EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
OF
ROM TECH, INC.
Adopted:
June 30, 1995
TABLE OF CONTENTS
Article 1 OFFICES ..................................................... 1
Article 2 SHAREHOLDER MEETINGS.......................................... 1
Article 3 QUORUM OF SHAREHOLDERS........................................ 3
Article 4 VOTING RIGHTS................................................. 4
Article 5 PROXIES....................................................... 4
Article 6 RECORD DATE................................................... 4
Article 7 SHAREHOLDER LIST.............................................. 5
Article 8 JUDGES OF ELECTION............................................ 5
Article 9 CONSENT OF SHAREHOLDERS IN LIEU OF MEETING.................... 6
Article 10 BOARD OF DIRECTORS............................................ 6
Article 11 REMOVAL OF DIRECTORS.......................................... 7
Article 12 VACANCIES ON BOARD OF DIRECTORS............................... 8
Article 13 POWERS OF BOARD............................................... 8
Article 14 MEETINGS OF THE BOARD OF DIRECTORS............................ 9
Article 15 ACTION BY WRITTEN CONSENT..................................... 9
Article 16 COMPENSATION OF DIRECTORS..................................... 9
Article 17 OFFICERS......................................................10
Article 18 PRESIDENT.....................................................10
Article 19 SECRETARY.....................................................11
Article 20 TREASURER.....................................................11
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Article 21 CHAIRMAN OF THE BOARD......................................... 11
Article 22 OTHER OFFICERS................................................ 11
Article 23 LIMITATION OF DIRECTORS' LIABILITY AND
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS.......................................... 12
Article 24 SHARES; SHARE CERTIFICATES.................................... 15
Article 25 TRANSFER OF SHARES............................................ 15
Article 26 LOST CERTIFICATES............................................. 16
Article 27 FINANCIAL REPORTS TO SHAREHOLDERS............................. 16
Article 28 FISCAL YEAR................................................... 16
Article 29 MANNER OF GIVING WRITTEN NOTICE; WAIVERS OF
NOTICE........................................................ 16
Article 30 AMENDMENTS.................................................... 17
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AMENDED AND RESTATED BYLAWS
OF
ROM TECH, INC.
ARTICLE 1 - OFFICES
Section 1.1. Registered Office. The Corporation shall have and
continuously maintain in the Commonwealth of Pennsylvania a registered office at
an address to be designated from time to time by the Board of Directors which
may, but need not, be the same as its place of business.
Section 1.2. Other Offices. The Corporation may also have offices at
such other places as the Board of Directors may from time to time designate or
the business of the Corporation may require.
ARTICLE 2 - SHAREHOLDER MEETINGS
Section 2.1. Place of Shareholders' Meetings. All meetings of the
shareholders shall be held at such time and place, within or without the
Commonwealth of Pennsylvania, as may be determined from time to time by the
Board of Directors and need not be held at the registered office of the
Corporation.
Section 2.2. Annual Meeting. An annual meeting of the shareholders for
the election of directors and the transaction of such other business as may
properly be brought before the meeting shall be held in each calendar year at
such time and place as may be determined by the Board of Directors.
Section 2.3. Special Meetings. Special meetings of the shareholders may
be called at any time by (i) the Chairman of the Board, if any, if such officer
is serving as the chief executive officer of the Corporation, and otherwise the
President or (ii) the Board of Directors. The request of any person who has
called a special meeting of shareholders shall be addressed to the Secretary of
the Corporation, shall be signed by the persons making the request and shall
state the general nature of the business to be transacted at the meeting. Upon
receipt of any such request it shall be the duty of the Secretary to fix the
time and provide written notice of the special meeting of shareholders, which,
if called pursuant to a statutory right, shall be held not more than sixty (60)
days after receipt of the request. If the Secretary shall neglect or refuse to
fix the time or provide written notice of the special meeting, the person or
persons making the request may fix the time and provide written notice of the
special meeting.
Section 2.4. Timing of Notice of Shareholders' Meetings. Written notice
of each meeting other than an adjourned meeting of shareholders, stating the
place and time, and, (i) in the case of a special meeting of shareholders, the
general nature of the business to be transacted, and, (ii) in the case of a
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meeting of shareholders called for the purpose, or one of the purposes, of
considering the amendment or repeal of the Bylaws, written notice of such
proposed action, shall be provided to each shareholder of record entitled to
vote at the meeting at such address as appears on the books of the Corporation.
Such notice shall be given, in accordance with the provisions of Article 29 of
these Bylaws, at least (i) ten days prior to the day named for a meeting to
consider a fundamental change under Chapter 19 of the Pennsylvania Business
Corporation Law of 1988 (the "BCL") or (ii) five days prior to the day named for
the meeting in any other case.
Section 2.5. Notice to Shareholder Not Required. (a) Whenever the
Corporation has been unable to communicate with a shareholder for more than
twenty-four (24) consecutive months because communications to the shareholder
are returned unclaimed or the shareholder has otherwise failed to provide the
Corporation with a current address, the giving of notice to such shareholder
pursuant to Section 2.4 of these Bylaws shall not be required. Any action or
meeting that is taken or held without notice or communication to that
shareholder shall have the same validity as if the notice or communication had
been duly given. Following said twenty-four (24) month period, if a shareholder
provides the Corporation with a current address the giving of notice to such
shareholder pursuant to Section 2.4 of these Bylaws shall again be required.
(b) The Corporation shall not be required to give notice to any
shareholder pursuant to Section 2.4 hereof if and for so long as communication
with such shareholder is unlawful.
Section 2.6. Meeting Using Telecommunications Equipment. The Board of
Directors may provide by resolution with respect to a specific meeting or with
respect to a class of meetings that one or more shareholders may participate in
such meeting or meetings of shareholders by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear one another. Participation in the meeting by such means
shall constitute presence in person at the meeting. Any notice otherwise
required to be given in connection with any meeting at which participation by
conference telephone or other communications equipment is permitted shall so
specify.
Section 2.7. Content of Notice of Shareholders' Meeting. Except as
otherwise provided by law (including but not limited to Rule 14a-8 of the
Securities and Exchange Act of 1934, as amended or any successor provision
thereto), or in these Bylaws, or except as permitted by the presiding officer of
the meeting in the exercise of such officer's sole discretion in any specific
instance, the business which shall be conducted at any meeting of the
shareholders shall (a) have been specified in the written notice of the meeting
(or any supplement thereto) given by the Corporation, or (b) be brought before
the meeting at the direction of the Board of Directors or the presiding officer
of the meeting, or (c) have been specified in a written notice (a "Shareholder
Meeting Notice") given to the Corporation, in accordance with all of the
following requirements, by or on behalf of any shareholder who shall have been a
shareholder of record on the record date for such meeting and who shall continue
to be entitled to vote thereat. Each Shareholder Meeting Notice must be
delivered personally to, or be mailed to and received by, the Corporation,
addressed to the attention of the President at the principal executive offices
of the Corporation not less than fifty (50) days nor more than seventy-five (75)
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days prior to the meeting; provided, however, that in the event that less than
sixty-five (65) days notice or prior public disclosure (including but not
limited to mailing of the meeting notice) of the date of the meeting is given or
made to shareholder, notice by the shareholder to be timely must be so received
not later than the close of business on the 10th day following the date on which
such public disclosure was made. Each Shareholder Meeting Notice shall set forth
a general description of each item of business proposed to be brought before the
meeting, the name and address of the shareholder proposing to bring such item of
business before the meeting and a representation that the shareholder intends to
appear in person or by proxy at the meeting. The presiding officer of the
meeting may refuse to consider any business that shall be brought before any
meeting of shareholders of the Corporation otherwise than as provided in this
Section 2.7.
ARTICLE 3 - QUORUM OF SHAREHOLDERS
Section 3.1. Quorum Generally Required. Except as provided in Sections
3.3 and 3.5, a meeting of shareholders duly called shall not be organized for
the transaction of business unless a quorum is present.
Section 3.2. Quorum Defined. The presence, in person or by proxy, of
shareholders entitled to cast at least a majority of the votes that all
shareholders are entitled to cast on a particular matter to be acted upon at the
meeting shall constitute a quorum for purposes of consideration and action on
such matter.
Section 3.3. Quorum Following Shareholder Withdrawals. 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.
Section 3.4. Adjournments. (a) If a meeting of shareholders cannot be
organized because a quorum is not present, those present in person or by proxy,
may, except as otherwise provided by statute or unless the Board fixes a new
record date for the adjourned meeting, adjourn the meeting to such time and
place as they may determine, without notice other than an announcement at the
meeting, until the requisite number of shareholders for a quorum shall be
present in person or by proxy.
(b) Any meeting, including one at which directors are to be elected,
may be adjourned for such period as the shareholders present and entitled to
vote shall direct.
Section 3.5. Quorum Less Than a Majority. Notwithstanding the
provisions of Sections 3.1, 3.2, 3.3 and 3.4 of these Bylaws:
(a) Those shareholders entitled to vote who attend a meeting called for
election of directors that has been previously adjourned for lack of a quorum,
although less than a quorum as fixed in these Bylaws, shall nevertheless
constitute a quorum for the purpose of electing directors.
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(b) Those shareholders entitled to vote who attend a meeting that has
been previously adjourned for one or more periods aggregating at least fifteen
(15) days because of an absence of a quorum, although less than a quorum as
fixed in these Bylaws, shall nevertheless constitute a quorum for the purpose of
acting upon any matter set forth in the notice of the meeting if the notice
states that those shareholders who attend the adjourned meeting shall
nevertheless constitute a quorum for the purpose of acting upon the matter.
ARTICLE 4 - VOTING RIGHTS
Section 4.1. One Vote Per Share. Except as may be otherwise provided by
the Corporation's Articles of Incorporation, at every meeting of shareholders,
every shareholder entitled to vote thereat shall be entitled to one vote for
every share having voting power standing in his name on the books of the
Corporation on the record date fixed for the meeting.
Section 4.2. Majority Vote. Except as otherwise provided by statute,
the Articles of Incorporation or these Bylaws, at any duly organized meeting of
shareholders the vote of the holders of a majority of the votes cast shall
decide any question brought before such meeting. Unless the Pennsylvania
Business Corporation law of 1988 (the "BCL") permits otherwise, this Section 4.2
may be modified only by a Bylaw amendment adopted by the shareholders.
Section 4.3. Ballot Not Required. Unless demand is made before the
voting begins by a shareholder entitled to vote at any election for directors,
the election of such directors need not be by ballot.
ARTICLE 5 - PROXIES
Section 5.1. General. 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 him by
proxy. Every proxy shall be executed in writing by the shareholder or his 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 written
notice thereof has been given to the Secretary of the Corporation. An unrevoked
proxy shall not be valid after three years from the date of its execution unless
a longer time is expressly provided therein. A proxy shall not be revoked by the
death of 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.
ARTICLE 6 - RECORD DATE
Section 6.1. Record Date Fixed By Board. The Board of Directors may fix
a time prior to the date of any meeting of shareholders as a record date for the
determination of the shareholders entitled to notice of, or to vote at, the
meeting, which time, except in the case of an adjourned meeting, shall not be
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more than ninety (90) days prior to the date of the meeting of shareholders.
Only shareholders of record on the date so fixed shall be entitled to notice of,
or to vote at, such meeting, notwithstanding any transfer of shares on the books
of the Corporation after any record date fixed as aforesaid. The Board of
Directors may similarly fix a record date for the determination of shareholders
of record for any other purpose, such as the payment of a distribution or a
conversion or exchange of shares.
Section 6.2. Certificate of Ownership. The Board of Directors may by
resolution adopt a procedure whereby a shareholder of the Corporation may
certify in writing to the Corporation that all or a portion of the shares
registered in such shareholder's name are held for the account of a specified
person or persons. Such resolution may set forth: (a) the classification of
shareholder who may certify; (b) the purpose or purposes for which the
certification may be made; (c) the form of certification and information to be
contained therein; (d) if the certification is with respect to a record date,
the time after the record date within which the certification must be received
by the Corporation; and (e) such other provisions with respect to the procedure
as are deemed necessary or desirable. Upon receipt by the Corporation of a
certification complying with the procedure, the persons specified in the
certification shall be deemed, for the purposes set forth in the certification,
to be the holders of record of the number of shares specified in place of the
shareholder making the certification.
ARTICLE 7 - SHAREHOLDER LIST
Section 7.1. Shareholder List - General. The officer or agent having
charge of the share transfer books of the Corporation shall make a complete
alphabetical list of the shareholders entitled to vote at any meeting, with
their addresses and the number of shares held by each. The list shall be
produced and kept open at the time and place of the meeting for inspection by
any shareholder during the entire meeting except that if the Corporation has
5,000 or more shareholders, in lieu of the making of the list the Corporation
may make the information available at the meeting by other means.
Section 7.2. Effect of Non-compliance with Section 7.1. Failure to
comply with the provisions of Section 7.1 of these Bylaws shall not affect the
validity of any action taken at a meeting prior to a demand at the meeting by
any shareholder entitled to vote thereat to examine the list.
Section 7.3. Transfer Books - Prima Facie Evidence. The original
transfer books for shares of the Corporation, or a duplicate thereof kept in the
Commonwealth of Pennsylvania, shall be prima facie evidence as to who are the
shareholders entitled to examine the list or transfer books for shares or to
vote at any meeting.
ARTICLE 8 - JUDGES OF ELECTION
Section 8.1. Appointment. Prior to any meeting of shareholders, the
Board of Directors may appoint judges of election, who may but need not be
shareholders and who will have such duties as provided in the BCL, to act at
such meeting or any adjournment thereof. If judges of election are not
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so appointed, the presiding officer 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 an
office to be filled at the meeting shall act as a judge of election.
Section 8.2. Vacancy. In case any person appointed as a judge of
election fails to appear or fails or refuses to act, the vacancy so created may
be filled by appointment made by the Board of Directors in advance of the
convening of the meeting or at the meeting by the presiding officer thereof.
Section 8.3. Amendment of Article 8. Unless the BCL permits otherwise,
this Article 8 may be amended only by a Bylaw amendment.
ARTICLE 9 - CONSENT OF SHAREHOLDERS IN LIEU OF MEETING
Section 9.1. Consent of Shareholders in Lieu of Meeting. Actions of the
shareholders may be taken by written consent in either of the following manners:
(a) Unanimous Consent. Any action required or permitted to be taken at
a meeting of the shareholders, or of a class of shareholders, may be taken
without a meeting if, prior to or subsequent to the action, a consent or
consents thereto signed by all of the shareholders who would be entitled to vote
at a meeting for such purpose shall be filed with the Secretary of the
Corporation. Consents may be executed in any number of counterparts.
(b) Partial Consent. Any action required or permitted to be taken at a
meeting of shareholders, or of a class of shareholders, may be taken without a
meeting upon the written consent of shareholders who would have been entitled to
cast the minimum number of votes necessary to authorize the action at a meeting
at which all shareholders entitled to vote thereon were present and voting. The
consent(s) shall be filed with the Secretary of the Corporation. The action
shall not become effective until at least ten (10) days after written notice of
the action has been given to each shareholder entitled to vote thereon who has
not consented in writing thereto. Such consent may be executed in any number of
counterparts.
ARTICLE 10 - BOARD OF DIRECTORS
Section 10.1. Number. The number of directors shall not be less than
five (5) nor more than twelve (12), as shall from time to time (i) be determined
by the Board of Directors or (ii) be set forth in a notice of a meeting of
shareholders called for the election of the Board of Directors. The Chairman of
the Board of Directors shall preside at all meetings of shareholders and
directors.
Section 10.2. Qualification. Each director shall be a natural person of
full age and need not be a resident of the Commonwealth of Pennsylvania or a
shareholder of the Corporation.
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Section 10.3. Shareholder Election; Vote Required. Except as otherwise
provided in Article 12 of these Bylaws, directors shall be elected by the
shareholders. The candidates receiving the highest number of votes from the
shareholders or each class or group of classes, if any, entitled to elect
directors separately up to the number of directors to be elected by the
shareholders, or class or group of classes, if any, shall be elected. Each
director shall be elected for a term of one year and until his successor has
been elected and qualified or until his earlier death, resignation or removal. A
decrease in the number of directors shall not have the effect of shortening the
term of any incumbent director.
Section 10.4. Nominations. Notwithstanding the provisions of Section
2.7 (dealing with the business at shareholders meetings), nominations for the
election of directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or by any shareholder of record entitled to
vote in the election of Directors generally at the record date of the meeting
and also on the date of the meeting at which directors are to be elected.
However, any shareholder entitled to vote in the election of directors generally
may nominate one or more persons for election as directors at a meeting only if
written notice of such shareholder's intention to make such nomination or
nominations has been delivered personally to, or been mailed to and received by
the Corporation at, the principal executive offices of the Corporation addressed
to the attention of the President not less than fifty (50) days nor more than
seventy-five (75) days prior to the meeting; provided, however, that in the
event that less than sixty-five (65) days notice or prior public disclosure
(including but not limited to mailing of the meeting notice) of the date of the
meeting is given or made to shareholders, notice by the shareholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such public disclosure was made. Each such notice
shall set forth: (a) the name and address of the shareholder intending to make
the nomination and of the person or persons to be nominated; (b) a
representation that the shareholder intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice; (c) the
address and principal occupation for the past five years of each nominee and
such other information regarding each nominee as would have been required to
included in a proxy statement filed pursuant to Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended, had proxies been solicited with
respect to such nominee by management of the Corporation; and (d) the written
consent of each nominee to serve as a director of the Corporation if so elected.
The presiding officer of the meeting may declare invalid any nomination not made
in compliance with the foregoing procedure.
ARTICLE 11 - REMOVAL OF DIRECTORS
Section 11.1. Removal By Shareholders. The entire board of directors,
or any class of the board, or any individual director may be removed from office
only for cause by vote of the shareholders entitled to vote thereon. In case the
board or a class of the board or any one or more directors are so removed, new
directors may be elected at the same meeting. The repeal of a provision of the
articles or these bylaws prohibiting, or the addition of a provision to the
articles or bylaws permitting, the removal by the shareholders of the board, a
class of the board or a director without assigning any cause shall not apply to
any incumbent director during the balance of the term for which the director was
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selected. This Section 11.1 was adopted by the shareholders of the Corporation
on June 30, 1995.
Section 11.2. Removal By Board. The Board of Directors may declare
vacant the office of a director who has been judicially declared of unsound mind
or who has been convicted of an offense punishable by imprisonment for a term of
more than one year.
ARTICLE 12 - VACANCIES ON BOARD OF DIRECTORS
Section 12.1. Board Authorized To Fill Existing Vacancies. Vacancies on
the Board of Directors, including vacancies resulting from an increase in the
number of directors, shall be filled by a majority vote of the remaining members
of the Board of Directors, though less than a quorum, or by a sole remaining
director, and each person so selected shall be a director to serve for the
balance of the unexpired term.
Section 12.2. Board Authorized To Fill Future Vacancies. When one or
more directors resign from the Board of Directors effective at a future date,
the directors then in office, including those who have so resigned, shall have
the power by a majority vote to fill the vacancies, the vote thereon to take
effect when the resignations become effective.
ARTICLE 13 - POWERS OF BOARD
Section 13.1. Board Authority - General. The business and affairs of
the Corporation shall be managed under the direction of the Board of Directors,
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are directed or required to be exercised and done by statute,
the Articles of Incorporation or these Bylaws.
Section 13.2. Board Committees. The Board of Directors may, by
resolution adopted by a majority of the directors in office, establish one or
more committees consisting of one or more directors as may be deemed appropriate
or desirable by the Board of Directors to serve at the pleasure of the Board.
Any committee, to the extent provided in the resolution of the Board of
Directors pursuant to which it was created, shall have and may exercise all of
the powers and authority of the Board of Directors, except that no committee
shall have any power or authority as to the following:
(a) The submission to shareholders of any action requiring approval of
shareholders;
(b) The creation or filling of vacancies in the Board of Directors;
(c) The adoption, amendment or repeal of these Bylaws;
(d) The amendment or repeal of any resolution of the Board of Directors
that by its terms is amendable or repealable only by the Board of
Directors; and
(e) Action on matters committed by the Bylaws or resolution of the
Board of Directors to another committee of the Board of Directors.
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ARTICLE 14 - MEETINGS OF THE BOARD OF DIRECTORS
Section 14.1. Place of Meeting; Use of Telecommunications Equipment.
Meetings of the Board of Directors shall be held at such times and places within
or without the Commonwealth of Pennsylvania as the Board of Directors may from
time to time appoint or as may be designated in the notice of the meeting. One
or more directors may participate in any meeting of the Board of Directors, or
of any committee thereof, by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear one another, provided that the use of such conference telephone
or similar communications equipment shall be at the discretion of the Board of
Directors. Participation in a meeting by such means shall constitute presence in
person at the meeting.
Section 14.2. Regular Meetings. A regular meeting of the Board of
Directors shall be held annually, immediately following the annual meeting of
the shareholders, at the place where such meeting of the shareholders is held or
at such other place and time as a majority of the directors in office after the
annual meeting of shareholders may designate. At such meeting, the Board of
Directors shall elect officers of the Corporation. In addition to such regular
meeting, the Board of Directors shall have the power to fix by resolution the
place and time of other regular meetings of the Board.
Section 14.3. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if any, by the President,
or by a majority of the directors in office on one day's notice to each
director, either by telephone, or, if in writing, in accordance with the
provisions of Article 29 of these Bylaws.
Section 14.4. Quorum. At all meetings of the Board of Directors a
majority of the directors in office shall constitute a quorum for the
transaction of business, and the acts of a majority of the directors present and
voting at a meeting at which a quorum is present shall be the acts of the Board
of Directors, except as may be otherwise specifically provided by statute or by
the Articles of Incorporation or by these Bylaws.
ARTICLE 15 - ACTION BY WRITTEN CONSENT
Section 15.1. Written Consent - General. Any action required or
permitted to be taken at a meeting of the Board of Directors, or at any
committee of the Board of Directors, may be taken without a meeting if, prior or
subsequent to the action, a consent or consents thereto signed by all of the
directors (or members of the committee with respect to committee action) is
filed with the Secretary of the Corporation.
ARTICLE 16 - COMPENSATION OF DIRECTORS
Section 16.1. Compensation - General. Directors, as such, may receive a
stated salary for their services or a fixed sum and expenses for attendance at
regular and special meetings, or any combination of the foregoing as may be
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determined from time to time by resolution of the Board of Directors, and
nothing contained herein shall be construed to preclude any director from
receiving compensation for services rendered to the Corporation in any other
capacity.
ARTICLE 17 - OFFICERS
Section 17.1. Officers - General. The officers of the Corporation shall
be a Chief Executive Officer, a President, a Chairman of the Board, one or more
Vice Presidents, a Secretary, a Treasurer, and such other officers and assistant
officers as the Board of Directors may from time to time deem advisable. Except
for the Chief Executive Officer, President, Secretary and Treasurer, the Board
may refrain from filling any of the said offices at any time and from time to
time. The same individual may hold any two or more offices. The following
officers shall be elected by the Board of Directors at the time, in the manner
and for such terms as the Board of Directors from time to time shall determine:
Chief Executive Officer, President, Chairman of the Board, Secretary, and
Treasurer. The Chief Executive Officer may, subject to change by the Board of
Directors, appoint such other officers and assistant officers as he may deem
advisable provided such officers or assistant officers have a title no higher
than Vice President, who shall hold office for such periods as the Chief
Executive Officer shall determine. Any officer may be removed at any time, with
or without cause, and regardless of the term for which such officer was elected.
ARTICLE 18 -PRESIDENT
Section 18.1. Chief Executive Officer - General. The Chief Executive
Officer shall have general supervision of all of the departments and business of
the Corporation; he shall prescribe the duties of the other officers and
employees and see to the proper performance thereof. The Chief Executive Officer
shall be responsible for having all orders and resolutions of the Board of
Directors carried into effect. The Chief Executive Officer shall execute on
behalf of the Corporation and may affix or cause to be affixed a seal to all
authorized documents and instruments requiring such execution, except to the
extent that signing and execution thereof shall have been delegated to some
other officer or agent of the Corporation by the Board of Directors or by the
Chief Executive Officer. The Chief Executive Officer shall be a member of the
Board of Directors. In the event of the disability of the Chairman of the Board
or his refusal to act, the Chief Executive Officer shall preside at meetings of
the Board and the shareholders. In general, the Chief Executive Officer shall
perform all the duties and exercise all the powers and authorities incident to
his office or as prescribed by the Board of Directors. Unless otherwise provided
by the Board of Directors, the salaries and compensation of all officers and
assistant officers, except the Chief Executive Officer, President and Chairman
of the Board, shall be fixed by or in the manner designated by the Chief
Executive Officer.
Section 18.2 President - General. The President shall perform such
duties as are prescribed by the Board of Directors or the Chief Executive
Officer. The President shall execute on behalf of the Corporation and may affix
or cause to be affixed a seal to all authorized documents and instruments
requiring such execution, except to the extent that signing and execution
thereof shall have been delegated to some other officer or agent of the
Corporation by the Board of Directors or by the Chief Executive Officer.
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In the event of the disability of the Chief Executive Officer or his refusal to
act, the President shall perform the duties and have the powers and authorities
of the Chief Executive Officer. In the event of the disability of the Chairman
of the Board and the Chief Executive Officer or their refusal to act, the
President shall preside at meetings of the Board and the shareholders.
ARTICLE 19 - SECRETARY
Section 19.1. Secretary - General. The Secretary shall act under the
supervision of the Chief Executive Officer or such other officer as the Chief
Executive Officer may designate. Unless a designation to the contrary is made at
a meeting, the Secretary shall attend all meetings of the Board of Directors and
all meetings of the shareholders and record all of the proceedings of such
meetings in a book to be kept for that purpose. The Secretary shall keep a seal
of the Corporation, and, when authorized by the Board of Directors or the Chief
Executive Officer, cause to be affixed to any documents and instruments
requiring it. The Secretary shall perform such other duties as may be prescribed
by the Board of Directors or Chief Executive Officer, or such other supervising
officer as the Chief Executive Officer may designate.
ARTICLE 20 - TREASURER
Section 20.1. Treasurer - General. The Treasurer shall act under the
supervision of the Chief Executive Officer or such other officer as the Chief
Executive Officer may designate. The Treasurer shall have custody of the
Corporation's funds and such other duties as may be prescribed by the Board of
Directors or the Chief Executive Officer, or such other supervising officer as
the Chief Executive Officer may designate.
ARTICLE 21 - CHAIRMAN OF THE BOARD
Section 21.1. Chairman of the Board - General. The Chairman of the
Board shall be a member of the Board of Directors and shall preside at the
meetings of the Board and the shareholders and perform such other duties as may
be prescribed by the Board of Directors.
ARTICLE 22 - OTHER OFFICERS
Section 22.1. Vice Presidents - General. The Vice Presidents shall
perform such duties, do such acts and be subject to such supervisions as may be
prescribed by the Board of Directors or the Chief Executive Officer. In the
event of the disability of the Chief Executive Officer and the President or
their refusal to act, the Vice Presidents, in the order of their rank, and
within the same rank in the order of their seniority, shall perform the duties
and have the powers and authorities of the Chief Executive Officer and
President, except to the extent inconsistent with applicable law.
Section 22.2 Assistant Officers - General. Unless otherwise provided by
the Board of Directors, each assistant officer shall perform such duties as
shall be prescribed by the Board of Directors, the Chief Executive Officer,
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or the officer to whom he is an assistant. In the event of the absence or
disability of an officer or his refusal to act, his assistant officers shall, in
the order of their rank, and within the same rank in the order of their
seniority, have the powers and authorities of such officer.
ARTICLE 23 - LIMITATION OF DIRECTORS' LIABILITY AND
INDEMNIFICATION OF OFFICERS, DIRECTORS, AND OTHER PERSONS
Section 23.1. Limitation of Liability. No director of the Corporation
shall be personally liable, as such, for monetary damages for any action taken
unless: (a) the director has breached or failed to perform the duties of his or
her office, and (b) the breach or failure to perform constitutes self-dealing,
wilful misconduct or recklessness; provided, however, that the provisions of
this Section 23.1 shall not apply to the responsibility or liability of a
director pursuant to any criminal statute, or to the liability of a director for
the payment of taxes pursuant to local, Pennsylvania or federal law.
Section 23.2. Indemnification. The Corporation shall indemnify and hold
harmless to the fullest extent permitted by Pennsylvania law any director or
officer, and may indemnify any other employee or agent, who was or is a party
to, or is threatened to be made a party to, or who is called as a witness in
connection with, any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
an action by or in the right of the Corporation (collectively, for purposes of
this Article 23, "Proceeding"), by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another domestic or foreign corporation for profit or not-for-profit,
partnership, joint venture, trust or other enterprise, against expenses,
liability and loss including, without limitation, attorneys' fees and
disbursements, punitive and other damages, judgments, fines, penalties, amounts
paid or to be paid in settlement and costs and expenses of any nature incurred
by him in connection with such Proceeding and any appeal therefrom; provided
that such indemnification shall not be made where the act or failure to act
giving rise to the claim for indemnification is determined by a court in a final
binding adjudication to have constituted willful misconduct or recklessness.
Section 23.3. Indemnification and Advancement of Expenses
Non-Exclusive. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 23 shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, contract, vote of shareholders or directors
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. It is the policy of the Corporation
that indemnification of, and advancement of expenses to, directors and officers
of the Corporation shall be made to the fullest extent permitted by law. To this
end, the provisions of this Article 23 shall be deemed to have been amended for
the benefit or directors and officers of the Corporation effective immediately
upon any modification of the BCL or any modification, or adoption of any other
law that expands or enlarges the power or obligation of corporations organized
under the BCL to indemnify, or advance expenses to, directors and officers of
corporations.
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Section 23.4. Advancement of Expenses - Repayment Undertaking. The
Corporation shall pay expenses incurred by an officer or director, and may pay
expenses incurred by any other employee or agent, in defending a Proceeding, in
advance of the final disposition of such action or proceeding provided that if
required by the BCL or other applicable law, the payment of such expenses shall
be made only upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation.
Section 23.5. Continuation of Indemnification Following Termination.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article 23 shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 23.6. Security For Indemnification Obligation. The Corporation
shall have the authority to create a fund of any nature, which may, but need not
be, under the control of a trustee, or otherwise secure or insure in any manner,
its indemnification obligations, whether arising under these Bylaws or
otherwise. This authority shall include, without limitation, the authority to:
(i) deposit funds in trust or in escrow; (ii) establish any form of
self-insurance; (iii) secure its indemnity obligation by grant of a security
interest, mortgage or other lien on the assets of the Corporation; or (iv)
establish a letter of credit, guaranty or surety arrangement for the benefit of
such persons in connection with the anticipated indemnification or advancement
of expenses contemplated by this Article 23. The provisions of this Article 23
shall not be deemed to preclude the indemnification of, or advancement of
expenses to, any person who is not specified in Section 23.1 of this Article 23
but whom the Corporation has the power or obligation to indemnify, or to advance
expenses for, under the provisions of the BCL, other applicable law or
otherwise. The authority granted by this Section 23.5 shall be exercised by the
Board of Directors of the Corporation.
Section 23.7. Indemnification Agreements. The Corporation shall have
the authority to enter into a separate indemnification agreement with any
officer, director, employee or agent of the Corporation or any subsidiary
providing for such indemnification of such person as the Board of Directors
shall determine up to the fullest extent permitted by law.
Section 23.8. Settlement ; No Presumption. The termination of any
Proceeding by judgment, order, settlement, conviction, or upon a plea of guilty
or nolo contendere, or its equivalent, shall not, of itself, create a
presumption that the person's conduct constituted willful misconduct or
recklessness.
Section 23.9. Repeal of Indemnification Provisions. The indemnification
provisions of this Article 23 shall constitute a contract between the
Corporation and each of its directors, officers, employees and agents who are or
may be entitled to indemnification hereunder and who serve in any such capacity
at any time while such provisions are in effect. Any repeal or modification of
the indemnification provisions of this Article 23 shall not limit any such
person's rights to indemnification (including the advancement of expenses) then
existing or arising out of events, acts or omissions occurring prior to such
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repeal or modification, including, without limitation, the right to
indemnification with respect to Proceedings commenced after such repeal or
modification based in whole or in part upon any such event, act or omission.
Section 23.10. Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another domestic or foreign corporation for profit or not-for-profit,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss asserted against him and incurred by him or on his behalf in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article 23 or under any provision of the BCL or other
applicable law.
Section 23.11. Amendment of Article 23; Amendments Not Effective
Retroactively. Notwithstanding any other provision of these Bylaws relating to
their amendment generally, any repeal or amendment of this Article 23 which is
adverse to any director of 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 any person
entitled under Article 23 to indemnification or to the advancement of expenses
with respect to any action or failure to act occurring prior to the time of such
repeal or amendment. Notwithstanding any other provision of these Bylaws, no
repeal or amendment of these Bylaws shall affect any or all of this Article so
as either to reduce the limitation of directors' liability or limit
indemnification or the advancement of expenses in any manner unless adopted by
the affirmative vote of the shareholders entitled to cast at least a majority of
the votes that all shareholders are entitled to cast in the election of
directors; provided that no such amendment shall have retroactive effect
inconsistent with the preceding sentence. The provisions of this Article 23 were
adopted by the shareholders of the Corporation on June 30, 1995.
Section 23.12. Changes to Pennsylvania Law. References in this Article
23 to Pennsylvania law or to any provision thereof shall be to such law as it
existed on the date this Article 23 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 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
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.
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ARTICLE 24 - SHARES; SHARE CERTIFICATES
Section 24.1. Share Certificates. Except as otherwise provided in
Section 24.2, the shares of the Corporation shall be represented by
certificates. Unless otherwise provided by the Board of Directors, every share
certificate shall be signed by two officers and sealed with the corporate seal,
which may be a facsimile, engraved or printed, but where such certificate is
signed by a transfer agent or a registrar, the signature of any corporate
officer upon such certificate may be a facsimile, engraved or printed. In case
any officer who has signed, or whose facsimile signature has been placed upon,
any share certificate shall have ceased to be such officer because of death,
resignation or otherwise, before the certificate is issued, it may be issued
with the same effect as if the officer had not ceased to be such at the date of
its issue. The provisions of this Section 24.1 shall be subject to any
inconsistent or contrary agreement at the time between the Corporation and any
transfer agent or registrar. To the extent the Corporation is authorized to
issue shares of more than one class or series, every certificate shall set forth
upon the face or back of the certificate (or shall state on the fact or back of
the certificate that the Corporation will furnish to any shareholder upon
request and without charge) a full or summary statement of the designation,
voting rights, preferences, limitations and special rights of the shares of each
class or series authorized to be issued so far as they have been fixed and
determined and the authority of the Board of Directors to fix and determine the
designations, voting rights, preferences, limitations and special rights of the
classes and series of shares of the Corporation.
Section 24.2. Uncertificated Shares. Notwithstanding anything herein to
the contrary, any or all classes and series of shares, or any part thereof, may
be represented by uncertificated shares to the extent determined by the Board of
Directors, except that shares represented by a certificate that is issued and
outstanding shall continue to be represented thereby until the certificate is
surrendered to the Corporation. Within a reasonable time after the issuance or
transfer of uncertificated shares, the Corporation shall send to the registered
owner thereof, a written notice containing the information required to be set
forth or stated on certificates. The rights and obligations of the holders of
shares represented by certificates and the rights and obligations of the holders
of uncertificated shares of the same class and series shall be identical.
Notwithstanding anything herein to the contrary, the provisions of Section 24.1
shall be inapplicable to uncertified shares and in lieu thereof the Board of
Directors shall adopt alternative procedures for registration of transfers.
ARTICLE 25 -TRANSFER OF SHARES
Section 25.1. Transfer of Shares - General. Upon surrender to the
Corporation of a share certificate duly endorsed by the person named in the
certificate or with duly executed stock powers attached and otherwise in proper
form for transfer, or by attorney duly appointed in writing and accompanied
where necessary by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto and
the old certificate canceled and the transfer recorded on the share register of
the Corporation. Except as otherwise provided pursuant to Section 6.2 hereof, a
transferee of shares of the Corporation shall not be a record holder of such
shares entitled to the rights and benefits associated therewith unless and until
the share transfer has been recorded on the share transfer books of the
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Corporation. No transfer shall be made if it would be inconsistent with the
provisions of Article 8 of the Pennsylvania Uniform Commercial Code.
ARTICLE 26 - LOST CERTIFICATES
Section 26.1. Lost Certificates - General. Unless waived in whole or in
part by the Board of Directors, any person requesting the issuance of a new
certificate in lieu of an alleged lost, destroyed, mislaid or wrongfully taken
certificate shall (a) give to the Corporation his or her bond of indemnity with
an acceptable surety, and (b) satisfy such other requirements as may be imposed
by the Corporation. Thereupon, a new share certificate shall be issued to the
registered owner or his or her assigns in lieu of the alleged lost, destroyed,
mislaid or wrongfully taken certificate, provided that the request therefor and
issuance thereof have been made before the corporation has notice that such
shares have been acquired by a bona fide purchaser.
ARTICLE 27 - FINANCIAL REPORTS TO SHAREHOLDERS
Section 27.1. Annual Financial Statements. Unless waived in a written
agreement by the shareholders, separate from the Articles of Incorporation or
these By-laws, the Corporation shall furnish to its shareholders annual
financial statements, including at least a balance sheet as of the end of each
fiscal year and a statement of income and expenses for the fiscal year. The
financial statements shall be prepared on the basis of generally accepted
accounting principles, if the Corporation prepares financial statements for the
fiscal year on that basis for any purpose, and may be consolidated statements of
the Corporation and one or more of its subsidiaries. The financial statements
shall be mailed by the Corporation to each of its shareholders entitled thereto
within one hundred and twenty (120) days after the close of each fiscal year
and, after the mailing and upon written request, shall be mailed by the
Corporation to any shareholder or beneficial owner entitled thereto to whom a
copy of the most recent annual financial statements has not previously been
mailed. Statements that are audited or reviewed by a public accountant shall be
accompanied by the report of the accountant; in other cases, each copy shall be
accompanied by a statement of the person in charge of the financial records of
the Corporation stating his reasonable belief as to whether or not the financial
statements were prepared in accordance with generally accepted accounting
principles and, if not, describing the basis of presentation and describing any
material respects in which the financial statements were not prepared on a basis
consistent with those prepared for the previous year.
ARTICLE 28 - FISCAL YEAR
Section 28.1. Fiscal Year. The fiscal year of the Corporation shall be
as determined by the Board of Directors.
ARTICLE 29 - MANNER OF GIVING WRITTEN NOTICE; WAIVERS OF NOTICE
Section 29.1. Manner of Giving Written Notice. Whenever written notice
is required to be given to any person under the provisions of these Bylaws, it
may be given to the person either personally or by sending a copy thereof by
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first class or express mail, postage prepaid, or by telegram (with messenger
service specified), telex or TWX (with answerback received) or courier service,
charges prepaid, or by telecopier, to his address (or to his telex, TWX,
telecopier or telephone number) appearing on the books of the Corporation or, in
the case of written notice to directors, supplied by each director to the
Corporation for the purpose of the notice. If the notice is sent by mail,
telegraph or courier service, it shall be deemed to have been given to the
person entitled thereto when deposited in the United States mail or with a
telegraph office or courier service for delivery to that person or, in the case
of telex or TWX, when dispatched.
Section 29.2. Waivers of Notice. Any written notice required to be
given to any person under the provisions of statute, the Corporation's Articles
of Incorporation or these Bylaws may be waived in a writing signed by the person
entitled to such notice whether before or after the time stated therein. Except
as otherwise required by statute, and except in the case of a special meeting,
neither the business to be transacted at, nor the purpose of, a meeting need be
specified in the waiver of notice. In the case of a special meeting of
shareholders, the waiver of notice shall specify the general nature of the
business to be transacted. Attendance of any person, whether 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, at
the beginning of the meeting, to the transaction of any business because the
meeting was not lawfully called or convened.
ARTICLE 30 - AMENDMENTS
Section 30.1. Amendment by Shareholders. Except as provided in Section
23.11 hereof, these Bylaws may be amended or repealed, and new Bylaws adopted,
by the affirmative vote of a majority of the votes cast by the shareholders at
any regular or special meeting duly convened after written notice to the
shareholders that the purpose, or one of the purposes, of the meeting is to
consider the amendment or repeal of these Bylaws and the adoption of new Bylaws.
There shall be included in, or enclosed with, the notice, a copy of the proposed
amendment or a summary of the changes to be effected thereby.
Section 30.2. Amendment By Board. Except as provided in Section 23.11
hereof, and except as provided in Section 1504(b) of the BCL, these Bylaws may
be amended or repealed, and new Bylaws adopted, by the affirmative vote of a
majority of the members of the Board of Directors (but not a committee thereof)
at any regular or special meeting duly convened, regardless of whether the
shareholders have previously adopted the Bylaw being amended or repealed,
subject to the power of the shareholders to change such action of the Board of
Directors, provided that the Board of Directors shall not have the power to
amend these Bylaws on any subject that is expressly committed to the
shareholders by the express terms hereof, by Section 1504 of the BCL or
otherwise.
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