Exhibit 3.24
AMENDMENT TO A & M SPECIALTIES, INC. BYLAWS
Article IV, Section 4.03(a) relating to the number of the board of
directors of A & M Specialties, Inc. is hereby amended and restated in its
entirety to read:
"The number of directors of the corporation shall be no less than two (2) and no
more than seven (7)."
This amendment shall became effective on the Effective Date of the
Prepackaged Joint Plan of Reorganization of ACP Holding Company, NFC
Castings, Inc., Neenah Foundry Company and certain of its subsidiaries,
without further action by the board of directors or shareholders of A & M
Specialties, Inc., pursuant to the Bankruptcy Court Confirmation Order
dated September 25, 2003.
BYLAWS
OF
A & M SPECIALTIES, INC.
a Pennsylvania Corporation
ARTICLE I
Offices and Fiscal Year
Section 1.01 - Registered Office. The registered office of the corporation in
Pennsylvania shall be at East Market Street Extension, Mercer, Mercer County,
Pennsylvania, until otherwise established by an amendment of the articles or by
the board of directors and a record of such change is filed with the Department
of State in the manner provided by law.
Section 1.02 - Other Offices. The corporation may also have offices at such
other places within or without Pennsylvania as the board of directors may from
time to time appoint or the business of the corporation may require.
Section 103 - Fiscal Year. The fiscal year of the corporation shall begin on the
1st day of February in each year.
ARTICLE II
Notice - Waivers - Meetings Generally
Section 2.01 - Manner of Giving Notice.
(a) General Rule. Whenever notice is required to be given to any
person under the provisions of the Business Corporation Law or by the articles
or these bylaws, it may be given to the person either personally or by sending a
copy thereof by 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 the address (or to the
telex, TWX, telecopier or telephone number) of the person appearing on the books
of the corporation or, in the case of directors, supplied by the director to the
corporation for the purpose of 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 or, in the case of telecopier, when received. A notice of
meeting shall specify the place, day and hour of the meeting and any other
information required by any other provision of the Business Corporation Law, the
articles or these bylaws.
(b) Adjourned shareholder Meetings. When a meeting of shareholder
is adjourned, it shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted at an adjourned meeting, other than
by announcement at the meeting at which the adjournment is taken, unless the
board fixes a new record date for the adjourned meeting.
at an adjourned meeting, other than by announcement at the meeting at which the
adjournment is taken, unless the board fixes a new record date for the adjourned
meeting.
Section 2.02 - Notice of Meetings of Board of Directors. Notice of a regular
meeting of the board of directors need not be given. Notice of every special
meeting of the board of directors shall be given to each director by telephone
or in writing at least 24 hours (in the case of notice by telephone, telex, TWX
or telecopier) or 48 hours (in the case of notice by telegraph, courier service
or express mail) or five days (in the case of notice by first class mail) before
the time at which the meeting is to be held. Every such notice shall state the
time and place of the meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board need be specified in a
notice of the meeting.
Section 2.03 - Notice of Meetings of Shareholders.
(a) General Rule. Written notice of every meeting of the
shareholders shall be given by, or at the direction of, the secretary to each
shareholder of record entitled to vote at the meeting at least:
(1) ten (10) days prior to the day named for a meeting
called to consider a fundamental transaction under 15 Pa. C.S. Chapter
19; or
(2) five (5) days prior to the day named for the meeting
in any other case.
If the secretary neglects or refuses to give notice of a meeting, the person or
persons calling the meeting may do so. In the case of a special meeting of
shareholders, the notice shall specify the general nature of the business to be
transacted.
(b) Notice of Action by Shareholders on Bylaws. In the case of a
meeting of shareholders that has as one of its purposes action on the bylaws,
written notice shall be given to each shareholder that the purpose, or one of
the purposes, of the meeting is to consider the adoption, amendment or repeal of
the 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 2.04 - Waiver of Notice.
(a) Written Waiver. Whenever any written notice is required to be
given under the provisions of the Business Corporation Law, the articles or
these bylaws, a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of the notice. Except as otherwise required
by this
subsection, neither the business to be transacted at, nor the purpose of, a
meeting need be specified in the waiver of notice of the meeting. In the case of
a special meeting of shareholder, the waiver of notice shall specify the general
nature of the business to be transacted.
(b) Waiver by Attendance. Attendance of a person at any meeting
shall constitute a waiver of notice of the meeting except where a person attends
a meeting for the express purpose of objecting, at the beginning of a meeting,
to the transaction of any business because the meeting was not lawfully called
or convened.
Section 2.05 - Modification of Proposal Contained in Notice. Whenever the
language of a proposed resolution is included in a written notice of a meeting
required to be given under the provisions of the Business Corporation Law or the
articles or these bylaws, the meeting considering the resolution may without
further notice adopt it with such clarifying or other amendments as do not
enlarge its original purpose.
Section 2.06 - Exception to Requirement of Notice.
(a) General Rule. Whenever any notice or communication is required
to be given to any person under the provisions of the Business Corporation Law
or by the articles or these bylaws or by the terms of any agreement or other
instrument or as a condition precedent to taking any corporate action and
communication with that person is then unlawful, the giving of the notice or
communication to that person shall not be required.
(b) Shareholders Without Forwarding Addresses. Notice or other
communications shall not be sent to any shareholder with whom the corporation
has been unable to communicate for more than 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. Whenever the
shareholders provide the corporation with a current address, the corporation
shall commence sending notice and other communications to the shareholder in the
same manner as to other shareholders.
Section 2.07 - Use of Conference Telephone and Similar Equipment. One or more
persons may participate in a meeting of the board of directors or the
shareholders of the corporation by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this section
shall constitute presence in person at the meeting.
ARTICLE III
Shareholders
Section 3.01 - Place of Meeting. All meetings of the shareholders of the
corporation shall be held at the registered office of the
corporation unless another place is designated by the board of directors in the
notice of a meeting.
Section 3.02 - Annual Meeting. The board of directors may fix the date and time
of the annual meeting of the shareholders, but if no such date and time is fixed
by the board, the meeting for any calendar year shall be held on
the_______________________day of ___________________________ in such year, if
not a legal holiday under the laws of Pennsylvania, and, if a Saturday, at
_______________________ o'clock ___________.M., and at said meeting the
shareholders then entitled to vote shall elect directors and shall transact such
other business as may properly be brought before the meeting. If the annual
meeting shall not have been called and held within six months after the
designated time, any shareholder may call the meeting at any time thereafter.
Section 3.03 - Special Meetings.
(a) Call of Special Meetings. Special meetings of the shareholders
may be called at any time:
(1) by the board of directors; or
(2) unless otherwise provided in the Articles, by any
shareholder.
(b) Fixing of Time for Meeting. At any time, upon written request
of any person who has called a special meeting, it shall be the duty of the
secretary to fix the time of the meeting which shall be held not more than 60
days after the receipt of the request. If the secretary neglects or refuses to
fix the time of the meeting, the person or persons calling the meeting may do
so.
Section 3.04 - Quorum and Adjournment.
(a) General Rule. A meeting of shareholders of the corporation
duly called shall not be organized for the transaction of business unless a
quorum is present. The presence of shareholders entitled to cast at least 100%
of the votes that all shareholders are entitled to cast on a particular matter
to be acted upon at the meeting shall constitute a quorum for the purposes of
consideration and action on the matter. Shares of the corporation owned,
directly or indirectly, by it and controlled, directly or indirectly, by the
board of directors of this corporation, as such, shall not be counted in
determining the total number of outstanding shares for quorum purposes at any
given time.
(b) Withdrawal of a Quorum. 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.
(c) Adjournment for Lack of Quorum. If a meeting cannot be
organized because a quorum has not attended, those present may, except as
provided in the Business Corporation Law, adjourn the
meeting to such time and place as they may determine.
(d) Adjournments Generally. Any meeting at which directors are to
be elected shall be adjourned only from day to day, or for such longer periods
not exceeding 15 days each as the shareholders present and entitled to vote
shall direct, until the directors have been elected. Any other regular or
special meeting may be adjourned for such period as the shareholders present and
entitled to vote shall direct.
(e) Electing Directors at Adjourned Meeting. Those shareholders
entitled to vote who attend a meeting called for the election of directors that
has been previously adjourned for lack of a quorum, although less than a quorum
as fixed in this section, shall nevertheless constitute a quorum for the purpose
of electing directors.
(f) Other Action in Absence of Quorum. Those shareholders entitled
to vote who attend a meeting of shareholders that has been previously adjourned
for one or more periods aggregating at least 15 days because of an absence of a
quorum, although less than a quorum as fixed in this section, 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.
Section 3.05 - Action by Shareholders.
(a) General Rule. Except as otherwise provided in the Business
Corporation Law or the articles or these bylaws, whenever any corporate action
is to be taken by vote of the shareholders of the corporation, it shall be
authorized by a majority of the votes cast at a duly organized meeting of
shareholders by the holders of shares entitled to vote thereon.
(b) Interested Shareholders. Any merger or other transaction
authorized under 15 Pa. C.S. Subchapter 19C between the corporation or
subsidiary thereof and a shareholder of this corporation, or any voluntary
liquidation authorized under 15 Pa. C.S. Subchapter 19F in which a shareholder
is treated differently from other shareholders of the same class (other than any
dissenting shareholders), shall require the affirmative vote of the shareholders
entitled to cast at least a majority of the votes that all shareholders other
than the interested shareholder are entitled to cast with respect to the
transaction, without counting the vote of the interested shareholder. For the
purposes of the preceding sentence, interested shareholder shall include the
shareholder who is a party to the transaction or who is treated differently from
other shareholders and any person, or group of persons, that is acting jointly
or in concert with the interested shareholder. An interested shareholder shall
not include any person who, in good faith and not for the purpose of
circumventing this subsection, is an agent, bank, broker, nominee or trustee for
one or more other
persons, to the extent that the other person or persons are not interested
shareholders.
(c) Exceptions. Subsection (b) shall not apply to a transaction:
(1) that has been approved by a majority vote of the
board of directors without counting the vote of directors who:
(i) are directors or officer of, or have a
material equity interest in, the interested shareholder; or
(ii) were nominated for election as a director by
the interested shareholder, and first elected as a director,
within 24 months of the date of the vote on the proposed
transaction; or
(2) in which the consideration to be received by the
shareholders for shares of any class of which shares are owned by the
interested shareholder is not less than the highest amount paid by the
interested shareholder in acquiring shares of the same class.
(d) Additional Approvals. The approvals required by subsection (b)
shall be in addition to, and not in lieu of, any other approval required by the
Business Corporation Law, the articles or these bylaws, or otherwise.
Section 3.06 - Organization. At every meeting of the shareholders, the chairman
of the board, if there be one, or, in the case of vacancy in office or absence
of the chairman of the board, one of the following officers present in the order
stated: the vice chairman of the board, if there be one, the president, the vice
presidents in their order of rank and seniority, or a person chosen by vote of
the shareholders present, shall act as chairman of the meeting. The secretary
or, in the absence of the secretary, an assistant secretary, or, in the absence
of both the secretary and assistant secretaries, a person appointed by the
chairman of the meeting, shall act as secretary.
Section 3.07 - Voting Rights of Shareholder. Unless otherwise provided in the
articles, every shareholder of the corporation shall be entitled to one vote for
every share standing in the name of the shareholder on the books of the
corporation.
Section 3.08 - Voting and Other Action by Proxy.
(a) General Rule
(1) 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 to act for the shareholder by proxy.
(2) The presence of, or vote or other action at a meeting
of shareholders, or the expression of consent or dissent to corporate
action in writing, by a proxy of a shareholder shall constitute the
presence of, or vote or action by, or written consent or dissent of the
shareholder.
(3) Where two or more proxies of a shareholder are
present, the corporation shall, unless otherwise expressly provided in
the proxy, accept as the vote of all shares represented thereby the
vote cast by a majority of them and, if a majority of the proxies
cannot agree whether the shares represented shall be voted or upon the
manner of voting the shares, the voting of the shares shall be divided
equally among those persons.
(b) Minimum Requirements. Every proxy shall be executed in writing
by the shareholder or by the duly authorized attorney-in-fact of the shareholder
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 or incapacity of the maker unless,
before the vote is counted or the authority is exercised, written notice of the
death or incapacity is given to the secretary of the corporation.
(c) Expenses. Unless otherwise restricted in the articles, the
corporation shall pay the reasonable expenses of solicitation of votes, proxies
or consents of shareholders by or on behalf of the board of directors or its
nominees for election to the board, including solicitation by professional proxy
solicitors and otherwise.
Section 3.09 - Voting by Fiduciaries and Pledgees. Shares of the corporation
standing in the name of a trustee or other fiduciary and shares held by an
assignee for the benefit of creditors or by a receiver may be voted by the
trustee, fiduciary, assignee or receiver. A shareholder whose shares are pledged
shall be entitled to vote the shares until the shares have been transferred into
the name of the pledgee, or a nominee of the pledgee, but nothing in this
section shall affect the validity of a proxy given to a pledgee or nominee.
Section 3.10 - Voting by Joint Holders of Shares.
(a) General Rule. Where shares of the corporation are held
jointly or as tenants in common by two or more persons, as fiduciaries or
otherwise:
(1) if only one or more of such persons is present in
person or by proxy, all of the shares standing in the names of such
persons shall be deemed to be represented for the purpose of
determining a quorum and the corporation shall accept as the vote of
all of the shares the vote cast by a joint owner or a majority of them;
and
(2) if the persons are equally divided upon whether the
shares held by them shall be voted or upon the manner of voting the
shares, the voting of the shares shall be divided equally among the
persons without prejudice to the rights of the joint owners or the
beneficial owners thereof among themselves.
(b) Exception. If there has been filed with the secretary of the
corporation a copy, certified by an attorney at law to be correct, of the
relevant portions of the agreement under which the shares are held or the
instrument by which the trust or estate was created or the order of court
appointing them or of an order of court directing the voting of the shares, the
persons specified as having such voting power in the document latest in date of
operative effect so filed, and only those persons shall be entitled to vote the
shares but only in accordance therewith.
Section 3.11 - Voting by Corporations.
(a) Voting by Corporate Shareholders. Any corporation that is a
shareholder of this corporation may vote by any of its officers or agents, or by
proxy appointed by any officer or agent, unless some other person, by resolution
of the board of directors of the other corporation or a provision of its
articles or bylaws, a copy of which resolution or provision certified to be
correct by one of its officers has been filed with the secretary of this
corporation, is appointed its general or special proxy in which case that person
shall be entitled to vote the shares.,
(b) Controlled Shares. Shares of this corporation owned, directly
or indirectly, by it and controlled, directly or indirectly, by the board of
directors of this corporation, as such, shall not be voted at any meeting and
shall not be counted in determining the total number of outstanding shares for
voting purposes at any given time.
Section 3.12 - Determination of Shareholders of Record.
(a) Fixing Record Date. 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 vote at, the
meeting, which time, except in the case of an adjourned meeting, shall be not
more than 45 days prior to the date of the meeting of shareholders. Only
shareholders of record on the
date fixed shall be so entitled notwithstanding any transfer of shares on the
books of the corporation after any record date fixed as provided in this
subsection. The board of directors may similarly fix a record date for the
determination of shareholders of record for any other purpose. When a
determination of shareholders of record has been made as provided in this
section for purposes of a meeting, the determination shall apply to any
adjournment thereof unless the board fixes a new record date for the adjourned
meeting.
(b) Determination When a Record Date is Not Fixed. If a record
date is not fixed:
(1) The record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at the
close of business on the day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day
immediately preceding the day on which the meeting is held.
(2) The record date for determining shareholders entitled
to express consent or dissent to corporate action in writing without a
meeting, when prior action by the board of directors is not necessary,
shall be the close of business on the day on which the first written
consent or dissent is filed with the secretary of the corporation.
(3) The record date for determining shareholders for any
other purpose shall be at the close of business on the day on which the
board of directors adopts the resolution relating thereto.
Section 3.13 - Voting Lists.
(a) General Rule. The officer or agent having charge of the
transfer books for shares of the corporation shall make a complete list of the
shareholders entitled to vote at any meeting of shareholders, arranged in
alphabetical order, with the address of and the number of shares held by each.
The list shall be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting for the purposes thereof.
(b) Effect of List. Failure to comply with the requirements of
this section 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. The original share register or transfer book, or a duplicate
thereof kept in this Commonwealth, shall be prima facie evidence as to who are
the shareholders entitled to examine the list or share register or transfer book
or to vote at any meeting of shareholders.
Section 3.14 - Consent of Shareholders in Lieu of Meeting.
(a) Unanimous Written 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 or subsequent to the action, a consent or
consents thereto 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.
Section 3.15 - Minors as Security Holders. The corporation may treat a minor who
holds shares or obligations of the corporation as having capacity to receive and
to empower others to receive dividends, interest, principal and other payments
or distributions, to vote or express consent or dissent and to make elections
and exercise rights relating to such shares or obligations unless, in the case
of payments or distributions on shares, the corporate officer responsible for
maintaining the list of shareholders or the transfer agent of the corporation
or, in the case of payments or distributions on obligations, the treasurer or
paying officer or agent has received written notice that the holder is a minor.
ARTICLE IV
Board of Directors
Section 4.01 - Powers; Personal Liability.
(a) General Rule. Unless otherwise provided by statute, all powers
vested by law in the corporation shall be exercised by or under the authority
of, and the business and affairs of the corporation shall be managed under the
direction of, the board of directors.
(b) Standard of Care; Justifiable Reliance. A director shall stand
in a fiduciary relation to the corporation and shall perform his or her duties
as a director, including duties as a member of any committee of the board upon
which the director may service, in good faith, in a manner the director
reasonably believes to be in the best interests of the corporation and with such
care, including reasonable inquiry, skill and diligence, as a person of ordinary
prudence would use under similar circumstances. In performing his or her duties,
a director shall be entitled to rely in good faith on information, opinions,
reports or statements, including financial statements and other financial data,
in each case prepared or presented by any of the following:
(1) one or more officers or employees of the corporation
whom the director reasonably believes to be reliable and competent in
the matters presented.
(2) counsel, public accountants or other persons as to
matters which the director reasonably believes to be within the
professional or expert competence of such person.
(3) a committee of the board upon which the director does
not serve, duly designated in accordance with law, as to matters within
its designated authority, which committee the director reasonably
believes to merit confidence.
A director shall not be considered to be acting in good faith if the director
has knowledge concerning the matter in question that would cause his or her
reliance to be unwarranted.
(c) Consideration of Factors. In discharging the duties of their
respective positions, the board of directors, committees of the board and
individual directors may, in considering the best interests of the corporation,
consider the effects of any action upon employees, upon suppliers and customers
of the corporation and upon communities in which offices or other establishments
of the corporation are located, and all other pertinent factors. The
consideration of those factors shall not constitute a violation of subsection
(b).
(d) Presumption. Absent breach of fiduciary duty, lack of good
faith or self-dealing, actions taken as a director or any failure to take any
action shall be presumed to be in the best interests of the corporation.
(e) Personal Liability of Directors.
(1) a director shall not be personally liable, as such,
for monetary damages for any action taken, or any failure to take any
action, unless:
(i) the director has breached or failed to
perform the duties of his or her office under this section;
and
(ii) the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness.
(2) The provisions of paragraph (1) shall not apply to
the responsibility or liability of a director pursuant to any criminal
statute or the liability of a director for the payment of taxes
pursuant to local, state or Federal law.
(f) Notation of Dissent. A director who is present at a meeting of
the board of directors, or of a committee of the board, at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his or her dissent is entered in the minutes of the meeting or unless the
director files a written dissent to the action with the secretary of the meeting
to the secretary of the corporation immediately after the adjournment of the
meeting. The right to dissent shall not apply to a director who voted in favor
of the action. Nothing in this
section shall bar a director from asserting that minutes of the meeting
incorrectly omitted his or her dissent if, promptly upon receipt of a copy of
such minutes, the director notifies the secretary, in writing, of the asserted
omission or inaccuracy.
Section 4.02 - Qualifications and Selection of Directors.
(a) Qualifications. Each director of the corporation shall be a
natural person of full age who need not be a resident of Pennsylvania but shall
be a shareholder of the corporation.
(b) Election of Directors. Except as otherwise provided in these
bylaws, directors of the corporation shall be elected by the shareholders. In
elections for directors, voting need not be by ballot, except upon demand made
by a shareholder entitled to vote at the election and before the voting begins.
The candidates receiving the highest number of votes from each class or group of
classes, if any, entitled to elect directors separately up to the number of
directors to be elected by the class or group of classes shall be elected. If at
any meeting of shareholders, directors of more than one class are to be elected,
each class of directors shall be elected in a separate election.
(c) Cumulative Voting. Unless the articles provide for straight
voting, in each election of directors every shareholder entitled to vote shall
have the right to multiply the number of votes to which the shareholder may be
entitled by the total number of directors to be elected in the same election by
the holders of the class or classes of shares of which his or her shares are a
part and the shareholder may cast the whole number of his or her votes for one
candidate or may distribute them among two or more candidates.
Section 4.03 - Number and Term of Office.
(a) Number. The board of directors shall consist of four
directors, two from Mercer Forge Corporation and two from Aerosonic Corporation,
or as may be determined from time to time by resolution of the board of
directors.
(b) Term of Office. Each director shall hold office until the
expiration of the term for which he or she was selected and until a successor
has been selected and qualified or until his or her 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.
(c) Resignation. Any director may resign at any time upon written
notice to the corporation. The resignation shall be effective upon receipt
thereof by the corporation or at such subsequent time as shall be specified in
the notice of resignation.
Section 4.04 - Vacancies.
(a) General Rule. Vacancies in the board of directors, including
vacancies resulting from an increase in the number of directors, may be filled
by a majority vote of the remaining members of the board though less than a
quorum, or by a sole remaining director, and each person so selected shall be a
director to serve until the next selection of the class for which such director
has been chosen, and until a successor has been selected and qualified or until
his or her earlier death, resignation or removal.
(b) Action by Resigned Directors. When one or more directors
resign from the board effective at a future date, the directors then in office,
including those who have so resigned, shall have power by the applicable vote to
fill the vacancies, the vote thereon to take effect when the resignations become
effective.
Section 4.05 - Removal of Directors.
(a) Removal by the Shareholders. The entire board of directors, or
any class of the board, or any individual director may be removed from office by
vote of the shareholders entitled to vote thereon only for cause. 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 he was selected.
(b) Removal by the 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 or if, within 60 days after notice of his or her selection,
the director does not accept the office either in writing or by attending a
meeting of the board of directors.
(c) Removal of Directors Elected by Cumulative Voting. An
individual director shall not be removed (unless the entire board or class of
the board is removed) if sufficient votes are cast against the resolution for
his removal which, if cumulatively voted at an annual or other regular election
of directors, would be sufficient to elect one or more directors to the board or
to the class.
Section 4.06 - Place of Meetings. Meetings of the board of directors may be held
at such place within or without Pennsylvania as the board of directors may from
time to time appoint or as may be designated in the notice of the meeting.
Section 4.07 - Organization of Meetings. At every meeting of the board of
directors, the chairman of the board, if there be one, or, in the case of a
vacancy in the office or absence of the chairman
of the board, one of the following officers present in the order stated: the
vice chairman of the board, if there be one, the president, the vice presidents
in their order of rank and seniority, or a person chosen by a majority of the
directors present, shall act as chairman of the meeting. The secretary or, in
the absence of the secretary and the assistant secretaries, any person appointed
by the chairman of the meeting, shall act as secretary.
Section 4.08 - Regular Meetings. Regular meetings of the board of directors
shall be held at such time and place as shall be designated from time to time by
resolution of the board of directors.
Section 4.09 - Special Meetings. Special meetings of the board of directors
shall be held whenever called by the chairman or by any one (1) or more of the
directors.
Section 4.10 - Quorum of and Action by Directors.
(a) General Rule. At least 100% of the directors in office of the
corporation shall be necessary to 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.
(b) Action by Written Consent. Any action required or permitted to
be taken at a meeting of the directors may be taken without a meeting if, prior
or subsequent to the action, a consent or consents thereto by all of the
directors in office is filed with the secretary of the corporation.
Section 4.11 - Compensation. The board of directors shall have the authority to
fix the compensation of directors for their services as directors and a director
may be a salaried officer of the corporation.
ARTICLE V
Officers
Section 5.01 - Officers Generally.
(a) Number, Qualifications and Designation. The officers of the
corporation shall be a president, a secretary, a treasurer, and such other
officers as may be elected in accordance with the provisions of Section 5.03.
Officers may but need not be directors or shareholders of the corporation. The
president and secretary shall be natural persons of full age. The treasurer may
be a corporation, but if a natural person shall be of full age. The board of
directors may elect from among the members of the board a chairman of the board
and a vice chairman of the board who shall be officers of the corporation. Any
number of offices may be held by the same person.
(b) Resignations. Any officer may resign at any time upon written
notice to the corporation. The resignation shall be effective upon receipt
thereof by the corporation or at such subsequent time as may be specified in the
notice of resignation.
(c) Bonding. The corporation may secure the fidelity of any or all
of its officers by bond or otherwise.
(d) Standard of Care. Except as otherwise provided in the
articles, an officer shall perform his or her duties as an officer in good
faith, in a manner he or she reasonably believes to be in the best interests of
the corporation and with such care, including reasonable inquiry, skill and
diligence, as a person of ordinary prudence would use under similar
circumstances. A person who so performs his or her duties shall not be liable by
reason of having been an officer of the corporation.
Section 5.02 - Election and Term of Office. The officers of the corporation,
except those elected by delegated authority pursuant to Section 5.03, shall be
elected annually by the board of directors, and each such officer shall hold
office for a term of one year and until a successor has been selected and
qualified or until his or her earlier death, resignation or removal.
Section 5.03 - Subordinate Officers, Committees and Agents. The board of
directors may from time to time elect such other officers and appoint such
committees, employees or other agents as the business of the corporation may
require, including one or more assistant secretaries, and one or more assistant
treasurers, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these bylaws or as the board of
directors may from time to time determine. The board of directors may delegate
to any officer or committee the power to elect subordinate officers and to
retain or appoint employees or other agents, or committees thereof and to
prescribe the authority
and duties of such subordinate officers, committees, employees or other agents.
Section 5.04 - Removal of Officers and Agents. Any officer or agent of the
corporation may be removed by the board of directors with or without cause. The
removal shall be without prejudice to the contract rights, if any, of any person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 5.05 - Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or any other cause, shall be filled by the board of
directors or by the officer or committee to which the power to fill such office
has been delegated pursuant to Section 5.03, as the case may be, and if the
office is one for which these bylaws prescribe a term, shall be filled for the
unexpired portion of the term.
Section 5.06 - Authority. All officers of the corporation, as between themselves
and the corporation, shall have such authority and perform such duties in the
management of the corporation as may be provided by or pursuant to resolutions
or orders of the board of directors or in the absence of controlling provisions
in the resolutions or orders of the board of directors, as may be determined by
or pursuant to these bylaws.
Section 5.07 - The Chairman and Vice Chairman of the Board. The chairman of the
board or in the absence of the chairman, the vice chairman of the board, shall
preside at all meetings of the shareholders and of the board of directors and
shall perform such other duties as may from time to time be requested by the
board of directors.
Section 5.08 - The President. The president shall be the chief executive officer
of the corporation and shall have general supervision over the business and
operations of the corporation, subject however, to the control of the board of
directors. The president shall sign, execute, and acknowledge, in the name of
the corporation, deeds, mortgages, bonds, contracts or other instruments
authorized by the board of directors, except in cases where the signing and
execution thereof shall be expressly delegated by the board of directors, or by
these bylaws, to some other officer or agent of the corporation; and, in
general, shall perform all duties incident to the office of president and such
other duties as from time to time may be assigned by the board of directors.
Section 5.09 - The Vice Presidents. The vice presidents shall perform the duties
of the president in the absence of the president and such other duties as may
from time to time be assigned by the board of directors or the president.
Section 5.10 - The Secretary. The secretary or an assistant secretary shall
attend all meetings of the shareholders and of the
board of directors and shall record all the votes of the shareholders and of the
directors and the minutes of the meetings of the shareholders and of the board
of directors and of committees of the board in a book or books to be kept for
that purpose; shall see that notices are given and records and reports properly
kept and filed by the corporation as required by law; shall be the custodian of
the seal of the corporation and see that it is affixed to all documents to be
executed on behalf of the corporation under its seal; and, in general, shall
perform all duties incident to the office of secretary, and such other duties as
may from time to time be assigned by the board of directors or the president.
Section 5.11 - The Treasurer. The treasurer or an assistant treasurer shall have
or provide for the custody of the funds or other property of the corporation;
shall collect and receive or provide for the collection and receipt of monies
earned by or in any manner due to or received by the corporation; shall deposit
all funds in his or her custody as treasurer in such banks or other places of
deposit as the board of directors may from time to time designate; shall,
whenever so required by the board of directors, render an account showing all
transactions as treasurer and the financial condition of the corporation; and,
in general, shall discharge such other duties as may from time to time be
assigned by the board of directors or the president.
Section 5.12 - Salaries. The salaries of the officers elected by the board of
directors shall be fixed from time to time by the board of directors or by such
officer as may be designated by resolution of the board. The salaries or other
compensation of any other officers, employees and other agents shall be fixed
from time to time by the officer or committee to which the power to elect such
officers or to retain or appoint such employees or other agents has been
delegated pursuant to Section 5.03. No officer shall be prevented from receiving
such salary or other compensation by reason of the fact that the officer is also
a director of the corporation.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER, ETC.
Section 6.01 - Share Certificates. Certificates for shares of the corporation
shall be in such form as approved by the board of directors, and shall state
that the corporation is incorporated under the laws of Pennsylvania, the name of
the person to whom issued, and the number and class of shares and the
designation of the series (if any) that the certificate represents. The share
register or transfer books and blank share certificates shall be kept by the
secretary or by any transfer agent or registrar designated by the board of
directors for that purpose.
Section 6.02 - Issuance. The share certificates of the corporation shall be
numbered and registered in the share register or transfer books of the
corporation as they are issued. They shall be signed
by the president or a vice president and by the secretary or an assistant
secretary or the treasurer or an assistant treasurer, and shall bear the
corporate seal, which may be a facsimile, engraved or printed; but where such
certificate is signed by a transfer agent or a registrar the signature of any
corporate officer upon such certificate may be a facsimile, engraved or printed.
In case any officer who has signed, or whose facsimile signature has been placed
upon, any share certificate shall have ceased to be such officer 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 6.02 shall be subject to any
inconsistent or contrary agreement at the time between the corporation and any
transfer agent or registrar.
Section 6.03 - Transfer. Transfers of shares shall be made on the share register
or transfer books of the corporation upon surrender of the certificate therefor,
endorsed by the person named in the certificate or by an attorney lawfully
constituted in writing. No transfer shall be made inconsistent with the
provisions of the Uniform Commercial Code, 13 Pa.C.S. ((8101 et seq., and its
amendments and supplements.
Section 6.04 - Record Holder of Shares. The corporation shall be entitled to
treat the person in whose name any share or shares of the corporation stand on
the books of the corporation as the absolute owner thereof, and shall not be
bound to recognize any equitable or other claim to, or interest in, such share
or shares on the part of any other person.
Section 6.05 - Lost, Destroyed or Mutilated Certificates. The holder of any
shares of the corporation shall immediately notify the corporation of any loss,
destruction or mutilation of the certificate therefor, and the board of
directors may, in its discretion, cause a new certificate or certificates to be
issued to such holder, in case of mutilation of the certificate, upon the
surrender of the mutilated certificate or, in case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction and, if the
board of directors shall so determine, the deposit of a bond in such form and in
such sum, and with such surety or sureties, as it may direct.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND
OTHER AUTHORIZED REPRESENTATIVES
Section 7.01 - Scope of Indemnification.
(a) General Rule. The corporation shall indemnify an indemnified
representative against any liability incurred in connection with any proceeding
in which the indemnified representative may be involved as a party or otherwise
by reason of the fact that such person is or was serving in an indemnified
capacity, including, without limitation, liabilities resulting from any actual
or alleged breach or neglect of duty, error, misstatement or misleading
statement, negligence, gross negligence or act giving rise to strict or products
liability, except:
(1) where such indemnification is expressly prohibited by
applicable law;
(2) where the conduct of the indemnified representative
has been finally determined pursuant to Section 7.06
or otherwise:
(i) to constitute willful misconduct or
recklessness within the meaning of 15
Pa.C.S. ((513(b) and 1746(b) and 42 Pa.C.S.
(8365(b) or any superseding provision of law
sufficient in the circumstances to bar
indemnification against liabilities arising
from the conduct; or
(ii) to be based upon or attributable to the
receipt by the indemnified representative
from the corporation of a personal benefit
to which the indemnified representative is
not legally entitled; or
(3) to the extent such indemnification has been finally
determined in a final adjudication pursuant to
Section 7.06 to be otherwise unlawful.
(b) Partial Payment. If an indemnified representative is entitled
to indemnification in respect of a portion, but not all, of any liabilities to
which such person may be subject, the corporation shall indemnify such
indemnified representative to the maximum extent for such portion of the
liabilities.
(c) Presumption. The termination of a proceeding by judgment,
order, settlement or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the indemnified
representative is not entitled to indemnification.
(d) Definitions. For the purposes of this Article:
(1) "indemnified capacity" means any and all past,
present and future service by an indemnified
representative in one or more capacities as a
director, officer, employee or agent of the
corporation, as a director, officer, employee, agent,
fiduciary or trustee of another corporation,
partnership, joint venture,
trust, employee benefit plan or other entity or
enterprise;
(2) "indemnified representative" means any and all
directors and officers of the corporation and any
other person designated as an indemnified
representative by the board of directors of the
corporation (which may, but need not, include any
person serving at the request of the corporation, as
a director, officer, employee, agent, fiduciary or
trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other entity
or enterprise);
(3) "liability" means any damage, judgment, amount paid
in settlement, fine, penalty, punitive damages,
excise tax assessed with respect to an employee
benefit plan, or cost or expense, of any nature
(including, without limitation, attorneys' fees and
disbursements); and
(4) "proceeding" means any threatened, pending or
completed action, suit, appeal or other proceeding of
any nature, whether civil, criminal, administrative
or investigative, whether formal or informal, and
whether brought by or in the right of the
corporation, a class of its security holders or
otherwise.
Section 7.02 - Proceedings Initiated by Indemnified Representatives.
Notwithstanding any other provision of this Article, the corporation shall not
indemnify under this Article an indemnified representative for any liability
incurred in a proceeding initiated (which shall not be deemed to include
counterclaims or affirmative defenses) or participated in as an intervenor or
amicus curiae by the person seeking indemnification unless such initiation of or
participation in the proceeding is authorized, either before or after its
commencement, by the affirmative vote of a majority of the directors in office.
This section does not apply to reimbursement of expenses incurred in
successfully prosecuting or defending an arbitration under Section 7.06 or
otherwise successfully prosecuting or defending the rights of an indemnified
representative granted by or pursuant to this Article.
Section 7.03 - Advancing Expenses. The corporation shall pay the expenses
(including attorneys' fees and disbursements) incurred in good faith by an
indemnified representative in advance of the final disposition of a proceeding
described in Section 7.01 or the initiation of or participation in which is
authorized pursuant to Section 7.02 upon receipt of an undertaking by or on
behalf of the indemnified representative to repay the amount if it is ultimately
determined that such person is not entitled to be indemnified by
the corporation pursuant to this Article. The financial ability of an
indemnified representative to repay an advance shall not be a prerequisite to
the making of such advance.
Section 7.04 - Securing of Indemnification Obligations. To further effect,
satisfy or secure the indemnification obligations provided herein or otherwise,
the corporation may maintain insurance, obtain a letter of credit, act as self
insurer, create a reserve, trust, escrow, cash collateral or other fund or
account, enter into indemnification agreements, pledge or grant a security
interest in any assets or properties of the corporation, or use any other
mechanism or arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the board of directors shall deem
appropriate. Absent fraud, the determination of the board of directors with
respect to such amounts, costs, terms and conditions shall be conclusive against
all security holders, officers and directors and shall not be subject to
voidability.
Section 7.05 - Payment of Indemnification. An indemnified representative shall
be entitled to indemnification within thirty (30) days after a written request
for indemnification has been delivered to the secretary of the corporation.
Section 7.06 - Contribution. If the indemnification provided for in this Article
or otherwise is unavailable for any reason in respect of any liability or
portion thereof, the corporation shall contribute to the liabilities to which
the indemnified representative may be subject in such proportion as is
appropriate to reflect the intent of this Article of otherwise.
Section 7.07 - Mandatory Indemnification of Directors, Officers, Etc. To the
extent that an authorized representative of the corporation has been successful
on the merits or otherwise in defense of any action or proceeding referred to in
15 Pa.C.S. ((1741 or 1742 or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees and
disbursements) actually and reasonably incurred by such person in connection
therewith.
Section 7.08 - Contract Rights; Amendment or Repeal. All rights under this
Article shall be deemed a contract between the corporation and the indemnified
representative pursuant to which the and each indemnified representative intend
to be legally bound. Any repeal, amendment or modification hereof shall be
prospective only and shall not affect any rights or obligations then existing.
Section 7.09 - Scope of Article. The rights granted by this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification,
contribution or advancement of expenses may be entitled under any statute,
agreement, vote of shareholders or disinterested directors or otherwise both as
to action in an indemnified capacity and as to action in any other capacity. The
indemnification, contribution and advancement of expenses provided by or granted
pursuant to this Article shall
continue as to a person who has ceased to be an indemnified representative in
respect of matters arising prior to such time, and shall inure to the benefit of
the heirs, executors, administrators and personal representatives of such a
person.
Section 7.10 - Reliance on Provisions. Each person who shall act as an
indemnified representative of the corporation shall be deemed to be doing so in
reliance upon the rights provided by this Article.
Section 7.11 - Interpretation. The provisions of this Article are intended to
constitute bylaws authorized by 15 Pa.C.S. ((513 and 1746 and 42 Pa.C.S. (8365.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 - Corporate Seal. The corporation shall have a corporate seal in
the form of a circle containing the name of the corporation, the year of
incorporation and such other details as may be approved by the board of
directors.
Section 8.02 - Checks. All checks, notes, bills of exchange or other orders in
writing shall be signed by such person or persons as the board of directors or
any person authorized by resolution of the board of directors may from time to
time designate.
Section 8.03 - Contracts.
(a) General Rule. Except as otherwise provided in the Business
Corporation Law in the case of transactions that require action by the
shareholders, the board of directors may authorize any officer or agent to enter
into any contract or to execute or deliver any instrument on behalf of the
corporation, and such authority may be general or confined to specific
instances.
(b) Statutory Form of Execution of Instruments. Any note,
mortgage, evidence of indebtedness, contract or other document, or any
assignment or endorsement thereof, executed or entered into between the
corporation and any other person, when signed by one or more officers or agents
having actual or apparent authority to sign it, or by the president or vice
president and secretary or assistant secretary or treasurer or assistant
treasurer of the corporation, shall be held to have been properly executed for
and in behalf of the corporation, without prejudice to the rights of the
corporation against any person who shall have executed the instrument in excess
of his or her actual authority.
Section 8.04 - Interested Directors or Officers; Quorum.
(a) General Rule. A contract or transaction between the
corporation and one or more of its directors or officers or between the
corporation and another corporation, partnership, joint
venture, trust or other enterprise in which one or more of its directors or
officers are directors or officers or have a financial or other interest, shall
not be void or voidable solely for that reason, or solely because the director
or officer is present at or participates in the meeting of the board of
directors that authorizes the contract or transaction, or solely because his,
her or their votes are counted for that purpose, if:
(1) the material facts as to the relationship or interest
and as to the contract or transaction are disclosed
or are known to the board of directors and the board
authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested
directors even though the disinterested directors are
less than a quorum;
(2) the material facts as to his or her relationship or
interest and as to the contract or transaction are
disclosed or are known to the shareholders entitled
to vote thereon and the contract or transaction is
specifically approved in good faith by vote of those
shareholders; or
(3) the contract or transaction is fair as to the
corporation as of the time it is authorized, approved
or ratified by the board of directors or the
shareholders.
(b) Quorum. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board which authorizes
a contract or transaction specified in subsection (a).
Section 8.05 - Deposits. All funds of the corporation shall be deposited from
time to time to the credit of the corporation in such banks, trust companies or
other depositaries as the board of directors may approve or designate, and all
such funds shall be withdrawn only upon checks signed by such one or more
officers or employees as the board of directors shall from time to time
determine.
Section 8.06 - Corporate Records.
(a) Required Records. The corporation shall keep complete and
accurate books and records of account, minutes of the proceedings of the
incorporators, shareholders and directors and a share register giving the names
and addresses of all shareholders and the number and class of shares held by
each. The share register shall be kept at either the registered office of the
corporation in Pennsylvania or at its principal place of business wherever
situated or at the office of its registrar or transfer agent. Any books, minutes
or other records may be in written form
or any other form capable of being converted into written form within a
reasonable time.
(b) Right of Inspection. Every shareholder shall, upon written
verified demand stating the purpose thereof, have a right to examine, in person
or by agent or attorney, during the usual hours for business for any proper
purpose, the share register, books and records of account, and records of the
proceedings of the incorporators, shareholders and directors and to make copies
or extracts therefrom. A proper purpose shall mean a purpose reasonably related
to the interest of the person as a shareholder. In every instance where an
attorney or other agent is the person who seeks the right of inspection, the
demand shall be accompanied by a verified power of attorney or other writing
that authorizes the attorney or other agent to so act on behalf of the
shareholder. The demand shall be directed to the corporation at its registered
office in Pennsylvania or at its principal place of business wherever situated.
Section 8.07 - Financial Reports. Unless otherwise agreed between the
corporation and a shareholder, 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 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:
(1) 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.
(2) Describing any material respects in which the
financial statements were not prepared on a basis
consistent with those prepared for the previous year.
Section 8.08 - Amendment of Bylaws. These bylaws may be amended or repealed, or
new bylaws may be adopted, either (i) by vote of the shareholders at any duly
organized annual or special meeting of
shareholders, or (ii) with respect to those matters that are not by statute
committed expressly to the shareholders and regardless of whether the
shareholders have previously adopted or approved the bylaw being amended or
repealed, by vote of a majority of the board of directors of the corporation in
office at any regular or special meeting of directors. Any change in these
bylaws shall take effect when adopted unless otherwise provided in the
resolution effecting the change. See Section 2.03(b) (relating to notice of
action by shareholders on bylaws).