EXHIBIT 3.18
BYLAWS
OF
MILESTONE MARKETING INCORPORATED
(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 229 Willow Avenue, Wayne PA 19087 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 facsimile
transmission, to the address (or to the telex, TWX or facsimile 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 facsimile,
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 or these bylaws require notice of the
business to be transacted and such notice has not previously been given.
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 facsimile transmission) 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, and in all cases the notice shall comply with the express
requirements of this section. The corporation shall not have a duty to augment
the notice.
(b) Notice of action by shareholders on bylaws. In
the case of a meeting of shareholders that has as one of its purposes action on
the bylaws, written notice shall be given to each shareholder that the purpose,
or one of the purposes, of the meeting is to consider the adoption, amendment or
repeal of the bylaws. There shall be included in, or enclosed with, the notice a
copy of the proposed amendment or a summary of the changes to be effected
thereby.
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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.
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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 2nd January 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. Except as otherwise
provided in the articles, at least one meeting of the shareholders shall be held
in each calendar year for the election of directors.
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.
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(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 upon receiving the affirmative vote of a majority of the votes
cast by all shareholders entitled to vote thereon.
(b) Interested shareholders. Any merger or other
transaction authorized under 15Pa.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
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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
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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) Execution and filing. 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 telegram, telex, cablegram, datagram or similar transmission from
a shareholder or attorney-in-fact, or a photographic, facsimile or similar
reproduction of a writing executed by a shareholder or attorney-in-fact:
(1) may be treated as properly executed for
purposes of this section; and
(2) shall be so treated if it sets forth a
confidential and unique identification number or other mark furnished
by the corporation to the shareholder for the purposes of a particular
meeting or transaction.
(c) Revocation. 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.
(d) 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.
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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
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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, to call a special meeting of the
shareholders or propose an amendment of the articles, shall be the
close of business on the day on which the first written consent or
dissent, request for a special meeting or petition proposing an
amendment of the articles 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
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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
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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).
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(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
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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) Number. The board of directors shall consist of
such number of directors, not less than two nor more than two, as may be
determined from time to time by resolution of the board of directors.
(b) Term of office. Each director shall hold office
until the expiration of the term for which he or she was elected and until a
successor has been selected and qualified or until his or her earlier death,
resignation or removal. A decrease in the number of directors shall not have the
effect of shortening the term of any incumbent director.
(c) Resignation. Any director may resign at any time
upon written notice to the corporation. The resignation shall be effective upon
receipt thereof by the corporation or at such subsequent time as shall be
specified in the notice of resignation.
Section 4.04 Vacancies.
(a) General rule. Vacancies in the board of
directors, including vacancies resulting from an increase in the number of
directors, may be filled by a majority vote of the remaining members of the
board though less than a quorum, or by a sole remaining director, and each
person so selected shall be a director to serve 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,
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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
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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
15
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
16
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
17
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. Section 8101 et
seq., and its amendments and supplements.
Section 6.04 Record Holder of Shares. The corporation shall be
entitled to treat the person in whose name any share or shares of the
corporation stand on the books of the corporation as the absolute owner thereof,
and shall not be bound to recognize any equitable or other claim to, or interest
in, such share or shares on the part of any other person.
Section 6.05 Lost, Destroyed or Mutilated Certificates. The
holder of any shares of the corporation shall immediately notify the corporation
of any loss, destruction or mutilation of the certificate therefor, and the
board of directors may, in its discretion, cause a
18
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.
Section 513(b) and 1746(b) and 42 Pa.C.S. Section 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.
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(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
20
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.
21
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. Section 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. Section 513 and 1746
and 42 Pa.C.S. Section 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.
22
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
23
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.
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(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).
* * * * * * * * * *
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