EXHIBIT 3.59
BYLAWS
OF
HEALTH POCONOS, INC.
(a Pennsylvania corporation)
ARTICLE I
OFFICES AND FISCAL YEAR
Section 1.01 REGISTERED OFFICE. The registered office of the
corporation in Pennsylvania shall be at Fork Street, Mount Pocono, PA until
otherwise established by an amendment of the articles or by the board of
directors and a record of such change is filed with the Department of State in
the manner, provided by law.
Section 1.02 OTHER OFFICE. The corporation may also have
offices at such other places within or without Pennsylvania as the board of
directors may from time to time appoint or the business of the corporation may
require.
Section 1.03 FISCAL YEAR. The fiscal year of the corporation
shall begin the 1st day of January in each year.
ARTICLE II
NOTICE - WAIVERS - MEETINGS GENERALLY
Section 2.01 MANNER OF GIVING NOTICE.
(a) General rule. Whenever written notice is required to be
given to any person under the provisions of the Business Corporation Law or by
the Articles or these bylaws, it may be given to the person either personally or
by sending a copy thereof by first class or express mail, postage prepaid, or by
telegram (with messenger service specified), telex or TWX (with answerback
received) or courier service, charges prepaid, or by telecopier, to the address
(or to the telex, TWX, telecopier or telephone number) of the person appearing
on the books of the corporation or, in the case of directors, supplied by the
directors to the corporation for the purpose of notice. If the notice is sent by
mail, telegraph or courier service, it shall be deemed to have been given to the
person entitled thereto when deposited in the United States mail or with a
telegraph office or courier service for delivery to that person or, in the case
of telex or TWX, when dispatched or, in the case of telecopier, when received. A
notice of meeting shall specify the place, day and hour of the meeting and any
other information required by any other provision of the Business Corporation
Law, the articles or these bylaws.
(b) Adjourned shareholder meetings. When a meeting of
shareholders is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at an adjourned meeting,
other than by announcement at the meeting at which the adjournment is taken,
unless the board fixes a new record date for the adjourned meeting.
Section 2.02 NOTICE OF MEETINGS OF BOARD OF DIRECTORS. Notice
of a regular meeting of the board of directors need not be given. Notice of
every special meeting
of the board of directors shall be given to each director by telephone or in
writing at least 24 hours (in the case of notice by telephone, telex, TWX or
telecopier) or 48 hours (in the case of notice by telegraph, courier service or
express mail) or five days (in the case of notice by first class mail) before
the time at which the meeting is to be held. Every such notice shall state the
time and place of the meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board need be specified in a
notice of a meeting.
Section 2.03 NOTICE OF MEETINGS OF SHAREHOLDERS.
(a) General rule. Written notice of every meeting of the
shareholders shall be given by, or at the direction of, the secretary to each
shareholder of record entitled to vote at the meeting at least:
(1) ten days prior to the day named for a meeting called
to consider a fundamental transaction under 15 Pa.C.S. Chapter 19
regarding amendments of articles of incorporation, mergers,
consolidations, share exchanges, sale of assets, divisions,
conversions, liquidations and dissolution; or
(2) five days prior to the day named for the meeting in
any other case.
If the secretary neglects or refuses to give notice of a meeting, the person or
persons calling the meeting may do so. In the case of a special meeting of
shareholders, the notice shall specify the general nature of the business to be
transacted.
(b) Notice of action by shareholders on bylaws. In the case of
a meeting of shareholders that has as one its purposes action on the bylaws,
written notice shall be given to each shareholder that the purpose, or one of
the purposes, of the meeting is to consider the-adoption, amendment or repeal of
the bylaws. There shall be included in, or enclosed with, the notice a copy of
the proposed amendment or a summary of the changes to be effected thereby.
Section 2.04 WAIVER OF NOTICE.
(a) Written waiver. Whenever any written notice is required to
be given under the provisions of the Business Corporation Law, the articles or
these bylaws, a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of the notice. Except as otherwise required
by this subsection, neither the business to be transacted at, nor the purpose
of, a meeting need be specified in the waiver of notice of the meeting. In the
case of a special meeting of shareholders, the waiver of notice shall specify
the general nature of the business to be transacted.
(b) Waiver by attendance. Attendance of a person at any
meeting shall constitute a waiver of notice of the meeting except where a person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting was not lawfully
called or convened.
Section 2.05 MODIFICATION OF PROPOSAL CONTAINED IN NOTICE.
Whenever the language of a proposed resolution is included in a written notice
of a meeting required to be given under the provisions of the Business
Corporation Law or the articles or these bylaws, the meeting considering the
resolution may without further notice adopt it with such clarifying or other
amendments as do not enlarge its original purpose.
Section 2.06 EXCEPTION TO REQUIREMENT OF NOTICE.
(a) General rule. Whenever any notice or communication is
required to be given to any person under the provisions of the Business
Corporation Law or by the articles or these bylaws or by the terms of any
agreement or other instrument or as a condition precedent to taking any
corporate action and communication with that person is then unlawful, the giving
of the notice or communication to that person shall not be required.
(b) Shareholders without forwarding addresses. Notice or other
communications shall not be sent to any shareholder with whom the corporation
has been unable to communicate for more than 24 consecutive months because
communications to the shareholder are returned unclaimed or the shareholder has
otherwise failed to provide the corporation with a current address. Whenever the
shareholder provides the corporation with a current address, the corporation
shall commence sending notices and other communications to the shareholder in
the same manner as to other shareholders.
Section 2.07 USE OF CONFERENCE TELEPHONE AND SIMILAR
EQUIPMENT. One or more persons may participate in a meeting of the board of
directors or the shareholders of the corporation by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this section shall constitute presence in person at the meeting.
ARTICLE III
SHAREHOLDERS
Section 3.01 PLACE OF MEETING. All meetings of the
shareholders of the corporation shall be held at the registered office of the
corporation unless another place is designated by the board of directors in the
notice of a meeting.
Section 3.02 ANNUAL MEETING. The board of directors may fix
the date and time of the annual meeting of the shareholders, but if no such date
and time is fixed by the board, the meeting for any calendar year shall be held
on the 30th day of April in such year, if not a legal holiday under the laws of
Pennsylvania, and, if a legal holiday, then on the next succeeding business day,
not a Saturday, at 10:00 o'clock A.M., and at said meeting the shareholders then
entitled to vote shall elect directors and shall transact such other business as
may properly be brought before the meeting. If the annual meeting shall not have
been called and held within six months after the designated time, any
shareholder may call the meeting at any time thereafter.
Section 3.03 SPECIAL MEETINGS.
(a) Call of special meetings. Special meetings of the
shareholders may be called at any time:
(1) by the board of directors; or
(2) unless otherwise provided in the articles, by
shareholders entitled to cast at least 20% of the vote that all
shareholders are entitled to cast at the particular meeting.
(b) Fixing of time for meeting. At any time, upon written
request of any person who has called a special meeting, it shall be the duty of
the secretary to fix the time of the meeting which shall be held not more than
60 days after the receipt of the request. If the secretary neglects or refuses
to fix a time of the meeting, the person or persons calling the meeting may do
so.
Section 3.04 QUORUM AND ADJOURNMENT.
(a) General rule. A meeting of shareholders of the corporation
duly called shall not be organized for the transaction of business unless a
quorum is present. The presence of shareholders entitled to cast at least a
majority of the votes that all shareholders are entitled to cast on a particular
matter to be acted upon at the meeting shall constitute a quorum for the
purposes of consideration and action on the matter. Shares of the corporation
owned, directly or indirectly, by it and controlled, directly or indirectly, by
the board of directors of this corporation, as such, shall not be counted in
determining the total number of outstanding shares for quorum purposes at any
given time.
(b) Withdrawal of a quorum. The shareholders present at a duly
organized meeting can continue to do business until adjournment notwithstanding
the withdrawal of enough shareholders to leave less than a quorum.
(c) Adjournment for lack of quorum. If a meeting cannot be
organized because a quorum has not attended, those present may, except as
provided in the Business Corporation Law, adjourn the meeting to such time and
place as they may determine.
(d) Adjournments generally. Any meeting at which directors are
to be elected shall be adjourned only from day to day, or for such longer
periods not exceeding 15 days each as the shareholders present and entitled to
vote shall direct, until the directors have been elected. Any other regular or
special meeting may be adjourned for such period as the shareholders present and
entitled to vote shall direct.
(e) Electing directors at adjourned meeting. Those
shareholders entitled to vote who attend a meeting called for the election of
directors that has been previously adjourned for lack of a quorum, although less
than a quorum as fixed in this section, shall nevertheless constitute a quorum
for the purpose of electing directors.
(f) Other action in absence of quorum. Those shareholders
entitled to vote who attend a meeting of shareholders that has been previously
adjourned for one or more periods aggregating at least 15 days because of an
absence of a quorum, although less than a quorum as fixed in this section, shall
nevertheless constitute a quorum for the purpose of acting upon any matter set
forth in the notice of the meeting if the notice states that those shareholders
who attend the adjourned meeting shall nevertheless constitute a quorum for the
purpose of acting upon the matter.
Section 3.05 ACTION BY SHAREHOLDERS.
(a) General rule. Except as otherwise provided in the Business
Corporation Law or the articles or these bylaws, whenever any corporate action
is to be taken by vote of the shareholders of the corporation, it shall be
authorized by a majority of the votes cast at a duly organized meeting of
shareholders by the holders of shares entitled to vote thereon.
(b) Interested shareholders. Any merger or other transaction
authorized under 15 Pa.C.S. Subchapter 19C between the corporation or subsidiary
thereof and a shareholder of this corporation, or any voluntary liquidation
authorized under 15 Pa.C.S. Subchapter 19F in which a shareholder is treated
differently from other shareholders of the same class (other than any dissenting
shareholders), shall require the affirmative vote of the shareholders entitled
to cast at least a majority of the votes that all shareholders other than the
interested shareholder are entitled to cast with respect to the transaction,
without counting the vote of the interested shareholder. For the purposes of the
preceding sentence, interested shareholder shall include the shareholder who is
a party to the transaction or who is treated differently from other shareholders
and any person, or group of persons, that is acting jointly or in concert with
the interested shareholder and any person who, directly or indirectly, controls,
is controlled by or is under common control with the interested shareholder. An
interested shareholder shall not include any person who, in good faith and not
for the purpose of circumventing this subsection, is an agent, bank, broker,
nominee or trustee for one or more other persons, to the extent that the other
person or persons are not interested shareholders.
(c) Exceptions. Subsection (b) shall not apply to a
transaction:
(1) that has been approved by a majority vote of the board
of directors without counting the vote of directors who:
(i) are directors or officers of, or have a material
equity interest in, the interested shareholder; or
(ii) were nominated for election as a director by the
interested shareholder, and first elected as a director,
within 24 months of the date of the vote on the proposed
transaction; or
(2) in which the consideration to be received by the
shareholders for shares of any class of which shares are owned by the
interested shareholder is not less than the highest amount paid by the
interested shareholder in acquiring shares of the same class.
(d) Additional approvals. The approvals required by subsection
(b) shall be in addition to, and not in lieu of, any other approval required by
the Business Corporation Law, the articles or these bylaws, or otherwise.
Section 3.06 ORGANIZATION. At every meeting of the
shareholders, the chairman of the board, if there be one, or, in the case of
vacancy in office or absence of the chairman of the board, one of the following
officers present in the order stated: the vice chairman of the board, if there
be one, the president, the vice presidents in their order of rank and seniority,
or a person chosen by vote of the shareholders present, shall act as chairman of
the meeting. The secretary or, in the absence of the secretary, an assistant
secretary, or in the absence of both the secretary and assistant secretaries, a
person appointed by the chairman of the meeting, shall act as secretary.
Section 3.07 VOTING RIGHTS OF SHAREHOLDERS. Unless otherwise
provided in the articles, every shareholder of the corporation shall be entitled
to one vote for every share standing in the name of the shareholder on the books
of the corporation.
Section 3.08 VOTING AND OTHER ACTION BY PROXY.
(a) General rule.
(1) Every shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person to act for the
shareholder by proxy.
(2) The presence of, or vote or other action at a meeting
of shareholders, or the expression of consent or dissent to corporate
action in writing, by a proxy of a shareholder shall constitute the
presence of, or vote or action by, or written consent or dissent of the
shareholder.
(3) Where two or more proxies of a shareholder are
present, the corporation shall, unless otherwise expressly provided in
the proxy, accept as the vote of all shares represented thereby the
vote cast by a majority of them and, if a majority of the proxies
cannot agree whether the shares represented shall be voted or upon the
manner of voting the shares, the voting of the shares shall be divided
equally among those persons.
(b) Minimum requirements. Every proxy shall be executed in
writing by the shareholder or by the duly authorized attorney-in-fact of the
shareholder and filed with the secretary of the corporation. A proxy, unless
coupled with an interest, shall be revocable at will, notwithstanding any other
agreement or any provision in the proxy to the contrary, but the revocation of a
proxy shall not be effective until written notice thereof has been given to the
secretary of the corporation. An unrevoked proxy shall not be valid after three
years from the date of its execution unless a longer time is expressly provided
therein. A proxy shall not be revoked by the death or incapacity of the maker
unless, before the vote is counted or the authority is exercised, written notice
of the death or incapacity is given to the secretary of the corporation.
(c) Expenses. Unless otherwise restricted in the articles, the
corporation shall pay the reasonable expenses of solicitation of votes, proxies
or consents of shareholders by or on behalf of the board of directors or its
nominees for election to the board, including solicitation by professional proxy
solicitors and otherwise.
Section 3.09 VOTING BY FIDUCIARIES AND PLEDGEES. Shares of the
corporation standing in the name of a trustee or other fiduciary and shares held
by an assignee for the benefit of creditors or by a receiver may be voted by the
trustee, fiduciary, assignee or receiver. A shareholder whose shares are pledged
shall be entitled to vote the shares until the shares have been transferred into
the name of the pledgee, or a nominee of the pledgee, but nothing in this
section shall affect the validity of a proxy given to a pledgee or nominee.
Section 3.10 VOTING BY JOINT HOLDERS OF SHARES.
(a) General rule. Where shares of the corporation are held
jointly or as tenants in common by two or more persons, as fiduciaries or
otherwise:
(1) if only one or more of such persons is present in
person or by proxy, all of the shares standing in the names of such
persons shall be deemed to be represented for the purpose of
determining a quorum and the corporation shall accept as the vote of
all the shares the vote cast by a joint owner or a majority of them;
and
(2) if the persons are equally divided upon whether the
shares held by them shall be voted or upon the manner of voting the
shares, the voting of the shares shall be divided equally among the
persons without prejudice to the rights of the joint owners or the
beneficial owners thereof among themselves.
(b) Exception. If there has been filed with the secretary of
the corporation a copy, certified by an attorney at law to be correct, of the
relevant portions of the agreement under which the shares are held or the
instrument by which the trust or estate was created or the order of court
appointing them or of an order of court directing the voting of the shares, the
persons specified as having such voting power in the document latest in date of
operative effect so filed, and only those persons, shall be entitled to vote the
shares but only in accordance therewith.
Section 3.11 VOTING BY CORPORATIONS.
(a) Voting by corporate shareholders. Any corporation that is
a shareholder of this corporation may vote by any of its officers or agents, or
by proxy appointed by any officer or agent, unless some other person, by
resolution of the board of directors of the other corporation or provision of
its articles or bylaws, a copy of which resolution or provision certified to be
correct by one of its officers has been filed with the secretary of this
corporation, is appointed its general or special proxy in which case that person
shall be entitled to vote the shares.
(b) Controlled shares. Shares of this corporation owned,
directly or indirectly, by it and controlled, directly or indirectly, by the
board of directors of this corporation, as such,
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares for voting purposes at any given time.
Section 3.12 DETERMINATION OF SHAREHOLDERS OF RECORD.
(a) Fixing record date. The board of directors may fix a time
prior to the date of any meeting of shareholders as a record date for the
determination of the shareholders entitled to notice of, or to vote at, the
meeting, which time, except in the case of an adjourned meeting, shall be not
more than 90 days prior to the date of the meeting of shareholders. Only
shareholders of record on the date fixed shall be so entitled notwithstanding
any transfer of shares on the books of the corporation after any record date
fixed as provided in this subsection. The board of directors may similarly fix a
record date for the determination of shareholders of record for any other
purpose. When a determination of shareholders of record has been made as
provided in this section for purposes of a meeting, the determination shall
apply to any adjournment thereof unless the board fixes a new record date for
the adjourned meeting.
(b) Determination when a record date is not fixed. If a record
date is not fixed:
(1) The record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at the
close of business on the date next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day
immediately preceding the day on which the meeting is held.
(2) The record date for determining shareholders entitled
to express consent or dissent to corporate action in writing without a
meeting, when prior action by the board of directors is not necessary,
shall be the close of business on the day on which the first written
consent or dissent is filed with the secretary of the corporation.
(3) The record date for determining shareholders for any
other purpose shall be at the close of business on the day on which the
board of directors adopts the resolution relating thereto.
Section 3.13 VOTING LISTS.
(a) General rule. The officer or agent having charge of the
transfer books for shares of the corporation shall make a complete list of the
shareholders entitled to vote at any meeting of shareholders, arranged in
alphabetical order, with the address of and of the number of shares held by
each. The list shall be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any shareholder during the
whole time of the meeting for the purposes thereof.
(b) Effect of list. Failure to comply with the requirements of
this section shall not effect the validity of any action taken at a meeting
prior to a demand at the meeting by any shareholder entitled to vote thereat to
examine the list. The original share register or transfer book, or a duplicate
thereof kept in this Commonwealth, shall be prima facie evidence as to who
are the shareholders entitled to examine the list or share register or transfer
book or to vote at any meeting of shareholders.
Section 3.14 JUDGES OF ELECTION.
(a) Appointment. In advance of any meeting of shareholders of
the corporation, the board of directors may appoint judges of election, who need
not be shareholders, to act at the meeting or any adjournment thereof. If judges
of election are not so appointed, the presiding officer of the meeting may, and
on the request of any shareholder shall, appoint judges of election at the
meeting. The number of judges shall be one or three. A person who is a candidate
for office to be filled at the meeting shall not act as a judge.
(b) Vacancies. In case any person appointed as a judge fails
to appear or fails or refuses to act, the vacancy may be filled by appointment
made by the board of directors in advance of the convening of the meeting or at
the meeting by the presiding officer thereof.
(c) Duties. The judges of election shall determine the number
of shares outstanding and the voting power of each, the shares represented at
the meeting, the existence of a quorum, the authenticity, validity and effect of
proxies, receive votes or ballots, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count and
tabulate all votes, determine the result and do such acts as may be proper to
conduct the election or vote with fairness to all shareholders. The judges of
election shall perform their duties impartially, in good faith, to the best of
their ability and as expeditiously as is practical. If there are 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.
(d) Report. On request of the presiding officer of the
meeting, or of any shareholder, the judge shall make a report in writing of any
challenge or question or matter determined by them, and execute a certificate of
any fact found by them. Any report or certificate made by them shall be prima
facie evidence of the facts stated therein.
Section 3.15 CONSENT OF SHAREHOLDERS IN LIEU OF MEETING.
(a) Unanimous written consent. Any action required or
permitted to be taken at a meeting of the shareholders or of a class of
shareholders may be taken without a meeting if, prior or subsequent to the
action, a consent or consents thereto by all of the shareholders who would be
entitled to vote at a meeting for such purpose shall be filed with the secretary
of the corporation.
(b) Partial written consent. Any action required or permitted
to be taken at a meeting of the shareholders or of a class of shareholders may
be taken without a meeting upon the written consent of shareholders who would
have been entitled to cast the minimum number of votes that would be necessary
to authorize the action at a meeting at which all shareholders entitled to vote
thereon were present and voting. The consents shall be filed with the secretary
of the corporation. The action shall not become effective until after at least
ten days' written notice of the action has been given to each shareholder
entitled to vote thereon who has not consented thereto.
Section 3.16 MINORS AS SECURITY HOLDERS. The corporation may
treat a minor who holds shares or obligations of the corporation as having
capacity to receive and to empower others to receive dividends, interest,
principal and other payments or distributions, to vote or express consent or
dissent and to make elections and exercise rights relating to such shares or
obligations unless, in the case of payments or distributions on shares, the
corporate officer responsible for maintaining the list of shareholders or the
transfer agent of the corporation or, in the case of payments or distributions
on obligations, the treasurer or paying officer or agent has received written
notice that the holder is a minor.
ARTICLE IV
BOARD OF DIRECTORS
Section 4.01 POWERS; PERSONAL LIABILITY.
(a) General rule. Unless otherwise provided by statute all
powers vested by law in the corporation shall be exercised by or under the
authority of, and the business and affairs of the corporation shall be managed
under the direction of, the board of directors.
(b) Standard of care; justifiable reliance. A director shall
stand in a fiduciary relation to the corporation and shall perform his or her
duties as a director, including duties as a member of any committee of the board
upon which the director may serve, in good faith, in a manner the director
reasonably believes to be in the best interests of the corporation and with such
care, including reasonable inquiry, skill and diligence, as a person of ordinary
prudence would use under similar circumstances. In performing his or her duties,
a director shall be entitled to rely in good faith on information, opinions,
reports or statements, including financial statements and other financial data,
in each case prepared or presented by any of the following:
(1) One or more officers or employees of the corporation
whom the director reasonably believes to be reliable and competent in
the matters presented.
(2) Counsel, public accountants or other persons as to
matters which the director reasonably believes to be within the
professional or expert competence of such person.
(3) A committee of the board upon which the director does
not serve, duly designated in accordance with law, as to matters within
its designated authority, which committee the director reasonably
believes to merit confidence.
A director shall not be considered to be acting in good faith if the director
has knowledge concerning the matter in question that would cause his or her
reliance to be unwarranted.
(c) Consideration of factors. In discharging the duties of
their respective positions, the board of directors, committees of the board and
individual directors may, in considering the best interests of the corporation,
consider the effects of any action upon employees, upon suppliers and customers
of the corporation and upon communities in which
offices or other establishments of the corporation are located, and all other
pertinent factors. The consideration of those factors shall not constitute a
violation of subsection (b).
(d) Presumption. Absent breach of fiduciary duty, lack of good
faith or self-dealing, actions taken as a director or any failure to take any
action shall be presumed to be in the best interests of the corporation.
(e) Personal liability of directors.
(1) A director shall not be personally liable, as such,
for monetary damages for any action taken, or any failure to take any
action, unless:
(i) the director has breached or failed to perform the
duties of his or her office under this section; and
(ii) the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness.
(2) The provisions of paragraph (1) shall not apply to the
responsibility or liability of a director pursuant to any criminal
statute, or the liability of a director for the payment of taxes
pursuant to local, State or Federal law.
(f) Notation of dissent. A director who is present at a
meeting of the board of directors, or of a committee of the board, at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless his or her dissent is entered in the minutes of the
meeting or unless the director files a written dissent to the action with the
secretary of the meeting before the adjournment thereof or transmits the dissent
in writing to the secretary of the corporation immediately after the adjournment
of the meeting. The right to dissent shall not apply to a director who voted in
favor of the action. Nothing in this section shall bar a director from asserting
that minutes of the meeting incorrectly omitted his or her dissent if, promptly
upon receipt of a copy of such minutes, the director notifies the secretary in
writing, of the asserted omission or inaccuracy.
Section 4.02 QUALIFICATION AND SELECTION OF DIRECTORS.
(a) Qualifications. Each director of the corporation shall be
a natural person of full age who need not be a resident of Pennsylvania or a
shareholder of the corporation.
(b) Election of directors. Except as otherwise provided in
these bylaws, directors of the corporation shall be elected by the shareholders.
In elections for directors, voting need not be by ballot, except upon demand
made by a shareholder entitled to vote at the election and before the voting
begins. The candidates receiving the highest number of votes from each class or
group of classes, if any, entitled to elect directors separately up to the
number of directors to be elected by the class or group of classes shall be
elected. If at any meeting of shareholders, directors of more than one class are
to be elected, each class of directors shall be elected in a separate election.
(c) Cumulative voting. Unless the articles provide for
straight voting, in each election of directors every shareholder entitled to
vote shall have the right to multiply the number of votes to which the
shareholder may be entitled by the total number of directors to be elected in
the same election by the holders of the class or classes of shares of which his
or her shares are a part and the shareholders may cast the whole number of his
or her votes for one candidate or may distribute them among two or more
candidates.
Section 4.03 NUMBER AND TERM OF OFFICE.
(a) The number of authorized Directors of the Corporation
shall be not less than 1 nor more than 15, fixed from time to time by the
Shareholder. The Directors shall be elected at the annual meeting of the
Shareholders and each Director shall be elected to serve until his successor
shall be elected and shall qualify.
Section 4.04 VACANCIES.
(a) General rule. Vacancies in the board of directors,
including vacancies resulting from an increase in the number of directors, may
be filled by a majority vote of the remaining members of the board though less
than a quorum, or by a sole remaining director, and each person so selected
shall be a director to serve for the balance of the unexpired term, and until a
successor has been selected and qualified or until his or her earlier death,
resignation or removal.
(b) Action by resigned directors. When one or more directors
resign from the board effective at a future date, the directors then in office,
including those who have so resigned, shall have power by the applicable vote to
fill the vacancies, the vote thereon to take effect when the resignations become
effective.
Section 4.05 REMOVAL OF DIRECTORS.
(a) Removal by the shareholders. The entire board of
directors, or any class of the board, or any individual director may be removed
from office without assigning any cause by the vote of shareholders, or of the
holders of a class or series of shares, entitled to elect directors, or the
class of directors. In case the board or a class of the board or any one or more
directors are so removed, new directors may be elected at the same meeting. The
board of directors may be removed at any time with or without cause by the
unanimous vote or consent of shareholders entitled to vote thereon.
(b) Removal by the board. The board of directors may declare
vacant the office of a director who has been judicially declared of unsound mind
or who has been convicted of an offense punishable by imprisonment for a term of
more than one year or if, within 60 days after notice of his or her selection,
the director does not accept the office either in writing or by attending a
meeting of the board of directors.
(c) Removal of directors elected by cumulative voting. An
individual director shall not be removed (unless the entire board or class of
the board is removed) if sufficient votes are cast against the resolution for
his removal which, if cumulatively voted at an annual or other
regular election of directors, would be sufficient to elect one or more
directors to the board or to the class.
Section 4.06 PLACE OF MEETINGS. Meetings of the board of
directors may be held at such place within or without Pennsylvania as the board
of directors may from time to time appoint or as may be designated in the notice
of the meeting.
Section 4.07 ORGANIZATION OF MEETINGS. At every meeting of the
board of directors, the chairman of the board, if there be one, or, in the case
of a vacancy in the office or absence of the chairman of the board, one of the
following officers present in the order stated: the vice chairman of the board,
if there be one, the president, the vice presidents in their order of rank and
seniority, or a person chosen by a majority of the directors present, shall act
as chairman of the meeting. The secretary or, in the absence of the secretary,
an assistant secretary, or, in the absence of the secretary and the assistant
secretaries, any person appointed by the chairman of the meeting, shall act as
secretary.
Section 4.08 REGULAR MEETINGS. Regular meetings of the board
of directors shall be held at such time and place as shall be designated from
time to time by resolution of the board of directors.
Section 4.09 SPECIAL MEETINGS. Special meetings of the board
of directors shall be held whenever called by the chairman or by two or more of
the directors.
Section 4.10 QUORUM OF AND ACTION BY DIRECTORS.
(a) General rule. A majority of the directors in office of the
corporation shall be necessary to constitute a quorum for the transaction of
business and the acts of a majority of the directors present and voting at a
meeting at which a quorum is present shall be the acts of the board of
directors.
(b) Action by written consent. Any action required or
permitted to be taken at a meeting of the directors may be taken without a
meeting if, prior or subsequent to the action, a consent or consents thereto by
all of the directors in office is filed with the secretary of the corporation.
Section 4.11 EXECUTIVE AND OTHER COMMITTEES.
(a) Establishment and powers. The board of directors may, by
resolution adopted by a majority of the directors in office, establish one or
more committees to consist of one or more directors of the corporation. Any
committee, to the extent provided in the resolution of the board of directors,
shall have and may exercise all of the powers and authority of the board of
directors except that a committee shall not have any power or authority as to
the following:
(1) The submission to shareholders of any action requiring
approval of shareholders under the Business Corporation Law.
(2) The creation or filling of vacancies in the board of
directors.
(3) The adoption, amendment or repeal of these bylaws.
(4) The amendment or repeal of any resolution of the board
that by its terms is amendable or repealable only by the board.
(5) Action on matters committed by a resolution of the
board of directors to another committee of the board.
(b) Alternate committee members. The board 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 or for the
purposes of any written action by the committee. In the absence or
disqualification of a member and alternate member or members of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
director to act at the meeting in the place of the absent or disqualified
member.
(c) Term. Each committee of the board shall serve at the
pleasure of the board.
(d) Committee procedures. The term "board of directors" or
"board," when used in any provision of these bylaws relating to the organization
or procedures of or the manner of taking action by the board of directors, shall
be construed to include and refer to any executive or other committee of the
board.
Section 4.12 COMPENSATION. The board of directors shall have
the authority to fix compensation of directors for their services as directors
and a director may be a salaried officer of the corporation.
ARTICLE V
OFFICERS
Section 5.01 OFFICERS GENERALLY.
(a) Number, qualification and designation. The officers of the
corporation shall be a president, a secretary, a treasurer, and such other
officers as may be elected in accordance with the provisions of Section 5.03.
Officers may but need not be directors or shareholders of the corporation. The
president and secretary shall be natural persons of full age. The treasurer may
be a corporation, but if a natural person shall be of full age. The board of
directors may elect from among the members of the board a chairman of the board
and a vice chairman of the board who shall be officers of the corporation. Any
number of offices may be held by the same person.
(b) Resignations. Any officer may resign at any time upon
written notice to the corporation. The resignation shall be effective upon
receipt thereof by the corporation or at such subsequent time as may be
specified in the notice of resignation.
(c) Bonding. The corporation may secure the fidelity of any or
all of its officers by bond or otherwise.
(d) Standard of care. Except as otherwise provided in the
articles, an officer shall perform his or her duties as an officer in good
faith, in a manner he or she reasonably believes to be in the best interests of
the corporation and with such care, including reasonable inquiry, skill and
diligence, as a person of ordinary prudence would use under similar
circumstances. A person who so performs his or her duties shall not be liable by
reason of having been an officer of the corporation.
Section 5.02 ELECTION AND TERM OF OFFICE. The officers of the
corporation, except those elected by delegated authority pursuant to Section
5.03, shall be elected annually by the board of directors, and each such officer
shall hold office for a term of one year and until a successor has been selected
and qualified or until his or her earlier death, resignation or removal.
Section 5.03 SUBORDINATE OFFICERS, COMMITTEES AND AGENTS. The
board of directors may from time to time elect such other officers and appoint
such committees, employees or other agents as the business of the corporation
may require, including one or more assistant secretaries, and one or more
assistant treasurers, each of whom shall hold office for such period, have such
authority, and perform such duties as are provided in these bylaws or as the
board of directors may from time to time determine. The board of directors may
delegate to any officer or committee the power to elect subordinate officers and
to retain or appoint employees or other agents, or committees thereof and to
prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
Section 5.04 REMOVAL OF OFFICERS AND AGENTS. Any officer or
agent of the corporation may be removed by the board of directors with or
without cause. The removal shall be without prejudice to the contract rights, if
any, of any person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
Section 5.05 VACANCIES. A vacancy in any office because of
death, resignation, removal, disqualification,, or any other cause, shall be
filled by the board of directors or by the officer or committee to which the
power to fill such office has been delegated pursuant to Section 5.03, as the
case may be, and if the office is one for which these bylaws prescribe a term,
shall be filled for the unexpired portion of the term.
Section 5.06 AUTHORITY. All officers of the corporation, as
between themselves and the corporation, shall have such authority and perform
such duties in the management of the corporation as may be provided by or
pursuant to resolution or orders of the board of directors or in the absence of
controlling provisions in the resolutions or orders of the board of directors,
as may be determined by or pursuant to these bylaws.
Section 5.07 THE CHAIRMAN OF THE BOARD. The chairman of the
board if there be one, or in the absence of the chairman, the vice chairman of
the board, shall preside at all meetings of the shareholders and of the board of
directors and shall perform such other duties as may from time to time be
requested by the board of directors.
Section 5.08 THE PRESIDENT. The president shall be the chief
executive officer of the corporation and shall have general supervision over the
business and operations of the corporation, subject however, to the control of
the board of directors. The president shall sign, execute, and acknowledge, in
the name of the corporation, deeds, mortgages, contracts or other instruments
authorized by the board of directors, except in cases where the signing and
execution thereof shall be expressly delegated by the board of directors, or by
these bylaws, to some other officer or agent of the corporation; and, in
general, shall perform all duties incident to the office of president and such
other duties as from time to time may be assigned by the board of directors.
Section 5.09 THE SECRETARY. The secretary or an assistant
secretary shall attend all meetings of the shareholders and of the board of
directors and shall record all votes of the shareholders and of the directors
and the minutes of the meetings of the shareholders and of the board of
directors and of committees of the board in a book or books to be kept for that
purpose; shall see that notices are given and records and reports properly kept
and filed by the corporation as required by law; shall be the custodian of the
seal of the corporation and see that it is affixed to all documents to be
executed on behalf of the corporation under its seal; and, in general, shall
perform all duties incident to the office of secretary, and such other duties as
may from time to time be assigned by the board of directors or the president.
Section 5.10 THE TREASURER. The treasurer or an assistant
treasurer shall have or provide for the custody of the funds or other property
of the corporation; shall collect and receive or provide for the collection and
receipt of moneys earned by or in any manner due to or received by the
corporation; shall deposit all funds in his or her custody as treasurer in such
banks or other places of deposit as the board of directors may from time to time
designate; shall, whenever so required by the board of directors, render an
account showing all transactions as treasurer and the financial condition of the
corporation; and, in general, shall discharge such other duties as may from time
to time be assigned by the board of directors or the president.
Section 5.11 SALARIES. The salaries of the officers elected by
the board of directors shall be fixed from time to time by the board of
directors or by such officer as may be designated by resolution of the board.
The salaries or other compensation of any other officers, employees and other
agents shall be fixed from time to time by the officer or committee to which the
power to elect such officers or to retain or appoint such employees or other
agents has been delegated pursuant to Section 5.03. No officer shall be
prevented from receiving such salary or other compensation by reason of the fact
that the officer is also a director of the corporation.
Section 5.12 DISALLOWED COMPENSATION. Any payments made to an
officer or employee of the corporation such as a salary, commission, bonus,
interest, rent, travel or entertainment expense incurred by him, which shall be
disallowed in whole or in part as a deductible expense by the Internal Revenue
Service, shall be reimbursed by such officer or employee to the corporation to
the full extent of such disallowance. It shall be the duty of the directors, as
a Board, to enforce payment of each such amount disallowed. In lieu of payment
by the officer or employee, subject to the determination of the directors,
proportionate amounts may be withheld from future compensation payments until
the amount owed to the corporation has been recovered.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER, ETC.
Section 6.01 SHARE CERTIFICATES. Certificates for shares of
the corporation shall be in such form as approved by the board of directors, and
shall state that the corporation is incorporated under the laws of Pennsylvania,
the name of the person to whom issued, and the number and class of shares and
the designation of the series (if any) that the certificate represents. The
share register or transfer books and blank share certificates shall be kept by
the secretary or by any transfer agent or registrar designated by the board of
directors for that purpose.
Section 6.02 ISSUANCE. The share certificates of the
corporation shall be numbered and registered in the share register or transfer
books of the corporation as they are issued. They shall be signed by the
president or a vice president and by the secretary or an assistant secretary or
the treasurer or an assistant treasurer, and shall bear the corporate seal,
which may be a facsimile, engraved or printed; but where such certificate is
signed by a transfer agent or a registrar the signature of any corporate officer
upon such certificate may be a facsimile, engraved or printed. In case any
officer who has signed, or whose facsimile signature has been placed upon, any
share certificate shall have ceased to be such officer because of death,
resignation or otherwise, before the certificate is issued, it may be issued
with the same effect as if the officer had not ceased to be such at the date of
its issue. The provisions of this Section 6.02 shall be subject to any
inconsistent or contrary agreement at the time between the corporation and any
transfer agent or registrar.
Section 6.03 TRANSFER. Transfers of shares shall be made on
the share register or transfer books of the corporation upon surrender of the
certificate therefor, endorsed by the person named in the certificate or by an
attorney lawfully constituted in writing. No transfer shall be made inconsistent
with the provisions of the Uniform Commercial Code, 13 Pa.C.S. 8101 et seq., and
its amendments and supplements.
Section 6.04 RECORD HOLDER OF SHARES. The corporation shall be
entitled to treat the person in whose name any share or shares of the
corporation stand on the books of the corporation as the absolute owner thereof,
and shall not be bound to recognize any equitable or other claim to, or interest
in, such share or shares on the part of any other person.
Section 6.05 RESTRICTION ON TRANSFER OF SHARES.
(a) General rule. A shareholder shall not sell, transfer or
otherwise dispose of the shareholder's shares to anyone other than a person who
is already a registered shareholder in the corporation without first offering
them to the corporation and its shareholders by notice in writing to the
secretary of the corporation.
(b) Offer upon death of a shareholder. Upon the death of a
shareholder, the executor or administrator of the deceased shareholder, as soon
as possible thereafter, shall offer the decedent's shares to the corporation and
its shareholders by notice in writing to the secretary of the corporation.
(c) Procedure for acceptance of offer. The corporation shall
have a period of 60 days after receipt of the offer specified in subsection (a)
or (b) in which to accept the offer in whole or in part at the price set forth
in subsection (d). If the corporation determines to reject all or any part of
the offer, the secretary of the corporation shall on or before the day on which
the 60 day period expires notify in writing the offering shareholder or the
executor or administrator of the deceased shareholder and all other shareholders
of the existence and terms of the offer and of the portion of the offer rejected
by the corporation, whereupon all other shareholders shall have an additional
period of 30 days after the giving of the notice of rejection in which to accept
all or any part of the offer or part thereof rejected by the corporation. If the
purchasing shareholders cannot agree upon their respective proportions of the
shares to be purchased, the shares shall be apportioned among the shareholders
desiring to purchase shares in proportion to their respective holdings of shares
in the corporation on the day the offer first accrued to the corporation. If the
corporation and its shareholders determine to reject all or any part of the
offer, the secretary of the corporation shall promptly furnish to the offering
shareholder or the executor or administrator of the deceased shareholder a
written statement setting forth the rejection and permitting the sale of the
rejected shares to any purchaser within a period of 60 days after the date of
the written statement. Upon becoming a shareholder of the corporation any such
purchaser shall hold shares subject to this bylaw.
(d) Price of shares. The price at which shares shall be
offered to the corporation and its shareholders under the terms of subsection
(a) or (b) shall be the fair value of the shares determined as of the last day
of the calendar quarter immediately preceding the date of the offer. The party
purchasing the largest amount of offered shares, or the one of them selected by
lot, if two or more parties purchase identical and largest amounts of offered
shares, and the offering shareholder or the executor or administrator of the
deceased shareholder, shall within 15 days after the day on which the number of
shares to be purchased has been finally established select (and notify all other
parties in writing of such selection) an appraiser experienced in the valuation
of securities of enterprises of the same character as that of the corporation.
The two appraisers so appointed shall promptly meet and agree upon the fair
value of the shares, and shall promptly notify the parties in writing of their
determination. Payment in cash for the shares based upon the value so fixed and
delivery of the certification for the shares shall be made within 60 days of the
giving of the notice by the appraisers. If, because of failure of a party to
appoint an appraiser or of their failure to agree, or if for any other reason a
fair value has not been fixed for the shares within 30 days after the
appointment of the first appraiser or if settlement has not been made, any
controversy or claim arising out of or relating to this bylaw, or the breach
thereof (including the fair value of the shares if not yet determined), shall,
at the request of any party, be submitted to one arbitrator selected from the
panels of arbitrators of the American Arbitration Association and shall be
settled by arbitration in accordance with the rules of the American Arbitration
Association, and judgement upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
(e) Certificate legend. All certificates for shares of this
corporation shall have the following legend printed or stamped thereon:
"The shares represented by this certificate may not be
sold, assigned, transferred, pledged or otherwise disposed of,
except in
accordance with the terms and conditions of the bylaws of the
corporation."
(f) Status of bylaw. Notwithstanding any other provision of
these bylaws or of the Business Corporation Law, this bylaw shall constitute a
contract among the shareholders of the corporation, and shall not be amended
without their unanimous consent.
Section 6.06 LOST, DESTROYED OR MUTILATED CERTIFICATES. The
holder of any shares of the corporation shall immediately notify the corporation
of any loss, destruction or mutilation of the certificate therefor, and the
board of directors may, in its discretion, cause a new certificate or
certificates to be issued to such holder, in case of mutilation of the
certificate, upon the surrender of the mutilated certificate or, in case of loss
or destruction of the certificate, upon satisfactory proof of such loss or
destruction and, if the board of directors shall so determine, the deposit of a
bond in such form and in such sum, and with such surety or sureties, as it may
direct.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND
OTHER AUTHORIZED REPRESENTATIVES
Section 7.01 SCOPE OF INDEMNIFICATION.
(a) General rule. The corporation shall indemnify an
indemnified representative against any liability incurred in connection with any
proceeding in which the indemnified representative may be involved as a party or
otherwise by reason of the fact that such person is or was serving in an
indemnified capacity, including, without limitation, liabilities resulting from
any actual or alleged breach or neglect of duty, error, misstatement or
misleading statement, negligence, gross negligence or act giving rise to strict
or products liability, except:
(1) where such indemnification is expressly prohibited by
applicable law;
(2) where the conduct of the indemnified representative
has been finally determined pursuant to Section 7.06 or otherwise:
(i) to constitute willful misconduct or recklessness
within the meaning of 15 Pa.C.S. 513(b) and 1746(b) and 42
Pa.C.S. 8365(b) or any superseding provision of law sufficient
in the circumstances to bar indemnification against
liabilities arising from the conduct; or
(ii) to be based upon or attributable to the receipt
by the indemnified representative from the corporation of a
personal benefit to which the indemnified representative is
not legally entitled; or
(3) to the extent such indemnification has been finally
determined in a final adjudication pursuant to Section 7.06 to be
otherwise unlawful.
(b) Partial payment. If an indemnified representative is
entitled to indemnification in respect of a portion, but not all, of any
liabilities to which such person may be subject, the corporation shall indemnify
such indemnified representative to the maximum extent for such portion of the
liabilities.
(c) Presumption. The termination of a proceeding by judgment,
order, settlement or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the indemnified
representative is not entitled to indemnification.
(d) Definitions. For purposes of this Article:
(1) "indemnified capacity" means any and all past, present
and future service by an indemnified representative in one or more
capacities as a director, officer, employee or agent of the
corporation, or, at the request of the corporation, as a director,
officer, employee, agent, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
entity or enterprise;
(2) "indemnified representative" means any and all
directors-and officers of the corporation and any other person
designated as an indemnified representative by the board of directors
of the corporation (which may, but need not, include any person serving
at the request of the corporation, as a director, officer, employee,
agent, fiduciary or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other entity or enterprise):
(3) "liability" means any damage, judgment, amount paid in
settlement, fine, penalty, punitive damages, excise tax assessed with
respect to an employee benefit plan, or cost or expense, of any nature
(including, without limitation, attorneys' fees and disbursements); and
(4) "proceeding" means any threatened, pending or
completed action, suit, appeal or other proceeding of any nature,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
corporation, a class of its security holders or otherwise.
Section 7.02 PROCEEDINGS INITIATED BY INDEMNIFIED
REPRESENTATIVES. Notwithstanding any other provision of this Article, the
corporation shall not indemnify under this Article an indemnified representative
for any liability incurred in a proceeding initiated (which shall not be deemed
to include counter-claims or affirmative defenses) or participated in as an
intervenor or amicus curiae by the person seeking indemnification unless such
initiation of or participation in the proceeding is authorized, either before or
after its commencement, by the affirmative vote of a majority of the directors
in office. This section does not apply to a reimbursement of expenses incurred
in successfully prosecuting
or defending an arbitration under Section 7.06 or otherwise successfully
prosecuting or defending the rights of an indemnified representative granted by
or pursuant to this Article.
Section 7.03 ADVANCING EXPENSES. The corporation shall pay the
expenses (including attorneys' fees and disbursements) incurred in good faith by
an indemnified representative in advance of the final disposition of a
proceeding described in Section 7.01 or the initiation of or participation in
which is authorized pursuant to Section 7.02 upon receipt of an undertaking by
or on behalf of the indemnified representative to repay the amount if it is
ultimately determined pursuant to Section 7.06 that such person is not entitled
to be indemnified by the corporation pursuant to this Article. The financial
ability of an indemnified representative to repay an advance shall not be a
prerequisite to the making of such advance.
Section 7.04 SECURING OF INDEMNIFICATION OBLIGATIONS. To
further effect, satisfy or secure the indemnification obligations provided
herein or otherwise, the corporation may maintain insurance, obtain a letter of
credit, act as self-insurer, create a reserve, trust, escrow, cash collateral or
other fund or account, enter into indemnification agreements, pledge or grant a
security interest in any assets or properties of the corporation, or use any
other mechanism or arrangement whatsoever in such amounts, at such costs, and
upon such other terms and conditions as the board of directors shall deem
appropriate. Absent fraud, the determination of the board of directors with
respect to such amounts, costs, terms and conditions shall be conclusive against
all security holders, officers and directors and shall not be subject to
voidability.
Section 7.05 PAYMENT OF INDEMNIFICATION. An indemnified
representative shall be entitled to indemnification within 30 days after a
written request for indemnification has been delivered to the secretary of the
corporation.
Section 7.06 ARBITRATION.
(a) General rule. Any dispute related to the right to
indemnification, contribution or advancement of expenses as provided under this
Article, except with respect to indemnification for liabilities arising under
the Securities Act of 1933 that the corporation has undertaken to submit to a
court for adjudication, shall be decided only by arbitration in the metropolitan
area in which the principal executive offices of the corporation are located at
the time, in accordance with the commercial arbitration rules then in effect of
the American Arbitration Association, before a panel of three arbitrators, one
of whom shall be selected by the corporation, the second of whom shall be
selected by the indemnified representative and third of whom shall be selected
by the other two arbitrators. In the absence of the American Arbitration
Association, or if for any reason arbitration under the arbitration rules of the
American Arbitration Association cannot be initiated, or if one of the parties
fails or refuses to select an arbitrator or if the arbitrators selected by the
corporation and the indemnified representative cannot agree on the selection of
the third arbitrator within 30 days after such time as the corporation and the
indemnified representative have each been notified of the selection of the
other's arbitrator, the necessary arbitrator or arbitrators shall be selected by
the presiding judge of the court of general jurisdiction in such metropolitan
area.
(b) Burden of proof. The party or parties challenging the
right of an indemnified representative to the benefits of this Article shall
have the burden of proof.
(c) Expenses. The corporation shall reimburse an indemnified
representative for the expenses (including attorneys' fees and disbursements)
incurred in successfully prosecuting or defending such arbitration.
(d) Effect. Any award entered by the arbitrators shall be
final, binding and nonappealable and judgment may be entered thereon by any
party in accordance with applicable law in any court of competent jurisdiction,
except that the corporation shall be entitled to interpose as a defense in any
such judicial enforcement proceeding any prior final judicial determination
adverse to the indemnified representative under Section 7.01(a)(2) in a
proceeding not directly involving indemnification under this Article. This
arbitration provision shall be specifically enforceable.
Section 7.07 CONTRIBUTION. If the indemnification provided for
in this Article or otherwise is unavailable for any reason in respect of any
liability or portion thereof, the corporation shall contribute to the
liabilities to which the indemnified representative may be subject in such
proportion as is appropriate to reflect the intent of this Article or otherwise.
Section 7.08 MANDATORY INDEMNIFICATION OF DIRECTORS, OFFICERS,
ETC. To the extent that an authorized representative of the corporation has been
successful on the merits or otherwise in defense of any action or proceeding
referred to in 15 Pa.C.S. 1741 or 1742 or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees and disbursements) actually and reasonably incurred by such
person in connection therewith.
Section 7.09 CONTRACT RIGHTS; AMENDMENT OR REPEAL. All rights
under this Article shall be deemed a contract between the corporation and the
indemnified representative pursuant to which the corporation and each
indemnified representative intend to be legally bound. Any repeal, amendment or
modification hereof shall be prospective only and shall not affect any rights or
obligations then existing.
Section 7.10 SCOPE OF ARTICLE. The rights granted by this
Article shall not be deemed exclusive of any other rights to which those seeking
indemnification, contribution or advancement of expenses may be entitled under
any statute, agreement, vote of shareholders or disinterested directors or
otherwise both as to action in an indemnified capacity and as to action in any
other capacity. The indemnification, contribution and advancement of expenses
provided by or granted pursuant to this Article shall continue as to a person
who has ceased to be an indemnified representative in respect of matters arising
prior to such time, and shall inure to the benefit of the heirs, executors,
administrators and personal representatives of such a person.
Section 7.11 RELIANCE OF PROVISIONS. Each person who shall act
as an indemnified representative of the corporation shall be deemed to be doing
so in reliance upon the rights provided in this Article.
Section 7.12 INTERPRETATION. The provisions of this Article
are intended to constitute bylaws authorized by 15 Pa.C.S. 513 and 1746 and 42
Pa.C.S. 8365.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 CORPORATE SEAL. The corporation seal shall have
inscribed thereon the name of the corporation, the year of its organization and
the words "Corporate Seal, Pennsylvania".
Section 8.02 CHECKS. All checks, notes, bills of exchange or
other orders in writing shall be signed by such person or persons as the board
of directors or any person authorized by resolution of the board of directors
may from time to time designate.
Section 8.03 CONTRACTS.
(a) General rule. Excepts as otherwise provided in the
Business Corporation Law in the case of transactions that require action by the
shareholders, the board of directors may authorize any officer or agent to enter
into any contract or to execute or deliver any instrument on behalf of the
corporation, and such authority may be general or confined to specific
instances.
(b) Statutory form of execution of instruments. Any note,
mortgage, evidence of indebtedness, contract or other document, or any
assignment or endorsement thereof, executed or entered into between the
corporation and any other person, when signed by one or more officers or agents
having actual or apparent authority to sign it, or by the president or vice
president and secretary or assistant secretary or treasurer or assistant
treasurer of the corporation, shall be held to have been properly executed for
and in behalf of the corporation, without prejudice to the rights of the
corporation against any person who shall have executed the instrument in excess
of his or her actual authority.
Section 8.04 INTERESTED DIRECTORS OR OFFICERS; QUORUM.
(a) General rule. A contract or transaction between the
corporation and one or more of its directors or officers or between the
corporation and another corporation, partnership, joint venture, trust or other
enterprise in which one or more of its directors or officers are directors or
officers or have a financial or other interest, shall not be void or voidable
solely for that reason, or solely because the director or officer is present at
or participates in the meeting of the board of directors that authorizes the
contract or transaction, or solely because his, her or their votes are counted
for that purpose, if:
(1) the material facts as to the relationship or interest
and as to the contract or transaction are disclosed or are known to the
board of directors and the board authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested directors
even though the disinterested directors are less than a quorum;
(2) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are
known to the shareholders entitled to vote thereon and the contract or
transaction is specifically approved in good faith by vote of those
shareholders; or
(3) the contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified by
the board of directors or the shareholders.
(b) Quorum. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board which authorizes
a contract or transaction specified in subsection (a).
Section 8.05 DEPOSITS. All funds of the corporation shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositaries as the board of directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the board of directors shall from time to
time determine.
Section 8.06 CORPORATE RECORDS.
(a) Required records. The corporation shall keep complete and
accurate books and records of account, minutes of the proceedings of the
incorporators, shareholders and directors and a share register giving the names
and addresses of all shareholders and the number and class of shares held by
each. The share register shall be kept at either the registered office of the
corporation in Pennsylvania or at its principal place of business wherever
situated or at the office of its registrar or transfer agent. Any books, minutes
or other records may be in written form or any other form capable of being
converted into written form within a reasonable time.
(b) Right of inspection. Every shareholder shall, upon written
verified demand stating the purpose thereof, have a right to examine, in person
or by agent or attorney, during the usual hours for business for any proper
purpose, the share register, books and records of account, and records of the
proceedings of the incorporators, shareholders and directors and to make copies
or extracts therefrom. A proper purpose shall mean a purpose reasonably related
to the interest of the person as a shareholder. In every instance where an
attorney or other agent is the person who seeks the right of inspection, the
demand shall be accompanied by a verified power of attorney or other writing
that authorizes the attorney or other agent to so act on behalf of the
shareholder. The demand shall be directed to the corporation at its registered
office in Pennsylvania or at its principal place of business wherever situated.
Section 8.07 FINANCIAL REPORTS. Unless otherwise agreed
between the corporation and a shareholder, the corporation shall furnish to its
shareholders annual financial statements, including at least a balance sheet as
of the end of each fiscal year and a statement of income and expenses for the
fiscal year. The financial statements shall be prepared on the basis of
generally accepted accounting principles, if the corporation prepares financial
statements for the fiscal year on that basis for any purpose, and may be
consolidated statements of the corporation and one or more of its subsidiaries.
The financial statements shall be mailed by the corporation to each of its
shareholders entitled thereto within 120 days after the close of each fiscal
year and, after the mailing and upon written request, shall be mailed by the
corporation to any shareholder or beneficial owner entitled thereto to whom a
copy of the most recent annual financial statements has not previously been
mailed. Statements that are audited or reviewed by a public accountant shall be
accompanied by the report of the accountant; in other cases, each
copy shall be accompanied by a statement of the person in charge of the
financial records of the corporation:
(1) Stating his reasonable belief as to whether or not the
financial statements were prepared in accordance with generally
accepted accounting principles and, if not, describing the basis of
presentation.
(2) Describing any material respects in which the
financial statements were not prepared on a basis consistent with those
prepared for the previous year.
Section 8.08 AMENDMENT OF BYLAWS. These bylaws may be amended
or repealed, or new bylaws may be adopted, either (i) by vote of the
shareholders at any duly organized annual or special meeting of shareholders, or
(ii) with respect to those matters that are not by statute committed expressly
to the shareholders and regardless of whether the shareholders have previously
adopted or approved the bylaw being amended or repealed, by vote of a majority
of the board of directors of the corporation in office at any regular or special
meeting of directors. Any change in these bylaws shall take effect when adopted
unless otherwise provided in the resolution effecting the change. See Section
2.03(b) (relating to notice of action by shareholders on bylaws).
Section 8.09 CAPITALIZATION AND EXPENSING OF ASSETS. The
procedure for capitalizing and expensing of assets will follow the Medicare
Regulations. "If a depreciable asset has at the time of its acquisition an
estimated useful life of at least two years and a cost of at least $500.00, the
asset must be capitalized and written off readably over the estimated useful
life of the asset. If the cost of the asset (including taxes and shipping) is
less than $500.00, or if the asset has a useful life of less than two years, its
cost will be expensed in the year of acquisition."