, as
may be determined from time to time by resolution of the board of directors.
Each director shall serve until the next annual meeting of the shareholders and
until a successor shall have been elected and qualified, except in the event of
death, resignation or removal. The number of directors shall never be less than
three, except that if all the shares of the corporation are owned beneficially
and of record by either one or two shareholders, the number of directors may be
less than three but not less than the number of shareholders.
Section 3.04. ORGANIZATION. At every meeting of the board of
directors, the chairman of the board, if there be one, or, in the case of a
vacancy in the office or absence of the chairman of the board, one of the
following officers present in the order stated: the vice chairman of the
board, if there be one, the president, the vice presidents in their order of
rank and seniority, or a chairman chosen by a majority of the directors
present, shall preside, and the secretary, or, in the absence of the
secretary, an assistant secretary, or in the absence of the secretary and the
assistant secretaries, any person appointed by the chairman of the meeting,
shall act as secretary.
Section 3.05. RESIGNATIONS. Any director of the corporation may resign
at any time by giving written notice to the president or the secretary of the
corporation. Such resignation shall take effect at the date of the receipt of
such notice or at any later time specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
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Section 3.06. VACANCIES. The board of directors may declare vacant the
office of a director if such director be declared of unsound mind by an order of
court, or convicted of felony, or for any other proper cause, or if within 60
days after notice of election, the director does not accept such office either
in writing or by attending a meeting of the board of directors.
Any vacancy or vacancies in the board of directors because of death,
resignation, removal in any manner other than under the provisions of Section
3.07 of this Article, disqualification, an increase in the number of directors,
or any other cause, may be filled by a vote of the majority of the remaining
members of the board of directors though less than a quorum, at any regular or
special meeting; and the director or directors so elected shall continue in
office until the next annual election of directors of the corporation and until
their successors shall have been elected and qualified, or until their death,
resignation or removal.
Section 3.07. REMOVAL. At any special meeting called for the purpose
of removing or electing directors, the entire board of directors, or a class of
the board, where the board is classified with respect to the power to elect
directors, or any individual director may be removed from office without
assigning any cause, by the vote of shareholders entitled to cast at least a
majority of the votes which all shareholders would be entitled to cast at any
annual election of directors or of such class of directors. In case the board or
such class of the board or any one or more directors be so removed, new
directors may be elected at the same meeting. If shareholders are entitled to
vote cumulatively for the board or a class of the board, no individual director
shall be removed, unless the entire board or class of the board be removed, in
case the votes of a sufficient number of shares are cast against the resolution
for a removal, which, if cumulatively voted at an annual election of directors,
would be sufficient to elect one or more directors to the board or to the class.
Section 3.08. PLACE OF MEETING. The board of directors may hold its
meetings at such place or places within Pennsylvania, or elsewhere as the board
of directors may from time to time appoint, or as may be designated in the
notice calling the meeting.
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Section 3.09. ORGANIZATION MEETING. Immediately after each annual
election of directors or other meeting at which the entire board of directors is
elected, the newly elected board of directors shall meet for the purpose of
organization, election of officers, and the transaction of other business, at
the place where said election of directors was held. Notice of such meeting need
not be given. Such organization meeting may be held at any other time or place
which shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors.
Section 3.10. REGULAR MEETINGS. Regular meetings of the board of
directors shall be held at such time and place as shall be designated from time
to time by resolution of the board of directors. If the date fixed for any such
regular meeting be a legal holiday under the laws of the State where such
meeting is to be held, then the same shall be held on the next succeeding
business day, not a Saturday, or at such other time as may be determined by
resolution of the board of directors. At such meetings, the directors shall
transact such business as may properly be brought before the meeting. Notice of
regular meetings need not be given.
Section 3.11 SPECIAL MEETINGS. Special meetings of the board of
directors shall be held whenever called by the president or by two or more of
the directors. Notice of each such meeting shall be given to each director by
telephone or in writing at least 24 hours (in the case of notice by telephone)
or 48 hours (in the case of notice by mail) before the time at which the meeting
is to be held. Every such notice shall state the time and place of the meeting.
Notice of any special meeting of the board of directors during any
emergency resulting from warlike damage or an attack on the United States or any
nuclear or atomic disaster shall be given only to such of the directors as it
may be feasible to reach at the time and by such means as may be feasible at the
time, including publication or radio.
Section 3.12. QUORUM, MANNER OF ACTING, AND ADJOURNMENT. A majority of
the directors in office shall be present at each meeting in order to constitute
a quorum for the transaction of business. Except as otherwise specified in the
articles or these by-laws or provided by statute, the acts of a majority of the
directors present at a meeting at which a quorum is present shall be the acts of
the board of directors. In the absence of a quorum, a majority of the
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directors present may adjourn the meeting from time to time until a quorum be
present, and no notice of any adjourned meeting need be given, other than by
announcement at the meeting. The directors shall act only as a board and the
individual directors shall have no power as such, provided, however, that any
action which may be taken at a meeting of the board may be taken without a
meeting if a consent or consents in writing setting forth the action so taken
shall be signed by all of the directors and shall be filed with the secretary of
the corporation.
To the extent required to constitute a quorum at any meeting of the
board of directors during any emergency resulting from warlike damage or an
attack on the United States or any nuclear or atomic disaster the officers of
the corporation who are present shall be deemed in order of rank and within the
same rank in order of seniority, directors for such meeting.
Section 3.13. EXECUTIVE AND OTHER COMMITTEES. The board of directors,
by resolution adopted by a majority of the whole board, may designate an
Executive Committee and one or more other committees, each committee to consist
of two or more directors. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member, and the alternate or alternates, if any, designated for such member, of
any committee the member or members thereof present at any meeting and not
disqualified from voting, whether or not the member or members present
constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of any such absent or disqualified member.
Except as otherwise provided in this section, the Executive Committee
shall have and exercise all of the authority of the board in the management of
the business and affairs of the corporation and any other committee shall have
and exercise the authority of the board to the extent provided in the resolution
designating the committee.
No such committee of the board shall have the authority of the board
in reference to:
(1) Amending the by-laws of the corporation;
(2) Declaring any dividend;
(3) Issuing any authorized but unissued share;
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(4) Establishing and designating any class or series of shares
and fixing and determining the relative rights and preference thereof,
changing the registered office of the corporation, or otherwise effecting
any amendment of articles of the corporation; or
(5) Recommending to the shareholders any plan for the sale, lease
or exchange of all or substantially all of the property and assets of the
corporation, any amendment of articles, any plan of merger or
consolidation, any voluntary dissolution of the corporation or any
revocation of any election of the corporation to dissolve voluntarily.
A majority of the directors in office designated to a committee, or
directors designated to replace them as provided in this section, shall be
present at each meeting to constitute a quorum for the transaction of business
and the acts of a majority of the directors in office designated to a committee
or their replacements shall be the acts of the committee.
Each committee shall keep regular minutes of its proceedings and
report such proceedings periodically to the board of directors.
Sections 3.10, 3.11 and 3.12 shall be applicable to committees of the
board of directors.
Section 3.14. INTERESTED DIRECTORS OR OFFICERS; QUORUM. No contract or
transaction between the corporation and one or more of its directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for such reason, or solely because the director or officer is
present at or participates in the meeting of the board which authorizes the
contract or transaction, or solely because his, her or their votes are counted
for such purpose, if:
(1) The material facts as to such interest and as to the contract
or transaction are disclosed or are known to the board of directors and the
board in good faith authorizes the contract or transaction by a vote
sufficient for such purpose without counting the vote of the interested
director or directors; or
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(2) The material facts as to such interest and as to the contract
or transaction are disclosed or are known to the shareholders entitled to
vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified, by the board of
directors or the shareholders.
Interested directors may be counted in determining the presence of a
quorum at a meeting of the board of directors which authorizes a contract or
transaction specified in this section.
Section 3.15. FEES. Each director shall be paid such reasonable fee,
if any, as shall be fixed by the board of directors for each meeting of the
board of directors or committee of directors which such director shall attend
and may be paid each other compensation for services as a director as may be
fixed by the board of directors.
ARTICLE IV
Notice - Waivers - Meetings
Section 4.01. NOTICE, WHAT CONSTITUTES. Whenever written notice is
required to be given to any person under the provisions of the articles, these
by-laws, or the Business Corporation Law, it may be given to such person, either
personally or by sending a copy thereof through the mail, or by telegraph,
charges prepaid, to the address of such person appearing on the books of the
corporation, or supplied by such person to the corporation for the purpose of
notice. If the notice is sent by mail or by telegraph, it shall be deemed to
have been given to the person entitled thereto when deposited in the United
States mail or with a telegraph office for transmission to such person. A notice
of a meeting shall specify the place, day and hour of the meeting and in the
case of a special meeting of shareholders, the general nature of the business to
be transacted.
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Section 4.02. WAIVERS OF NOTICE. Whenever any written notice is
required to be given under the provisions of the articles, these by-laws, or the
Business Corporation Law, 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 equivalent to the giving of such notice. Except in the
case of a special meeting of shareholders, neither the business to be transacted
at, nor the purpose of, the meeting need be specified in the waiver of notice of
such meeting.
Attendance of a person, either in person or by proxy, at any meeting,
shall constitute a waiver of notice of such meeting, except where a person
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting was not lawfully called or convened.
Section 4.03. CONFERENCE TELEPHONE MEETINGS. One or more directors or
shareholders may participate in a meeting of the board, of a committee of the
board or of the shareholders by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this section
shall constitute presence in person at such meeting.
ARTICLE V
Officers
Section 5.01. NUMBER, QUALIFICATIONS AND DESIGNATION. The officers of
the corporation shall be a president, a secretary, a treasurer, and such other
officers as may be elected in accordance with the provisions of Section 5.03 of
this Article. One person may hold more than one office. Officers may but need
not be directors or shareholders of the corporation. The president and secretary
shall be natural persons of full age; the treasurer, however may be a
corporation, but if a natural person shall be of full age. The board of
directors may elect from among the members of the board a chairman of the board
and a vice chairman of the board who shall be officers of the corporation.
Section 5.02. ELECTION AND TERM OF OFFICE. The officers of the
corporation, except those elected by delegated authority pursuant to Section
5.03 of this Article, shall be elected annually by the board of directors, and
each such officer shall hold office until the next annual organization meeting
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of directors and until a successor shall have been duly chosen and qualified, or
until death, resignation, or removal.
Section 5.03. SUBORDINATE OFFICERS, COMMITTEES AND AGENTS. The board
of directors may from time to time elect such other officers and appoint such
committees, employees or other agents as the business of the corporation may
require, including one or more vice presidents, one or more assistant
secretaries, and one or more assistant treasurers, each of whom shall hold
office for such period, have such authority, and perform such duties as are
provided in these by-laws, or as the board of directors may from time to time
determine. The board of directors may delegate to any officer or committee the
power to elect subordinate officers and to retain or appoint employees or other
agents, or committees thereof, and to prescribe the authority and duties of such
subordinate officers, committees, employees or other agents.
Section 5.04. RESIGNATIONS. Any officer or agent may resign at any
time by giving written notice to the board of directors, or to the president or
the secretary of the corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 5.05. REMOVAL. Any officer, committee, employee or other agent
of the corporation may be removed, either for or without cause, by the board of
directors or other authority which elected or appointed such officer, committee
or other agent whenever in the judgment of such authority the best interests of
the corporation will be served thereby.
Section 5.06. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause, shall be filled by
the board of directors or by the officer or committee to which the power to fill
such office has been delegated pursuant to Section 5.03 of this Article, as the
case may be, and if the office is one for which these by-laws prescribe a term,
shall be filled for the unexpired portion of the term.
Section 5.07. GENERAL POWERS. All officers of the corporation as
between themselves and the corporation, shall, respectively, have such authority
and perform such duties in the management of the property and affairs of the
corporation as may be determined by resolution of the board of directors, or in
the absence of controlling provisions in a resolution
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of the board of directors, as may be provided in these by-laws.
Section 5.08. THE CHAIRMAN AND VICE CHAIRMAN OF THE BOARD. The
chairman of the board or in the absence of the chairman, the vice chairman of
the board, shall preside at all meetings of the shareholders and of the board of
directors, and shall perform such other duties as may from time to time be
requested by the board of directors.
Section 5.09. THE PRESIDENT. The president shall be the chief
executive officer of the corporation and shall have general supervision over
the business and operations of the corporation, subject however, to the control
of the board of directors. The president shall sign, execute, and acknowledge,
in the name of the corporation, deeds, mortgages, bonds, contracts or other
instruments, authorized by the board of directors, except in cases where the
signing and execution thereof shall be expressly delegated by the board of
directors, or by these by-laws, to some other officer or agent of the
corporation; and, in general, shall perform all duties incident to the office of
president and such other duties as from time to time may be assigned by the
board of directors.
Section 5.10. THE VICE PRESIDENTS. If one or more vice presidents are
elected pursuant to Section 5.03 of this Article, they shall perform the duties
of the president in the absence of the president and such other duties as may
from time to time be assigned to them by the board of directors or by the
president.
Section 5.11. THE SECRETARY. The secretary or an assistant secretary
shall attend all meetings of the shareholders and of the board of directors and
shall record all the votes of the shareholders and of the directors and the
minutes of the meetings of the shareholders and of the board of directors and of
committees of the board in a book or books to be kept for that purpose; shall
see that notices are given and records and reports properly kept and filed by
the corporation as required by law; shall be the custodian of the seal of the
corporation and see that it is affixed to all documents to be executed on behalf
of the corporation under its seal; and, in general, shall perform all duties
incident to the office of secretary, and such other duties as may from time to
time be assigned by the board of directors or the president.
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Section 5.12. THE TREASURER. The treasurer or an assistant treasurer
shall have or provide for the custody of the funds or other property of the
corporation; shall collect and receive or provide for the collection and receipt
of moneys earned by or in any manner due to or received by the corporation;
shall deposit all funds in his or her custody as treasurer in such banks or
other places of deposit as the board of directors may from time to time
designate; shall, whenever so required by the board of directors, render an
account showing all transactions as treasurer, and the financial condition of
the corporation; and, in general, shall discharge such other duties as may from
time to time be assigned by the board of directors or the president.
Section 5.13. OFFICERS' BONDS. Any officer shall give a bond for the
faithful discharge of the duties of the officer in such sum, if any, and with
such surety or sureties as the board of directors shall require.
Section 5.14. SALARIES. The salaries of the officers elected by the
board of directors shall be fixed from time to time by the board of directors or
by such officer as may be designated by resolution of the board. The salaries or
other compensation of any other officers, employees and other agents shall be
fixed from time to time by the officer or committee to which the power to elect
such officers or to retain or appoint such employees or other agents has been
delegated pursuant to Section 5.03 of this Article. No officer shall be
prevented from receiving such salary or other compensation by reason of the fact
that the officer is also a director of the corporation.
ARTICLE VI
Certificates of Stock, Transfer, Etc.
Section 6.01. ISSUANCE. The share certificates of the corporation
shall be numbered and registered in the share ledger and transfer books of the
corporation as they are issued. They shall be signed by the president or a vice
president and by the secretary or an assistant secretary or the treasurer or an
assistant treasurer, and shall bear 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
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because of death, resignation or otherwise, before the certificate is issued, it
may be issued with the same effect as if the officer has not ceased to be such
at the date of its issue.
Section 6.02. TRANSFER. Transfers of shares shall be made on the books
of the corporation upon surrender of the certificates therefor, endorsed by the
person named in the certificate or by attorney lawfully constituted in writing.
No transfer shall be made inconsistent with the provisions of the Uniform
Commercial Code, 12A Pa.Cons.Stat. Sections 8-101 et seq., and its amendments
and supplements.
Section 6.03. SHARE CERTIFICATES. Certificates for shares of the
corporation shall be in such form as provided by statute and approved by the
board of directors. The share record books and the blank share certificate books
shall be kept by the secretary or by any agency designated by the board of
directors for that purpose. Every certificate exchanged or returned to the
corporation shall be marked "Cancelled", with the date of cancellation.
Section 6.04. RECORD HOLDER OF SHARES. The corporation shall be
entitled to treat the person in whose name any share or shares of the
corporation stand on the books of the corporation as the absolute owner thereof,
and shall not be bound to recognize any equitable or other claim to, or interest
in, such share or shares on the part of any other person.
Section 6.05. LOST, DESTROYED OR MUTILATED CERTIFICATES. The holder of
any shares of the corporation shall immediately notify the corporation of any
loss, destruction or mutilation of the certificate therefor, and the board of
directors may, in its discretion, cause a new certificate or certificates to be
issued to such holder, in case of mutilation of the certificate, upon the
surrender of the mutilated certificate, or, in case of loss or destruction of
the certificate, upon satisfactory proof of such loss or destruction, and, if
the board of directors shall so determine, the deposit of a bond in such form
and in such sum, and with such surety or sureties, as it may direct.
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ARTICLE VII
Indemnification of Directors, Officers and
Other Authorized Representatives
Section 7.01. INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN THIRD
PARTY PROCEEDINGS. The corporation shall indemnify any person who was or is an
"authorized representative" of the corporation (which shall mean for purposes of
this Article a director or officer of the corporation, or a person serving at
the request of the corporation as a director, officer, or trustee, of another
corporation, partnership, joint venture, trust or other enterprise) and who was
or is a "party" (which shall include for purposes of this Article the giving of
testimony or similar involvement) or is threatened to be made a party to any
"third party proceeding" (which shall mean for purposes of this Article any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative, other than an action by or in the
right of the corporation) by reason of the fact that such person was or is an
authorized representative of the corporation, against expenses (which shall
include for purposes of this Article attorneys' fees), judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such third party proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal third party proceeding (which shall include for purposes of this
Article any administrative or investigative third party proceeding which could
or does lead to a criminal third party proceeding) had no reasonable cause to
believe such conduct was unlawful. The termination of any third party proceeding
by judgment, order, settlement, indictment, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that the
authorized representative did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to, the best interests of the
corporation, and, with respect to any criminal third party proceeding, had
reasonable cause to believe that such conduct was unlawful.
Section 7.02. INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES IN
CORPORATE PROCEEDINGS. The corporation shall indemnify any person who was or is
an authorized representative of the corporation and who was or is a party, or is
threatened to be made a party to any "corporate proceeding" (which shall mean
for purposes of this Article any threatened, pending or
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completed action or suit by or in the right of the corporation to procure a
judgment in its favor or investigative proceeding by the corporation) by reason
of the fact that such person was or is an authorized representative of the
corporation, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such corporate action if such
person acted in good faith and in a manner reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of such person's duty to the corporation unless
and only to the extent that the court of common pleas of the county in which the
registered office of the corporation is located or the court in which such
corporate proceeding was pending shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such authorized representative is fairly and reasonably entitled to indemnity
for such expenses which the court of common pleas or such other court shall deem
proper.
Section 7.03. MANDATORY INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES.
To the extent that an authorized representative of the corporation has been
successful on the merits or otherwise in defense of any third party or corporate
proceeding or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses actually and reasonably incurred by such
person in connection therewith.
Section 7.04. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
indemnification under Sections 7.01, 7.02 or 7.03 of this Article (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the authorized
representative is proper in the circumstances because such person has either met
the applicable standard of conduct set forth in Section 7.01 or 7.02 or has been
successful on the merits or otherwise as set forth in Section 7.03 and that the
amount requested has been actually and reasonably incurred. Such determination
shall be made:
(1) By the board of directors by a majority of a quorum
consisting of directors who were not parties to such third party or
corporate proceeding, or
(2) If such a quorum is not obtainable, or, even if
obtainable, a majority vote of such a quorum
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so directs, by independent legal counsel in a written opinion, or
(3) By the shareholders.
Section 7.05. ADVANCING EXPENSES. Expenses actually and reasonably
incurred in defending a third party or corporate proceeding shall be paid on
behalf of an authorized representative by the corporation in advance of the
final disposition of such third party or corporate proceeding as authorized in
the manner provided in Section 7.04 of this Article upon receipt of an
undertaking by or on behalf of the authorized representative to repay such
amount unless it shall ultimately be determined that such person is entitled to
be indemnified by the corporation as authorized in this Article. The financial
ability of such authorized representative to make such repayment shall not be a
prerequisite to the making of an advance.
Section 7.06. EMPLOYEE BENEFIT PLANS. For purposes of this Article,
the corporation shall be deemed to have requested an authorized representative
to serve an employee benefit plan where the performance by such person of duties
to the corporation also imposes duties on, or otherwise involves services by,
such person to the plan or participants or beneficiaries of the plan; excise
taxes assessed on an authorized representative with respect to an employee
benefit plan pursuant to applicable law shall be deemed "fines"; and action
taken or omitted by such person with respect to an employee benefit plan in the
performance of duties for a purpose reasonably believed to be in the interest of
the participants and beneficiaries of the plan shall be deemed to be for a
purpose which is not opposed to the best interests of the corporation.
Section 7.07. SCOPE OF ARTICLE. The indemnification of authorized
representatives, as authorized by the Article, shall (1) not be deemed exclusive
of any other rights to which those seeking indemnification may be entitled under
any statute, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity, (2) continue as to a person who has ceased to be an authorized
representative and (3) inure to the benefit of the heirs, executors and
administrators of such a person.
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Section 7.08. RELIANCE ON PROVISIONS. Each person who shall act as an
authorized representative of the corporation shall be deemed to be doing so in
reliance upon the rights of indemnification provided by this Article.
ARTICLE VIII
Miscellaneous
Section 8.01. CORPORATE SEAL. The corporation shall have a corporate
seal in the form of a circle containing the name of the corporation, the year of
incorporation and such other details as may be approved by the board of
directors.
Section 8.02. CHECKS. All checks, notes, bills of exchange or other
orders in writing shall be signed by such person or persons as the board of
directors may from time to time designate.
Section 8.03. CONTRACTS. Except as otherwise provided in these
by-laws, the board of directors may authorize any officer or officers, agent or
agents, to enter into any contract or to execute or deliver any instrument on
behalf of the corporation, and such authority may be general or confined to
specific instances.
Section 8.04. DEPOSITS. All funds of the corporation shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies, or other depositaries as the board of directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the board of directors shall from time to
time determine.
Section 8.05. REPORTS. The board of directors shall present at the
annual meeting of shareholders a report of the financial condition of the
corporation as of the closing date of the preceding fiscal year. Such report
shall be in such form as shall be approved by the board of directors and shall
be available for the inspection of shareholders at the annual meeting, but the
board of directors shall not be required to cause such report to be sent to the
shareholders. The board of directors may, but shall not be required to, have
such report prepared and verified by an independent certified public accountant
or by a firm of practicing accountants.
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Section 8.06. CORPORATE RECORDS. There shall be kept at the registered
office or principal place of business of the corporation an original or
duplicate record of the proceedings of the shareholders and of the directors,
and the original or a copy of the by-laws including all amendments or
alterations thereto to date, certified by the secretary of the corporation. An
original or duplicate share register shall also be kept at the registered office
or principal place of business of the corporation, or at the office of a
transfer agent or registrar, giving the names of the shareholders, their
respective addresses and the number and class of shares held by each. The
corporation shall also keep appropriate, complete and accurate books or records
of account, which may be kept at its registered office or at its principal place
of business.
Every shareholder shall, upon written demand under oath stating the
purpose thereof, have a right to examine, in person or by agent or attorney,
during the usual hours for business, for any proper purpose, the share register,
books or records of account, and records of the proceedings of the shareholders
and directors, and make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest as a shareholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the shareholder. The demand under oath shall be directed
to the corporation at its registered office in Pennsylvania or at its principal
place of business. Where the shareholder seeks to inspect the books and records
of the corporation, other than its share register or list of shareholders, the
shareholder shall first establish (1) compliance with the provisions of this
section respecting the form and manner of making demand for inspection of such
documents; and (2) that the inspection sought is for a proper purpose. Where the
shareholder seeks to inspect the share register or list of shareholders of the
corporation and has complied with the provisions of this section respecting the
form and manner of making demand for inspection of such documents, the burden of
proof shall be upon the corporation to establish that the inspection sought is
for an improper purpose.
Section 8.07. AMENDMENT OF BY-LAWS. These by-laws may be amended or
repealed, or new by-laws may be adopted, either (1) by vote of the shareholders
entitled to cast at least a majority of the votes which all shareholders are
entitled to cast thereon at any duly organized annual or special meeting
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of shareholders, or (2), with respect to those matters which are not by statute
reserved exclusively to the shareholders, by vote of a majority of the board of
directors of the corporation in office at any regular or special meeting of
directors. Such proposed amendment, repeal or new by-laws, or a summary thereof,
shall be set forth in any notice of such meeting, whether annual, regular or
special.
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