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EXHIBIT 3(b)
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INTERSTATE HOTELS COMPANY
AMENDED AND RESTATED
BYLAWS
As Adopted and in Effect
as of June 25, 1996
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INTERSTATE HOTELS COMPANY
AMENDED AND RESTATED
BYLAWS
ARTICLE I - SHAREHOLDERS' MEETINGS
1.1. Time and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5. Record Date for Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6. Judges of Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7. Quorum; Adjournments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8. Action by Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9. Order of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - DIRECTORS
2.1. Powers of Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2. Number, Election and Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3. Vacancies and New Directorships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5. Nominations of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.6. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.7. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.8. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.9. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.10. Action by Written Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.11. Telephone Participation in Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.12. Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.13. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.14. Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III - NOTICES
3.1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV - OFFICERS
4.1. Enumeration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3. Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.4. Authority and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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ARTICLE V - DIRECTORS' LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1. Directors' Personal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2. Preservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VI - INDEMNIFICATION
6.1. Mandatory Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2. Mandatory Advancement of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.3. Permissive Indemnification and Advancement of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.4. Scope of Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.5. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.6. Contracts and Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.7. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.8. Definition of Corporation for this Article VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII - SHARES OF CAPITAL STOCK
7.1. Issuance of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.2. Share Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.3. Classes of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.4. Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.5. Lost, Stolen, Destroyed, or Mutilated Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.6. Record Date for Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.7. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII - GENERAL PROVISIONS
8.1. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8.2. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.3. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.5. Reliance upon Books, Reports, and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.6. Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.7. Effect of Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.8. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IX - AMENDMENTS
9.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.2. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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AMENDED AND RESTATED BYLAWS
OF
INTERSTATE HOTELS COMPANY
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ARTICLE I
SHAREHOLDERS' MEETINGS
1.1. TIME AND PLACE OF MEETINGS. All meetings of the shareholders
for the election of Directors or for any other purpose will be held at such
time and place, within or without the Commonwealth of Pennsylvania, as may be
designated by the Board or, in the absence of a designation by the Board, the
Chairman, and stated in the notice of meeting. The Board or the Chairman may
postpone and reschedule any previously scheduled annual or special meeting of
the shareholders.
1.2. ANNUAL MEETING. The annual meeting of the shareholders for
the election of Directors and the transaction of such other business as may
properly be brought before the meeting in accordance with Section 1.9 of these
Bylaws will be held at such time and on such date as may be designated by the
Board or, in the absence of a designation by the Board, the Chairman.
1.3. SPECIAL MEETINGS. (a) Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by law, the Articles
of Incorporation or these Bylaws, may be called only by (i) the Chairman and
(ii) the Secretary within 10 calendar days after receipt of the written request
of 80% of the Whole Board. Any such request by 80% of the Whole Board must be
sent to the Chairman and the Secretary and must state the purpose or purposes
of the proposed meeting. Special meetings of holders of the outstanding
Preferred Stock, if any, may be called in the manner and for the purposes
provided in the applicable Preferred Stock Designation.
(b) Upon the receipt by the Corporation of a written request
executed by the holders of not less than 25% of the outstanding Voting Stock (a
"Meeting Request"), the Board will (i) call a special meeting of the
shareholders for the purpose specified in such Meeting Request (which may not,
however, include the removal of Directors other than for cause, the increase or
decrease in the number of Directors, or any other action affecting the
composition of the Board or any committee thereof) and (ii) fix a record date
for the determination of shareholders entitled to notice of and to vote at such
meeting (which record date will not be later than 60 calendar days after the
date of receipt by the Corporation of the Meeting Request); provided, however,
that no separate special meeting of shareholders requested pursuant to a
Meeting Request will be required to be convened if (A) the Board calls an
annual or special meeting of shareholders to be held not later than 90 calendar
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after receipt of such Meeting Request and (B) the purposes of such annual or
special meeting include (among any other matters properly brought before the
meeting) the purposes specified in such Meeting Request.
1.4. NOTICE OF MEETINGS. Written notice of every meeting of the
shareholders, stating the place, date, and hour of such meeting and, in the
case of a special meeting, the general nature of the business to be transacted,
will be given by, or at the direction of, the Secretary or any other person
authorized to call such meeting to each shareholder of record entitled to vote
at such meeting, not less than five calendar days prior to the date named for
the meeting, except as otherwise provided herein or by law. When a meeting is
adjourned to another place, date, or time, written notice need not be given of
the adjourned meeting if the place, date, and time thereof are announced at the
meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than 30 calendar days, or if after the adjournment a
new record date is fixed for the adjourned meeting, written notice of the
place, date, and time of the adjourned meeting must be given in conformity
herewith. At any adjourned meeting, any business may be transacted which might
have been transacted at the original meeting.
1.5. RECORD DATE FOR MEETINGS. The Board may fix a time prior to
the date of any meeting of the shareholders as a record date for the
determination of the shareholders entitled to notice of, or to vote at, the
meeting. Except in the case of an adjourned meeting, the record date will be
not more than 90 calendar days prior to the date of the meeting of
shareholders. Only shareholders of record on the record date will be entitled
to notice of, and to vote at, such meeting notwithstanding any transfer of
shares on the books of the Corporation after the record date. When a
determination of shareholders of record has been made as provided herein for
purposes of a meeting, the determination will apply to any adjournment thereof
unless the Board fixes a new record date of the adjourned meeting. If a record
date is not fixed by the Board, the record date for determining shareholders
entitled to notice of, or to vote at, a meeting of the shareholders will 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.
1.6. JUDGES OF ELECTION. The Board may appoint one or more judges
of election to act as judges of the voting and to determine those entitled to
vote at any meeting of the shareholders, or any adjournment thereof, in advance
of such meeting. The Board may designate one or more persons as alternate
judges of election to replace any judge of election who fails to act. If no
judge of election or alternate is able to act at a meeting of shareholders, the
presiding officer of the meeting may appoint one or more substitute judges of
election.
1.7. QUORUM; ADJOURNMENTS. Except as otherwise provided by law or
in a Preferred Stock Designation, the presence, whether in person or
represented by proxy, of the holders of a majority of the Voting Stock issued
and outstanding and entitled to vote on a particular matter to be acted upon at
a meeting of the shareholders will constitute a quorum for the purposes of
consideration and action on the matter. If, however, such quorum is not
present or represented at any meeting of the shareholders, the shareholders
entitled to vote
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thereat, present in person or represented by proxy, will have the power to
adjourn the meeting; provided, however, that (i) any such meeting at which
Directors are to be elected may be adjourned only from day to day, or for such
longer periods (not to exceed 15 calendar days each) as the shareholders
present in person or by proxy and entitled to vote direct, until the Directors
have been elected, and (ii) 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 constituting less than a quorum as fixed in this
Section 1.7, will nevertheless constitute a quorum for the purpose of electing
Directors.
1.8. ACTION BY SHAREHOLDERS. (a) Except as otherwise provided by
law or in the Articles of Incorporation, these Bylaws or a Preferred Stock
Designation, each shareholder will be entitled at every meeting of the
shareholders to one vote for each share of Voting Stock standing in the name of
such shareholder on the books of the Corporation on the record date for the
meeting, and such votes may be cast either in person or by written proxy.
Every proxy must be duly executed and filed with the Secretary. A shareholder
may revoke any proxy that is not irrevocable by attending the meeting and
voting in person or by filing an instrument in writing revoking the proxy or
another duly executed proxy bearing a later date with the Secretary. The vote
upon any matter brought before a meeting of the shareholders may be by voice
vote, unless otherwise required by the Articles of Incorporation or these
Bylaws or unless the Chairman or the holders of a majority of the outstanding
shares of all classes of capital stock entitled to vote thereon, present in
person or by proxy, at such meeting otherwise determine. Every vote taken by
written ballot will be counted by the inspectors of election.
(b) With respect to any corporate action to be taken at a meeting by
a vote of the shareholders entitled to vote thereon, when a quorum is present
at such meeting, such action will be authorized by a majority of the votes cast
by the holders of the Voting Stock entitled to vote thereon, unless the action
is one with respect to which by express provision of law, the Articles of
Incorporation, a Preferred Stock Designation, these Bylaws, or action by the
Board, a different vote is required, in which case such express provision will
govern and control the authorization of such action. For purposes of these
Bylaws, the term "cast" does not include recording the fact of abstention or
failing to vote for a candidate or for approval or disapproval of a matter,
whether or not the person entitled to vote characterized the conduct as voting
or casting a vote. In an election of Directors, the candidates receiving the
highest number of votes, up to the number of Directors to be elected, will be
elected.
1.9. ORDER OF BUSINESS. (a) The Chairman, or if the Chairman is
not present thereat such other officer of the Corporation designated by a
majority of the Whole Board, will call meetings of the shareholders to order
and will act as presiding officer thereof. The presiding officer of the
meeting of the shareholders will also determine the order of business and have
the authority in his or her sole discretion to regulate the conduct of any such
meeting, including without limitation by imposing restrictions on the persons
(other than shareholders of the Corporation or their duly appointed proxies)
who may attend any such shareholders' meeting, by ascertaining whether any
shareholder or his or her proxy may be excluded from any meeting of the
shareholders based upon any determination by the presiding officer, in his or
her sole discretion, that any such person has unduly disrupted or
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is likely to disrupt the proceedings thereat, and by determining the
circumstances in which any person may make a statement or ask questions at any
meeting of the shareholders.
(b) At an annual meeting of the shareholders, only such business will
be conducted or considered as is properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the Board in accordance with Section 1.4, (ii) otherwise properly brought
before the meeting by the presiding officer or by or at the direction of a
majority of the Whole Board, or (iii) otherwise properly requested to be
brought before the meeting by a shareholder of the Corporation in accordance
with the Articles of Incorporation or these Bylaws.
(c) For business to be properly requested by a shareholder to be
brought before an annual meeting, the shareholder must (i) be a shareholder of
the Corporation of record at the time of the giving of the notice for such
annual meeting provided for in these Bylaws, (ii) be entitled to vote at such
meeting, and (iii) have given timely notice thereof in writing to the
Secretary. To be timely, a shareholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less
than 60 calendar days prior to the annual meeting; provided, however, that in
the event public announcement of the date of the annual meeting is not made at
least 75 calendar days prior to the date of the annual meeting, notice by the
shareholder to be timely must be so received by not later than the close of
business on the 10th calendar day following the day on which public
announcement is first made of the date of the annual meeting. A shareholder's
notice to the Secretary must set forth as to each matter the shareholder
proposes to bring before the annual meeting (A) a description in reasonable
detail of the business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (B) the name and
address, as they appear on the Corporation's books, of the shareholder
proposing such business and the beneficial owner, if any, on whose behalf the
proposal is made, (C) the class and number of shares of the Corporation that
are owned beneficially and of record by the shareholder proposing such business
and by the beneficial owner, if any, on whose behalf the proposal is made, and
(D) any material interest of such shareholder proposing such business and the
beneficial owner, if any, on whose behalf the proposal is made in such
business. Notwithstanding the foregoing provisions of this Section 1.10(c), a
shareholder must also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder with respect to the matters set forth in this Section
1.9(c). For purposes of this Section 1.9(c) and Section 2.5(c), "public
announcement" means disclosure in a press release reported by the Dow Jones
News Service, Associated Press, or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13, 14, or 15(d) of the
Exchange Act or in a document furnished to shareholders. Nothing in this
Section 1.9(c) will be deemed to affect any rights of shareholders to request
inclusion of proposals in the Corporation's proxy statement in accordance with
Rule 14a-8 under the Exchange Act.
(d) At a special meeting of shareholders, only such business may
be conducted or considered as is properly brought before the meeting. To be
properly brought before a
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special meeting, business must be (i) specified in the notice of the meeting
(or any supplement thereto) given by or at the direction of the Chairman
(including without limitation pursuant to a Meeting Request) or a majority of
the Whole Board in accordance with Section 1.4 or (ii) otherwise properly
brought before the meeting by the presiding officer or by or at the direction
of a majority of the Whole Board.
(e) The determination of whether any business sought to be brought
before any annual or special meeting of the shareholders is properly brought
before such meeting in accordance with this Section 1.9 will be made by the
presiding officer of such meeting. If the presiding officer determines that
any business is not properly brought before such meeting, he or she will so
declare to the meeting and any such business will not be conducted or
considered.
ARTICLE II
DIRECTORS
2.1. POWERS OF BOARD OF DIRECTORS. Except as otherwise provided by
law, the Articles of Incorporation, or these Bylaws, all powers vested by law
in the Corporation will be exercised by or under the authority of, and the
business and affairs of the Corporation will be managed under the direction of,
the Board.
2.2. NUMBER, ELECTION AND TERM OF OFFICE. (a) Subject to the
rights, if any, of any series of Preferred Stock to elect additional Directors
under circumstances specified in a Preferred Stock Designation, the authorized
number of Directors initially will be seven, and thereafter will not be less
than six nor more than ten as may be determined from time to time by (i) a vote
of a majority of the Whole Board or (ii) the affirmative vote of the holders of
at least 80% of the Voting Stock, voting together as a single class.
(b) Directors will be elected by the shareholders at an annual
meeting of shareholders. Each Director will hold office until the next annual
meeting of the shareholders and until his or her successor has been duly
elected and qualified.
(c) Notwithstanding anything contained in the Articles of
Incorporation or these Bylaws to the contrary, the term of any Director who is
also an officer of the Corporation will terminate automatically, without any
further action on the part of the Board or such Director, upon the termination
for any reason of such Director in his or her capacity as an officer of the
Corporation unless the Board determines otherwise.
2.3. VACANCIES AND NEW DIRECTORSHIPS. Subject to the rights, if
any, of the holders of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation, newly
created directorships resulting from any increase in the authorized number of
Directors and any vacancies or the Board resulting from death, resignation,
removal, or other cause will be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a
quorum of the Board, by a
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sole remaining Director, or, if there is no remaining Director, by the
shareholders. Any Director elected in accordance with the preceding sentence
will hold office for the remainder of the term of the directorship for which
such Director was so elected and until such Director's successor has been
elected and qualified. No decrease in the number of Directors constituting the
Board may shorten the term of any incumbent Director.
2.4. REMOVAL. Subject to the rights, if any, of the holders of any
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, any Director may be removed from
office (i) by the Board for cause and upon the vote of a majority of the Whole
Board and (ii) by the shareholders with or without cause and only in the manner
provided in the Articles of Incorporation; provided, however, that the Chairman
may be removed only by the affirmative vote of the holders of at least 80% of
the Voting Stock, voting together as a single class.
2.5. NOMINATIONS OF DIRECTORS. (a) Subject to the rights, if any,
of the holders of any series of Preferred Stock to elect additional Directors
under circumstances specified in a Preferred Stock Designation, only persons
who are nominated in accordance with the following procedures will be eligible
for election at a meeting of shareholders as Directors of the Corporation.
(b) Nominations of persons for election as Directors of the
Corporation may be made only at an annual meeting of shareholders (i) by or at
the direction of the Board or (ii) by any shareholder who is a shareholder of
record at the time of giving of notice provided for in this Section 2.5, who is
entitled to vote for the election of Directors at such meeting, and who
complies with the procedures set forth in this Section 2.5. All nominations by
shareholders must be made pursuant to timely notice in proper written form to
the Secretary.
(c) To be timely, a shareholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 60 calendar days prior to the annual meeting of shareholders;
provided, however, that in the event that public announcement of the date of
the annual meeting is not made by the Corporation by inclusion in a report
filed with the Commission or furnished to shareholders, or by mail, press
release, or otherwise more than 75 calendar days prior to the date of the
annual meeting, notice by the shareholder to be timely must be so received not
later than the close of business on the 10th calendar day following the day on
which public announcement is first made of the date of the annual meeting. To
be in proper written form, such shareholder's notice must set forth or include
(i) the name and address, as they appear on the Corporation's books, of the
shareholder giving the notice and of the beneficial owner, if any, on whose
behalf the nomination is made; (ii) a representation that the shareholder
giving the notice is a holder of record of stock of the Corporation entitled to
vote at such annual meeting and intends to appear in person or by proxy at the
annual meeting to nominate the person or persons specified in the notice; (iii)
the class and number of shares of stock of the Corporation owned beneficially
and of record by the shareholder giving the notice and by the beneficial owner,
if any, on whose behalf the nomination is made; (iv) a description of all
arrangements or understandings between or among any of (A) the shareholder
giving the notice, (B) the beneficial owner on whose behalf the notice is
given, (C) each nominee, and (D) any other
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person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder giving the notice;
(v) such other information regarding each nominee proposed by the shareholder
giving the notice as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Commission under the Exchange Act had
the nominee been nominated, or intended to be nominated, by the Board; and (vi)
the signed consent of each nominee to serve as a Director of the Corporation if
so elected. At the request of the Board, any person nominated by the Board for
election as a Director must furnish to the Secretary that information required
to be set forth in a shareholder's notice of nomination which pertains to the
nominee. The presiding officer of any meeting will, if the facts warrant,
determine that a nomination was not made in accordance with the procedures
prescribed by this Section 2.5 and any other applicable provisions of these
Bylaws or law, and if he or she should so determine, he or she will so declare
to the meeting and the defective nomination will be disregarded.
Notwithstanding the foregoing provisions of this Section 2.5, a shareholder
must also comply with all applicable requirements of applicable law, including
without limitation the Exchange Act and the rules and regulations thereunder,
with respect to the matters set forth in this Section 2.5.
2.6. RESIGNATION. Any Director may resign at any time by giving
written notice of his resignation to the Chairman or the Secretary. Any
resignation will be effective upon actual receipt by any such person or, if
later, as of the date and time specified in such written notice.
2.7. REGULAR MEETINGS. Regular meetings of the Board may be held
immediately after the annual meeting of the shareholders and at such other time
and place as may from time to time be determined by the Board. No notice will
be required to be given of any such regular meeting.
2.8. SPECIAL MEETINGS. Special meetings of the Board may be called
by the Chairman on two days' written or oral notice to each Director by whom
such notice is not waived, given either personally or by mail, telephone,
telegram, telex, facsimile, or similar medium of communication, and will be
called by the Chairman in like manner and on like notice on the written request
of a majority of the Directors. Special meetings of the Board may be held at
such time and place either within or without the Commonwealth of Pennsylvania
as is determined by the Board or specified in the notice of any such meeting.
2.9. QUORUM. At all meetings of the Board, a majority of the total
number of Directors then in office will constitute a quorum for the transaction
of business. Except for the designation of committees as hereinafter provided
and except for actions required by these Bylaws or the Articles of
Incorporation to be taken by a majority of the Whole Board, the act of a
majority of the Directors present at any meeting at which there is a quorum
present will be the act of the Board. If a quorum is not present at any
meeting of the Board, the Directors present thereat may adjourn the meeting
from time to time to another place, time, or date, without notice other than
announcement at the meeting, until a quorum is present.
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2.10. ACTION BY WRITTEN CONSENT. Any action required or permitted
to be taken at any meeting of the Board, or at a meeting of the members of any
committee thereof, may be taken without a meeting if, prior or subsequent
thereto, all members of the Board or committee, as the case may be, consent
thereto in writing, and such consent or consents are filed with the minutes or
proceedings of the Board or committee.
2.11. TELEPHONE PARTICIPATION IN MEETINGS. One or more members of
the Board, or any committee thereof, may participate in a meeting of the Board,
or any such committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting will
constitute presence in person at the meeting.
2.12. COMMITTEES. (a) The Board, by resolution passed by a
majority of the Board, may designate one or more committees, each such
committee to consist of one or more Directors and each to have such lawfully
delegable powers and duties as the Board may confer.
(b) Each committee of the Board will serve at the pleasure of the
Board or as may be specified in any resolution from time to time adopted by the
Board. The Board may designate one or more Directors as alternate members of
any such committee, who may replace any absent or disqualified member at any
meeting of such committee. In lieu of such action by the Board, in the absence
or disqualification of any member of a committee of the Board, the members
thereof present at any such meeting of such committee and not disqualified from
voting, whether or not they constitute a quorum, may, by unanimous action,
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member.
(c) Except as otherwise provided in these Bylaws or by law, any
committee of the Board, to the extent provided in the resolution of the Board
designating such committee, will have and may exercise all the powers and
authority of the Board in the direction of the management of the business and
affairs of the Corporation. Any such committee designated by the Board will
have such name as may be determined from time to time by resolution adopted by
the Board. Except as prescribed by the Board, a majority of the members of any
committee of the Board will constitute a quorum for the transaction of
business, and the act of a majority of the members will be the act of such
committee. Each committee of the Board may prescribe its own rules for calling
and holding meetings and its method of procedure, subject to any rules
prescribed by the Board, and will keep a written record of all actions taken by
it.
(d) A majority of the members of any committee the primary
responsibilities of which include (i) reviewing the professional services to be
provided by the Corporation's independent auditors and the independence of such
firm from the Corporation's management, reviewing financial statements with
management or independent auditors, and/or reviewing internal accounting
controls, (ii) recommending candidates to the Board for nomination for election
to the Board, and (iii) reviewing and approving salaries and other
compensation,
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whether cash or non-cash, and benefits of the Corporation's executive officers,
will be Directors who are not employees of the Corporation or any affiliate
thereof.
2.13. COMPENSATION. The Board may establish such compensation for,
and reimbursement of the expenses of, Directors for membership on the Board and
on committees of the Board, attendance at meetings of the Board or committees
of the Board, or for other services by Directors to the Corporation or any of
its majority-owned subsidiaries, as the Board may determine.
2.14. RULES. The Board may adopt rules and regulations for the
conduct of its meetings and the management of the affairs of the Corporation.
ARTICLE III
NOTICES
3.1. GENERALLY. Whenever notice is required to be given to any
person by law or under the provisions of the Articles of Incorporation or these
Bylaws, it may be given to such 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 facsimile transmission, to the
recipient's address (or to his or her telex, TWX or facsimile number) appearing
on the books of the Corporation or, in the case of directors, supplied by him
or her to the Corporation for the purpose of notice. If the notice is sent by
mail, telegraph or courier service, it will 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.
3.2. WAIVERS. Whenever notice is required to be given to any
person by law or under the provisions of the Articles of Incorporation or these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled
to such notice, whether before or after the time stated therein, will be deemed
equivalent to such notice. Attendance of a person at any meeting will
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened.
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ARTICLE IV
OFFICERS
4.1. ENUMERATION. The officers of the Corporation will be elected
by the Board and will consist of a President, such Vice Presidents (if any) as
the Board may elect from time to time, a Secretary, a Treasurer, and such other
officers and assistant officers (if any) as the Board may elect from time to
time. The Board may at any time elect one of its members as Chairman, to
preside at meetings of the Board and of the shareholders and to have such
powers and perform such duties as may be prescribed from time to time by the
Board. Notwithstanding the foregoing, by specific action the Board may
authorize the Chairman to appoint any person to any office other than Chairman,
President, Secretary, or Treasurer. Any two or more offices may be held by the
same person. Any of the offices may be left vacant from time to time as the
Board may determine. In the case of the absence or disability of any officer
of the Corporation or for any other reason deemed sufficient by a majority of
the Board, the Board may delegate the absent or disabled officer's powers or
duties to any other officer or to any Director.
4.2. COMPENSATION. The compensation of all officers, assistant
officers, and agents of the Corporation will be fixed by, or pursuant to
authority delegated by, the Board or a committee thereof from time to time.
4.3. SUCCESSION. The officers of the Corporation will hold office
until their successors are elected and qualified. Any officer may be removed
at any time by the affirmative vote of a majority of the Whole Board. Any
vacancy occurring in any office of the Corporation may be filled by the Board
as provided in Section 4.1.
4.4. AUTHORITY AND DUTIES. Each of the officers of the Corporation
will have such authority and will perform such duties as are customarily
incident to their respective offices or as may be specified from time to time
by the Board or by the Chairman as provided in Section 4.1.
ARTICLE V
DIRECTORS' LIABILITY
5.1. DIRECTORS' PERSONAL LIABILITY. A Director of the Corporation
will not be personally liable, as such, for monetary damages for any action
taken, or the failure to take any action, by such Director; provided, however,
that this provision will not eliminate or limit the liability of a Director to
the extent that such elimination or limitation of liability is expressly
prohibited by Section 1713 of the BCL or any successor statute as in effect at
the time the alleged action taken, or alleged failure to take action, by such
Director.
5.2. PRESERVATION OF RIGHTS. Any repeal or modification of this
Article V will not adversely affect any right or protection existing at the
time of such repeal or modification to
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which any Director or former Director may be entitled under this Article V.
The rights conferred by this Article V will continue as to any person who has
ceased to be a Director of the Corporation and will inure to the benefit of the
heirs and personal representatives of such person.
ARTICLE VI
INDEMNIFICATION
6.1. MANDATORY INDEMNIFICATION. Without limiting the generality or
effect of any provision of the Articles of Incorporation or applicable law, the
Corporation will indemnify, to the fullest extent now or hereafter permitted by
law (including without limitation the indemnification provided by Chapter 17,
Subchapter D, of the BCL or any successor statute), each Director or officer
(including each former Director or officer) of the Corporation who was or is
made a party to or a witness in or is threatened to be made a party to or a
witness in any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative, or investigative, by reason of the fact that
such person is or was an authorized representative of the Corporation, against
all expenses (including without limitation attorneys' fees and disbursements),
judgments, fines (including excise taxes and penalties), and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action or proceeding.
6.2. MANDATORY ADVANCEMENT OF EXPENSES. Without limiting the
generality or effect of any provision of the Articles of Incorporation or
applicable law, the Corporation will pay all expenses (including without
limitation attorneys' fees and disbursements) incurred by a Director or officer
(including without limitation a former Director or officer) referred to in
Section 6.1 in defending or appearing as a witness in any action or proceeding
described in Section 6.1 in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay all amounts advanced if it is ultimately determined that such person is
not entitled to be indemnified by the Corporation as provided in Section 6.4.
6.3. PERMISSIVE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
Without limiting the generality or effect of any provision of the Articles of
Incorporation or applicable law, the Corporation may, as determined by the
Board from time to time, indemnify to the fullest extent now or hereafter
permitted by law, any person who was or is made a party to or a witness in or
is threatened to be made a party to or a witness in, or was or is otherwise
involved in, any threatened, pending, or completed action or proceeding,
whether civil, criminal, administrative, or investigative, by reason of the
fact that such person is or was an authorized representative of the
Corporation, both as to action in such person's official capacity and as to
action in another capacity while holding such office or position, against all
expenses (including without limitation attorneys' fees and disbursements),
judgments, fines (including excise taxes and disbursements) and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action or proceeding. Without limiting the generality or effect of any
provision of the Articles of Incorporation or
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applicable law, the Corporation may, as determined by the Board from time to
time, pay expenses incurred by any such person by reason of such person's
participation in an action or proceeding referred to in this Section 6.3 in
advance of the final disposition of such action or proceeding upon receipt of
an undertaking by or on behalf of such person to repay such amount if it will
ultimately be determined that such person is not entitled to be indemnified by
the Corporation as provided in Section 6.4 hereof.
6.4. SCOPE OF INDEMNIFICATION. Indemnification under this Article
VI will not be made by the Corporation in any case where a court determines
that the alleged act or failure to act giving rise to the claim for
indemnification is expressly prohibited by Chapter 17, Subchapter D, of the BCL
or any successor statute as in effect at the time of such alleged action or
failure to take action.
6.5. INSURANCE. Without limiting the generality or effect of any
provision of the Articles of Incorporation or applicable law, the Corporation
may purchase and maintain insurance on behalf of any person who is or was a
Director or officer of other Corporation, or is or was an authorized
representative of the Corporation, against any liability asserted against or
incurred by such person in any such capacity, or arising out of the status of
such person as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article VI.
6.6. CONTRACTS AND FUNDING. Without limiting the generality or
effect of any provision of the Articles of Incorporation or applicable law, the
Board, without approval of the shareholders, will have the power to authorize
the Corporation to borrow money, including the power to authorize the pledge of
the assets of the Corporation, from time to time to discharge the Corporation's
obligations with respect to indemnification, the advancement and reimbursement
of expenses, and the purchase and maintenance of insurance referred to in this
Article VI. Without limiting the generality or effect of any provision of the
Articles of Incorporation or applicable law, the Corporation may enter into
contracts with any person entitled to indemnification under this Article VI or
otherwise, and may, in lieu of or in addition to the purchase and maintenance
of insurance referred to in Section 6.5 hereof, establish and maintain a fund
of any nature or otherwise secure or insure in any manner its indemnification
obligations, whether arising under or pursuant to this Article VI or otherwise.
6.7. MISCELLANEOUS. Each Director and officer of the Corporation
will be deemed to act in such capacity in reliance upon such rights of
indemnification and advancement of expenses as are provided in this Article VI.
The rights of indemnification and advancement of expenses provided by this
Article VI will not be deemed exclusive of any other rights to which any person
seeking indemnification or advancement of expenses may be entitled under the
Articles of Incorporation, any agreement, any vote of shareholders or
disinterested directors of the Corporation, any statute or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office or position, and will continue as to a
person who has ceased to be an authorized representative of the Corporation and
will inure to the benefit of the heirs and personal representatives of such
person. Indemnification and advancement of expenses under this Article VI will
be provided
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whether or not the indemnified liability arises or arose from any threatened,
pending, or completed action by or in the right of the Corporation. Any repeal
or modification of this Article VI will not adversely affect any right or
protection existing at the time of such repeal or modification to which any
person may be entitled under this Article VI.
6.8. DEFINITION OF CORPORATION FOR THIS ARTICLE VI. Solely for
purposes of this Article VI, references to "the Corporation" will include all
constituent corporations absorbed in a consolidation or merger, as well as the
surviving or resulting corporation or corporations therefrom, so that (i) any
person who is or was an authorized representative of a constituent, surviving,
or new corporation will stand in the same position under the provisions of this
Article VI with respect to the surviving or new corporation as such person
would if he or she had served the surviving or new corporation in the same
capacity and (ii) any person who is or was an authorized representative of the
Corporation will stand in the same position under the provisions of this
Article VI with respect to the surviving or new corporation as such person
would with respect to the Corporation if its separate existence had continued.
ARTICLE VII
SHARES OF CAPITAL STOCK
7.1. ISSUANCE OF SHARES. Shares of capital stock of any class now
or hereafter authorized, securities convertible into or exchangeable for such
shares, or options or other rights to purchase such shares or securities, may
be issued or granted in accordance with authority granted by resolution of the
Board from time to time.
7.2. SHARE CERTIFICATES. Certificates representing shares of the
capital stock of the Corporation will be in the form adopted from time to time
by the Board or an authorized committee thereof, subject to applicable legal
requirements. Each such certificate will be numbered and its issuance recorded
in the books of the Corporation, and such certificate will exhibit the holder's
name and the number of shares and will be signed by, or in the name of, the
Corporation by the Chairman, President or a Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and will
also be signed by, or bear the facsimile signature of, any properly designated
transfer agent of the Corporation. Any or all of the signatures and the seal
of the Corporation, if any, upon such certificates may be facsimiles, engraved,
or printed. Such certificates may be issued and delivered notwithstanding that
the person whose facsimile signature appears thereon may have ceased to be such
officer at the time certificates are issued and delivered.
7.3. CLASSES OF STOCK. The designations, preferences, and relative
participating, optional, or other special rights of the various classes of
capital stock or any series thereof, and the qualifications, limitations, or
restrictions thereof, will be set forth in full or summarized on the face or
back of the certificates which the Corporation issues to represent such capital
stock or, in lieu thereof or in addition thereto, such certificates will set
forth the office of the Corporation from which the holders of certificates may
obtain a copy of such information.
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7.4. TRANSFERS. Shares of capital stock of the Corporation will be
transferred only on the books of the Corporation by the holder of record in
person or by such holder's duly authorized representative. Upon surrender to
the Corporation or the transfer agent (if any) of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment, or authority to transfer, it will be the duty of the
Corporation to issue, or cause its transfer agent (if any) to issue, a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books.
7.5. LOST, STOLEN, DESTROYED, OR MUTILATED CERTIFICATES. The
Secretary may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged
to have been lost, stolen, destroyed, or mutilated upon the making of an
affidavit of that fact, satisfactory to the Secretary, by the person claiming
the certificate of stock to be lost, stolen, destroyed, or mutilated. As a
condition precedent to the issuance of a new certificate or certificates, the
Secretary may require the owners of such lost, stolen, destroyed, or mutilated
certificate or certificates to give the Corporation a bond in such sum and with
such surety or sureties as the Board may direct as indemnity against any claims
that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen, destroyed, or mutilated or the issuance of
the new certificate.
7.6. RECORD DATE FOR DISTRIBUTIONS. (a) In order that the
Corporation may determine the shareholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or the shareholders
entitled to exercise any rights in respect of any change, conversion, or
exchange of stock, or for the purpose of any other lawful action, the Board may
fix a record date, which record date will not be more than 60 calendar days
prior to such action. If no record date is fixed, the record date for
determining shareholders for any such purpose will be at the close of business
on the calendar day on which the Board adopts the resolution relating thereto.
(b) The Corporation will be entitled to treat the person in whose
name any share of its stock is registered as the holder or owner in fact
thereof for all purposes, and will not be bound to recognize any equitable or
other claim to, or right, title, or interest in, such share or shares on the
part of any other person, whether or not the Corporation will have express or
other notice thereof, except as may be otherwise expressly provided by law.
7.7. REGULATIONS. The Board will have the power and authority to
make all such rules and regulations not inconsistent with these Bylaws as it
may deem expedient concerning the issue, transfer, and registration of shares
of capital stock of the Corporation.
ARTICLE VIII
GENERAL PROVISIONS
8.1. CORPORATE SEAL. The Corporation may adopt a corporate seal in
such form as the Board may determine from time to time and use the same by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
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8.2. FISCAL YEAR. The fiscal year of the Corporation will be as
designated by the Board from time to time.
8.3. AUTHORIZATION. All checks, notes, mortgages, evidences of
indebtedness, vouchers, warrants, drafts, acceptances, and other orders for the
payment of moneys of the Corporation, contracts, and other documents, and
assignments or endorsements thereof, will be signed by the President or such
officer or officers or such other person as the Board may designate from time
to time.
8.4. FINANCIAL STATEMENTS. The Corporation will furnish annual
financial statements to its shareholders in accordance with applicable law.
8.5. RELIANCE UPON BOOKS, REPORTS, AND RECORDS. Each Director,
each member of a committee designated by the Board, and each officer of the
Corporation will, in the performance of his or her duties, be fully protected
in relying in good faith upon the records of the Corporation and upon such
information, opinions, reports, or statements presented to the Corporation by
any of the Corporation's officers or employees, or committees of the Board, or
by any other person or entity to the extent provided by law.
8.6. TIME PERIODS. In applying any provision of these Bylaws that
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days will be used unless otherwise specified, the
day of the doing of the act will be excluded, and the day of the event will be
included.
8.7. EFFECT OF BYLAWS. No provision of these Bylaws will vest any
property right in any shareholder.
8.8. CERTAIN DEFINED TERMS. Terms used herein with initial capital
letters that are defined in the Articles of Incorporation are used herein as so
defined.
ARTICLE IX
AMENDMENTS
9.1. AMENDMENT. Except as otherwise provided by law or by the
Articles of Incorporation or these Bylaws, these Bylaws or any of them may be
amended in any respect or repealed at any time, either (a) at any meeting of
shareholders, provided that any amendment or supplement proposed to be acted
upon at any such meeting has been described or referred to in the notice of
such meeting, or (b) at any meeting of the Board, provided that no amendment or
repeal adopted by the Board may vary or conflict with any amendment or repeal
adopted by the shareholders.
9.2. EFFECTIVE DATE. Any change in the Bylaws will take effect
when adopted unless otherwise provided in the resolution effecting the change.
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