1
Exhibit 3.6
Bylaws
of
WERNER CO.
(a Pennsylvania Corporation)
Amended and Restated
May 15, 1997
2
INDEX TO Bylaws
ARTICLE I
Offices and Fiscal Year .......................................... 1
Section 1.01. Registered office .................................. 1
Section 1.02. Other offices ...................................... 1
Section 1.03. Fiscal year ........................................ 1
ARTICLE II
Notice - Waivers - Meetings Generally ............................ 1
Section 2.01. Manner of giving notice .......................... 1
Section 2.02. Notice of meetings of Board of Directors ......... 2
Section 2.03. Notice of meetings of Shareholders ............... 2
Section 2.04. Waiver of notice ................................. 2
Section 2.05. Modification of proposal contained in notice ..... 2
Section 2.06. Exception to requirement of notice ............... 3
Section 2.07. Use of conference telephone and similar
equipment .................................. 3
ARTICLE III
Shareholders ..................................................... 3
Section 3.01. Place of meeting ................................. 3
Section 3.02. Annual meeting ................................... 3
Section 3.03. Special meetings ................................. 3
Section 3.04. Quorum and adjournment ........................... 4
Section 3.05. Action by Shareholders ........................... 5
Section 3.06. Organization ..................................... 5
Section 3.07. Voting rights of Shareholders .................... 6
Section 3.08. Voting and other action by proxy ................. 6
Section 3.09. Voting by fiduciaries and pledgees ............... 6
Section 3.10. Voting by joint holders of shares ................ 7
Section 3.11. Voting by Corporations ........................... 7
Section 3.12. Determination of Shareholders of record .......... 7
Section 3.13. Voting Lists ..................................... 8
Section 3.14. Judges of election ............................... 8
Section 3.15. Consent of Shareholders in lieu of meeting ....... 9
Section 3.16. Minors as security holders ....................... 9
ARTICLE IV
Board of Directors ............................................... 9
Section 4.01. Powers; personal liability ....................... 9
Section 4.02. Qualifications and selection of Directors ....... 11
Section 4.03. Number and term of office ....................... 11
Section 4.04. Vacancies ....................................... 12
Section 4.05. Removal of directors ............................ 12
3
Section 4.06. The Chairman and vice chairman of the board ...... 12
Section 4.07. Place of meetings ................................ 12
Section 4.08. Organization of meetings ......................... 12
Section 4.09. Regular meetings ................................. 13
Section 4.10. Special meetings ................................. 13
Section 4.11. Quorum of and action by Directors ................ 13
Section 4.12. Executive and other committees ................... 13
Section 4.13. Compensation ..................................... 14
ARTICLE V
Officers ......................................................... 14
Section 5.01. Officers generally ............................... 14
Section 5.02. Election and term of office ...................... 14
Section 5.03. Subordinate officers, committees and agents ...... 14
Section 5.04. Removal of officers and agents ................... 15
Section 5.05. Vacancies ........................................ 15
Section 5.06. Authority ........................................ 15
Section 5.07. The President .................................... 15
Section 5.08. The Senior Vice Presidents and Vice Presidents ... 15
Section 5.09. The Secretary and Assistant Secretaries .......... 15
Section 5.10. The Treasurer and Assistant Treasurers ........... 16
Section 5.11. Salaries ......................................... 16
ARTICLE VI
Certificates of Stock, Transfer, Etc ............................. 16
Section 6.01. Share certificates ............................... 16
Section 6.02. Issuance ......................................... 17
Section 6.03. Transfer ......................................... 17
Section 6.04. Record holder of Shares .......................... 17
Section 6.05. Lost, destroyed or mutilated certificates ........ 17
ARTICLE VII
Indemnification of Directors, Officers and
Other Authorized Representatives ................................. 17
Section 7.01. Scope of indemnification ......................... 17
Section 7.02. Proceeding initiated by indemnified
representative ............................... 19
Section 7.03. Advancing expenses ............................... 19
Section 7.04. Securing of indemnification obligations .......... 19
Section 7.05. Payment of indemnification ....................... 19
Section 7.06. Arbitration ...................................... 19
Section 7.07. Contribution ..................................... 20
Section 7.08. Mandatory indemnification of Directors.
Officers, etc. ................................ 20
Section 7.09. Contract rights; amendment or repeal ............. 20
Section 7.10. Scope of Article ................................. 20
Section 7.11. Reliance on provisions ........................... 21
Section 7.12. Interpretation ................................... 21
ii
4
ARTICLE VIII
Miscellaneous .................................................... 21
Section 8.01. Corporate seal ................................... 21
Section 8.02. Checks ........................................... 21
Section 8.03. Contracts ........................................ 21
Section 8.04. Interested Directors or officers; quorum ......... 21
Section 8.05. Deposits ......................................... 22
Section 8.06. Corporate records ................................ 22
Section 8.07. Financial Reports ................................ 22
Section 8.08. Amendment of Bylaws .............................. 23
iii
5
WERNER CO.
Bylaws
ARTICLE I
---------
Offices and Fiscal Year
Section 1.01. REGISTERED OFFICE. The registered office of the
Corporation in Pennsylvania shall be at 93 Werner Road, Greenville,
Pennsylvania 16125, 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 OFFICES. 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
end on December 31 of 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 provision 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 be
telegram (with messenger service specified), telex or TWX (with answer back
received) or courier service, charges prepaid, or by telecopier, to the address
(or to the telex, TWX, telecopier or telephone number) of the person appearing
on the books of the Corporation or, in the case of directors, supplied by the
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
telegraphic office or courier service for delivery to that person or, in the
case of telex or TWX, when dispatched or, in the case of telecopier, when
received. A notice of meeting shall specify the place, day and time 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.
1
6
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 at
least 24 hours (in the case of notice by telephone, telex, TWX or telecopier)
or 48 hours (in the case of notice by telegraph, courier service or express
mail) or five days (in the case of notice by first class mail) before the time
at which the meeting is to be held. Every such notice shall state the time and
place of the meeting. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be specified
in a notice of the meeting.
Section 2.03. NOTICE OF MEETINGS OF SHAREHOLDERS.
(a) GENERAL RULE. Written notice of the annual meeting of Shareholders
shall be given at least ten (10) days prior to the meeting to each Shareholder
entitled to vote thereat. Written notice of each special meeting of
Shareholders shall be given at least five (5) days prior to the meeting to each
Shareholder entitled to vote thereat. Such notice shall specify the general
nature of the business to be transacted at such special meeting, and no other
business may be transacted at such special meeting.
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 THE 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.
Section 2.04. WAIVER OF NOTICE.
(a) WRITTEN WAIVER. Whenever any written notice is required to be given
under the provisions of applicable 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 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.
2
7
Section 2.06. EXCEPTION TO REQUIREMENT OF NOTICE.
(a) GENERAL RULE. Whenever any notice or communication is required to
be given to any person under the provisions of the Business Corporation Law or
by the articles or these Bylaws or by the terms of any agreement or other
instrument or as a condition precedent to taking any corporate action and
communication with that person is then unlawful, the giving of the notice or
communication to that person shall not be required.
(b) SHAREHOLDERS WITHOUT FORWARDING ADDRESSES. Notice or other
communications shall not be sent to any Shareholder with whom the Corporation
has been unable to communicate for more than 24 consecutive months because
communications to the Shareholder are returned unclaimed or the Shareholder has
otherwise failed to provide the Corporation with a current address. Whenever
the Shareholder provides the Corporation with a current address, the
Corporation shall commence sending notices and other communications to the
Shareholder in the same manner as to other Shareholders.
Section 2.07. USE OF CONFERENCE TELEPHONE AND SIMILAR EQUIPMENT. One or
more persons may participate in a meeting of the Board of Directors or the
Shareholders of the Corporation by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at the meeting.
ARTICLE III
-----------
Shareholders
Section 3.01. PLACE OF MEETING. All meetings of the Shareholders of the
Corporation shall be held at the registered office of the Corporation unless
another place is designated by the Board of Directors in the notice of a
meeting.
Section 3.02. ANNUAL MEETING. The Board of Directors may fix the date
and time of the annual meeting of the Shareholders, but if no such date and
time is fixed by the board, the meeting for any calendar year shall be held on
the third Tuesday of March in each year if not a legal holiday and, if a legal
holiday, then on the next succeeding day which is not a legal holiday, and at
said meeting the Shareholders then entitled to vote shall elect directors and
shall transact such other business as may properly be brought before the
meeting. If the annual meeting shall not have been called and held within six
months after the designated time, any Shareholder may call the meeting at any
time thereafter.
Section 3.03. SPECIAL MEETINGS.
(a) CALL OF SPECIAL MEETINGS. Special meetings of the Shareholders may
be called at any time;
(1) by the Board of Directors;
(2) by the Chairman;
3
8
(3) by the President; or
(4) unless otherwise provided in the articles, by Shareholders entitled
to cast at least 20% of the votes 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 the 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 more than 50% 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 the Corporation, as such, shall not be counted in
determining the total number of outstanding Shares for quorum purposes at any
given time.
(b) WITHDRAWAL OF A QUORUM. The Shareholders present at a duly
organized meeting can continue to do business until adjournment notwithstanding
the withdrawal of enough Shareholders to leave less than a quorum.
(c) ADJOURNMENT FOR LACK OF QUORUM. If a meeting cannot be organized
because a quorum has not attended, those present may, except as provided by
applicable 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.
4
9
(a) GENERAL RULE. Except as otherwise provided by applicable law or the
articles or these Bylaws, whenever any Corporation action is to be taken by
vote of the Shareholders of the Corporation, it shall be authorized by a
majority of the votes cast at a duly organized meeting of Shareholders by the
holders of Shares entitled to vote thereon.
(b) INTERESTED SHAREHOLDERS. Any merger or other transaction authorized
under 15 Pa. C.S. Subchapter 19C between the Corporation or subsidiary
thereof and a Shareholder of this Corporation, or any voluntary liquidation
authorized under 15 Pa. C.S. Subchapter 19F in which a Shareholder is treated
differently from other Shareholders of the same class (other than any
dissenting Shareholders), shall require the affirmative vote of 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 persons who,
directly or indirectly, controls, is controlled by or is under common control
with the interested Shareholder. An interested Shareholder shall not include
any person who, in good faith and not for the purpose of circumventing this
subsection, is an agent, bank, broker, nominee or trustee for one or more other
persons, to the extent that the other person or persons are not interested
Shareholders.
(c) EXCEPTIONS. Subsection (b) shall not apply to a transaction:
(1) that has been approved by a majority vote of the 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 or, in the case of vacancy in office or absence of the Chairman, one
of the following officers present in the order stated: the Vice Chairman, if
there be one, the President, the Senior 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.
5
10
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 of corporate action in
writing, by a proxy of a Shareholder shall constitute the presence of, or vote
or action by, or written consent or dissent of the Shareholder.
(3) Where two or more proxies of a Shareholder are present, the
Corporation shall, unless otherwise expressly provided in the proxy, accept as
the vote of all shares represented thereby the vote cast by a majority of them
and, if a majority of the proxies cannot agree whether the shares represented
shall be voted or upon the manner of voting the shares, the voting of the
shares shall be divided equally among those persons.
(b) MINIMUM REQUIREMENTS. Every proxy shall be executed in writing by
the Shareholder or by the duly authorized attorney-in-fact of the Shareholder
and filed with the secretary of the Corporation. A proxy, unless coupled with
an interest, shall be revocable at will, notwithstanding any other agreement or
any provision in the proxy to the contrary, but the revocation of a proxy shall
not be effective until written notice thereof has been given to the secretary
of the Corporation. An unrevoked proxy shall not be valid after three years
from the date of its execution unless a longer time is expressly provided
therein. A proxy shall not be revoked by the death or incapacity of the maker
unless, before the vote is counted or the authority is exercised, written
notice of the death or incapacity is given to the secretary of the Corporation.
(c) EXPENSES. Unless otherwise restricted in the articles, the
Corporation shall pay reasonable expenses of solicitation of votes, proxies or
consents of Shareholders by or on behalf of the board of directors or its
nominees for election to the board, including solicitation by professional
proxy solicitors and otherwise.
Section 3.09. VOTING BY FIDUCIARIES AND PLEDGEES. Shares of the
Corporation standing in the name of a trustee or other fiduciary and shares
held by an assignee for the benefit of creditors or by a receiver may be voted
by the trustee, fiduciary, assignee or receiver. A Shareholder whose shares are
pledged shall be entitled to vote the shares until the shares have been
transferred into the name of the pledgee, or a nominee of the pledgee, but
nothing in this section shall affect the validity of a proxy given to a pledgee
or nominee.
Section 3.10. VOTING BY JOINT HOLDERS OF SHARES.
(a) GENERAL RULE. Where shares of the Corporation are held jointly or
as tenants in common by two or more persons, as fiduciaries or otherwise:
6
11
(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 owner 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 Corporation 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 a provision of
its articles or Bylaws, a copy of which resolution or provision certified to be
correct by one of its officer 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 share.
(b) CONTROLLED SHARES. Shares of this Corporation owned, directly or
indirectly, by it and controlled, directly or indirectly, by the board of
directors of this Corporation, as such, shall not be voted at any meeting and
shall not be counted in determining the total number of outstanding shares for
voting purposes at any given time.
Section 3.12. DETERMINATION OF SHAREHOLDERS OF RECORD.
(a) FIXING RECORD DATE. The Board of Directors may fix a time prior to
the date of any meeting of Shareholders as a record date for the determination
of the Shareholders entitled to notice of, or to vote at, the meeting, which
time, except in the case of an adjourned meeting, shall be not more than 90
days prior to the date of the meeting of Shareholders. Only Shareholders of
record on the date fixed shall be so entitled notwithstanding any transfer of
Shares on the books of the Corporation after any record date fixed as provided
in this subsection. The Board of Directors may similarly fix a record date for
the determination of Shareholders of record for any other purpose. When a
determination of Shareholders of record has been made as provided in this
section for purposes of a meeting, the determination shall apply to any
adjournment thereof unless the Board fixes a new record date for the adjourned
meeting.
(b) DETERMINATION WHEN A RECORD DATE IS NOT FIXED. If a record date is
not fixed:
(1) The record date for determining Shareholders entitled to notice of
or to vote at a meeting of Shareholders shall be at the close of business on
the day next preceding the
7
12
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 Corporation action in writing without a meeting, when
prior action by the Board of Directors is not necessary, shall be the close of
business on the day on which the first written consent or dissent is filed with
the Secretary of the Corporation
(3) The record date for determining Shareholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
Section 3.13. VOTING LISTS.
(a) GENERAL RULE. The officer or agent having charge of the transfer
books for shares of the Corporation shall make a complete list of the
Shareholders entitled to vote at any meeting of Shareholders, arranged in
alphabetical order, with the address of and 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 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 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
judged of election are not so appointed, the presiding officer of the meeting
may, and on the request of any Shareholder shall, appoint judges of election at
the meeting. The number of judges shall be one or three. A person who is a
candidate for office to be filled at the meeting shall not act as a judge.
(b) VACANCIES. In case any person appointed as a judge fails to appear
or fails or refuses to act, the vacancy may be filled by anointment 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
8
13
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 3.15. CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. 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.
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 of distributions on shares, the corporate
officer responsible for maintaining the list of Shareholders or the transfer
agent of the Corporation or, in the case of payments or distributions on
obligations, the treasurer or paying officer or agent has received written
notice that the holder is a minor.
ARTICLE IV
----------
Board of Directors
Section 4.01. POWERS; PERSONAL LIABILITY.
(a) GENERAL RULE. Unless otherwise provided by applicable law, all
powers vested in the Corporation by Chapter 95 of Title 15 of the Pennsylvania
Consolidated Statutes 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 Directors 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.
9
14
(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 collectively, committees of the
Board and individual Director may, in considering the best interests of the
Corporation, consider the effects of any action upon employees, upon suppliers
and customers of the Corporation and upon communities in which offices or other
establishments of the Corporation are located, and all other pertinent factors.
The consideration of those factors shall not constitute a violation of
subsection (b).
(d) PRESUMPTION. Absent breach of fiduciary duty, lack of good faith
or self-dealing, actions taken as a Director or any failure to take any action
shall be presumed to be in the best interests of the Corporation.
(e) PERSONAL LIABILITY OF DIRECTORS.
(1) A Director shall not be personally liable, as such, for monetary
damages for any action taken, or any failure to take any action, unless:
(i) the director has breached or failed to perform the duties of
his or her office under this section; and
(ii) the breach or failure to perform constitutes self-dealing,
willful misconduct or recklessness.
(2) The provisions of paragraph (1) shall not apply to the
responsibility or liability of a director pursuant to any criminal statue, 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
Corporation 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.
10
15
Section 4.02. QUALIFICATIONS AND SELECTION OF DIRECTORS.
(a) QUALIFICATIONS. Each Director of the Corporation shall be (i) a
natural person of full age who need not be a resident of Pennsylvania or a
Shareholder of the Corporation and/or (ii) a corporation or other entity
authorized to serve as a fiduciary of a Corporation pursuant to the provisions
of 7 P.S. Section 106.
(b) ELECTION OF DIRECTORS. Except as otherwise provided in the these
Bylaws, Directors of the Corporation shall be elected by the Shareholders. In
elections for Directors, voting need not be by ballot, except upon demand made
by a Shareholder entitled to vote at the election and before the voting begins.
The candidates receiving the highest number of votes from each class or group
of classes, if any, entitled to elect Directors separately up to the number of
Directors to be elected by the class or group of classes shall be elected. If
at any meeting of Shareholders, Directors of more than one class are to be
elected, each class of Directors shall be elected in a separate election.
(c) CUMULATIVE VOTING. Unless the articles provide for straight
voting, in each election of directors every Shareholder entitled to vote shall
have the right to multiply the number of votes to which the Shareholder may be
entitled by the total number of directors to be elected in the same election by
the holders of the class or classes of shares which his or her shares are a
part and the Shareholder may cast eh 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 not
fewer than three (3) nor more than ten (10) 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 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.
11
16
Section 4.04. VACANCIES.
(a) GENERAL RULE. Vacancies in the office of Board of Directors,
including vacancies resulting from an increase in the number of Directors, may
be filled by a majority vote of the Board of Directors though less than a
quorum, or by a sole remaining Board of Directors, 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 the resignation of one or more
Directors is to be 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 Shareholder, 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 the Shareholders entitled to vote thereon.
(b) REMOVAL BY THE BOARD. The board of directors may declare vacant
the office of a director who has been judicially declared of unsound mind or
who has been convicted of an offense punishable by imprisonment for a term of
more than one year or if, within 60 days after notice of his or her selection,
the director does not accept the office either in writing or by attending a
meeting of the board of directors.
Section 4.06. 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 4.07. 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 4.08. ORGANIZATION OF MEETINGS. At every meeting of the Board
of Directors, the Chairman, if there be one, or, in the case of a vacancy in
the office or absence of the Chairman and Vice Chairman, one of the following
officers present in the order stated: 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.
12
17
Section 4.09. 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 4.10. 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 4.11. QUORUM OF AND ACTION BY DIRECTORS.
(a) GENERAL RULE. A majority of the Directors in office shall be
necessary to constitute a quorum for the transaction of business and the acts
of a majority of the Directors present 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 Board of 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. If and
during any period when there shall be only one Director, the foregoing Sections
4.07 to 4.10 shall not apply, and all actions of the Board of Directors shall
be by written consent in accordance with this Section 4.11(b).
Section 4.12. EXECUTIVE AND OTHER COMMITTEES.
(a) ESTABLISHMENT AND POWERS. The Board of Directors may, by
resolution adopted by a majority of the Directors in office, establish one or
more committees to consist of one or more Directors of the Corporation. Any
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all of the powers and authority of the Board of
Directors except that a committee shall not have any power or authority as to
the following;
(1) The submission to Shareholders of any action requiring
approval of Shareholders under applicable law.
(2) The creation or filling of vacancies in the office of
Board of Directors.
(3) The adoption, amendment or repeal of these Bylaws.
(4) The amendment or repeal of any resolution of the Board of
Directors 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
13
18
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 4.13. 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.
ARTICLE V
---------
Officers
Section 5.01. OFFICERS GENERALLY
(a) NUMBER, QUALIFICATIONS AND DESIGNATION. The officers of the
Corporation shall be the President, the Secretary, the Treasurer, the Senior
Vice Presidents 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. 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
14
19
agents as the business of the Corporation may require, including one or more
Vice Presidents, Assistant Secretaries, and 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, employees committees 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 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 5.07. THE PRESIDENT. Subject to the control of the Board of
Directors, the President shall have general and active management of the day to
day business of the Corporation. The President may sign and execute all
instruments in the name of the Corporation.
Section 5.08. THE SENIOR VICE PRESIDENTS AND VICE PRESIDENTS. The
Senior Vice Presidents shall have and the Vice Presidents may be given by
resolution of the Board of Directors general executive powers, subject to the
control of the President, concerning one or more or all segments of the
operations of the Corporation. The Vice Presidents shall exercise such further
powers and duties as from time to time may be prescribed in these Bylaws or by
the Board of Directors or the President. Each Vice President, by virtue of his
office, shall be an Assistant Secretary. At the request of the President, or in
his absence or disability, any Senior Vice President shall exercise the powers
and duties of the President.
Section 5.09. THE SECRETARY AND ASSISTANT SECRETARIES. It shall be the
duty of the Secretary (a) to keep an original or duplicate record of the
proceedings of the Shareholders and the Board of Directors, and a copy of the
articles and of the Bylaws; (b) to give such notices as may be required by law
or these Bylaws; (c) to keep the Corporation's contracts, insurance policies,
leases, deeds and other business records; (d) to be custodian of the records
and of the seal of the Corporation and see that the seal is affixed to such
documents as may be necessary or advisable; (e) to see that the Corporations
Certificates and other documents or records similar or related thereto as
required by law are properly prepared, kept, and filed; (f) to have charge of
and keep, or cause to be kept by a transfer agent or registrar, the stock books
of the Corporation and such records as to the identity of the Shareholders, and
as to the Shares issued to and held of record by
15
20
them, as may be required by law; and (g) to exercise all powers and duties
incident to the office of Secretary; and such further powers and duties as from
time to time may be prescribed in these Bylaws or by the Board of Directors or
the President. The Secretary by virtue of his office shall be an Assistant
Treasurer. Each officer of the Corporation by virtue of his office shall be an
Assistant Secretary. The Assistant Secretaries shall assist the Secretary in
the performance of his duties and shall also exercise such further powers and
duties as from time to time may be prescribed by the Board of Directors, the
President or the Secretary. At the direction of the Secretary or in his absence
or disability, an Assistant Secretary shall exercise the powers and duties of
the Secretary.
Section 5.10. THE TREASURER AND ASSISTANT TREASURERS. It shall be the
duty of the Treasurer (a) to see that the Corporation's lists, books, reports,
statements, tax returns, and other documents or records similar or related
thereto as required by law are properly prepared, kept and filed; (b) to be the
principal officer in charge of tax and financial matters, budgeting and
accounting of the Corporation; (c) to have charge and custody of and be
responsible for the Corporation's funds, securities and investments; (d) to
receive and give receipts for checks, notes, obligations, funds and securities
of the Corporation, and deposit monies and other valuable effects in the name
and to the credit of the Corporation, in such depositories as shall be
designated by the Board of Directors; (e) subject to the terms and provisions
hereof, to cause the funds of the Corporation to be disbursed by payment in
cash or by checks or drafts upon the authorized depositories of the
Corporation, and to cause to be taken and preserved proper vouchers for such
disbursements; (f) to render to the President and the Board of Directors
whenever they may require it an account of all his transactions as Treasurer,
and reports as to the financial position and operations of the Corporation; (g)
to keep appropriate, complete and accurate books and records of account of all
the Corporation's business and transactions; and (h) to exercise all powers and
duties incident to the office of Treasurer; and such further duties from time
to time as may be prescribed in these Bylaws or by the Board of Directors or
the President. The Assistant Treasurers shall assist the Treasurer in the
performance of his duties and shall also exercise such further powers and
duties as from time to time may be prescribed by the Board of Directors, the
President or the Treasurer. At the direction of the Treasurer or in his absence
or disability, an Assistant Treasurer shall exercise the powers and duties of
the Treasurer.
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.
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 formed 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
16
21
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
Senior Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer,and shall bear the Corporation 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 Corporation 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.A. 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 certificates therefor, and the Board of
Directors may, in their discretion, cause a new certificate or certificates to
be issued to such holder, in case of mutilation of the certificate, upon the
surrender of the mutilated certificate or, in case of loss or destruction of
the certificate, upon satisfactory proof of such loss or destruction and, if
the Board of Directors shall so determine, the deposit of a bond in such form
and in such sum, and with such surety or sureties, as it may direct.
ARTICLE VII
-----------
Indemnification of Directors, Officers and
Other Authorized Representatives.
Section 7.01. SCOPE OF INDEMNIFICATION.
(a) GENERAL RULE. The Corporation shall indemnify an indemnified
representative against any liability incurred in connection with any proceeding
in which the indemnified representative may be involved as a party or otherwise
by reason of the fact that such person is or was serving in an indemnified
capacity, including, without limitation, liabilities resulting from any actual
or alleged breach or neglect of duty, error, misstatement or misleading
statement, negligence, gross negligence or act giving rise to strict or
products liability, except:
17
22
(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 CONTENDRE 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 Director of another
corporation, partnership, joint venture, Corporation, 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 (which may, but
need not, include any person serving at the request of the
Corporation, as a director, officer, employee, agent, fiduciary or
Director of another corporation, partnership, joint venture,
Corporation, 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,
18
23
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. PROCEEDING INITIATED BY INDEMNIFIED REPRESENTATIVE.
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 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 upon receipt of an undertaking by or on behalf of the
indemnified representative to repay the amount if it is ultimately determined
that such person is not entitled to be indemnified by the Corporation pursuant
to this Article. The financial ability of an indemnified representative to
repay an advance shall not be a prerequisite to the making of such advance.
Section 7.04. SECURING OF INDEMNIFICATION OBLIGATIONS. To further
effect, satisfy or secure the indemnification obligations provided herein or
otherwise, the Corporation may maintain insurance, obtain a letter of credit,
act as self insurer, create a reserve, Corporation, 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 challenge.
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
which shall be selected by the Corporation, the second of which 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
19
24
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 attorney's 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 judgement may be entered thereon by any party in
accordance with applicable law in any court of competent jurisdiction, except
that the Corporation shall be entitled to interpose as a defense in any such
judicial enforcement proceeding any prior final judicial determination adverse
to the indemnified representative under Section 7.01(a)(2) in a proceeding not
directly involving indemnification under this Article. This arbitration
provision shall be specifically enforceable.
Section 7.07. CONTRIBUTION. If the indemnification provided for in
this Article or otherwise is unavailable for any reason in respect of any
liability or portion thereof, the Corporation shall contribute to the
liabilities to which the indemnified representative may be subject in such
proportion as is appropriate to reflect the intent of this Article or
otherwise.
Section 7.08. MANDATORY INDEMNIFICATION OF DIRECTORS, OFFICERS, ETC.
Without limiting the other provisions of this Article VII, 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.A. Sections 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.
20
25
Section 7:11. 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 provided by this Article.
Section 7.12. INTERPRETATION. The provisions of this Article are
intended to constitute Bylaws authorized by 15 Pa. C.S.A. Section 513 and
1746 and 42 Pa. C.S.A. Section 8365.
ARTICLE VIII
------------
Miscellaneous
Section 8.01. CORPORATE SEAL. The Corporation shall have a corporate
seal in the form of a circle containing the name of the Corporation, the year
of incorporation and such other details as may be approved by the board of
directors.
Section 8.02. CHECKS. All checks, notes, bills of exchange or other
orders in writing shall be signed by the President, any Vice President or the
Treasurer and by such other or additional person or persons as the Board of
Directors or any person authorized by resolution of the Board of Directors may
from time to time designate.
Section 8.03. CONTRACTS.
(a) GENERAL RULE. Except as otherwise required by applicable 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 on 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 Board of Directors or officer is present at or
participates in the meeting of the Director that authorizes the contract or
transaction, or solely because his, her or their votes are counted for that
purpose, if:
21
26
(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 authorize 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, Corporation
companies or other depositories 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 settlor, 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,
22
27
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 prepared 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 accompanies by the report of the accountant; and in
other cases, each copy shall be accompanied by a statement of the person in
charge of the financial records of the Corporation;
(1) Stating his reasonable belief as to whether or not the financial
statements were prepared in accordance with generally accepted accounting
principles and, if not, describing the basis of presentation.
(2) Describing any material respects in which the financial statements
were not prepared on a basis consistent with those prepared for the previous
year.
Section 8.08. AMENDMENT OF BYLAWS. These Bylaws may be amended or
repealed, or new Bylaws may be adopted, either (i) by vote of the Shareholders
at any duly organized annual or special meeting of Shareholders, or (ii) with
respect to those matters that are not by statute committed expressly to the
Shareholders and regardless of whether the Shareholders have previously adopted
or approved the bylaw being amended or repealed, by vote of a majority of the
board of directors in office at any regular or special meeting of the
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).
23