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Exhibit 3(ii)
AMENDED AND RESTATED BYLAWS
OF
DBT ONLINE, INC.
ARTICLE I
Name and Seal
Section 1.01. Name. The name of the corporation is DBT ONLINE,
INC.
Section 1.02. State of Incorporation. The corporation is
incorporated under the laws of the Commonwealth of Pennsylvania.
Section 1.03. Seal. The corporate seal of the corporation
shall have inscribed thereon the name of the corporation, the year of its
organization, the words "Corporate Seal," and the name of the State of
Incorporation. The seal may be used by any person authorized by the Board of
Directors of the corporation or by these Bylaws by causing the seal or a
facsimile thereof to be impressed or affixed, or in any manner reproduced.
ARTICLE II
Offices and Fiscal Year
Section 2.01. Registered Office. The registered office of the
corporation in the Commonwealth of Pennsylvania shall be at c/o CT Corporation,
1635 Market Street, Suite 1120, Philadelphia, PA 19103 until otherwise
established by an amendment of the articles of incorporation (the "articles") or
by the Board of Directors of the corporation (the "Board of Directors" or the
"Board") and a record of such change is filed with the Pennsylvania Department
of State in the manner provided by law.
Section 2.02. Other Offices. The corporation may also have
offices at such other places within or without the Commonwealth of Pennsylvania
as the Board of Directors may from time to time appoint or the business of the
corporation may require.
Section 2.03. Fiscal Year. The fiscal year of the corporation
shall begin on the first day of January in each year.
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ARTICLE III
Notice--Waivers--Meetings Generally
Section 3.01. 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, facsimile or telephone number) of the person
appearing on the books of the corporation or, in the case of directors, supplied
by the director to the corporation for the purpose of notice. If the notice is
sent by mail, telegraph or courier service, it shall be deemed to have been
given to the person entitled thereto when deposited in the United States mail or
with a telegraph office or courier service for delivery to that person or, in
the case of telex or TWX, when dispatched or, in the case of facsimile
transmission, 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) Bulk Mail. If the corporation has more than 30
shareholders, notice of any regular or special meeting of the shareholders, or
any other notice required by the Business Corporation Law or by the articles or
these bylaws to be given to all shareholders or to all holders of a class or
series of shares, may be given by any class of postpaid mail if the notice is
deposited in the United States mail at least 20 days prior to the day named for
the meeting or any corporate or shareholder action specified in the notice.
(c) 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 in which
event notice shall be given in accordance with Section 3.03.
Section 3.02. 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 the meeting.
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Section 3.03. Notice of Meetings of Shareholders.
(a) General Rule. Except as otherwise provided in Section
3.01(b), written notice of every meeting of the shareholders shall be given by,
or at the direction of, the secretary or other authorized person to each
shareholder of record entitled to vote at the meeting at least (1) ten days
prior to the day named for a meeting (and, in case of a meeting called to
consider a merger, consolidation, share exchange or division, to each
shareholder of record not entitled to vote at the meeting) called to consider a
fundamental change under 15 Pa.C.S. Chapter 19 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 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.
(c) Notice of Action by Shareholders on Fundamental Change. In
the case of a meeting of the shareholders that has as one of its purposes action
with respect to any fundamental change under 15 Pa.C.S. Chapter 19, each
shareholder shall be given, together with written notice of the meeting, a copy
or summary of the amendment or plan to be considered at the meeting in
compliance with the provisions of Chapter 19.
(d) Notice of Action by Shareholders Giving Rise to Dissenters
Rights. In the case of a meeting of the shareholders that has as one of its
purposes action that would give rise to dissenters rights under the provisions
of 15 Pa.C.S. Subchapter 15D, each shareholder shall be given, together with
written notice of the meeting:
(1) statement that the shareholders have a right to
dissent and obtain payment of the fair value of their shares
by complying with the provisions of Subchapter 15D (relating
to dissenters rights); and
(2) copy of Subchapter 15D.
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Section 3.04. 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. Neither the business to be
transacted at, nor the purpose of, a meeting need be specified in the waiver of
notice of the meeting.
(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 3.05. 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 3.06. 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 need 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.
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Section 3.07. Use of Conference Telephone and Similar
Equipment. Any director may participate in any meeting of the Board of
Directors, and the Board of Directors may provide by resolution with respect to
a specific meeting or with respect to a class of meetings that one or more
persons may participate in a meeting of 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 IV
Shareholders
Section 4.01. Place of Meeting. All meetings of the
shareholders of the corporation shall be held at such place, within or without
the State of Incorporation, as shall be determined by the Board of Directors
from time to time.
Section 4.02. Annual Meeting. The Board of Directors may fix
and designate the date and time of the annual meeting of the shareholders, but
if no such date and time is fixed and designated by the Board, the meeting for
any calendar year shall be held on the first Thursday in June 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 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 4.03. Special Meetings. Special meetings of the
shareholders may be called at any time by the President or by resolution of the
Board of Directors, which may fix the date, time and place of the meeting. If
the Board does not fix the date, time or place of the meeting, it shall be the
duty of the secretary to do so. A date fixed by the secretary shall not be more
than 60 days after the date of the adoption of the resolution of the Board
calling the special meeting.
Section 4.04. 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.
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(c) Adjournments Generally. Any regular or special meeting of
the shareholders, including one at which directors are to be elected and one
which cannot be organized because a quorum has not attended, may be adjourned
for such period and to such place as the shareholders present and entitled to
vote shall direct.
(d) 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.
(e) 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 4.05. Action by Shareholders. 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 and, if
any shareholders are entitled to vote thereon as a class, upon receiving the
affirmative vote of a majority of the votes cast by the shareholders entitled to
vote as a class.
Section 4.06. 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
persons 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 of the
meeting.
Section 4.07. Voting Rights of Shareholders. Unless otherwise
provided in the articles, every shareholder of the corporation shall be entitled
to one vote for each full share having voting power standing in the name of the
shareholder on the books of the corporation.
Section 4.08. Voting and Other Action by Proxy.
(a) General Rule.
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(1) every shareholder entitled to vote at a meeting
of shareholders 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 by a proxy of a shareholder shall
constitute the presence of, or vote or action by 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 subsection; 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. 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.
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Section 4.09. 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 4.10. 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 4.11. Voting by Corporations.
(a) Voting by Corporate Shareholders. Any corporation that is
a shareholder of this corporation may vote at meetings of shareholders of this
corporation by any of its officers or agents, or by proxy appointed by any
officer or agent, unless some other person, by resolution of the Board of
Directors of the other corporation or a provision of its articles or bylaws, a
copy of which resolution or provision certified to be correct by one of its
officers has been filed with the secretary of this corporation, is appointed its
general or special proxy in which case that person shall be entitled to vote the
shares.
(b) Controlled Shares. Shares of this corporation owned,
directly or indirectly, by it and controlled, directly or indirectly, by the
Board of Directors of this
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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 4.12. 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 day next preceding
the day on which notice is given.
(2) 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.
(c) Certification by Nominee. The Board of Directors may adopt
a procedure whereby a shareholder of the corporation may certify in writing to
the corporation that all or a portion of the shares registered in the name of
the shareholder are held for the account of a specified person or persons. Upon
receipt by the corporation of a certification complying with the procedure, the
persons specified in the certification shall be deemed, for the purposes set
forth in the certification, to be the holders of record of the number of shares
specified in place of the shareholder making the certification.
Section 4.13. Voting Lists.
(a) General Rule. The officer or agent having charge of the
transfer books for shares of the corporation shall make a complete list of the
shareholders entitled to vote at any meeting of shareholders, arranged in
alphabetical order, with the address of and the number of shares held by each.
The list shall be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the
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meeting for the purposes thereof except that, if the corporation has 5,000 or
more shareholders, in lieu of the making of the list the corporation may make
the information therein available at the meeting by any other means.
(b) Effect of List. Failure to comply with the requirements of
this section shall not affect the validity of any action taken at a meeting
prior to a demand at the meeting by any shareholder entitled to vote thereat to
examine the list. The original share register or transfer book, or a duplicate
thereof kept in the Commonwealth of Pennsylvania, 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 4.14. 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 an 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, and 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 nominations by shareholders
or 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 judges 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 4.15. Minors as Security Holders. The corporation may
treat a minor who holds shares or obligations of the corporation as having
capacity to receive and to empower others to receive dividends, interest,
principal and other payments or distributions, to vote or
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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 V
Board of Directors
Section 5.01. 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) Personal Liability of Directors.
(1) A director shall not be personally liable, as
such, for monetary damages (including, without limitation, any
judgment, amount paid in settlement, penalty, punitive damages
or expense of any nature (including, without limitation,
attorneys' fees and disbursements)) 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
Subchapter 17B of the Business Corporation Law or any
successor provision; 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.
(c) Notation of Dissent. A director of the corporation 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 on which the director is
generally competent to act, 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 his or her 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
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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 5.02. Qualifications and Selection of Directors.
(a) Qualifications. Each director of the corporation shall be
a natural person of full age who need not be a resident of the Commonwealth of
Pennsylvania or a shareholder of the corporation.
(b) Election of Directors. In elections for directors, voting
need not be by ballot, unless required by vote of the shareholders before the
voting for the election of directors 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.
Section 5.03. Number and Term of Office.
(a) Number. The Board of Directors shall consist of not less
than three (3) Directors nor more than nine (9) Directors, such number to be
determined from time to time by resolution of the Board of Directors.
(b) Term of Office. Each director shall hold office until the
expiration of the term for which he or she was selected and until a successor
has been selected and qualified or until his or her earlier death, resignation
or removal. A decrease in the number of directors shall not have the effect of
shortening the term of any incumbent director.
(c) Resignation. Any director may resign at any time upon
written notice to the corporation. The resignation shall be effective upon
receipt thereof by the corporation or at such subsequent time as shall be
specified in the notice of resignation.
(d) Classified Board of Directors. The directors shall be
divided into three classes, Class I, Class II and Class III with respect to
their terms of office. All classes shall be as nearly equal in number as
reasonably possible. Subject to such limitations, when the number of Directors
is changed, any newly-created directorship or any decrease in directorships
shall be apportioned among the classes by action of the Board of Directors. The
terms of office of the Directors shall be as follows:
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(1) Class I shall expire at the annual meeting of
shareholders to be held in 1997;
(2) Class II shall expire at the annual meeting of
shareholders to be held in 1998; and
(3) Class III shall expire at the annual meeting of
shareholders to be held in 1999;
At each annual meeting of shareholders, commencing with the annual meeting to be
held in 1997, the successors of the class of Directors whose term expires at
such meeting shall be elected to hold office for a term expiring at the annual
meeting of shareholders held in the third year of their elections.
Section 5.04. Vacancies.
(a) General Rule. Vacancies in the Board of Directors,
including vacancies resulting from an increase in the number of directors, may
be filled by a majority vote of the remaining members of the Board though less
than a quorum, or by a sole remaining director, and each person so selected
shall be a director to serve until the next selection of the class for which
such director has been chosen, and until a successor has been selected and
qualified or until his or her earlier death, resignation or removal.
(b) Action by Resigned Directors. When one or more directors
resign from the Board effective at a future date, the directors then in office,
including those who have so resigned, shall have power by the applicable vote to
fill the vacancies, the vote thereon to take effect when the resignations become
effective.
Section 5.05. 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 only for cause by vote of a majority of the shareholders entitled to
vote thereon. In case the Board, or a class of the Board or any one or more
directors are so removed, new directors may be elected at the same meeting. The
repeal of a provision of the articles or bylaws prohibiting, or the addition of
a provision to the articles or bylaws permitting, the removal by the
shareholders of the Board, a class of the Board or any individual director
without assigning any cause shall not apply to any incumbent director during the
balance of the term for which the director was selected.
(b) Removal by the Board. The Board of Directors may declare
vacant the office of a director who has been judicially declared of unsound mind
or who has been convicted of an offense punishable by imprisonment for a term of
more than one year or if, within 60 days
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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.
Section 5.06. Place of Meetings. Meetings of the Board of
Directors may be held at such place within or without the Commonwealth of
Pennsylvania as the Board of Directors may from time to time appoint or as may
be designated in the notice of the meeting.
Section 5.07. 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 of the meeting.
Section 5.08. 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 5.09. 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 5.10. 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 5.11. 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
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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 5.12. Compensation. The Board of Directors shall have
the authority to fix the compensation of directors for their services as
directors and a director may be a salaried officer of the corporation.
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ARTICLE VI
Officers
Section 6.01. Officers Generally.
(a) Number, Qualifications and Designation. The officers of
the corporation shall be a president, one or more vice presidents, a secretary,
a treasurer, and such other officers as may be elected in accordance with the
provisions of Section 6.03. 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) Bonding. The corporation may secure the fidelity of any or
all of its officers by bond or otherwise.
(c) Standard of Care. In lieu of the standards of conduct
otherwise provided by law, officers of the corporation shall be subject to the
same standards of conduct, including standards of care and loyalty and rights of
justifiable reliance, as shall at the time be applicable to directors of the
corporation. An officer of the corporation shall not be personally liable, as
such, to the corporation or its shareholders for monetary damages (including,
without limitation, any judgment, amount paid in settlement, penalty, punitive
damages or expense of any nature (including, without limitation, attorneys' fees
and disbursements)) for any action taken, or any failure to take any action,
unless the officer has breached or failed to perform the duties of his or her
office under the articles, these bylaws, or the applicable provisions of law and
the breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection shall not apply to the
responsibility or liability of an officer pursuant to any criminal statute or
for the payment of taxes pursuant to local, state or federal law.
Section 6.02. Election, Term of Office and Resignations.
(a) Election and Term of Office. The officers of the
corporation, except those elected by delegated authority pursuant to Section
6.03, 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.
(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.
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Section 6.03. 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 6.04. 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 6.05. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification, or any other cause, may 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 6.03, 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 6.06. Authority. All officers of the corporation, as
between themselves and the corporation, shall have such authority and perform
such duties in the management of the corporation as may be provided by or
pursuant to resolutions or orders of the Board of Directors or, in the absence
of controlling provisions in the resolutions or orders of the Board of
Directors, as may be determined by or pursuant to these bylaws.
Section 6.07. The Chairman and Vice Chairman of the Board. The
chairman of the Board or in the absence of the chairman, the vice chairman of
the Board, shall preside at all meetings of the shareholders and of the Board of
Directors, and shall perform such other duties as may from time to time be
requested by the Board of Directors.
Section 6.08. The President. The president shall be the chief
executive officer of the corporation. The president shall have general
supervision over the business and operations of the corporation, subject
however, to the control of the Board of Directors. The president shall sign,
execute, and acknowledge, in the name of the corporation, deeds, mortgages,
bonds, contracts or other instruments, authorized by the Board of Directors,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board of Directors, or by these bylaws, to some other officer
or agent of the corporation; and, in general, shall perform all duties incident
to the office of president and such other duties as from time to time may be
assigned by the Board of Directors. The president shall from time to time make
such reports of the affairs of
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the corporation as the Board may require and shall annually present to the
annual meeting of the shareholders a report of the business of the corporation
for the preceding fiscal year.
Section 6.09. The Vice Presidents. The vice presidents shall
perform the duties of the president in the absence of the president and such
other duties as may from time to time be assigned to them by the Board of
Directors or the president. If there is more than one vice president, their
seniority in performing such duties and exercising such powers shall be
determined by the order in which they were first elected or appointed, or as
determined by the Board.
Section 6.10. The Secretary. The secretary or an assistant
secretary shall attend all meetings of the shareholders and of the Board of
Directors and all committees thereof and shall record all the votes of the
shareholders and of the directors and the minutes of the meetings of the
shareholders and of the Board of Directors and of committees of the Board in a
book or books to be kept for that purpose; shall see that notices are given and
records and reports properly kept and filed by the corporation as required by
law; shall be the custodian of the seal of the corporation and see that it is
affixed to all documents to be executed on behalf of the corporation under its
seal; and, in general, shall perform all duties incident to the office of
secretary, and such other duties as may from time to time be assigned by the
Board of Directors or the president.
Section 6.11. The Treasurer. The treasurer shall be the chief
financial officer and 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 6.12. Salaries. The salaries of the officers elected
by the Board of Directors shall be fixed from time to time by the Board of
Directors or by such officer as may be designated by resolution of the Board.
The salaries or other compensation of any other officers, employees and other
agents shall be fixed from time to time by the Board, or 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 6.03. 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.
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ARTICLE VII
Certificates of Stock, Transfer, Etc.
Section 7.01. Share Certificates.
(a) Form of 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 the
Commonwealth 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. If the corporation is authorized to issue shares of more
than one class or series, certificates for shares of the corporation shall set
forth upon the face or back of the certificate (or shall state on the face or
back of the certificate that the corporation will furnish to any shareholder
upon request and without charge), a full or summary statement of the
designations, voting rights, preferences, limitations and special rights of the
shares of each class or series authorized to be issued so far as they have been
fixed and determined and the authority of the Board of Directors to fix and
determine the designations, voting rights, preferences, limitations and special
rights of the classes and series of shares of the corporation.
(b) Share Register. 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 7.02. 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 executed in such
manner as the Board of Directors shall determine. In case any officer, transfer
agent or registrar who has signed or authenticated, or whose facsimile signature
or authentication has been placed upon, any share certificate shall have ceased
to be such officer, transfer agent or registrar because of death, resignation or
otherwise, before the certificate is issued, the certificate may be issued with
the same effect as if the officer, transfer agent or registrar had not ceased to
be such at the date of its issue. The provisions of this Section 7.02 shall be
subject to any inconsistent or contrary agreement in effect at the time between
the corporation and any transfer agent or registrar.
Section 7.03. 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.
ss.ss. 8101 et seq., and its amendments and supplements.
Section 7.04. 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
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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 7.05. Lost, Destroyed or Mutilated Certificates. The
holder of any shares of the corporation shall immediately notify the corporation
of any loss, destruction or mutilation of the certificate therefor, and the
Board of Directors may, in its discretion, cause a new certificate or
certificates to be issued to such holder, in case of mutilation of the
certificate, upon the surrender of the mutilated certificate or, in case of loss
or destruction of the certificate, upon satisfactory proof of such loss or
destruction and, if the Board of Directors shall so determine, the deposit of a
bond in such form and in such sum, and with such surety or sureties, as it may
direct.
Section 7.06. Agreements Restricting Transfer of Shares. The
Board of Directors may authorize the corporation to become party to agreements
with shareholders and others relating to transfer, repurchase and issuance of
shares of stock of the corporation; provided, however, that such agreement must
be filed with the corporation and all share certificates affected thereby shall
have clearly imprinted thereon a legend containing such agreement or referring
thereto.
ARTICLE VIII
Indemnification of Directors, Officers and
Other Authorized Representatives
Section 8.01. 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
8.06 or otherwise:
(i) to constitute willful misconduct or
recklessness within the meaning of 15 Pa.C.S. ss.
1746(b) or any superseding provision of law
sufficient in the circumstances to bar
indemnification against liabilities arising from the
conduct; or
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(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
8.06 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.
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Section 8.02. 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 reimbursement of expenses incurred in
successfully prosecuting or defending an arbitration under Section 8.06 or
otherwise successfully prosecuting or defending the rights of an indemnified
representative granted by or pursuant to this Article.
Section 8.03. 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 8.01 or the initiation of or participation in
which is authorized pursuant to Section 8.02 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 8.06 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 8.04. 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 8.05. 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 8.06. 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
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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 the 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, and if one of the parties fails or
refuses to select an arbitrator or 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) Qualifications of Arbitrators. Each arbitrator selected as
provided herein is required to be or have been a director or executive officer
of a corporation whose shares of common stock were listed during at least one
year of such service on the New York Stock Exchange or the American Stock
Exchange or quoted on the National Association of Securities Dealers Automated
Quotations System.
(c) 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.
(d) Expenses. The corporation shall reimburse an indemnified
representative for the expenses (including attorneys' fees and disbursements)
incurred in successfully prosecuting or defending such arbitration.
(e) 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 8.01(a)(2) in a
proceeding not directly involving indemnification under this Article. This
arbitration provision shall be specifically enforceable.
Section 8.07. 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 8.08. 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, suit or proceeding referred to in Sections 1741 or 1742 of the Business
Corporation Law or in defense of any claim, issue or matter therein, such person
shall
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be indemnified against expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection therewith.
Section 8.09. 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 8.10. 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 8.11. Reliance on Provisions. Each person who shall
act as an indemnified representative of the corporation shall be deemed to be
doing so in reliance upon the rights of indemnification, contribution and
advancement of expenses provided by this Article.
Section 8.12. Interpretation. The provisions of this Article
are intended to constitute bylaws authorized by 15 Pa.C.S.ss. 1746.
Section 8.13. Changes in Pennsylvania Law. References in this
Article VIII to Pennsylvania law or to any provision thereof shall be to such
law (including without limitation to the Directors' Liability Act) as it existed
on the date this Article VIII was adopted or as such law thereafter may be
changed; provided that (a) in the case of any change which expands the liability
of Directors or limits the indemnification rights or the rights to advancement
of expenses which the corporation may provide, the rights to limited liability,
to indemnification and to the advancement of expenses provided in this Article
shall continue as theretofore to the extent permitted by law; and (b) if such
change permits the corporation without the requirement of any further action by
shareholders or Directors to limit further the liability of Directors (or limit
the liability of Officers) or to provide broader indemnification rights or
rights to the advancement of expenses than the corporation was permitted to
provide prior to such change, then liability thereupon shall be so limited and
the rights to indemnification and the advancement of expenses shall be so
broadened to the extent permitted by law.
ARTICLE IX
Dividends and Other Distributions to Shareholders
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Section 9.01. Dividends. Subject to applicable law of the
State of Incorporation, and in accordance with the provisions thereof at the
pertinent applicable time, the Board of Directors of the corporation may from
time to time declare, and the corporation may pay, dividends on its outstanding
shares in cash or property other than its own shares, except when the
corporation is insolvent, or when the payment thereof would render the
corporation insolvent, or when the declaration or payment thereof would be
contrary to any restriction contained in the articles, but:
(1) Dividends may be declared and paid in cash or
property only out of unreserved and unrestricted earned
surplus of the corporation, except as otherwise provided by
statute; and
(2) No dividends shall be paid which would reduce the
remaining net assets of the corporation below the aggregate
preferential amount payable in the event of voluntary
liquidation to the holders of shares having preferential
rights to the assets of the corporation in the event of
liquidation. The Board of Directors may also, from time to
time, distribute to the holders of the corporation's
outstanding shares having a cumulative preferential right to
receive dividends in discharge of their cumulative dividend
rights, dividends payable in cash out of the unrestricted
capital surplus of the corporation, if at the time the
corporation has no earned surplus and is not insolvent and
would not thereby be rendered insolvent. Each such
distribution, when made, shall be identified as a payment of
cumulative dividends out of capital surplus.
Section 9.02 Distributions of Shares of the Corporation. The
Board of Directors of the corporation may, from time to time, distribute pro
rata to holders of any class or classes of its issued shares, treasury shares
and authorized but unissued shares, but
(1) If distribution is made, in the corporation's
authorized but unissued shares having a par value, there shall
be transferred to stated capital at the time of such
distribution an amount of surplus at least equal to the
aggregate par value of the shares so issued;
(2) If a distribution is made in the corporation's
authorized but unissued shares without par value, the Board of
Directors may fix a stated value for the shares so issued, and
there shall be transferred to stated capital, at the time of
such distribution, an amount of surplus equal to the aggregate
stated value, if any, so fixed;
(3) The amount per share so transferred to stated
capital, or the fact that there was no such transfer, shall be
disclosed to the shareholders receiving such distribution
concurrently with the distribution thereof;
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(4) No distribution of shares of any class shall be
made to holders of shares of any other class unless the
articles so provide or such distribution is authorized by the
affirmative vote or written consent of the holders of a
majority of the outstanding shares of the class in which the
distribution is to be made.
In lieu of issuing fractional shares in any such distribution,
the corporation may pay in cash the fair value thereof, as determined by the
Board of Directors, to shareholders entitled thereto.
Section 9.03. Reserves. There may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
Directors, from time to time, in their absolute discretion determine as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for the purchase of
additional property, or for such other purpose as the Board of Directors shall
think conducive to the interests of the corporation.
The Board of Directors may abolish or modify any such reserve.
Section 9.04 Distributions in Partial Liquidation. The Board
of Directors of the corporation may, from time to time, distribute to the
shareholders in partial liquidation, out of unrestricted capital surplus of the
corporation, a portion of its assets in cash or property, subject to the
following conditions:
(1) No such distribution shall be made at a time when
the corporation is insolvent or when such distribution would
render the corporation insolvent;
(2) No such distribution shall be made unless such
distribution shall have been authorized by the prior
affirmative vote, obtained within one (1) year of such
distribution, of the holders of at least a majority of the
outstanding shares of each class, whether or not entitled to
vote thereon by the provisions of the articles;
(3) No such distribution shall be made to the holders
of any class of shares unless all cumulative dividends accrued
on all classes of shares entitled to preferential dividends,
prior to dividends on the shares to the holders of which such
distribution is to be made, shall have been fully paid;
(4) No such distribution shall be made to the holders
of any class of shares which would reduce the remaining net
assets of the corporation below the aggregate preferential
amount payable in the event of voluntary liquidation to the
holders of shares having preferential rights to the assets of
the corporation in the event of liquidation;
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(5) Each such distribution, when made, shall be
identified as a distribution in partial liquidation and the
amount per share disclosed to the shareholders receiving the
same concurrently with the distribution thereof.
ARTICLE X
Miscellaneous
Section 10.01. Checks. All checks, notes, bills of exchange or
other similar orders in writing shall be signed by such one or more officers or
employees of the corporation as the Board of Directors may from time to time
designate.
Section 10.02. Contracts.
(a) General Rule. Except as otherwise provided in the Business
Corporation Law in the case of transactions that require action by the
shareholders, the Board of Directors may authorize any officer or agent to enter
into any contract or to execute or deliver any instrument on behalf of the
corporation, and such authority may be general or confined to specific
instances.
(b) Statutory Form of Execution of Instruments. Any note,
mortgage, evidence of indebtedness, contract or other document, or any
assignment or endorsement thereof, executed or entered into between the
corporation and any other person, when signed by one or more officers or agents
having actual or apparent authority to sign it, or by the president or vice
president and secretary or assistant secretary or treasurer or assistant
treasurer of the corporation, shall be held to have been properly executed for
and in behalf of the corporation, without prejudice to the rights of the
corporation against any person who shall have executed the instrument in excess
of his or her actual authority.
Section 10.03. 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
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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 10.04. 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 of the corporation as the Board of Directors
shall from time to time designate.
Section 10.05. 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 the Commonwealth of 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
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of the shareholder. The demand shall be directed to the corporation at its
registered office in the Commonwealth of Pennsylvania or at its principal place
of business wherever situated.
Section 10.06. 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
3.03(b) (relating to notice of action by shareholders on bylaws).
Section 10.07. Exemption From Certain Statutory Provisions.
Subchapters E, F, G, H, I and J of Chapter 25 of the Business Corporation Law
shall not be applicable to the corporation.
ARTICLE XI
Amendments
Section 11.01. Amendment by Shareholders. These bylaws may be
altered, amended or repealed by a majority vote of all of the shares of stock of
the corporation issued and outstanding and entitled to vote at any annual or
special meetings of the shareholders duly convened after appropriate notice to
the shareholders of such proposed alteration, amendment or repeal.
Section 11.02. Amendment by the Board of Directors. These
bylaws may be altered, amended or repealed by the affirmative vote of a majority
of the Board of Directors at any regular or special meeting of the Board duly
convened after appropriate notice to the Directors of such proposed alteration,
amendment or repeal.
Section 11.03. Recording Amendments and Alterations. The text
of all amendments and alterations to these bylaws shall be attached to the
bylaws with a notation of the date of each such amendment or alteration and a
notation of whether such amendment or alteration was adopted by the shareholders
or the Board of Directors.
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ARTICLE XII
Adoption of Bylaws - Record of Amendment
Section 12.1. Adoption. These Amended and Restated Bylaws have
been adopted and filed with the undersigned on the 28th day of June, 1996, and
shall be effective as of this date.
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Section 12.2. Amendments to Bylaws.
SECTION AMENDED DATE AMENDED ADOPTED BY
--------------- ------------ ----------
1.01 08/20/96 Board Resolution
2.03 08/20/96 Board Resolution
5.03(a) 10/28/96 Board Resolution
4.02 02/18/97 Board Resolution
5.03(a) 03/13/97 Unanimous Consent
5.03(a) 06/10/97 Unanimous Consent
5.03(a) 08/20/97 Unanimous Consent
5.03(a) 10/09/97 Unanimous Consent
5.03(a) 11/24/97 Unanimous Consent
5.03(a) 08/10/98 Board Resolution
5.03(a) 02/17/99 Board Resolution
5.03(a) 11/16/99 Board Resolution
/s/ J. Henry Muetterties
------------------------------------
J. Henry Muetterties
Secretary
December 1, 1999 (Updated)
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