EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS OF
CHECKPOINT SYSTEMS, INC.
OCTOBER 24, 1990
FURTHER AMENDED
JANUARY 6, 2005
ARTICLE I - OFFICES
SECTION 1-1 REGISTERED OFFICE. The registered office of the
Corporation shall be located within the Commonwealth of Pennsylvania, at such
place as the Board of Directors shall, from time to time, determine.
SECTION 1-2 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, determine.
ARTICLE II - SHAREHOLDERS' MEETINGS
SECTION 2-1 PLACE OF SHAREHOLDERS' MEETINGS. Meetings of
shareholders shall be held at such geographic location within or without the
Commonwealth of Pennsylvania as may be fixed by the Board of Directors, from
time to time. If no such place is fixed by the Board of Directors, meetings of
the shareholders shall be held at the executive office of the Corporation
wherever situated. If a meeting of the shareholders is held by means of the
Internet or other electronic communications technology in a fashion pursuant to
which the shareholders have the opportunity to read or hear the proceedings
substantially concurrently with their occurrence, vote on matters submitted to
the shareholders and pose questions to the Directors, the meeting need not be
held at a particular geographic location.
SECTION 2-2 ANNUAL MEETING. A meeting of the shareholders of
the Corporation shall be held in each calendar year on the fourth Wednesday of
April at 10:00 o'clock A.M., if not a legal holiday, and if such day is a legal
holiday, then such meeting shall be held on the next business day, or on such
other date as the Board of Directors may determine.
At such annual meeting, there shall be held an election for
the Director(s) of a Class of the Board of Directors, to serve for the ensuing
three year period and until his (their) successor(s) shall have been duly
elected and qualified or until his (their) earlier resignation or removal, in
accordance with the provisions relating thereto in the Articles of
Incorporation.
SECTION 2-3 SPECIAL MEETINGS. Special meetings of the
shareholders may be called at any time:
(a) By the President of the Corporation;
(b) By a majority of the Board of Directors; or
(c) By shareholders, in accordance with the provisions
relating thereto contained in the Articles of Incorporation.
2
Upon the written request of any person or persons who has
(have) duly called a special meeting, which request shall set forth the purpose
for which the meeting is desired, it shall be the duty of the Secretary to fix
the date of such meeting to be held at such time, not less than ten nor more
than sixty days after the receipt of such request, as the Secretary may
determine, and to give due notice thereof. If the Secretary shall neglect or
refuse to fix the date of such meeting and to give notice thereof within ten
days after receipt of such request, the person or persons calling the meeting
may do so.
SECTION 2-4 NOTICES OF SHAREHOLDERS' MEETINGS. Written notice
stating the date, place, hour and purpose of any meeting of the shareholders
shall be given to each shareholder of record entitled to vote at the meeting at
least five days prior to the date of the meeting, unless otherwise required by
law. Such notices may be given, at the direction of, or in the name of, the
Board of Directors, President, any Vice President, Secretary or Assistant
Secretary.
SECTION 2-5 QUORUM OF AND ACTION BY SHAREHOLDERS. Unless
otherwise provided by law or in the Articles of Incorporation, the presence, in
person or by proxy, of shareholders entitled to cast at least 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, and, unless
otherwise provided by law or in the Articles of Incorporation, 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
are entitled to cast, shall be the acts of the shareholders. 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. If a meeting cannot be organized because a quorum has not
attended, those present may, except as otherwise provided by law, adjourn the
meeting to such time and place as they may determine, but in the case of any
meeting called for the election of Directors, those shareholders who attend the
second of such adjourned meetings, although less than a quorum as fixed in this
Section or in the Articles of Incorporation, shall nevertheless constitute a
quorum for the purpose of electing Directors.
3
SECTION 2-6 VOTING. The officer or agent having charge of the
transfer books of the Corporation shall make, at least five days before any
meeting of shareholders, a complete list of the shareholders entitled to vote at
such 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. 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.
At all shareholders' meetings, shareholders entitled to vote
may attend and vote either in person or by proxy. All proxies shall be executed
or authenticated by the shareholder or by his duly authorized attorney-in-fact,
and shall be filed with or transmitted to the Secretary of the Corporation or
its designated agent. A shareholder or his duly authorized attorney-in-fact may
execute or authenticate a writing or transmit an electronic message authorizing
another person to act for him by proxy. A proxy, unless coupled with an
interest, shall be revocable at will, 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 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
valid after three years after the date of its execution, authentication or
transmission.
4
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.
Except as otherwise specifically provided by law, all matters
coming before the meeting shall be determined by a vote by shares. Such vote may
be taken by voice unless a shareholder demands that it be taken by ballot, in
which event the vote shall be taken by written ballot, and the Judge or Judges
of Election or, if none, the Secretary of the meeting, shall tabulate and
certify the results of such vote.
SECTION 2-7 INFORMAL ACTION BY SHAREHOLDERS. Any action which
may be taken at a meeting of the shareholders 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 shareholders who would be entitled to vote at a meeting for
such purpose, and shall be filed with the Secretary of the Corporation.
5
SECTION 2-8 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE
OR OTHER ELECTRONIC TECHNOLOGY. A shareholder who is unable to personally attend
any shareholders' meeting may participate in such meeting, be counted for the
purposes of determining a quorum and exercise all rights and privileges to which
he might be entitled were he personally in attendance, including the right to
vote and take other action, by means of a conference telephone or other
electronic technology, upon giving three days' notice to the President of the
Corporation of his intention to so participate. 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 II.
ARTICLE III - BOARD OF DIRECTORS
SECTION 3-1 NUMBER. The business and affairs of the
Corporation shall be managed by a Board of Directors of not less than three nor
more than eleven Directors, and shall be classified in accordance with the
provisions relating thereto in the Articles of Incorporation. The number of
Directors which constitute the Board of Directors shall be determined by
appropriate action of the Board of Directors or the shareholders.
SECTION 3-2 QUALIFICATIONS OF DIRECTORS. A Director of the
Corporation need not be a resident of the Commonwealth of Pennsylvania nor a
shareholder of the Corporation. Except as may otherwise be determined by the
Board of Directors by a two-thirds vote of the disinterested members in any
instance: (i) at the age of seventy-five (75) years an individual shall not be
qualified to be appointed as a Director, or (ii) upon reaching the age of
seventy- five (75) years, a Director shall no longer be qualified to stand for
re-election by the shareholders, but shall be entitled to complete any term
which has begun prior to such Director reaching the age of seventy-five (75)
years.
6
SECTION 3-3 PLACE OF MEETING. 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 appoint or as may
be designated in the notice calling the meeting.
SECTION 3-4 REGULAR MEETINGS. A regular meeting of the Board
of Directors shall be held annually, immediately following the annual meeting of
shareholders, at the geographic location where such meeting of the shareholders
is held or at such other place, date and hour as a majority of the Directors may
designate. At such meeting, the Board of Directors shall elect officers of the
Corporation. In addition to such regular meeting, the Board of Directors shall
have the power to fix by resolution the place, date and hour of other regular
meetings.
SECTION 3-5 SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever ordered by the President or by a majority of
the Directors in office.
SECTION 3-6 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE
OR OTHER ELECTRONIC TECHNOLOGY. A Director who is unable personally to attend
any meeting of the Board of Directors or any Committee, if he is a member
thereof, may participate in such meetings, be counted for the purpose of
determining a quorum and exercise all rights and privileges to which he might be
entitled were he personally in attendance, including the right to vote, by means
of conference telephone or other electronic technology by means of which all
persons in the meeting can hear each other, upon giving one day's notice to the
President of the Corporation of his intention to so participate.
7
SECTION 3-7 NOTICES OF MEETINGS OF THE BOARD OF DIRECTORS.
(a) Regular Meetings No notice shall be required to be
given of any regular meeting, unless the same be held at other than the time or
place for holding such meetings as fixed in accordance with Section 3-4 of these
By-laws, in which event one day's notice shall be given of the time and place of
such meeting.
(b) Special Meetings At least one day's notice shall be
given of the time and place of any special meeting.
SECTION 3-8 QUORUM. A majority of the Directors in office
shall be necessary to constitute a quorum for the transaction of business, and
the acts of a majority of the Directors present at a meeting at which a quorum
is present shall be considered as the acts of the Board of Directors. If there
is no quorum present at a duly convened meeting of the Board of Directors, the
majority of those present may adjourn the meeting from time to time and place to
place and shall cause notice of each such adjourned meeting to be given to all
absent Directors.
SECTION 3-9 INFORMAL ACTION BY THE BOARD OF DIRECTORS. Any
action which may be taken at a meeting of the Directors, or by members of any
Committee, 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 in
office or members of the Committee, as the case may be, and shall be filed with
the Secretary of the Corporation.
8
SECTION 3-10 POWERS.
(a) General Powers. The Board of Directors shall have all
the power and authority granted by law, including all powers necessary or
appropriate to the management of the business and affairs of the Corporation.
(b) Specific Powers. Without limiting the general powers
conferred by the last preceding clause and the powers conferred by the Articles
of Incorporation and these By-laws, it is hereby expressly declared that the
Board of Directors shall have the following powers:
(1) To confer upon any officer or officers of the
Corporation the power to choose, remove or suspend assistant officers, agent or
servants;
(2) To appoint any person, firm or corporation to
accept and hold in trust for the Corporation any property belonging to the
Corporation or in which it is interested, and to authorize any such person, firm
or corporation to execute any documents and perform any duties that may be
requisite in relation to any such trust;
(3) To appoint a person or persons to vote shares of
another corporation held and owned by the Corporation;
(4) By resolution adopted by a majority of the Board
of Directors, to designate one or more Committees, each Committee to consist of
two or more of the Directors of the Corporation (to the extent provided in any
such resolution, a Committee so designated shall have and exercise the authority
of the Board of Directors in the management of the business and affairs of the
Corporation; the Board of Directors may designate one or more Directors as
alternate members of any Committee, who may replace any absent or disqualified
member at any meeting of the Committee; and in the absence or disqualification
of any member and all designated alternates of such Committee or Committees or
if the Board of Directors has failed to designate alternate members, 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);
9
(5) To fix the place, time and purpose of meetings of
shareholders; and
(6) To fix the compensation of Directors for their
services.
SECTION 3-11 REMOVAL OF DIRECTORS BY SHAREHOLDERS. A Director
or Directors may be removed from office without assigning any cause by the vote
of shareholders, in accordance with the provisions relating thereto in the
Articles of Incorporation.
SECTION 3-12 VACANCIES. Vacancies in the Board of Directors,
including vacancies resulting from an increase in the number of Directors, shall
be filled by a majority of the remaining members of the Board of Directors
though less than a quorum, in accordance with the provisions relating thereto in
the Articles of Incorporation, and each person so elected shall be a Director
until his successor is duly elected by the shareholders, who may make such
election at the next meeting of the shareholders duly called for that purpose in
accordance with the provisions relating thereto in the Articles of
Incorporation.
10
ARTICLE IV - OFFICERS
SECTION 4-1 ELECTION AND OFFICE. The Corporation shall have a
Chairman of the Board, a President, a Secretary and a Treasurer who shall be
elected by the Board of Directors. The Board of Directors may elect as
additional officers one or more Senior Vice Presidents, one or more Vice
Presidents and one or more assistant officers. Any number of officers may be
held by the same person.
SECTION 4-2 TERM. The Chairman of the Board, the President,
the Secretary and the Treasurer shall each serve for a term of one year and
until his respective successor is duly elected and qualified, unless removed
from office by the Board of Directors during his respective tenure. The term of
office of any other officer shall be as specified by the Board of Directors.
SECTION 4-3 POWERS AND DUTIES OF THE CHAIRMAN OF THE BOARD.
Unless otherwise determined by the Board of Directors, the Chairman of the Board
shall have the usual duties of a chief executive officer with supervision over
the President. In the exercise of these duties and subject to the limitations of
the laws of the Commonwealth of Pennsylvania, the Articles of Incorporation,
these By-laws and the actions of the Board of Directors, he shall preside at all
meetings of the shareholders at which he shall be present and shall preside at
all meetings of the Board of Directors. He shall also do and perform such other
duties as from time to time may be assigned to him by the Board of Directors.
11
SECTION 4-4 POWERS AND DUTIES OF THE PRESIDENT. Unless
otherwise determined by the Board of Directors, the President shall have the
usual duties of a chief operating officer with general supervision over and
direction of the affairs of the Corporation. In the exercise of these duties and
subject to the limitations of the laws of the Commonwealth of Pennsylvania, the
Articles of Incorporation, these By-laws and the actions of the Board of
Directors, he may appoint, suspend and discharge employees and agents. He shall
also do and perform such other duties as from time to time may be assigned to
him by the Board of Directors.
Unless otherwise determined by the Board of Directors, the
President shall have full power and authority on behalf of the Corporation to
attend and to act and vote at any meeting of the shareholders of any corporation
in which the Corporation may hold stock, and, at any such meeting, shall possess
and may exercise any and all the rights and powers incident to the ownership of
such stock and which, as the owner thereof, the Corporation might have possessed
and exercised.
SECTION 4-5 POWERS AND DUTIES OF THE SECRETARY. Unless
otherwise determined by the Board of Directors, the Secretary shall keep the
minutes of all meetings of the Board of Directors, shareholders and all
Committees, in books provided for that purpose, and shall attend to the giving
and serving of all notices for the Corporation. He shall have charge of the
corporate seal, the certificate books, transfer books and stock ledgers, and
such other books and papers as the Board of Directors may direct. He shall
perform all other duties ordinarily incident to the office of Secretary and
shall have such other powers and perform such other duties as may be assigned to
him by the Board of Directors.
12
SECTION 4-6 POWERS AND DUTIES OF THE TREASURER. Unless
otherwise determined by the Board of Directors, the Treasurer shall have charge
of all of the funds and securities of the Corporation. When necessary or proper,
unless otherwise ordered by the Board of Directors, he shall endorse for
collection on behalf of the Corporation checks, notes and other obligations, and
shall deposit the same to the credit of the Corporation in such banks or
depositories as the Board of Directors may designate and shall sign all receipts
and vouchers for payments made to the Corporation. He shall sign all checks made
by the Corporation, except when the Board of Directors shall otherwise direct.
He shall enter regularly, in books of the Corporation to be kept by him for the
purpose, full and accurate account of all moneys received and paid by him on
account of the Corporation. Whenever required by the Board of Directors, he
shall render a statement of financial condition of the Corporation. He shall
have such other powers and shall perform such other duties as may be assigned to
him from time to time by the Board of Directors. He shall give such bond, if
any, for the faithful performance of his duties as shall be required by the
Board of Directors and any such bond shall remain in the custody of the
President.
SECTION 4-7 POWERS AND DUTIES OF VICE PRESIDENTS AND ASSISTANT
OFFICERS. Unless otherwise determined by the Board of Directors, each Senior
Vice President, each Vice President and each assistant officer shall have the
powers and perform the duties specified by the Board of Directors or by his
respective superior officer. The President shall be the superior officer of each
Senior Vice President and each Vice President. The Treasurer and Secretary shall
be the superior officers of the Assistant Treasurers and Assistant Secretaries,
respectively.
13
SECTION 4-8 DELEGATION OF OFFICE. The Board of Directors may
delegate the powers or duties of any officer of the Corporation to any other
officer or to any Director from time to time.
SECTION 4-9 VACANCIES. The Board of Directors shall have the
power to fill any vacancies in any office.
ARTICLE V - CAPITAL STOCK
SECTION 5-1 SHARE CERTIFICATES. Every share certificate shall
be signed by the President or a Vice President and by the Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary and sealed with the corporate seal,
which may be a facsimile, engraved or printed, but where such certificate is
signed by a transfer agent or a registrar, the signature of any corporate
officer upon such certificate may be a facsimile, engraved or printed.
SECTION 5-2 TRANSFER OF SHARES. Transfer of shares shall be
made on the books of the Corporation only upon surrender of the share
certificate, duly endorsed and otherwise in proper form for transfer, which
certificate shall be canceled at the time of the transfer.
14
SECTION 5-3 DETERMINATION OF SHAREHOLDERS OF RECORD AND
CLOSING TRANSFER BOOKS. The Board of Directors may fix a time, not more than
fifty days prior to the date of any meeting of shareholders, the date fixed for
the payment of any dividend or distribution, 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, to receive
payment of such dividend, to receive such allotment of rights or to exercise the
rights in respect to any such change or conversion or exchange of shares. In
such case, only such shareholders as shall be shareholders of record on the date
so fixed shall be entitled to notice of or to vote at such meeting, to receive
payment of such dividend, to receive such allotment of rights or to exercise the
rights in respect to any such change or conversion or exchange of shares, as the
case may be, notwithstanding any transfer of any shares on the books of the
Corporation after any record date fixed as aforesaid. 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 in such case written or printed notice thereof
shall be mailed at least ten days before the closing thereof to each shareholder
of record at the address appearing on the records of the Corporation or supplied
by him to the Corporation for the purpose of notice. While the stock transfer
books of the Corporation are closed, no transfer of shares shall be made
thereon. Unless a record date is fixed by the Board of Directors for the
determination of shareholders entitled to receive notice of, or vote at, a
shareholders' meeting, transferees of shares which are transferred on the books
of the Corporation within ten days next preceding the date of such meeting shall
not be entitled to notice of or to vote at such meeting. The Corporation may
treat the registered owner of each share of stock as the person exclusively
entitled to vote, to receive notifications and otherwise to exercise all the
rights and powers of the owner thereof.
15
SECTION 5-4 LOST SHARE CERTIFICATES. Unless waived in whole or
in part by the Board of Directors from time to time, any person requesting the
issuance of a new certificate in lieu of an alleged lost, destroyed, mislaid or
wrongfully taken certificate, shall (a) make an affidavit or affirmation of the
facts and circumstances surrounding the same; (b) advertise such facts to the
extent and in the manner the Board of Directors may require; and (c) give to the
Corporation his bond of indemnity with an acceptable surety. Thereupon a new
share certificate shall be issued in lieu of the alleged lost, destroyed,
mislaid or wrongfully taken certificate, provided that the request therefor has
been made before the Corporation has notice that such shares have been acquired
by a bona fide purchaser.
ARTICLE VI - NOTICES
SECTION 6-1 CONTENTS OF NOTICE. Whenever any notice of a
meeting is required to be given pursuant to these By-laws or the Articles of
Incorporation or otherwise, the notice shall specify the day and hour and
geographic location, if any, of the meeting and, in the case of a special
meeting of shareholders or where otherwise required by law, the general nature
of the business transacted at such meeting.
SECTION 6-2 METHOD OF NOTICE. All notices shall be given to
each person entitled thereto, either personally or by sending a copy thereof
either
(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 or, in the case of Directors, 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 deposited in
the United States mail or with a courier service for delivery to that person or
16
(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 a shareholder appears on the books of the
Corporation and such shareholder has not supplied the Corporation with an
address for the purpose of receiving notice, notice deposited in the United
States mail addressed to such shareholder care of General Delivery in the city
in which the registered office of the Corporation is located shall be
sufficient.
ARTICLE VII - LIMITATION OF DIRECTORS' LIABILITY AND INDEMNIFICATION OF
DIRECTORS, OFFICERS AND OTHER PERSONS
SECTION 7-1 LIMITATION OF DIRECTORS' LIABILITY. No Director of
the Corporation shall be personally liable for monetary damages as such for any
action taken or any failure to take any action unless: (a) the Director has
breached or failed to perform the duties of his or her office under Section 8363
of the Pennsylvania Directors' Liability Act (relating to standard of care and
justifiable reliance), and (b) the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness; provided, however, that the
provisions of this Section shall not apply to the responsibility or liability of
a Director pursuant to any criminal statute, or to the liability of a Director
for the payment of taxes pursuant to local, State or Federal law. This Section
shall be applicable to any action taken and any failure to take any action on or
after January 27, 1987.
17
SECTION 7-2 INDEMNIFICATION AND INSURANCE.
(a) Indemnification of Directors and Officers.
(i) Each Indemnitee (as defined below) shall be
indemnified and held harmless by the Corporation for all actions taken by him or
her and for all failures to take action (regardless of the date of any such
action or failure to take action) to the fullest extent permitted by
Pennsylvania law against all expense, liability and loss (including without
limitation attorneys' fees, judgments, fines, taxes, penalties and amounts paid
or to be paid in settlement) reasonably incurred or suffered by the Indemnitee
in connection with any Proceeding (as defined below). No indemnification
pursuant to this Section shall be made, however, in any case where the act or
failure to act giving rise to the claim for indemnification is determined by a
court to have constituted willful misconduct or recklessness.
(ii) The right to indemnification provided in this
Section shall include the right to have the expenses incurred by the Indemnitee
in defending any Proceeding paid by the Corporation in advance of the final
disposition of the Proceeding to the fullest extent permitted by Pennsylvania
law; provided that, if Pennsylvania law continues so to require, the payment of
such expenses incurred by the Indemnitee in advance of the final disposition of
a Proceeding shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of the Indemnitee, to repay all amounts so advanced
without interest if it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified under this Section or otherwise.
18
(iii) Indemnification pursuant to this Section shall
continue as to an Indemnitee who has ceased to be a Director or officer and
shall inure to the benefit of his or her heirs, executors and administrators.
(iv) For purposes of this Article, (A) "Indemnitee"
shall mean each Director or officer of the Corporation who was or is a party to,
or is threatened to be made a party to, or is otherwise involved in, any
Proceeding, by reason of the fact that he or she is or was a Director or officer
of the Corporation or is or was serving in any capacity at the request or for
the benefit of the Corporation as a Director, officer, employee, agent, partner
or fiduciary of, or in any other capacity for, another corporation or any
partnership, joint venture, trust, employee benefit plan, or other enterprise;
and (B) "Proceeding" shall mean any threatened, pending or completed action,
suit or proceeding (including without limitation an action, suit or proceeding
by or in the right of the Corporation), whether civil, criminal, administrative
or investigative.
(b) Indemnification of Employees and Other Persons. The
Corporation may, by action of its Board of Directors and to the extent provided
in such action, indemnify employees and other persons as though they were
Indemnitees.
(c) Non-Exclusivity of Rights. The rights to
indemnification and to the advancement of expenses provided in this Article
shall not be exclusive of any other rights that any person may have or hereafter
acquire under any statute, provision of the Articles of Incorporation or
By-laws, agreement, vote of shareholders or Directors, or otherwise.
(d) Insurance. The Corporation may purchase and maintain
insurance, at its expense, for the benefit of itself and any person against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person under Pennsylvania or other law. The Corporation may
also purchase and maintain insurance to insure its indemnification obligations
whether arising hereunder or otherwise.
19
(e) Fund for Payment of Expenses. The Corporation may
create a fund of any nature, which may, but need not be, under the control of a
trustee, or otherwise may secure in any manner its indemnification obligations,
whether arising hereunder, under the Articles of Incorporation, by agreement,
vote of shareholders or Directors, or otherwise.
SECTION 7-2 AMENDMENT. The provisions of this Article shall
constitute a contract between the Corporation and each of its Directors and
officers which may be modified as to any Director or officer only with that
person's consent or as specifically provided in this Section. Notwithstanding
any other provision of these By-laws relating to their amendment generally, any
repeal or amendment of this Article which is adverse to any Director or officer
shall apply to such Director or officer only on a prospective basis, and shall
not reduce any limitation on the personal liability of a Director of the
Corporation, or limit the rights of an Indemnitee to indemnification or to the
advancement of expenses with respect to any action or failure to act occurring
prior to the time of such repeal or amendment. Notwithstanding any other
provision of these By-laws, no repeal or amendment of these By-laws shall affect
any or all of this Article so as to reduce or limit indemnification or the
advancement of expenses in any manner unless adopted by (a) the unanimous vote
of the Directors of the corporation then serving, or (b) the affirmative vote of
shareholders entitled to cast at least eighty percent (80%) of the votes that
all shareholders are entitled to cast in the election of Directors; provided
that no such amendment shall have retroactive effect inconsistent with the
preceding sentence.
20
SECTION 7-4 CHANGES IN PENNSYLVANIA LAW. References in this
Article to Pennsylvania law or to any provision thereof shall be to such law
(including without limitation the Directors' Liability Act) as it existed on the
date this Article was adopted or as such law thereafter may be changed; provided
that (a) in the case of any change which expands the liability of Directors or
limits the indemnification rights or the rights to advancement of expenses which
the Corporation may provide, the rights to limited liability, to indemnification
and to the advancement of expenses provided in this Article shall continue as
theretofore to the extent permitted by law; and (b) if such change permits the
Corporation without the requirement of any further action by shareholders or
Directors to limit further the liability of Directors (or limit the liability of
officers) or to provide broader indemnification rights or rights to the
advancement of expenses than the Corporation was permitted to provide prior to
such change, then liability thereupon shall be so limited and the rights to
indemnification and the advancement of expenses shall be so broadened to the
extent permitted by law.
ARTICLE VIII - SEAL
SECTION 8-1 The form of the seal of the Corporation, called
the corporate seal of the Corporation, shall be as impressed below.
[Form of Seal]
21
ARTICLE IX - FISCAL YEAR
SECTION 9-1 The fiscal year of the Corporation shall be a
fifty-three week/fifty-two week fiscal year; provided that the Board of
Directors shall have the power by resolution to change the fiscal year of the
Corporation.
ARTICLE X - AMENDMENTS
SECTION 10-1 The shareholders entitled to vote thereon shall
have the power to alter, amend or repeal these By-laws, by the vote of
shareholders entitled to cast at least a majority of the votes which all
shareholders are entitled to cast thereon, at any regular or special meeting,
duly convened after notice to the shareholders of such purpose, subject to the
provisions of these By-laws and the Articles of Incorporation. The Board of
Directors, by a majority vote of those voting, shall have the power to alter,
amend and repeal these By-laws, subject always to the power of the shareholders
to change such action and to the provisions of these By-laws and the Articles of
Incorporation.
ARTICLE XI - INTERPRETATION OF BY-LAWS
SECTION 11-1 All words, terms and provisions of these By-laws
shall be interpreted and defined by and in accordance with the Pennsylvania
Business Corporation Law, as amended, and as amended from time to time
hereafter.
ARTICLE XII - EXEMPTION FROM PROVISIONS OF THE PENNSYLVANIA BUSINESS
CORPORATION LAW REGARDING CERTAIN CONTROL TRANSACTIONS
SECTION 12-1 Pursuant to Section 9.10A(1) of the Pennsylvania
Business Corporation Law, as amended by Act 92 of 1983 adopted December 23, 1983
and as further amended by Act 2031 of 1987 adopted February 9, 1988, it is
hereby provided that Section 9.10 of the Pennsylvania Business Corporation Law
shall not be applicable to this Corporation.
22