Exhibit 3
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CONRAIL INC.
A PENNSYLVANIA CORPORATION
AMENDED AND RESTATED BYLAWS
AMENDED AND RESTATED AS OF OCTOBER 14, 1996
ARTICLE I
Offices
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SECTION 1.01. Registered Office. The registered office of
Conrail Inc. (the "Corporation") in the Commonwealth of Pennsylvania
shall be at Two Commerce Square, 2001 Market Street, Philadelphia,
Pennsylvania 19101 or at such other place as the Board of Directors of
the Corporation (the "Board") may specify in a statement of change of
registered office filed with the Department of State of the
Commonwealth of Pennsylvania.
SECTION 1.02. Other Offices. The Corporation may also have
an office or offices at such other place or places either within or
without the Commonwealth of Pennsylvania as the Board may from time to
time determine or the business of the Corporation requires.
ARTICLE II
Meetings of the Shareholders
SECTION 2.01. Place. All meetings of the shareholders shall
be held at such places, either within or without the Commonwealth of
Pennsylvania, as the Board may from time to time determine.
Shareholders are not permitted to act without a meeting.
SECTION 2.02. Annual Meeting. A meeting of the shareholders
for the election of directors and the transaction of such other
business as may be properly brought before the meeting shall be held
on the third Wednesday in April in each calendar year or, if that be a
legal holiday, on the first day thereafter that is not a legal
holiday, or on such other date as the Board shall designate. If the
annual meeting is not called and held within six months after the
third Wednesday in
April, or such other date as the Board has designated in any specific
year, any shareholder may call a meeting of shareholders for the
election of directors at any time after the expiration of the
six-month period commencing on the third Wednesday in April, or such
designated date, as the case may be. Elections of directors, whether
at annual meetings or special meetings, need not be by written ballot,
except upon demand by a shareholder entitled to vote at the election
and before the voting begins.
SECTION 2.03. Special Meetings. Special meetings of the
shareholders, for the purpose or purposes, may be called at any time
by the Chief Executive Officer of the Corporation or by the Board,
upon written request delivered to the Secretary of the Corporation. In
addition, an "interested shareholder" (as defined in Section 2553 of
the Pennsylvania Business Corporation Law of 1988 as it may from time
to time be amended (the "1988 BCL")) may, upon written request
delivered to the Secretary of the Corporation, call a special meeting
for the purposes of approving a business combination under either
subsection (3) or (4) of Section 2555 of the 1988 BCL. Any request for
a special meeting of shareholders shall state the general nature of
the business to be transacted at the meeting. Upon receipt of any such
request, it shall be the duty of the Secretary of the Corporation to
give notice, in a manner consistent with Section 2.05 of these
By-laws, of a special meeting of the shareholders to be held at such
time as the Secretary of the Corporation may fix, which time may not
be, in the case of a special meeting of shareholders called pursuant
to a statutory right, more than sixty (60) days after receipt by the
Secretary of the Corporation of such request. If the Secretary of the
Corporation shall neglect or refuse to fix the time of the meeting and
give notice thereof, the person or persons calling the meeting may do
so.
SECTION 2.04. Scope of Special Meetings. Business transacted
at any special meeting shall be confined to the business stated in the
notice.
SECTION 2.05. Notice. Written notice of any meeting of the
shareholders, stating the place, the date and hour thereof and the
matters to be voted on at such meeting, shall be given in a manner
consistent with the applicable provisions of Section 14 of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, or any successor act or regulation (the
"Exchange Act"), by, or at the direction of, the Secretary of the
Corporation or, in the absence of the Secretary of the Corporation,
any Assistant Secretary of the Corporation, at least ten (10) days
before the date named for such meeting, to each shareholder entitled
to vote thereat on the date fixed as a
record date in accordance with Section 7.01 of these By-laws, or if
no record date be fixed, then of record thirty (30) days next
preceding the date of the meeting, at such address as appears on the
transfer book of the Corporation. Any notice of any meeting of
shareholders shall state that, for purposes of any meeting that has
been previously adjourned from one or more periods aggregating at
least fifteen (15) days because of an absence of a quorum, the
shareholders entitled to vote who attend such a meeting, although less
than a quorum pursuant to Section 2.06 of these By-laws, shall
nevertheless constitute a quorum for the purposes of acting upon any
matter set forth in the original notice of the meeting which was so
adjourned.
SECTION 2.06. Quorum. The shareholders present in person or
by proxy, entitled to cast 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 by it, directly or indirectly, and controlled by the Board of
Directors, directly or indirectly, shall not be counted in determining
the total number of outstanding shares for quorum purposes. The
shareholders present in person or by proxy at a duly organized meeting
of shareholders can continue to conduct the business of the meeting
until the adjournment thereof, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum. If a meeting of
shareholders cannot be organized because a quorum has not attended,
the shareholders present in person or by proxy may, except as
otherwise provided by the 1988 BCL and subject to the provisions of
Section 2.07 of these By-laws, adjourn the meeting to such time and
place as they may determine.
SECTION 2.07. Adjournment. Any meeting of the shareholders,
including one at which directors are to be elected, may be adjourned
for such period as the shareholders present in person or by proxy and
entitled to vote shall direct. Unless otherwise provided in a by-law
adopted by the shareholders, the shareholders entitled to vote present
in person or by proxy, although less than a quorum pursuant to Section
2.06 of these By-laws, shall nevertheless constitute a quorum for the
purpose of (i) electing directors at a meeting called for the election
of directors that has been previously adjourned for lack of a quorum,
and (ii) acting, at a meeting that has been previously adjourned for
one or more periods aggregating at
least fifteen (15) days because of an absence of a quorum, upon any
matter set forth in the original notice of the meeting that was
adjourned, provided that such original notice shall have complied with
the last sentence of Section 2.05 of these By-laws. Other than as
provided in the last sentence of Section 2.05 of these By-laws, no
notice of any adjourned meeting or the business to be conducted
thereat need to be given other than an announcement at the meeting at
which the adjournment is taken, unless the Board fixes a new record
date for the adjourned meeting. At any adjourned meeting at which a
quorum shall be present, any business may be transacted that might
have been transacted at the meeting as originally noticed.
SECTION 2.08. Majority Vote. Any matter brought before a
duly organized meeting of shareholders for a vote of the shareholders
shall be decided by a majority of the votes cast at such meeting by
the shareholders present in person or by proxy and entitled to vote
thereon, unless the matter is one for which a different vote is
required by express provision of (i) the 1988 BCL, (ii) the Amended
and Restated Articles of Incorporation of the Corporation as they may
from time to time be amended (the "Articles") or (iii) a by-law
adopted by the shareholders, in any of which cases such express
provision shall govern and control the decision on such matter.
SECTION 2.09. Voting Rights. Except as otherwise provided by
statute or the Articles, at every meeting of the shareholders every
shareholder entitled to vote shall have the right to one vote for each
share having voting power standing in his name on the books of the
Corporation.
SECTION 2.10. Proxies. Every shareholder entitled to vote at
a meeting of the shareholders may authorize another person or persons
to act for him by proxy. Every proxy shall be executed in writing by
the shareholder, or by the shareholder's duly authorized
attorney-in-fact, and filed with the Secretary of the Corporation. 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. 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 notice thereof has been given to the
Secretary of the Corporation. No
unrevoked proxy shall be valid after three (3) years form 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, written notice of such death or
incapacity is given to the Secretary of the Corporation.
SECTION 2.11. Voting Lists. The officer or agent having
charge of the transfer books for securities of the Corporation shall
either (i) make a complete list of the shareholders entitled to vote
at each meeting of shareholders, arranged in alphabetical order, with
the address of, and the number of shares of stock held by, each
shareholder, which 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, or (ii) otherwise
make such information available at the meeting.
SECTION 2.12. Judges of Election. In advance of any meeting
of the shareholders, the Board may appoint judges of election, who
need not be shareholders, to act at such 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 or
his proxy shall, make such appointment at the meeting. The number of
judges shall be one or three, as determined by the Board. No person
who is a candidate for office shall act as a judge. The judges of
election shall do all such acts as may be proper to conduct the
election or vote with fairness to all shareholders, and shall make a
written report of any matter determined by them and execute a
certificate of any fact found by them, if requested by the presiding
officer of the meeting or any shareholder of the proxy of any
shareholder. If there be 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.
SECTION 2.13. No Participation by Conference Call. No
shareholder may participate in any meeting of shareholders by means of
conference telephone or similar communications equipment.
SECTION 2.14. Presiding Officer. At each meeting of the
shareholders, the Chairman of the Board, or, in his absence, his
designee, or, in their absence, a presiding officer chosen by a
majority of the votes cast by the
shareholders present in person or by proxy and entitled to vote at
such meeting, shall act as presiding officer of the meeting and shall
have plenary power in conducting the meeting with regard to setting an
agenda, keeping order, limiting debate and prescribing such rules of
the meeting as from time to time are useful and proper. The Secretary
or an Assistant Secretary of the Corporation, or, in the absence of
the Secretary and all Assistant Secretaries, a person whom the
presiding officer of such meeting shall appoint, shall act as
secretary of the meeting and keep the minutes thereof.
SECTION 2.15. Notice of Shareholder Business. At an annual
meeting of the shareholders, only such business shall be conducted,
and only such proposals shall be acted upon, as shall have been
brought before the meeting (i) pursuant to the Corporation's notice of
meeting, (ii) by or at the direction of the Board or (iii) by any
shareholder of the Corporation who is a shareholder of record at the
time of giving of the notice provided for in this By-law, who shall be
entitled to vote at such meeting and who complies with the notice
procedures set forth in this Section. For business to be properly
brought before an annual meeting by a shareholder, the shareholder
must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a shareholder's notice must be
delivered to or mailed to, postage prepaid, and received at the
principal executive offices of the Corporation not less than 90 days
nor more than 120 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the
date of the meeting is changed by more than 30 days from such
anniversary date, notice by the shareholder to be timely must be
received no later than the close of business on the 10th day following
the earlier of the day on which notice of the date of the meeting was
mailed or public disclosure was made. A shareholder's notice to the
Secretary shall set forth as to each matter the shareholder proposes
to bring before the meeting (1) a brief description of the business
desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (2) a representation that the
shareholder is a holder of record of shares of the Corporation's
capital stock entitled to vote at such meeting and intends to appear
in person or by proxy to bring such matter before the meeting, (3) the
name and address, as they appear on the Corporation's books, of the
shareholder proposing such business, and the name and address of the
beneficial owner, if any, on whose behalf the
proposal is made, (4) the class and number of shares of the
Corporation which are owned beneficially and of record by such
shareholder of record and by the beneficial owner, if any, on whose
behalf the proposal is made, (5) any material interest of such
shareholder of record and the beneficial owner, if any, on whose
behalf the proposal is made in such business and (6) a description of
all arrangements and understandings between the shareholder of record
and the beneficial owner, if any, on whose behalf the proposal is made
and any other person or persons (naming such person or persons)
pursuant to which the proposal is to be made.
Notwithstanding anything in these By-laws to the contrary,
no business shall be conducted, and no proposal shall be acted upon,
at an annual meeting except in accordance with the procedures set
forth in this Section. The presiding officer of the meeting shall, if
the facts warrant, determine and declare to the meeting that business
or a proposal was not properly brought before the meeting in
accordance with the procedures prescribed by these By-laws, and if he
should so determine, he shall so declare to the meeting and any such
business or proposal not properly brought before the meeting shall not
be transacted. Notwithstanding the foregoing provisions of this
Section, a shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set
forth in this Section.
ARTICLE III
Directors
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SECTION 3.01. Number of Directors and Classification of
Board. The Board shall consist of thirteen members. Except as provided
in Section 3.04 of these By-laws in the case of vacancies, directors
shall be elected by the shareholders. The directors shall be
classified with respect to the time for which they shall severally
hold office by dividing them into three classes, one of which shall
consist of five members and two of which shall consist of four members
each. Each class of directors shall serve for a term of three years,
which terms shall commence in three consecutive years. At each annual
meeting of the shareholders the successors to the class of directors
whose term expires that year shall be elected to hold office
for the term of three years and until his successor is elected and
qualified or until his earlier death, resignation or removal, so that
the term of office of one class of directors shall expire in each
year. 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 3.02. Qualifications. Directors shall be natural
persons of full age and need not be residents of the Commonwealth of
Pennsylvania or security holders of the Corporation.
SECTION 3.03. Nominations of Directors. Subject to the
rights of holders of any series of preferred stock or any other class
of capital stock of the Corporation (other than Common Stock) then
outstanding, only persons who are nominated in accordance with the
procedures set forth in this Section shall be eligible to serve as
directors. Nominations of persons for election to the Board of the
Corporation may be made at a meeting of shareholders (i) by or at the
direction of the Board, (ii) by or at the direction of a committee of
the Board to which the Board has delegated the authority to make such
nominations or (iii) by any shareholder of the Corporation who is a
shareholder of record at the time of giving of notice provided for in
this Section, who shall be entitled to vote for the election of
directors at the meeting and who complies with the notice procedures
set forth in this Section. Such nominations, other than those made by
or at the direction of the Board or a committee of the Board, shall be
made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice shall be delivered
to or mailed to, postage prepaid, and received at the principal
executive offices of the Corporation (a) in the case of an annual
meeting, not less than 90 days nor more than 120 days prior to the
first anniversary of the preceding year's annual meeting (provided,
however, that in the event that the date of the annual meeting is
changed by more than 30 days from such anniversary date, notice by the
shareholder to be timely must be so received not later than the close
of business on the 10th day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure was
made), and (b) in the case of a special meeting at which directors are
to be elected, not later than the close of business on the 10th day
following the earlier of the day on which notice of the date of the
meeting was mailed or public disclosure was made. Such shareholder's
notice shall set forth (1) as to each person whom the shareholder
proposes to nominate for election as a director, (A) the name, age,
business address and residence address of the proposed nominee, (B)
the principal occupation or employment of the proposed nominee, (C)
the class and number of shares of capital stock of the Corporation
which are beneficially owned by the proposed nominee, (D) a
description of all arrangements or understandings between the
shareholder and each proposed nominee and any other person (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder, (E) all other
information relating to such proposed nominee that is required to be
disclosed in solicitations of proxies for election of directors
pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended and (F) the written consent of the proposed nominee to
serve as a director of the Corporation if so elected; (2) as to the
shareholder giving the notice (A) the name and address, as they appear
on the Corporation's books, of such shareholder, (B) a representation
that the shareholder is a holder of record of shares of the
Corporation's capital stock entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the
proposed nominee or nominees specified in the notice and (C) the class
and number of shares of the Corporation which are beneficially owned
by such shareholder and also which are owned of record by such
shareholder; and (3) as to the beneficial owner, if any, on whose
behalf the nomination is made, (A) the name and address of such person
and (B) the class and number of shares of the Corporation which are
beneficially owned by such person. The Corporation may require any
proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director of the Corporation.
No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set
forth in this Section. The presiding officer of the meeting shall, if
the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed
by this Section, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section, a
shareholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with respect to the
matters set forth in this Section.
SECTION 3.04. Vacancies. Vacancies in the Board shall be
filled by a majority of the remaining members of the Board though less
than a quorum, and each director so elected shall serve until the next
selection of the class for which such director was chosen, and until a
successor has been selected and qualified or until such director's
earlier death, resignation or removal. If 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 the power to
fill the vacancies by a majority vote, such vote to take effect when
the resignations become effective.
SECTION 3.05. Powers. The business and affairs of the
Corporation shall be managed under the direction of the Board which
may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Articles or by these
By-laws directed or required to be exercised and done by the
shareholders.
SECTION 3.06. Place of meetings. Meetings of the Board may
be held at such places within or without the Commonwealth of
Pennsylvania as, in the case of a regular meeting, the Board may from
time to time designate, or, in the case of a special meeting, as may
be designated in the notice calling the meeting.
SECTION 3.07. First Meeting of Newly Elected Board. The
first meeting of each newly elected Board shall be held as soon as
practicable after the meeting of shareholders at which such directors
were elected, and if held on the day and at the place where the annual
meeting of the shareholders was held, no notice shall be required
other than announcement at the annual meeting of the shareholders. If
such first meeting of the newly-elected Board is not so held, notice
of such meeting shall be given in the same manner as set forth in
Section 3.08 of these By-laws with respect to notice of regular
meetings of the Board.
SECTION 3.08. Regular Meetings of the Board. Regular
meetings of the Board may be held at such times and places as shall be
determined from time to time by resolution of at least a majority of
the whole Board at a duly convened meeting, or by unanimous written
consent.
Notice of each regular meeting of the Board shall specify the date,
place and hour of the meeting, as well as the general nature of the
business to be conducted at the meeting, and shall be given to each
director, to his or her address or telex, TWX, telecopier or telephone
number as supplied by such director to the Corporation for the purpose
of notice, at least twenty-four (24) hours before the meeting if given
personally or by telephone, telex, TWX (with answer back received) or
telecopier, at least forty- eight (48) hours before the meeting if
given by telegram (with messenger service specified), express mail
(postage prepaid) or courier service (charges prepaid), and at least
five (5) days before the meeting if given by first class mail (postage
prepaid). 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.
SECTION 3.09. Special Meetings of the Board. Special
meetings of the Board may be called by the Chief Executive Officer,
and shall be called by the Chief Executive Officer or by the Secretary
on the written request of two directors. Notice of the date, place and
hour of each special meeting of the Board shall be given within the
same time and in the same manner provided for notice of regular
meetings in Section 3.08 of these By-laws, and shall also specify the
general nature of the business to be conducted at such meeting.
SECTION 3.10. Quorum of the Board. At all meetings of the
Board the presence of a majority of the directors in office shall
constitute a quorum for the transaction of business, and the acts of a
majority of the directors present at the meeting at which a quorum is
present shall be the acts of the Board. If a quorum shall not be
present at any meeting of directors, the directors present thereat may
adjourn the meeting. It shall not be necessary to give any notice of
the adjourned meeting or of the business to be transacted thereat
other than by announcement at the meeting at which such adjournment is
taken.
SECTION 3.11. Organization. The Secretary, or in his
absence, an Assistant Secretary of the Corporation, or in the absence
of the Secretary and all Assistant Secretaries, a person whom the
chairman of such meeting
shall appoint, shall act as secretary, of such meeting and keep the
minutes thereof.
SECTION 3.12. Committees of Directors. The Board may, by
resolution adopted by a majority of the directors in office, establish
one or more committees, each committee to consist of three or more of
the directors, and 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. Any such committee, to the extent
provided in such resolution or in these By-laws, shall have and may
exercise all of the powers and authority of the Board; provided that
no such committee shall have any power or authority to (i) submit to
the shareholders any action requiring the approval of shareholders
under the 1988 BCL, (ii) create or fill vacancies on the Board, (iii)
adopt, amend or repeal By-laws, (iv) amend or repeal any resolution of
the Board that by its terms in amendable or repealable only by the
Board, (v) act on any matter committed by these By-laws or resolution
of the Board to another committee of the Board, (vi) adopt a plan or
an agreement of merger or consolidation, or (vii) amend the Articles
or adopt a resolution proposing an amendment to the Articles. In the
absence or disqualification of a member or alternate member or members
of a committee, the member or members thereof present at any meeting
of such committee and not disqualified from voting, whether or not a
quorum is present, may unanimously appoint another director to act at
the meeting in place of any absent or disqualified member. Minutes of
all meetings of any committee of the Board shall be kept by the person
designated by such committee to keep such minutes. Copies of such
minutes and any writing setting forth an action taken by written
consent without a meeting shall be distributed to each member of the
Board promptly after such meeting is held or such action is taken.
Each committee of the Board shall serve at the pleasure of the Board.
SECTION 3.13. Audit Committee. The Board shall designate an
Audit Committee, consisting of three or more directors, each of whom
shall be independent of management and free from any relationship that
would interfere with the exercise of independent judgment as a
committee member. It shall be the responsibility of the Audit
Committee to evaluate for, and recommend to, the Board, as
appropriate, the selection of the Corporation's independent auditors,
the scope of the audits to be conducted, and the purpose and
adequacy of reserves; to monitor and make recommendations in respect
to the internal audit program; and to review significant accounting
policies, including any major changes to those policies.
SECTION 3.14. Ethics Committee. The Board shall designate an
Ethics Committee, consisting of three or more members, each of whom
shall be independent of management and free from any relationship that
would interfere with the independent judgment as a committee member.
It shall be the responsibility of the Ethics Committee to review, and
recommend to the Board, as appropriate, matters relating to the
business conduct of the corporation and its employees and other
matters of public interest, including environmental quality, safety
and equal employment.
SECTION 3.15. Nominating Committee. The Board shall
designate a Nominating Committee consisting of three or more members,
each of whom shall be independent of management and free from any
relationship that would interfere with the independent judgment as a
committee member. It shall be the responsibility of the Nominating
Committee to recommend to the Board of Directors, without regard to
sex, race, religion or national origin, individuals to be nominated
for election to the Board of Directors, including the position of
Chairman, President, and Chief Executive Officer; to periodically
review Board procedures, making such recommendations to the Board as
may be appropriate, and to provide for a process through which the
performance of the Board of Directors and its members is reviewed and
evaluated, reporting to the Board of Directors, as appropriate.
SECTION 3.16. Compensation Committee. The Board shall
designate a Compensation Committee, consisting of three or more
members, each of whom shall be independent of management and free from
any relationship that would interfere with the independent judgment as
a committee member. It shall be the responsibility of the Compensation
Committee to review matters relating to compensation policies and
proposed significant changes in the structure of the organization and
personnel and, as appropriate, make recommendations to the Board of
Directors.
SECTION 3.17. Finance Committee. The Board shall designate a
Finance Committee, consisting of five or more members. It shall be the
responsibility of the Finance Committee to review matters relating to
the financial
condition and performance of the corporation, including the financial
aspects of pension matters and, as appropriate, make recommendations
to the Board of Directors, and to exercise, to the extent permitted by
the law of Pennsylvania and the by-laws of the Corporation, the
authority of the Board of Directors in the management of the business
and the affairs of the Corporation on days other than those on which
the Board of Directors meets and to report such actions to the Board
of Directors.
SECTION 3.18. Participation in Board Meetings by Telephone.
One or more directors may participate in a meeting of the Board or of
a committee of the Board by means of conference telephone or similar
communications equipment by means of which all persons participating
in the meeting can hear each other, and all directors so participating
shall be deemed present to the meeting.
SECTION 3.19. Action by Written Consent of Directors. Any
action which may be taken at a meeting of the Board or of the members
of the committee of the Board may be taken without a meeting if, prior
or subsequent to the action, a consent or consents in writing setting
forth the action so taken shall be signed by all of the directors or
the members of the committee, as the case may be, and filed with the
Secretary of the Corporation.
SECTION 3.20. Compensation of Directors. The Board of
Directors may, by resolution, fix the compensation of directors for
their services. A director may also serve the Corporation in any other
capacity and receive compensation therefor.
SECTION 3.21. Chairman of the Board. The Board shall appoint
a Chairman of the Board who shall, if present, preside at all meetings
of the Board and at all meetings of the shareholders.
ARTICLE IV
Officers
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SECTION 4.01. Principal Officers. The principal officers of
the Corporation shall be chosen by the Board, and shall include a
Chief Executive Officer, one or more Senior Vice Presidents, one or
more Vice Presidents, a Secretary, and a Treasurer. The Board shall
designate one
officer (who need not be a principal officer but shall not be an
assistant officer) to be the chief financial officer of the
Corporation and another officer (who need not be a principal officer
but shall not be an assistant officer) to be the chief accounting
officer of the Corporation. All officers shall be natural persons of
full age. Any number of offices may be held by the same person.
SECTION 4.02. Election of Principal Officers. The Board,
immediately after each annual meeting of the shareholders, shall elect
the principal officers of the Corporation, each of whom shall hold
office for a term of one year or such other term as the Board may
provide, and until his successor has been elected and qualified or
until his earlier death, resignation of removal. Each principal
officer shall have such authority and perform such duties as the Board
of Directors may from time to time determine.
SECTION 4.03. Other Officers. The Corporation may have such
other officers, assistant officers, agents and employees as the Board
or the Chief Executive Officer may deem necessary, each of whom shall
hold office for such period, have such authority and perform such
duties as the Board or the Chief Executive Officer may from time to
time determine. The Board may delegate to any principal officer the
power to appoint or remove and set the compensation of any such other
officers and any such agents or employees.
SECTION 4.04. Compensation of Officers. Except as provided
in Section 4.03 of these By-laws, the salaries of all officers of the
Corporation shall be fixed by the Board.
SECTION 4.05. Removal of Officers. Any officer or agent of
the Corporation may be removed by the Board with or without cause, but
such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Vacancies of any office shall be filled
by the Board. Election or appointment of an officer or agent shall not
of itself create contract rights.
SECTION 4.06. Bonds. If required by the Board, any officer
shall give the Corporation a bond, in such sum and with such surety of
sureties as may be satisfactory to the Board, for the faithful
discharge of the duties of his or her office and for the restoration
to the Corporation, in the case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers,
money
and other property of whatever kind in his or her possession or under
his or her control belonging to the Corporation.
ARTICLE V
Share Certificates
------------------
SECTION 5.01. Certificate for Shares. The certificates
representing shares of the Corporation shall be numbered and
registered in a share register as they are issued. The share register
shall exhibit the names and addresses of all registered holders and
the number and class of shares and the series, if any, held by each.
The certificates shall state that the Corporation is
incorporated under the laws of the Commonwealth of Pennsylvania, the
name of the registered holder and the number and class of shares and
the series, if any, represented thereby. If, under the Articles, the
Corporation is authorized to issue shares of more than one class or
series, each certificate shall set forth, or shall contain a statement
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 to fix
and determine such rights.
SECTION 5.02. Execution. Every share certificate shall be
executed, by facsimile or otherwise, by or on behalf of the
Corporation by the Chief Executive Officer or by any Senior Vice
President or by the Secretary. In case any officer who has executed,
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 by the Corporation with the same effect as if the officer had
not ceased to be such at the time of its issue.
ARTICLE VI
Share Transfer
--------------
SECTION 6.01. Transfer of Shares. Upon presentment to the
Corporation or its transfer agent of a
share certificate duly endorsed by the appropriate person or
accompanied by proper evidence of succession, assignment or authority
to transfer, a new certificate shall be issued to the person entitled
thereto and the old certificate cancelled and the transfer registered
upon the books of the Corporation, unless the Corporation or its
transfer agent has a duty to inquire as to adverse claims with respect
to such transfer that has not been discharged or unless the
Corporation or its transfer agent requests reasonable evidence of the
rightfulness of the transfer and such evidence is not submitted. The
Corporation shall have no duty to inquire into adverse claims with
respect to transfers of its securities or the rightfulness thereof
unless (a) the Corporation has received a written notification of an
adverse claim at a time and in a manner that affords the Corporation a
reasonable opportunity to act on it before the issuance of a new,
reissued or re-registered share certificate and the notification
identifies the claimant, the registered owner and the issue of which
the share or shares are a part and provides an address for
communications directed to the claimant; or (b) the Corporation has
required and obtained, with respect to a fiduciary, a copy of a will,
trust, indenture, articles of co-partnership, By-laws or other
controlling instruments, for a purpose other than to obtain
appropriate evidence of the appointment or incumbency of the
fiduciary, and such documents indicate, upon reasonable inspection,
the existence of an adverse claim.
SECTION 6.02. Discharge of Duty of Inquiry. The Corporation
may discharge any duty of inquiry by any reasonable means, including
notifying an adverse claimant by registered or certified mail at the
address furnished by him or, if there is no such address, at the
claimant's residence or regular place of business, that the security
has been presented for registration of transfer by a named person, and
that the transfer will be registered unless within thirty (30) days
from the date of mailing the notification, either (a) an appropriate
restraining order, injunction or other process issues from a court of
competent jurisdiction or (b) an indemnity bond, sufficient in the
Corporation's judgment to protect the Corporation and any transfer
agent, registrar or other agent of the Corporation and any transfer
agent, registrar or other agent of the Corporation involved from any
loss that it or they may suffer by complying with the adverse claim,
is filed with the Corporation.
ARTICLE VII
Record Date; Identity of Shareholders
-------------------------------------
SECTION 7.01. Fixing Record Date. The Board may fix a time,
not more than ninety (90) days before the date of any meeting of the
shareholders (other than an adjourned meeting) or the date set for any
other purpose, including without limitation, the payment of any
dividend or distribution, the allotment of rights, or any change or
conversion or exchange of securities, as a record date for the
determination of the shareholders entitled to notice of, and to vote
at, any such meeting, or entitled to receive payment of any such
dividend or distribution, or to receive any such allotment of rights,
or to exercise the rights in respect to any such change, conversion or
exchange of securities. Except as otherwise provided in Section 7.02
of these By-laws, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of, and to
vote at, such meeting or to receive payment of such dividend or
distribution or to receive such allotment of rights or to exercise
such rights, as the case may be, notwithstanding any transfer of any
securities on the books of the Corporation after any record date so
fixed. When a determination of shareholders of record has been made as
provided in this Section 7.01 for purposes of a meeting, the
determination shall apply to any adjournment of such meeting unless
the Board fixes a new record date for the adjourned meeting.
SECTION 7.02. Certification of Nominee. The Board may adopt
a procedure whereby a shareholder may certify in writing to the
Secretary of 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. The Board, in adopting such procedure,
may specify (i) the classification of shareholder who may certify,
(ii) the purpose or purposes for which the certification may be made,
(iii) the form of certification and the information to be contained
therein, (iv) as to certifications with respect to a record date, the
date after the record date by which the certification must be received
by the Secretary of the Corporation, and (v) such other provisions
with respect to the procedure as the Board deems necessary or
desirable. Upon receipt by the Secretary of the Corporation of a
certification complying with the procedure, the persons specified in
the certification shall be deemed, for the purpose or purposes set
forth in the
certification, to be the holders of record of the number of shares
specified instead of the person making the certification.
ARTICLE VIII
Registered Shareholders
-----------------------
SECTION 8.01. Registered Shareholders. Before due
presentment for transfer of any security, the Corporation shall treat
the registered owner thereof as the person exclusively entitled to
vote, to receive notifications and otherwise to exercise all the
rights and powers of an owner, and shall not be bound to recognize any
equitable or other claim or interest in such securities, whether or
not it shall have express or other notice thereof, except as otherwise
provided by the laws of the Commonwealth of Pennsylvania or Section
7.02 of these By-laws.
ARTICLE IX
Lost Certificates
-----------------
SECTION 9.01. Lost Certificates. If the owner of a share
certificate claims that it has been lost, destroyed, or wrongfully
taken, the Corporation shall issue a new certificate in place of the
original certificate if the owner so requests before the Corporation
has notice that the certificate has been acquired by a bona fide
purchaser, and if the owner has filed with the Corporation an
indemnity bond and an affidavit of the facts satisfactory to the Board
or its designated agent, and has complied with such other reasonable
requirements, if any, as the Board may deem appropriate.
ARTICLE X
Distributions
-------------
SECTION 10.01. Payment. Distributions upon the capital stock
of the Corporation, whether by dividend, purchase or redemption or
other acquisitions of its shares, together with stock dividends and
stock splits, may be declared by the Board at any regular or special
meeting of
the Board, subject to the limitations set forth in Section 1551 of the
1988 BCl and may be paid in cash, in property, or in securities,
including debt securities, of the Corporation except that stock
dividends and stock splits may be paid only in the shares in the
Corporation.
SECTION 10.02. Reserves. Before the making of any
distributions with respect to the capital stock of the Corporation,
there may be set aside out of any funds of the Corporation available
for distributions such sum or sums as the Board from time to time, in
its absolute discretion, deems proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose
as the Board shall deem conducive to the interests of the Corporation,
and the Board may abolish any such reserve in the manner in which it
was created.
ARTICLE XI
Miscellaneous; Liability and Indemnification
--------------------------------------------
SECTION 11.01. Checks and Notes. All checks or demands for
money and notes of the Corporation shall be signed by such officer or
officers as the Board may from time to time designate.
SECTION 11.02. Fiscal Year. The fiscal year of the
Corporation shall be as determined by the Board.
SECTION 11.03. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Pennsylvania." Such seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any
manner reproduced. The affixation of the corporate seal shall not be
necessary to the valid execution, assignment or endorsement of any
instrument or other document by the Corporation.
SECTION 11.04. Waiver of Notice. Whenever any notice is
required to be given by statute or by the Articles or by these
By-laws, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated
therein, shall be deemed the equivalent of the giving of such notice.
The business to be transacted at the meeting shall be specified in the
waiver
of notice of such meeting. Attendance of any person entitled to
notice, either in person or by proxy, at any meeting shall constitute
a waiver of notice of such meeting, except where any 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 11.05. Continuing Applicability. The provisions of
Sections 11.06, 11.07 and 11.08 of these By- laws shall continue as to
any person who has ceased to be a director, officer, other employee or
agent of the Corporation and shall inure to the benefit of the heirs
and personal representatives of such person.
SECTION 11.06. Director's Liability. A director of the
Corporation shall not be personally liable for monetary damages as
such for any action taken, or any failure to take any action, unless
(a) such director has breached or failed to perform the duties of his
office under Section 8363 of Title 42 of Pennsylvania Consolidated
Statutes, known as the Directors' Liability Act, and (b) the breach or
failure to perform constitutes self-dealing, willful misconduct or
recklessness, or unless such liability is imposed pursuant to a
criminal statute or for the payment of taxes.
SECTION 11.07. Indemnification. The Corporation shall
indemnify any director or officer and shall have the power by action
of the Board of Directors to indemnify any employee or agent other
than an officer of the Corporation with respect to any threatened,
pending or completed action, suit or proceeding (including actions by
or in right of the Corporation to procure a judgment in its favor)
arising out of, or in connection with, any actual or alleged act or
omission or the status of such indemnified person in his capacity as a
director, officer, employee or agent of the Corporation or in his
capacity as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, if
requested to serve in such capacity by the Corporation, against
expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement actually and reasonably incurred, unless the
person's action or failure to act that gave rise to the claim for
indemnification is determined by a court to have constituted willful
misconduct or recklessness. Expenses incurred by any director or
officer in defending a civil or criminal action, suit or proceeding
shall be paid by the
Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified by the Corporation. Expenses incurred by any employee or
agent other than an officer in defending a civil or criminal action,
suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon approval of
the Board of Directors and receipt of an undertaking by or on behalf
of such employee or agent to repay such amount if it shall ultimately
be determined that such employee or agent is not entitled to be
indemnified by the Corporation. The Corporation may purchase and
maintain insurance or establish a separate fund for the purpose of
satisfying its indemnification obligations. This Section 11.07 and
Section 11.06 shall not apply to any actions filed prior to their
adoption nor to any breach or failure of performance of duty by any
director or officer occurring prior to their adoption.
SECTION 11.08. Mandatory Indemnification. Without limiting
the foregoing and applicable to any action filed at any time, with
respect to any act, omission or circumstance, the Corporation shall
indemnify any person who was or is a party or threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding (including actions by or in right of the Corporation to
procure a judgment in its favor) by reason of the fact that he is or
was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred, if such person has been successful
on the merits or otherwise in any such action or upon a determination
in the specific case that such indemnification is proper in the
circumstances because he has met the applicable standard of conduct
set forth in the 1988 BCL. The Corporation may purchase and maintain
insurance for the purposes of indemnification on behalf of any or all
persons to the full extent permitted under the 1988 BCL.
ARTICLE XII
By-Law Amendments
-----------------
SECTION 12.01. Amendments. These By-Laws may be altered,
amended or repealed by a majority vote of the shareholders entitled to
vote thereon at any regular or special meeting duly convened after
notice to the shareholders of that purpose, or except for a by-law on
a subject expressly committed to the shareholders by the 1988 BCL, by
a majority vote of the members of the Board at any regular or special
meeting duly convened, subject always to the power of the shareholders
to change such action by the directors. Any change in these By-Laws
shall take effect when adopted, except as otherwise provided in the
resolution effecting the change.