SPS TECHNOLOGIES, INC.
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formerly
(STANDARD PRESSED STEEL CO.)
As Amended and Effective December 5, 2002
BY-LAWS
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ARTICLE I
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l.l Principal Office - The principal office of the corporation
shall be at Jenkintown, Pennsylvania.
l.2 Other Offices - The corporation shall also have offices at
such other places as the Board of Directors may from time to time appoint or the
business of the corporation may require.
ARTICLE II
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Shareholders and Share Certificates
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2.l Issuance of Share Certificates - Every shareholder of
record shall be entitled to a share certificate representing the shares owned by
him. Share certificates shall be in such form as may be required by law and as
the Board of Directors shall prescribe. Every share certificate shall be signed
by the Chairman or President or a Vice-President and the Treasurer or Secretary
or Assistant Treasurer or Assistant Secretary, and sealed with the corporate
seal, which may be a facsimile, either engraved or printed. Whenever permitted
by law, the Board of Directors may authorize the issuance of share certificates
bearing the facsimile signatures of the officers authorized to sign such
certificates.
2.2 Transfer of Shares - Shares of the capital stock of the
corporation shall be transferable only on the books of the corporation by the
person in whose name such shares are registered, or by his duly authorized
attorney or representative. In all cases of transfer by an attorney, the
original letter of attorney, duly approved, or an official copy thereof, duly
certified, shall be deposited and remain with the corporation. In case of
transfer by executors, administrators, guardians or other legal representatives,
duly authenticated evidence of their authority shall be produced, and may be
required to be deposited and remain with the corporation in its discretion. No
transfer shall be made unless and until the certificate issued to the transferor
is delivered to the corporation, properly endorsed.
2.3 Lost or Destroyed Share Certificates - Any person desiring
a share certificate to be issued in lieu of one lost or destroyed shall make an
affidavit setting forth the loss or destruction of such share certificate, and
shall, if the Board of Directors shall so require, advertise such loss or
destruction in such manner as the Board of Directors may require, and shall, if
the Board of Directors shall so require, give the corporation a bond of
indemnity, in such form and with such security as may be satisfactory to the
Board, indemnifying the corporation against any loss that may result from the
issuance of a new share certificate. Upon receipt of such affidavit and proof of
publication of the advertisement of such loss or destruction if such
advertisement is required by the Board of Directors, and the bond, if any,
required by the Board of Directors, a new share certificate may be issued of the
same tenor and for the same number of shares as the one alleged to have been
lost or destroyed.
2.4 Addresses of Shareholders - Each shareholder shall, when
issued his share certificate, notify the Secretary of the corporation in writing
of the address to which such shareholder wishes notices relating to the business
of the corporation to be mailed and he shall thereafter notify the Secretary in
writing of any changes in such address.
2.5 Transfer of Rights - Rights issued pursuant to the Amended
and Restated Rights Agreement, is effective as of April 6, 2001, as may be
amended from time to time (the "Rights Agreement"), between the corporation and
Mellon Investor Services LLC (and its successors and assigns), may be
transferred by an Acquiring Person or an Associate or Affiliate of an Acquiring
Person (as such terms are defined in the Rights Agreement) only in accordance
with the terms of, and subject to the restrictions contained in, the Rights
Agreement.
ARTICLE III
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Meetings of Shareholders
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3.1 Annual Meeting - The Annual Meeting of the shareholders of
the corporation for the election of directors and for the transaction of such
other business as may be appropriate shall be held at the principal office of
the corporation, or at such other place within or without the Commonwealth of
Pennsylvania as the Board of Directors may from time to time prescribe. The
annual meeting shall be held on such date as shall be determined by the Board of
Directors of the Corporation.
3.2 Special Meetings - Special meetings of the shareholders
may be called at any time by the Chairman, and shall be called by the Chairman,
or in his absence, by the Secretary, upon the written request of a majority of
the members of the Board of Directors. Upon receipt of the written request of
any person or persons entitled to call a special meeting, which shall state the
purpose of the meeting, it shall be the duty of the Chairman, or, in his
absence, the Secretary, to call such meeting to be held not less than ten days,
nor more than sixty days, after receipt of such request. If the Chairman or the
Secretary shall neglect or refuse to issue such call, the person or persons
making the request may do so. Special meetings of the shareholders shall be held
at the principal office of the corporation or at such other place as the Board
of Directors may from time to time direct.
3.3 Notice of Meetings - Notice of the time and place of the
annual or any special meeting of the shareholders shall be given to each
shareholder entitled to notice of such meeting at least ten days prior to the
date of the meeting, unless a greater period of notice is by law required in a
particular case. Such notice shall be given by the Secretary of the corporation
or by or at the direction of the person or persons authorized to call the
meeting in the case of a special meeting. In the case of special meetings of the
shareholders, the notice shall specify the purpose thereof, and no business
shall be transacted other than that mentioned in the notice except with the
consent of all of the shareholders of the corporation entitled to vote at such
meeting. When a meeting is adjourned it shall not be necessary to give any
notice of the adjourned meeting or of the business to be transacted at an
adjourned meeting other than by announcement at the meeting at which such
adjournment is taken. All notices shall be given to each person entitled
thereto, either personally or by sending a copy thereof: (a) by first class or
express mail, postage prepaid, or courier service, charges prepaid, to his
postal address appearing on the books of the corporation (notice pursuant to
this subsection shall be deemed to have been given to the person entitled
thereto when deposited in the United States mail or with a courier service for
delivery to that person); or (b) by facsimile transmission, e-mail or other
electronic communication to his facsimile number or address for e-mail or other
electronic communications supplied by him to the corporation for the purpose of
notice (notice pursuant to this subsection shall be deemed to have been given to
the person entitled thereto when sent). If no address for the shareholder is
given, notice deposited in the post office, addressed to him at the city or
place in which the principal office of the corporation is located, shall be
sufficient.
3.4 Determination of Shareholders of Record - The Board of
Directors may fix a time, not more than fifty days prior to the date of any
meeting of the 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 will 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 entitled to receive any such allotment of rights,
or to exercise the rights in respect to any such change, conversion or exchange
of shares. In any such case only such shareholders as shall be shareholders of
record at the close of business on the day so fixed 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 to exercise any such
rights in respect to any such change, conversion or exchange of shares, as the
case may be, notwithstanding any transfers of any shares on the books of the
corporation after the date so fixed. The Board of Directors may close the books
of the corporation against transfers of shares during the whole or any part of
such period, and during the time when the transfer books of the corporation
shall be closed no transfers of shares shall be made thereon; provided, however,
that in case the Board of Directors shall determine to close the transfer books
of the corporation, written or printed notice thereof shall be mailed to each
shareholder of record at the address given by him as herein provided, at least
ten days before the date fixed for the closing of the transfer books.
3.5 Voting Rights - Except as otherwise provided herein, or in
the articles of incorporation or by law, every shareholder of record shall have
the right at every shareholders' meeting to one vote for every share standing in
his name on the books of the corporation. Every shareholder may vote either in
person or by proxy.
3.6 Nominations for Directors - Nominations of candidates for
election by the shareholders to the Board of Directors shall be given in writing
to the Secretary of the Company not less than sixty (60) days in advance of the
meeting at which such election is to take place in order to be considered
timely. Such notice shall include the name and address of record of the
nominating shareholder, a representation that the shareholder is entitled to
vote at such meetings and intends to appear in person or by proxy at the
meeting; the name, age, business and residence address and principal occupation
of such proposed nominee; a description of any and all arrangements or
understandings between the shareholder and each proposed nominee; such other
information as would be required by the Securities and Exchange Commission to be
included in the proxy statements soliciting proxies for the election of the
proposed nominee; and the signed consent of each such individual to serve as
director if elected. The Board shall also have the right to require any proposed
nominee to furnish other information which the Board shall reasonably require to
determine the proposed nominee's eligibility and qualifications to serve as a
director. If the Board, after affording the shareholder a reasonable opportunity
to cure any deficiency which the Board perceives in the original notice,
determines that an individual was not nominated in accordance with the foregoing
procedure, then such individual shall not be eligible for nomination and
election as a director.
3.7 Proxies - Every proxy shall be executed or authenticated
by the shareholder, or by his duly authorized attorney in fact, and filed with
or transmitted to the Secretary of the corporation or its designated agent. 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 or its designated
agent in writing or by electronic transmission. No unrevoked proxy shall be
valid after eleven months from the date of its execution, authentication or
transmission, unless a longer time is expressly provided therein, but in no
event shall a proxy, unless coupled with an interest, be voted on after three
years from the date of its execution, authentication or transmission. 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, notice of such death or
incapacity is given to the Secretary of the corporation or its designated agent
in writing or by electronic transmission. A telegram, telex, cablegram,
datagram, e-mail, Internet communication or other means of electronic
transmission from a shareholder or attorney-in-fact, or a photographic,
facsimile or similar reproduction of a writing executed by a shareholder or
attorney-in-fact: (a) may be treated as properly executed or authenticated for
purposes of this section; and (b) shall be so treated if it sets forth or
utilizes a confidential and unique identification number or other mark furnished
by the corporation to the shareholder for the purposes of a particular meeting
or transaction.
3.8 Ballot - No vote by the shareholders need be by ballot,
except upon demand made in writing before the voting begins by a shareholder
then entitled to vote. In all cases where voting shall be by ballot, a record of
the name of and the number of shares of stock represented by each person voting
shall be made by the Judge or Judges of Election duly appointed, and shall be
kept on file by the corporation.
3.9 Majority Vote - Except as otherwise specified in the
articles of incorporation, in these by-laws or provided by law, all matters
shall be decided by the vote of the holders of a majority of the shares then
entitled to vote present in person or represented by proxy at the meeting.
3.l0 Cumulative Voting - In all elections for directors, every
shareholder entitled to vote shall have the right, in person or by proxy, to
multiply the number of votes to which he may be entitled by the total number of
directors to be elected in the same election by the holders of the class or
classes of shares of which his shares are a part, and he may cast the whole
number of such votes for one candidate or he 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.
3.ll Voting on Sale or Merger - The affirmative vote of
shareholders owning at least 80% of the outstanding capital stock of the
corporation shall be required (a) for the adoption of any agreement for the
merger or consolidation of the corporation with or into any other corporation
and (b) to authorize any sale, lease or exchange of all or substantially all of
the assets of the corporation to or with, or any sale, lease or exchange to or
with the corporation (in exchange for its securities in a transaction for which
stockholder approval is required by law or any agreement between the corporation
and any national securities exchange) of any assets of, any other corporation,
person or other entity.
3.12 Quorum of Shareholders - At all meetings of the
shareholders a quorum shall consist of the presence of persons representing a
majority of the outstanding shares of the corporation entitled to vote at such
meeting, and in the absence of a quorum no business shall be transacted. The
shareholders present at a duly organized meeting can continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum. Except as otherwise provided by law, if a meeting
cannot be organized because a quorum has not attended, those present may adjourn
the meeting to such time and place as they may determine, and in the case of any
meeting called for the election of directors those who attend the second of such
adjourned meetings, although less than a quorum as fixed in this section, shall
nevertheless constitute a quorum for the purpose of electing directors. The
presence or participation, including voting and taking other action, at a
meeting of shareholders, or the expression of consent or dissent to corporate
action, by a shareholder by conference telephone or other electronic means,
including, without limitation, the Internet, shall constitute the presence of,
or vote or action by, or consent or dissent of the shareholder for the purposes
of this Article III.
3.l3 Judges of Election - 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 be not so appointed, the Chairman of any such 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. 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. If requested by the Chairman of the meeting or any shareholder or
his proxy, they shall make a written report of any matter determined by them and
execute a certificate of any fact found by them. 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.
3.l4 Voting Lists - The officer or agent having charge of the
transfer books for shares of the corporation shall make a complete list of the
shareholders entitled to vote at the meeting, arranged in alphabetical order,
with the address of and the number of shares held by each, 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 for the purposes thereof. If the corporation has, at the time when the
aforesaid list is required to be prepared, five thousand or more shareholders,
then in lieu of the making of such list, it may make such information available
by other appropriate means. The original share ledger or transfer book, or a
duplicate thereof kept in the Commonwealth of Pennsylvania, shall be prima facie
evidence as to who are the shareholders entitled to examine such list or share
ledger or transfer book, or to vote, in person or by proxy, at any meeting of
the shareholders.
3.15 Advance Notice of Shareholder Proposals - At any annual
or special meeting of shareholders, proposals by shareholders shall be
considered only if advance notice thereof has been timely given as provided
herein and such proposals are otherwise proper for consideration under
applicable law and the articles of incorporation of the corporation and these
By-laws. Notice of any proposal to be presented by any share- holder at any
meeting of shareholders shall be delivered in writing to the Secretary of the
Company not less than sixty (60) days prior to the date of the meeting;
provided, however, that if the date of the meeting is first publicly announced
or disclosed (in a public filing or otherwise) less than seventy (70) days prior
to the date of the meeting, such advance notice shall be given not more than ten
(10) days after such date is first so announced or disclosed. Public notice
shall be deemed to have been given more than seventy (70) days in advance of the
annual meeting if the corporation shall have previously disclosed, in these
By-laws or otherwise, that the annual meeting in each year is to be held on a
determinable date, unless and until the Board determines to hold the meeting on
a different date. Notice of any such proposal shall include the text of the
proposal to be presented, a brief written statement of the reasons why such
shareholder favors the proposal, the name and address of record of the proposing
shareholder, a representation that the shareholder is entitled to vote at such
meetings and intends to appear in person or by proxy at the meeting, the number
and class of all shares of each class of stock of the corporation beneficially
owned by such shareholder, and any material interest of such shareholder in the
proposal (other than as a shareholder). If the Board, after affording the
shareholder a reasonable opportunity to cure any deficiency which the Board
perceives in the original notice relating to the information required in the
immediately preceding sentence, determines that notice of a proposal was not
effected in accordance with the foregoing procedure, then such proposal shall
not be eligible for consideration at the meeting.
ARTICLE IV
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Directors
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4.l Number of Directors - The Board of Directors shall consist
of such number of members, not less than three, as shall be from time to time
fixed by resolution of the Board of Directors.
4.2 Directors
(a) The Board of Directors shall be divided into
three classes, as nearly equal in number as possible. The
term of office of one class shall expire in each year. The members of each class
shall be elected for terms of three years except in the case of a vacancy in any
class, in which case the vacancy shall be filled for the balance of the term of
the class in which the vacancy exists.
4.3 Powers; Qualifications and Personal Liability
(a) The Board of Directors shall have the control and
management of the business and affairs of the corporation, and all powers of the
corporation except those specifically reserved or granted to the shareholders by
law, by the articles of incorporation, or by these by-laws, are hereby granted
to and vested in the Board of Directors.
(b) Directors need not be residents of the Commonwealth of
Pennsylvania or shareholders in the corporation. A director may also be a
salaried officer of the corporation. If any person elected as a director shall,
upon written request, fail to accept such office, either in writing or by
attending a meeting of the Board of Directors, the Board of Directors may
declare his office vacant.
(c) 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 the director has breached or failed to perform the duties of
his or her office under 42 Pa.C.S. Section 8363 and the breach or failure to
perform constitutes self-dealing, willful misconduct or recklessness. The
provisions of this subsection shall not apply to the responsibility or liability
of a director pursuant to any criminal statute or the liability of a director
for the payment of taxes pursuant to local, state or Federal law. The provisions
of this subsection shall be effective January 27, l987, but shall not apply to
any action filed prior to that date nor to any breach of performance of duty or
any failure of performance of duty by a director occurring prior to that date.
4.4 Annual Report - The Board of Directors through the
appropriate corporate officer shall present at the annual meeting of the
shareholders a report of the financial condition of the corporation as of the
closing of the preceding fiscal year. Such report shall be sent to all
shareholders and shall be available for the inspection of shareholders at the
annual meeting. The Board of Directors shall have the financial statements
contained in such report examined and reported upon by independent certified
public accountants who shall not be required to be elected by the shareholders
of the corporation.
4.5 Resignations - Any director of the corporation may resign
at any time by giving written notice to the Chairman of the Board of Directors
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.
4.6 Removal - Directors may be removed in such manner as may
be provided by law.
4.7 Vacancies - The Board of Directors shall have power to
fill all vacancies occurring on the Board, whether by death, resignation,
increase in number or otherwise. A vacancy in the Board of Directors may be
filled by a vote of the majority of the remaining members of the Board, though
less than a quorum, and each person so elected shall be a director until his
successor is elected by the shareholders.
4.8 Committee of the Board - Except as otherwise provided in
Section 4.9 of these By-Laws, the Board of Directors may, by resolution adopted
by a majority of the entire Board, designate one or more committees, each
committee to consist of two or more directors. Any such committee to the extent
provided in the resolution creating it shall have and exercise the authority of
the Board of Directors in the management of the business and affairs of the
corporation. 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, provided that any such alternate member shall meet the
qualifications, if any, applicable to members of such committee. If the
resolution creating any committee so provides, then, in the absence or
disqualification of any member of any committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of any such absent or disqualified member, provided that
any person so appointed shall meet the qualifications, if any, applicable to
members of such committee. Each such committee shall keep minutes of its
proceedings and report the same to the Board of Directors at its next meeting.
4.9 Continuing Directors Committee
(a) There is hereby designated and established a
Continuing Directors Committee consisting of one or more members of the Board of
Directors having the qualifications set forth in this Section 4.9, which
Continuing Directors Committee shall have and may exercise the powers granted to
the Continuing Directors in the management of the business and affairs of the
Company to the extent set forth in the Rights Agreement, as such Rights
Agreement may be amended from time to time in accordance with the terms thereof.
(b) The member or members of the Continuing Directors
Committee shall consist of any member of the Board of Directors of the Company,
while such Person is a member of the Board, who is not an Acquiring Person, or
an Affiliate or Associate of an Acquiring Person (as such terms are defined in
the Rights Agreement), or a representative of an Acquiring Person or of any such
Affiliate or Associate and (i) who was a member of the Board immediately prior
to the effective date of the Rights Agreement, or (ii) whose nomination for
election or election to the Board was (x) subsequent to the effective date of
the Rights Agreement and (y) recommended or approved by a majority of the
Continuing Directors. In all cases where action of the Board of Directors
requires, under the terms of the Rights Agreement, the concurrence of at least a
majority of the Continuing Directors in office at the time, such action shall
not be deemed to have been taken unless there are Continuing Directors in office
at the time.
(c) In the absence or disqualification of any member of
the Continuing Directors Committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another Continuing Director to act at the
meeting in the place of any such absent or disqualified member, and, in the
absence or disqualification of all members of the Continuing Directors
Committee, the member or members meeting the qualifications of this Section 4.9
shall be appointed by a majority of the Board of Directors as a whole.
(d) This Section 4.9 shall automatically terminate and be
of no further force or effect upon the expiration of the Rights Agreement by its
terms or the earlier redemption of the Rights (as defined in the Rights
Agreement) in accordance with the terms of the Rights Agreement.
ARTICLE V
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Directors' Meetings
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5.l Place of Meetings - The meetings of the Board of Directors
may be held at such place within the Commonwealth of Pennsylvania or elsewhere
as a majority of the Directors may from time to time elect, or as may be
designated in the notice of the meeting.
5.2 Annual Meeting - Immediately after each annual election of
directors, the Board of Directors shall meet for the purpose of organization,
election of a Chairman of the Board from among the members of the Board,
election of officers, and the transaction of other business, at the place where
such election of directors was held. Notice of such meeting need not be given.
Such annual meeting may be held at any other time or place which shall be
specified in a notice given in the manner provided for special meetings of the
Board of Directors. The Chairman of the Board shall preside at all meetings of
the shareholders and of the Board of Directors. He shall be a member ex officio
of all standing committees of the Board. He shall call special or other meetings
of the shareholders and Board of Directors and shall give, or cause to be given,
notice of meetings of the Board of Directors as required by law or by these
By-Laws.
5.3 Regular Meetings - The Board of Directors may by
resolution designate dates, times and places for regular meetings to be held
throughout the year not less than one meeting in each quarter. Notice shall be
given of any change in the date, time or place of any regular meetings in the
manner provided for notice of special meetings of the Board of Directors;
otherwise no notice need be given.
5.4 Special Meetings - Special meetings of the Board of
Directors may be called by the Chairman, or by a majority of the Directors, and
shall be held at such time and place as shall be designated by the person or
persons calling the meeting. Unless notice is waived by all of the members of
the Board of Directors, notice of the time, place and purpose of any special
meeting shall be sent to each director at least three days prior to the date of
such meeting, and such notice shall state the time, place and purpose of such
special meeting. All notices shall be given to each director, either personally
or by sending a copy thereof: (a) by first class or express mail, postage
prepaid, or courier service, charges prepaid, to his postal address appearing on
the books of the corporation (notice pursuant to this subsection shall be deemed
to have been given to the person entitled thereto when deposited in the United
States mail or with a courier service for delivery to that person); or (b) by
facsimile transmission, e-mail or other electronic communication to his
facsimile number or address for e-mail or other electronic communications
supplied by him to the corporation for the purpose of notice (notice pursuant to
this subsection shall be deemed to have been given to the person entitled
thereto when sent).
5.5 Notice of Adjourned Meeting - When a meeting is adjourned,
it shall not be necessary to give any notice of the adjourned meeting, or of the
business to be transacted at an adjourned meeting, other then by announcement at
the meeting at which such adjournment is taken.
5.6 Quorum - A majority of the members of the Board of
Directors shall constitute a quorum for the transaction of business at any
meeting, and 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. Any one
or more directors or members of a committee of the Board of Directors may
participate in a meeting of the Board or of the committee by means of conference
telephone or similar communications equipment so connected that all persons
participating in the meeting can hear each other, and any person so
participating shall be considered as present at the meeting for the purpose of
determining the presence of a quorum, action by a majority, and for all other
purposes.
5.7 Order of Business - The order of business at meetings of
the Board of Directors shall be as prescribed from time to time by the Board.
5.8 Compensation - Each director shall be entitled to receive
as compensation for his services such reasonable amounts as may be fixed from
time to time by the Board of Directors, in the form of either fees and traveling
expenses for attendance at meetings of the Board and of the committees thereof,
or of payment at the rate of a fixed annual sum, or both.
ARTICLE VI
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Officers and Agents
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6.l Officers Elected by the Board - At the first meeting of
the Board of Directors after the election of directors in each year, the Board
shall elect a Chief Executive Officer, a President, one or more Vice-Presidents,
a Secretary and a Treasurer, and such other officers as the Board may deem
necessary and as the business of the corporation may require. The Board may but
shall not be required to appoint the Chairman of the Board as the Chief
Executive Officer of the corporation.
6.2 Terms and Qualifications of Officers - Any two or more
offices may be held by the same person, except that the offices of the President
and Secretary shall not be held by the same person. All officers of the
corporation shall serve for one year and until their successors shall have been
duly elected and shall have qualified; provided, however, that any officer may
be removed at any time, either with or without cause, by action of the Board of
Directors.
ARTICLE VII
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Powers and Duties of Officers
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7.l Chief Executive Officer - The chief executive officer
shall be the chief executive and head of the corporation, and subject to the
regulations of the Board of Directors, shall have the general control and
management of its business and affairs.
7.2 President - The President shall be the chief operating
officer of the corporation and, subject to the supervision and control of the
Chief Executive Officer, shall carry out corporate operating policies as
established by the Chief Executive Officer.
7.3 Vice-Presidents - The Vice-Presidents shall have such
duties as the Chief Executive Officer or President may establish.
7.4 Secretary - The Secretary shall attend all meetings of the
shareholders and of the Board of Directors and shall be responsible for
maintaining a record of all the proceedings thereof in a book to be kept for
that purpose. He shall be the custodian of the corporate seal of the
corporation. In the absence of the Secretary, an Assistant Secretary or any
other person appointed or elected by the Board of Directors may exercise the
rights and perform any of the duties of the Secretary.
7.5 Treasurer - The Treasurer shall be responsible for
maintaining full and correct accounts of the receipts and expenditures of the
corporation in books belonging to the corporation, for the deposit of all moneys
and valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors, and for the
appropriate disbursement of its funds. He shall, if the Board shall so direct,
give bond with sufficient security in such amount as may be required by the
Board for the faithful performance of his duties.
7.6 Controller - The Controller shall be responsible for the
establishment and maintenance of sound accounting practices and procedures
throughout the corporation.
7.7 Additional Duties - The enumeration of specific duties
shall not be deemed to mean that additional appropriate powers and duties may
not be assigned.
ARTICLE VIII
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Miscellaneous
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8.l Checks, Notes, Drafts and Acceptances - All checks, notes
and other similar obligations and acceptances of drafts by the corporation shall
be signed by such person or persons as the Board of Directors may from time to
time direct.
8.2 Endorsement of Negotiable Instruments for
Deposit - Any officer of the corporation or any other employee, as the Board of
Directors may from time to time direct, shall have full power to endorse for
deposit all checks and all negotiable paper drawn payable to his or their order
or to the order of the corporation.
8.3 Fiscal Year - The fiscal year of the corporation shall
begin on the first day of January and end on the thirty-first day of December of
each year.
8.4 1988 Pennsylvania Anti-Takeover Law - The corporation
shall not be subject to the provisions of Section 910 of the Pennsylvania
Business Corporation Law (P.L. 364, No. 106), as amended by Act 27, enacted
March 23, 1988.
8.5 Act No. 1990-36 - The corporation shall not be subject to
the provisions of Subchapters G (Control-Share Acquisitions) and H (Disgorgement
by Certain Controlling Shareholders Following Attempts to Acquire Control) of
Chapter 25 of Article C of the Business Corporation Law of 1988 (p.1. 1444, No.
177) as amended by Act 36 enacted April 27, 1990, and, accordingly, Subchapters
I (Severance Compensation for Employees Terminated Following Certain
Control-Share Acquisitions) and J (Business Combination Transactions - Labor
Contracts) shall not apply to the Corporation.
ARTICLE IX
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Indemnification of Directors, Officers, Etc.
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9.l Scope of Indemnification
(a) The corporation shall indemnify an indemnified
representative against any liability incurred in connection with any proceeding
in which the indemnified representative may be involved as a party or otherwise,
by reason of the fact that such person is or was serving in an indemnified
capacity, including without limitation liabilities resulting from any actual or
alleged breach or neglect of duty, error, misstatement or misleading statement,
negligence, gross negligence or act giving rise to strict or products liability,
except where such indemnification is expressly prohibited by applicable law or
where the conduct of the indemnified representative has been determined pursuant
to Section 9.6 to constitute willful misconduct or recklessness within the
meaning of 42 Pa. C.S. 8365(b) or any superseding provision of law, sufficient
in the circumstances to bar indemnification against liabilities arising from the
conduct.
(b) If an indemnified representative is entitled to
indemnification in respect of a portion, but not all, of any liabilities to
which such person may be subject, the corporation shall indemnify such
indemnified representative to the maximum extent for such portion of the
liabilities.
(c) The termination of a proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the indemnified representative is not
entitled to indemnification.
(d) For purposes of this Article:
(l) "indemnified capacity" means any and all past, present
and future service by an indemnified representative in one or
more capacities as a director, officer, employee or agent of
the corporation, or, at the request of the corporation, as a
director, officer, employee, agent, fiduciary or trustee of
another corporation, partnership, joint venture, trust,
employee benefit plan or other entity or enterprise;
(2) "indemnified representative" means any and all
directors and officers of the corporation and any other person
designated as an indemnified representative by the board of
directors of the corporation, (which may, but need not,
include any person serving at the request of the corporation,
as a director, officer, employee, agent, fiduciary or trustee
of another corporation, partnership, joint venture, trust,
employee benefit plan or other entity or enterprise);
(3) "liability" means any damage, judgment, amount paid in
settlement, fine, penalty, punitive damages, excise tax
assessed with respect to an employee benefit plan, or cost or
expense of any nature (including, without limitation,
attorneys' fees and disbursements); and
(4) "proceeding" means any threatened, pending or
completed action, suit, appeal or other proceeding of any
nature, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether brought
by or in the right of the corporation, a class of its security
holders or otherwise.
9.2 Proceedings Initiated by Indemnified Representatives -
Notwithstanding any other provision of this Article, the corporation shall not
indemnify under this Article an indemnified representative for any liability
incurred in a proceeding initiated (which shall not be deemed to include
counter-claims or affirmative defenses) or participated in as an intervenor or
amicus curiae by the person seeking indemnification unless such initiation of or
participation in the proceeding is authorized, either before or after its
commencement, by the affirmative vote of a majority of the directors in office.
This section does not apply to reimburse- ment of expenses incurred in
successfully prosecuting or defending an arbitration under Section 9.6 or
otherwise successfully prosecuting or defending the rights of an indemnified
representative granted by or pursuant to this Article.
9.3 Advancing Expenses - The corporation shall pay the
expenses (including attorneys' fees and disbursements) incurred in good faith by
an indemnified representative in advance of the final disposition of a
proceeding described in Section 9.l or 9.2 upon receipt of an undertaking by or
on behalf of the indemnified representative to repay such amount if it shall
ultimately be determined pursuant to Section 9.6 that such person is not
entitled to be indemnified by the corporation pursuant to this Article. The
financial ability of an indemnified representative to repay an advance shall not
be a prerequisite to the making of such advance.
9.4 Securing of Indemnification Obligations - To further
effect, satisfy or secure the indemnification obligations provided herein or
otherwise, the corporation may maintain insurance, obtain a letter of credit,
act as self insurer, create a reserve, trust, escrow, cash collateral or other
fund or account, enter into indemnification agreements, pledge or grant a
security interest in any assets or properties of the corporation, or use any
other mechanism or arrangement whatsoever in such amounts, at such costs, and
upon such other terms and conditions as the board of directors shall deem
appropriate. Absent fraud, the determination of the board of directors with
respect to such amounts, costs, terms and conditions shall be conclusive against
all security holders, officers and directors and shall not be subject to
voidability.
9.5 Payment of Indemnification - An indemnified representative
shall be entitled to indemnification within 30 days after a written request for
indemnification has been delivered to the secretary of the corporation.
9.6 Arbitration - Any dispute related to the right to
indemnification, contribution or advancement of expenses as provided under this
Article, except with respect to indemnification for liabilities arising under
the Securities Act of l933 that the corporation has undertaken to submit to a
court for adjudication, shall be decided only by arbitration in the metropolitan
area in which the principal executive offices of the corporation are located at
the time, in accordance with the commercial arbitration rules then in effect of
the American Arbitration Association, before a panel of three arbitrators, one
of whom shall be selected by the corporation, the second of whom shall be
selected by the indemnified representative and the third of whom shall be
selected by the other two arbitrators. In the absence of the American
Arbitration Association, or if for any reason arbitration under the arbitration
rules of the American Arbitration Association cannot be initiated, or if one of
the parties fails or refuses to select an arbitrator, or if the arbitrators
selected by the corporation and the indemnified representative cannot agree on
the selection of the third arbitrator within 30 days after such time as the
corporation and the indemnified representative have each been notified of the
selection of the other's arbitrator, the necessary arbitrator or arbitrators
shall be selected by the presiding judge of the court of general jurisdiction in
such metropolitan area. Each arbitrator selected as provided herein is required
to be or have been a director or executive officer of a corporation whose shares
of common stock were listed during at least one year of such service on the New
York Stock Exchange or the American Stock Exchange or quoted on the National
Association of Securities Dealers Automated Quotations System. The party or
parties challenging the right of an indemnified representative to the benefits
of this Article shall have the burden of proof. The corporation shall reimburse
an indemnified representative for the expenses (including attorneys' fees and
disbursements) incurred in successfully prosecuting or defending such
arbitration. Any award entered by the arbitrators shall be final, binding and
nonappealable and judgment may be entered thereon by any party in accordance
with applicable law in any court of competent jurisdiction. This arbitration
provision shall be specifically enforceable.
9.7 Discharge of Duty - An indemnified representative shall be
deemed to have discharged such person's duty to the corporation if he or she has
relied in good faith on information, opinions, reports or statements, including
financial statements and other financial data, in each case prepared or
presented by any of the following:
(l) one or more officers or employees of the corporation whom
the indemnified representative reasonably believes to be
reliable and competent with respect to the matter presented;
(2) legal counsel, public accountants or other persons as to
matters that the indemnified representative reasonably
believes to be within the person's professional or expert
competence; or
(3) a committee of the board of directors on which he or she
does not serve as to matters within its area of designated
authority, which committee he or she reasonably believes to
merit confidence.
9.8 Contract Rights; Amendment or Repeal - All rights to
indemnification and advancement of expenses under this Article shall be deemed a
contract between the corporation and the indemnified representative pursuant to
which the corporation and each indemnified representative intend to be legally
bound. Any repeal, amendment or modification hereof shall be prospective only
and shall not affect any rights or obligations then existing.
9.9 Scope of Article - The rights granted by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
agreement, vote of share- holders or disinterested directors or otherwise, both
as to action in an indemnified capacity and as to action in any other capacity.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article shall continue as to a person who has ceased to be an
indemnified representative in respect of matters arising prior to such time, and
shall inure to the benefit of the heirs, executors, administrators and personal
representatives of such a person.
9.l0 Reliance on Provisions - Each person who shall act as an
indemnified representative of the corporation shall be deemed to be doing so in
reliance upon the rights of indemnification and advancement of expenses provided
by this Article.
ARTICLE X
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Amendments
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l0.l Procedure - Sections 3.6, 3.ll and l0.l of these By-laws
may be altered, amended, modified, added to or repealed only at any annual or
special meeting of the shareholders, and, with respect to Sections 3.ll and
l0.l, only by the affirmative vote of shareholders owning at least 80% of the
outstanding capital stock of the corporation. Otherwise, these By-laws may be
altered, amended, modified, added to or repealed at any annual, regular or
special meeting of the Board of Directors or by the shareholders at any annual
or special meeting. Notice of any meeting shall set forth such proposed change
or a summary thereof.
l0.2 - Amendments to Sections 4.8, 4.9 and l0.2 - The
amendment to Section 4.8 and the provisions of Sections 4.9 and l0.2 of these
By-Laws have been adopted in connection with the execution by the Company of
the Rights Agreement described in Section 4.9, and may be altered, amended,
modified, added to or repealed only by a resolution duly adopted by the Board
of Directors of the Company (provided that no such resolution will be
effective without the concurrence of at least a majority of the Continuing
Directors).