1
Exhibit 3.2(d)
BY-LAWS
OF
HORSHAM HOLDING COMPANY, INC.
Incorporated under the laws of the Commonwealth of Pennsylvania
April 5, 1982
2
HORSHAM HOLDING COMPANY, INC.
B Y - L A W S
ARTICLE I
OFFICES
Section 1.1. The registered office shall be located at 680
Blair Mill road, Horsham, Pennsylvania.
Section 1.2. The corporation may also have offices at such
other places as the board of directors may from time to time determine or the
business of the corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1. All meetings of the shareholders shall be held at
the registered office or such other places, either within or without the
Commonwealth of Pennsylvania, as the board of directors may from time to time
determine.
Section 2.2. A meeting of shareholders shall be held in each
calendar year for the election of directors at such time and place as the board
of directors shall determine. If the annual meeting shall not be called and held
during such calendar year, any shareholder may call such meeting at any time
thereafter. Elections for directors need
3
not be by written ballot, except upon demand by a shareholder at the election
and before the voting begins.
Section 2.3. Unless a greater period of notice is required by
statute in a particular case, written notice of the annual meeting specifying
the place, date and hour of the annual meeting shall be served upon or mailed,
postage prepaid, at least five days prior to the meeting, to each shareholder of
record on the date fixed as a record date entitled to vote thereat, or if no
record date be fixed, then of record ten days next preceding the date of the
meeting, at such address as appears on the transfer books of The corporation.
Section 2.4. Special meetings of the shareholders, for any
purpose or purposes, other than those regulated by statute or by the articles of
incorporation, may be called at any time by the president, or the board of
directors, or the holders of not less than one-fifth of all the shares issued
and outstanding and entitled to vote at the particular meeting, upon written
request delivered to the secretary of the corporation. Such request shall state
the purpose or purposes of the proposed meeting. Upon receipt of any such
request, it shall be the duty of the secretary to notice a special meeting of
the shareholders to be held at such time, not less than ten nor more than sixty
days
2
4
thereafter as the secretary may fix. If the secretary shall neglect or refuse to
fix the date of the meeting and give notice thereof, the person or persons
calling the meeting may do so.
Section 2.5. Written notice of any special meeting of
shareholders, stating the place, the date and hour and the general nature of the
business to be transacted thereat, shall be served upon or mailed, postage
prepaid, to each shareholder entitled to vote thereat at such address as appears
on the transfer books of the corporation, at least five days before such
meeting, unless a greater period of notice is required by statute in a
particular case.
Section 2.6. Business transacted at all special meetings shall
be confined to the business stated in the call.
Section 2.7. The holders, present in person or represented by
proxy, of a majority of the issued and outstanding shares entitled to vote,
shall be necessary to constitute a quorum at all meetings of the shareholders
for the transaction of business, except as otherwise provided by statute or by
the articles of incorporation or by these by-laws. If, however, any meeting of
shareholders cannot be organized because a quorum has not attended, the
shareholders entitled to vote thereat, present in person or by proxy,
3
5
shall have power, except as otherwise provided by statute, to adjourn the
meeting to such time and place as they may determine, but in the case of any
meeting called for the election of directors, such meeting may be adjourned only
from day to day or for such longer periods not exceeding fifteen days each as
the holders of a majority of the shares present in person or by proxy shall
direct, and those who attend or participate at the second of such adjourned
meetings, although less than a quorum, shall nevertheless constitute a quorum
for the purpose of electing directors. At any adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally noticed.
Section 2.8. When a quorum is present or represented at any
meeting, the vote of the holders of a majority of the stock having voting
powers, present in person or represented by proxy, shall decide any question
brought before such meeting, unless the question is one which, by express
provision of the statutes or of the articles of incorporation or of these
by-laws, a different vote is required in which case such express provision shall
govern and control the decision of such question.
Section 2.9. Except as otherwise provided by statute or the
articles of incorporation, at every
4
6
shareholders' meeting every shareholder entitled to vote shall have the right to
one vote for every share having voting power standing in his name on the books
of the corporation. Except as otherwise provided in the articles of
incorporation, in each election of directors every shareholder entitled to vote
shall have the right to multiply the number of votes to which he may be entitled
by the total number of directors to be elected in the same election by the
holders of the class or classes of shares of which his shares are a part, and he
may cast the whole number of such votes for one candidate or he may distribute
them among any two or more candidates. The candidates receiving the highest
number of votes from each class or group of classes entitled to elect directors
separately up to the number of directors to be elected in the same election by
such class or group of classes shall be elected.
Section 2.10. Every shareholder entitled to vote at a meeting
of shareholders or to express consent or dissent to corporate actions 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 by 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
5
7
any other agreement or any provision in the proxy to the contrary, but the
revocation of a proxy shall not be effective until notice thereof has been given
to the secretary of the corporation. No unrevoked proxy shall be valid after
eleven months from the date of its execution, unless a longer time is expressly
provided therein, but in no event shall a proxy, unless coupled with an
interest, be voted on after three years from the date of its execution. A proxy
shall not be revoked by the death or incapacity of the maker unless before the
vote is counted or the authority is exercised written notice of such death or
incapacity is given to the secretary of the corporation.
Section 2.11. The officer or agent having charge of the
transfer books for shares of the corporation shall make, at least five days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at the meeting, arranged in alphabetical order, with the
address of and the number of shares held by each, which list shall be kept on
file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting.
6
8
Section 2.12. In advance of any meeting of shareholders, the
board of directors may appoint judges of election, who need not be shareholders,
to act at such meeting or any adjournment thereof. If judges of election be not
so appointed, the chairman of any such meeting may, and on the request of any
shareholder or his proxy shall, make such appointment at the meeting. The number
of judges shall be one or three. If appointed at a meeting on the request of one
or more shareholders or proxies, the holders of a majority of shares present and
entitled to vote shall determine whether one or three judges are to be
appointed. No person who is a candidate for office shall act as a judge. The
judges of election shall do all such acts as may be proper to conduct the
election or vote with fairness to all shareholders, and shall make a written
report of any matter determined by them and execute a certificate of any fact
found by them, if requested by the chairman of the meeting or any shareholder or
his proxy. If there be three judges of election, the decision, act or
certificate of a majority shall be effective in all respects as the decision,
act or certificate of all.
PARTICIPATION IN MEETING BY TELEPHONE
Section 2.13. One or more shareholders may participate in a
meeting of the shareholders by means of
7
9
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and all shareholders
so participating shall be deemed present in person at the meeting.
ARTICLE III
INFORMAL ACTION BY SHAREHOLDERS
Section 3.1. Except as otherwise provided in the articles of
incorporation any action required to be taken at a meeting of the shareholders
or of a class of shareholders may be taken without a meeting, if a consent or
consents in writing, setting forth the action so taken, shall be signed by all
of the shareholders who would be entitled to vote at a meeting for such purpose
and shall be filed with the secretary of the corporation.
ARTICLE IV
DIRECTORS
Section 4.1. The number of directors which shall constitute
the whole board shall be such number as the board of directors may determine but
not less than three, except that if all shares of the corporation are owned
beneficially and of record by either one or two shareholders, the number of
directors may be less than three but not less than the number of shareholders.
Directors shall be natural persons of full age and need not be residents of
Pennsylvania or
8
10
shareholders in the corporation. Except as hereinafter provided in the case of
vacancies, directors, other than those constituting the first board of
directors, shall be elected by the shareholders, and each director shall be
elected to serve until the next annual meeting of the shareholders and until his
successor is elected by the shareholders.
Section 4.2. Vacancies in the board of directors, including
vacancies resulting from an increase in the number of directors, shall be filled
by a majority of the remaining members of the board, though less than a quorum,
and each person so elected shall be a director until his successor is elected by
the shareholders, who may make such election at the next annual meeting of the
shareholders or at any special meeting duly called for that purpose and held
prior thereto.
Section 4.3. The business and affairs of the corporation shall
be managed by its board of directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the articles of incorporation or by these by-laws directed or required to be
exercised and done by the shareholders.
9
11
MEETINGS OF THE BOARD
Section 4.4. The meetings of the board of directors may be held
at such place within the Commonwealth of Pennsylvania or elsewhere as a majority
of the directors may from time to time appoint, or as may be designated in the
notice calling the meeting.
Section 4.5. The first meeting of each newly elected board may
be held at the same place and immediately after the meeting at which such
directors were elected and no notice need be given to the newly elected
directors in order legally to constitute the meeting; or it may convene at such
time and place as may be fixed by the consent or consents in writing of all the
directors.
Section 4.6. Regular meetings of the board may be held at such
time and places as shall be determined from time to time, by resolution of at
least a majority of the board at a duly convened meeting, or by unanimous
written consent. Notice of each regular meeting of the board shall specify the
date, place and hour of the meeting and shall be given each director at least 24
hours before the meeting either personally or by mail or telegram.
Section 4.7. Special meetings of the board may be called by the
president on 24 hours notice to each director, either personally or by mail or
by telegram; special
10
12
meetings shall be called by the president or secretary in like manner and on
like notice on the written request of two directors. Notice of each special
meeting of the board shall specify the date, place and hour of the meeting. The
notice need not state the general nature of the business to be conducted at such
special meeting.
Section 4.8. At all meetings of the board a majority of the
directors in office shall be necessary to constitute a quorum for the
transaction of business, and the acts of a majority of the directors present at
a meeting at which a quorum is present shall be 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 by-laws. If a quorum shall not be present
at any meeting of directors, the directors present thereat may adjourn the
meeting. It shall not be necessary to give any notice of the adjourned meeting
or of the business to be transacted thereat other than by announcement at the
meeting at which such adjournment is taken.
COMMITTEES OF DIRECTORS
Section 4.9. The board of directors may, by resolution adopted
by a majority of the whole board, designate one or more committees, each
committee to consist of two or more of the directors of the corporation. The
board
11
13
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
Any such committee to the extent provided in such resolution or in the by-laws,
shall have and exercise the authority of the board of directors in the
management of the business and affairs of the corporation. In the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another director
to act at the meeting in the place of any such absent or disqualified member.
PARTICIPATION IN MEETING BY TELEPHONE
Section 4.10. One or more directors may participate in a
meeting of the board or of a committee of the board by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and all directors so
participating shall be deemed present at the meeting.
INFORMAL ACTION BY DIRECTORS OR COMMITTEES
Section 4.11. Any action which may be taken at a meeting of
the directors or of the members of a committee of
12
14
the board may be taken without a meeting if a consent or consents in writing
setting forth the action so taken shall be signed by all of the directors or the
members of the committee, as the case may be, and shall be filed with the
secretary of the corporation.
COMPENSATION OF DIRECTORS
Section 4.12. The board of directors may, by resolution of the
board, fix the compensation of directors for their services. A director may also
serve the corporation in any other capacity and receive compensation therefor.
ARTICLE V
OFFICERS
Section 5.1. The officers of the corporation shall be chosen
by the directors and shall be a president, a secretary and a treasurer. 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. Any number of
offices may be held by the same person.
Section 5.2. The board of directors, immediately after each
annual meeting of shareholders, shall elect a president, a secretary and a
treasurer, none of whom need be members of the board.
13
15
Section 5.3. The board of directors may also choose one or
more vice presidents and such other officers and assistant officers and agents
as the needs of the corporation may require who shall hold their offices for
such terms and shall have such authority and shall perform such duties as from
time to time shall be determined by resolution of the board.
Section 5.4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5.5. The officers of the corporation shall hold office
until their successors are chosen and have qualified. Any officer or agent
elected or appointed by the board of directors, may be removed by the board of
directors whenever in its judgment the best interests of the corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. If the office of any officer becomes
vacant for any reason, the vacancy shall be filled by the board of directors.
THE PRESIDENT
Section 5.6. The president shall be the chief executive
officer of the corporation; he shall preside at all meetings of the shareholders
and directors, shall have
14
16
general and active management of the business of the corporation and shall see
that all orders and resolutions of the board are carried into effect.
Section 5.7. He shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 5.8. The vice-president, or if there shall be more
than one, the vice-presidents, in the order designated by the Board of
Directors, shall, in the absence or disability of the president, perform the
duties and exercise the powers of the president, and shall perform such other
duties as the board of directors may prescribe or the president may delegate to
them.
THE SECRETARY
Section 5.9. The secretary shall attend all sessions of the
board and all meetings of the shareholders and record all the votes of the
corporation and the minutes of all the transactions in a book to be kept for
that purpose, and shall perform like duties for the committees of
15
17
the board of directors when required. He shall give, or cause to be given,
notice of all meetings of the shareholders and of special meetings of the board
of directors, and shall perform such other duties as may be prescribed by the
board of directors or president, under whose supervision he shall be. He shall
keep in safe custody the corporate seal of the corporation, and, when authorized
by the board, affix the same to any instrument requiring it, and, when so
affixed, it shall be attested by his signature or by the signature of the
treasurer or an assistant secretary.
THE TREASURER
Section 5.10. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as shall be designated by the board of
directors.
Section 5.11. He shall disburse the funds of the corporation
as may be ordered by the board, taking proper vouchers for such disbursements,
and shall render to the president and directors, at the regular meetings of the
board, or whenever they may require it, an account of all
16
18
his transactions as treasurer and of the financial condition
of the corporation.
Section 5.12. If required by the board of directors, he shall
give the corporation a bond in such sum, and with such surety or sureties as may
be satisfactory to the board of directors, for the faithful discharge of the
duties of his office and for the restoration to the corporation, in the case of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
ARTICLE VI
CERTIFICATES OF SHARES
Section 6.1. The certificates of shares of the corporation
shall be numbered and registered in a share register as they are issued. They
shall exhibit the name of the registered holder and the number and class of
shares and the series, if any, represented thereby and the par value of each
share or a statement that such shares are without par value, as the case may be.
Section 6.2. Every share certificate shall be signed by the
president or a vice-president and the secretary or an assistant secretary or the
treasurer or an assistant treasurer and shall be sealed with the corporate
17
19
seal which may be a facsimile, engraved or printed, but where such certificate
is signed by a transfer agent or by a transfer clerk of the corporation 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 by the corporation with the same effect
as if the officer had not ceased to be such at the time of its issue.
ARTICLE VII
TRANSFER OF SHARES
Section 7.1. Upon presentment to the corporation of a share
certificate duly endorsed or accompanied 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 cancelled and the transfer
registered upon the books of the corporation, unless the corporation has a duty
to inquire as to adverse claims with respect to such transfer which has not been
discharged. The corporation shall have no duty to inquire into adverse claims
with respect to such transfer unless (a) the corporation has received a written
notification of an
18
20
adverse claim at a time and in a manner which affords the corporation a
reasonable opportunity to act on it prior to the issuance of a new, reissued or
re-registered share certificate and the notification identifies the claimant,
the registered owner and the issue of which the share or shares is a part and
provides an address for communications directed to the claimant; or (b) the
corporation has required and obtained, with respect to a fiduciary, a copy of a
will, trust, indenture, articles of co-partnership, by-laws or other controlling
instruments, for a purpose other than to obtain appropriate evidence of the
appointment or incumbency of the fiduciary, and such documents indicate, upon
reasonable inspection, the existence of an adverse claim.
Section 7.2. The corporation may discharge any duty of inquiry
by any reasonable means, including notifying an adverse claimant by registered
or certifIed mail at the address furnished by him or, if there be no such
address, at his residence or regular place of business that the security has
been presented for registration of transfer by a named person, and that the
transfer will be registered unless within thirty days from the date of mailing
the notification, either (a) an appropriate restraining order, injunction or
other process issues from a court of competent
19
21
jurisdiction; or (b) an indemnity bond, sufficient in the corporation's judgment
to protect the corporation and any transfer agent, registrar or other agent of
the corporation involved from any loss which it or they may suffer by complying
with the adverse claim, is filed with the corporation.
ARTICLE VIII
FIXING RECORD DATE
Section 8.1. The board of directors may fix a time, not more
than fifty days prior to the date of any meeting of shareholders or the date
fixed for the payment of any dividend or distribution, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
shares will be made or go into effect, as a record date for the determination of
the shareholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of any such dividend or distribution, or to receive
any such allotment or rights, or to exercise the rights in respect to any such
change, conversion or exchange of shares. In such case only such shareholders as
shall be shareholders of record on the date so fixed shall be entitled to notice
of, and to vote at, such meeting or to receive payment of such dividend or to
receive such allotments of rights or to exercise such
20
22
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after any record date so fixed. The board of directors
may close the books of the corporation against transfers of shares during the
whole or any part of such period and in such case written or printed notice
thereof shall be mailed at least ten days before the closing thereof to each
shareholder of record at the address appearing on the records of the corporation
or supplied by him to the corporation for the purpose of notice.
ARTICLE IX
REGISTERED SHAREHOLDERS
Section 9.1. Prior to due presentment for transfer of any
share or shares, the corporation shall treat the registered owner thereof as the
person exclusively entitled to vote, to receive notifications and to all other
benefits of ownership with respect to such share or shares, and shall not be
bound to recognize any equitable or other claim or interest in such share or
shares, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Pennsylvania.
21
23
ARTICLE X
LOST CERTIFICATES
Section 10.1. If the owner of a share certificate claims that
it has been lost, destroyed, or wrongfully taken, the corporation shall issue a
new certificate in place of the original certificate if the owner so requests
before the corporation has notice that the certificate has been acquired by a
bona fide purchaser, has filed with the corporation an indemnity bond and an
affidavit of the facts satisfactory to the board of directors, and has complied
with such other reasonable requirements, if any, as the board of directors may
deem appropriate.
ARTICLE XI
DIVIDENDS
Section 11.1. Dividends upon the capital stock of the
corporation, subject to the provisions of the articles of incorporation relating
thereto, if any, may be declared by the board of directors at any regular or
special meeting pursuant to law. Dividends may be paid in cash, in property, or
in shares of the corporation.
Section 11.2. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
22
24
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interests of the
corporation, and the directors may abolish any such reserve in the manner in
which it was created.
ARTICLE XII
GENERAL PROVISIONS
FINANCIAL REPORT TO SHAREHOLDERS
Section 12.1. The directors of the corporation shall not be
required at any time to send to the shareholders financial statements or reports
of the financial condition of the corporation.
CHECKS AND NOTES
Section 12.2. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers as the board of
directors may from time to time designate.
FISCAL YEAR
Section 12.3. The fiscal year of the corporation shall be the
calendar year.
SEAL
Section 12.4. The corporate seal shall have inscribed thereon
the name of the corporation, the year of
23
25
its organization and the words "Corporate Seal, Pennsylvania". Said seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
manner reproduced.
NOTICES
Section 12.5. Whenever, under the provisions of the statutes
or of the articles of incorporation or of these by-laws, notice is required to
be given to any person, it may be given to such person either personally or by
sending a copy thereof through the mail or by telegram, charges prepaid, to his
address appearing on the books of the corporation or supplied by him to the
corporation for the purpose of notice. If the notice is sent by mail or by
telegram, it shall be deemed to have been given to the person entitled thereto
when deposited in the United States mail or with a telegraph office for
transmission to such person.
Section 12.6. Whenever any written notice is required to be
given by statute or by the articles of incorporation or by these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed the
equivalent of the giving of such notice. Except in the case of a special meeting
of shareholders, neither the business to be transacted nor the purpose of the
24
26
meeting need be specified in the waiver of notice of such meeting. Attendance of
any person entitled to notice, either in person or by proxy, at any meeting
shall constitute a waiver of notice of such meeting, except where any person
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting was not lawfully called or convened.
ARTICLE XIII
AMENDMENTS
Section 13.1. The by-laws may be altered, amended or repealed
by a majority vote of the shareholders entitled to vote thereon at any regular
or special meeting duly convened after notice to the shareholders of that
purpose, or by a majority vote of the members of the board of directors at any
regular or special meeting duly convened, subject always to the power of the
shareholders to change such action by the directors.
ARTICLE XIV
INDEMNIFICATION
Section 14.1. The corporation shall indemnify to the extent
permitted under these by-laws, any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
25
27
(other than an action by or in the right of the corporation) 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 corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in, or not opposed to,
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 14.2. The corporation shall have power to indemnify
any person who was or is a party, or is threatened
26
28
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor 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 corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the court of common pleas of the
county in which the registered office of the corporation is located or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which court of common pleas or such other court shall deem proper.
27
29
Section 14.3. To the extent that a director, officer, employee
or agent of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in sections 14.1 or 14.2
of this Article or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 14.4. Any indemnification under sections 14.1 or 14.2
of this Article (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
such section. Such determination shall be made:
1. By the board of directors by a majority
vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or
2. If such a quorum is not obtainable, or,
even if obtainable a majority vote of a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or
3. By the shareholders.
28
30
Section 14.5. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding as authorized in the
manner provided in section 14.4 of this Article upon receipt of an undertaking
by or on behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be indemnified
by the corporation as authorized in this Article.
Section 14.6. The indemnification provided by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall 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 a person.
Section 14.7. The corporation shall have 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
cor-
29
31
poration as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him 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.
30