AMENDED AND RESTATED BYLAWS OF
PMA CAPITAL CORPORATION
Table of Contents
Article/Section Title Page No
Article 1 Corporate Office ................................... 1
Section 1.1 Registered Office .................................. 1
Section 1.2 Other Offices ...................................... 1
Article 2 Shareholder; Share Certificates .................... 1
Section 2.1 Shares; Share Certificates ........................ 1
Section 2.2 Lost Certificates .................................. 1
Section 2.3 Transfer of Shares ................................ 1
Section 2.4 Transfer Agents and Registrars .................... 2
Section 2.5 Transfer Rules .................................... 2
Section 2.6 Uncertificated Shares ............................. 2
Article 3 Shareholders Meetings ............................. 2
Section 3.1 Place of Meeting .................................. 2
Section 3.2 Annual Meetings ................................... 2
Section 3.3 Special Meetings .................................. 2
Section 3.4 Notice of Meetings ................................ 2
Section 3.5 Notice of Meeting Not Required .................... 2
Section 3.6 Electronic Shareholder Meetings ................... 3
Section 3.7 Nomination of Directors ........................... 3
Section 3.8 Notice of Shareholder Business .................... 4
Article 4 Quorum of Shareholders ............................ 5
Section 4.1 Requirement of Quorum ............................. 5
Section 4.2 Quorum ............................................ 5
Section 4.3 Continuation of Business .......................... 6
Section 4.4 Adjournments ...................................... 6
Section 4.5 Limits on Adjournments ............................ 6
Section 4.6 Votes Necessary ................................... 6
Article 5 Proxies ........................................... 6
Section 5.1 Proxies; Revocability ............................. 6
Section 5.2 Multiple Proxies .................................. 7
Article 6 Record Date ....................................... 7
Section 6.1 Fixing of Record Date ............................. 7
Article 7 Shareholder List .................................. 7
Section 7.1 Shareholder List .................................. 7
Section 7.2 Validity of Action ................................ 7
Section 7.3 Transfer Books .................................... 7
Section 7.4 Registered Shareholders ........................... 7
Article 8 Judges of Election ................................ 8
Section 8.1 Appointment ....................................... 8
Section 8.2 Vacancy ........................................... 8
Section 8.3 Duties ............................................ 8
Section 8.4 Reports ........................................... 8
Article 9 No Consent of Shareholders in Lieu of Meeting 8
Section 9.1 No Action by Consent .............................. 8
Article 10 Directors ......................................... 9
Section 10.1 Number; Powers .................................... 9
Section 10.2 Election .......................................... 9
Section 10.3 Qualification ..................................... 9
Section 10.4 Meeting without Notice ............................ 9
Section 10.5 Regular Meetings .................................. 9
Section 10.6 Special Meetings .................................. 9
Section 10.7 Quorum ............................................ 9
Section 10.8 Electronic Meetings ............................... 9
Article 11 Removal of Directors .............................. 10
Section 11.1 Removal by Shareholders ........................... 10
Section 11.2 Declared Vacancies ................................. 10
Section 11.3 Removal of Board .................................. 10
Article 12 Vacancies in the Board of Directors ............... 10
Section 12.1 Filling Vacancies .................................. 10
Section 12.2 Vacancies; Resignations ........................... 10
Article 13 Director Action by Unanimous Written Consent ....... 10
Section 13.1 Unanimous Consent ................................. 10
Article 14 Compensation of Directors ......................... 11
Section 14.1 Compensation ...................................... 11
Article 15 Committees ........................................ 11
Section 15.1 Establishment ..................................... 11
Section 15.2 Executive Committees .............................. 11
Section 15.3 Audit Committee ................................... 11
Section 15.4 Alternative Members ............................... 12
Section 15.5 Status of Committee Action ........................ 12
Article 16 Liability of Directors ............................ 12
Section 16.1 Fiduciary Duties .................................. 12
Section 16.2 Fiduciary Duties; Consideration ................... 12
Section 16.3 Presumption of Good Faith ......................... 13
Section 16.4 No Personal Liability; Exceptions................... 13
Section 16.5 Amendments ........................................ 13
Article 17 Officers .......................................... 13
Section 17.1 Numbers and Qualifications ........................ 13
Section 17.2 Election; Resignation ............................. 13
Section 17.3 Actions in Good Faith ............................. 14
Section 17.4 Removal ........................................... 14
Section 17.5 Voting of Stock in Other Corporations .............. 14
Article 18 Duties of Officers ................................ 14
Section 18.1 Chairman of the Board ............................. 14
Section 18.2 President ......................................... 14
Section 18.3 Vice President .................................... 15
Section 18.4 Secretary ......................................... 15
Section 18.5 Treasurer ......................................... 15
Section 18.6 Assistant Secretary ............................... 15
Section 18.7 Assistant Treasurer ............................... 15
Section 18.8 Assistant Officers ................................ 15
Section 18.9 Bonds ............................................. 15
Section 18.10 Designations ...................................... 16
Article 19 Indemnification of Officers, Directors,
Employees, and Agents .............................. 16
Section 19.1 Indemnification ................................... 16
Section 19.2 Non-Exclusivity .................................... 16
Section 19.3 Expenses .......................................... 16
Section 19.4 Continuation ...................................... 16
Section 19.5 Securing Obligations .............................. 16
Section 19.6 Separate Agreement ................................ 17
Section 19.7 Defense of Claims ................................. 17
Section 19.8 Insurance ......................................... 17
Section 19.9 Amendment ......................................... 18
Article 20 Fiscal Year ....................................... 18
Section 20.1 Fiscal Year ....................................... 18
Article 21 Notices ........................................... 18
Section 21.1 Manner of Giving Written Notice ................... 18
Section 21.2 Waiver of Notice .................................. 18
Article 22 Amendments ........................................ 19
Section 22.1 Amendments Requiring Shareholder Approval ......... 19
Section 22.2 Amendments Requiring Notice ....................... 19
Section 22.3 Other Amendments .................................. 19
AMENDED AND RESTATED BYLAWS OF
PMA CAPITAL CORPORATION
ARTICLE 1
Corporate Office
Section 1.1 Registered Office. The Corporation shall have and
continuously maintain in the Commonwealth of Pennsylvania a registered office at
an address to be designated from time to time by the Board of Directors which
may, but need not, be the same as its place of business.
Section 1.2 Other Offices. The Corporation may also have offices at
such other places as the Board of Directors may from time to time designate or
the business of the Corporation may require.
ARTICLE 2
Shareholders; Share Certificates
Section 2.1 Shares; Share Certificates. Except as set forth in Section
2.6, all shares issued by the Corporation shall be represented by certificates.
The share certificates of the Corporation shall be numbered and registered in a
share register as they are issued; shall state that the Corporation is
incorporated under the laws of the Commonwealth of Pennsylvania; shall bear the
name of the registered holder, the number and class of shares and the
designation of the series, if any, represented thereby, the par value, if any,
of each share or a statement that the shares are without par value, as the case
may be; shall be signed by the President or a Vice President, and the Secretary
or the Treasurer or any other person properly authorized by the Board of
Directors, and shall bear the corporate seal, which seal may be facsimile
engraved or printed. Where the certificate is signed by a transfer agent or a
registrar, the signature of any corporate officer on 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, such share certificate may be issued by the Corporation
with the same effect as if the officer had not ceased to be such at the date of
its issue.
Section 2.2 Lost Certificates. Duplicate certificates may be issued for
those lost or destroyed, under such terms as may be prescribed by the Board of
Directors.
Section 2.3 Transfer of Shares. Upon surrender to the Corporation or
the transfer agent of the Corporation of a share certificate duly endorsed by
the person named in the certificate or by attorney duly appointed in writing and
accompanied where necessary by the proper evidence of succession, assignment or
authority to transfer, a new certificate shall be issued to the person entitled
thereto and the old certificate canceled and the transfer recorded on the share
register of the Corporation. A transferee of shares of the Corporation shall not
be a record holder of such shares entitled to the rights and benefits associated
therewith unless and until the share transfer has been recorded on the share
transfer books of the Corporation. No transfer shall be made if it would be
inconsistent with the provisions of (i) Article 8 of the Pennsylvania Uniform
Commercial Code or (ii) Article 2 of these Bylaws.
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Section 2.4 Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more transfer
agents and one or more registrars.
Section 2.5 Transfer Rules. The Board of Directors may make such
additional rules and regulations, not inconsistent with these Bylaws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
Section 2.6 Uncertificated Shares. Notwithstanding anything herein to
the contrary, any or all classes and series of shares, or any part thereof, may
be represented by uncertificated shares to the extent determined by the Board of
Directors, except that shares represented by a certificate that is issued and
outstanding shall continue to be represented thereby until the certificate is
surrendered to the Corporation. Within a reasonable time after the issuance or
transfer of uncertificated shares, the Corporation shall send to the registered
owner thereof, a written notice containing the information required to be set
forth or stated on certificates. The rights and obligations of the holders of
shares represented by certificates and the rights and obligations of the holders
of uncertificated shares of the same class and series shall be identical.
Notwithstanding anything herein to the contrary, the provisions of Section 2.3
shall be inapplicable to uncertificated shares and in lieu thereof the Board of
Directors shall adopt alternative procedures for registration of transfers.
ARTICLE 3
Shareholders Meetings
Section 3.1 Place of Meetings. All meetings of the shareholders shall
be held at such time and place, within or without the Commonwealth of
Pennsylvania, as may be determined from time to time by the Board of Directors
and need not be held at the registered office of the Corporation.
Section 3.2 Annual Meetings. An annual meeting of the shareholders for
the election of directors and the transaction of such other business as may
properly be brought before the meeting shall be held in each calendar year at
such time and place as may be determined by the Board of Directors.
Section 3.3 Special Meetings. Special meetings of the shareholders, may
be called at any time only by the Chairman, President or the Board of Directors.
Section 3.4 Notice of Meetings. Written notice of each meeting other
than an adjourned meeting of shareholders, stating the place and time, and, in
the case of a special meeting of shareholders, the general nature of the
business to be transacted, shall be provided to each shareholder of record
entitled to vote at the meeting at such address as appears on the books of the
Corporation. Business transacted at any special meeting shall be limited to the
purposes stated in the notice. Such notice shall be given, in accordance with
the provisions of Article 21 of these Bylaws, at least (i) ten days prior to the
day named for a meeting to consider a fundamental change under Chapter 19 of the
Pennsylvania Business Corporation Law of 1988 (the "BCL") or (ii) five days
prior to the day named for the meeting in any other case.
Section 3.5 Notice of Meeting Not Required. Whenever the Corporation
has been unable to communicate with a shareholder 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, the giving of notice to such shareholder pursuant to Section 3.4 of
these Bylaws shall not be required. Any action or meeting that is taken or held
without notice or
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communication to that shareholder shall have the same validity as if the notice
or communication had been duly given. Whenever a shareholder provides the
Corporation with a current address this Section 3.5 shall cease to be applicable
to such shareholder. The Corporation shall not be required to give notice to any
shareholder pursuant to Section 3.4 hereof if and for as long as communication
with such shareholder is unlawful.
Section 3.6 Electronic Shareholder Meetings. The Board of Directors may
provide by resolution with respect to a specific meeting or with respect to a
class of meetings that one or more shareholders may participate in such meeting
or meetings of shareholders by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear one another. Participation in the meeting by such means shall
constitute presence in person at the meeting. Any notice otherwise required to
be given in connection with any meeting at which participation by conference
telephone or other communications equipment is permitted shall so specify.
Section 3.7 Nomination of Directors.
(a) Nominations of persons for election to the Board of Directors of
the Corporation may be made at an annual meeting of shareholders (x) by or at
the direction of the Board of Directors or by a Nominating Committee appointed
by the Board of Directors and consisting of directors continuing in office (the
"Nominating Committee") or (y) by any shareholder of the Corporation who is a
shareholder of record at the time of giving of notice provided for in this
Section 3.7(a), 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 3.7(a). Such nominations, other than those made by or at the direction
of the Board of Directors or Nominating Committee, 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 and received at the
principal executive offices of the Corporation not later than the close of
business on the 60th day nor earlier than the close of business on the 90th day
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 more than 30
days before or more than 60 days after such anniversary date, notice by the
shareholder to be timely must be so received not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the earlier of the date on which public announcement of
the date of the meeting is first made or the date the notice of the meeting is
first mailed to shareholders. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
shareholder's notice as described above. Such shareholder's notice shall set
forth (x) as to each person whom the shareholder proposes to nominate for
election or reelection as a director the name and address of such person and all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); and (y) as to the shareholder giving notice (i) the name and address
of the shareholder as they appear on the Corporation's share transfer books who
intends to make the nomination ("Nominating Shareholder"); (ii) the name and
address of the beneficial owner, if different than the Nominating Shareholder,
of any of the shares owned of record by the Nominating Shareholder ("Beneficial
Holder"); (iii) the number of shares of each class and series of shares of the
Corporation which are owned of record and beneficially by the Nominating
Shareholder and the number which are owned beneficially by any Beneficial
Holder; (iv) a description of all arrangements and understandings between the
Nominating Shareholder and any Beneficial Holder and any other person or persons
(naming such person or persons) pursuant to which the
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nomination is being made; and (v) a representation that the Nominating
Shareholder is at the time of giving of the notice, was or will be on the record
date for the meeting, and will be on the meeting date a holder of record of
shares of the Corporation entitled to vote at such meeting, and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice. No person shall be eligible for election at any meeting
of shareholders as a director of the Corporation unless nominated in compliance
with the procedures set forth in this Section. The chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in compliance with the procedures prescribed by the
Bylaws, and if he should so determine, he shall so declare to the meeting and
the defective nominations shall be disregarded. Notwithstanding the foregoing
provisions of this Section, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 3.7.
(b) Nominations of persons for election to the Board of Directors may
be made at a special meeting of shareholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (x) by or at the
direction of the Board of Directors or by the Nominating Committee or (y)
provided that the Board of Directors has determined that directors shall be
elected at such meeting, by any shareholder of the Corporation who is a
shareholder of record at the time of giving of notice provided for in this
Section 3.7(b) 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 3.7(b). In the event the Corporation calls a special meeting of
shareholders for the purpose of electing one or more directors to the Board of
Directors, any such shareholder may nominate a person or persons ( as the case
may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the shareholder's notice in the form required by Section
3.7(a) shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the close of business on the 90th day prior to
such special meeting and not later than the close of business on the later of
the 60th day prior to such special meeting or the 10th day following the earlier
of the date on which public announcement is first made of the date of the
special meeting or the date the notice of the special meeting is first mailed to
shareholders. In no event shall the pubic announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
(c) For purposes of this Section 3.7, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, PR
Newswire, Associate Press or comparable national news or wire service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
Section 3.8 Notice of Shareholder Business. At the annual meeting of
shareholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be a proper subject for shareholder action under these Bylaws and
Pennsylvania law and must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the annual meeting
by a shareholder of the Corporation who is a shareholder of record at the time
of giving of notice provided for in this Section and who shall be entitled to
vote at the meeting. 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 and received at the principal executive
offices of the Corporation not later than the close of business on the 60th day
nor earlier than the close of business on the 90th day 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 more than 30 days before or
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more than 60 days after such anniversary date, notice by the shareholder, to be
timely, must be so received not earlier than the close of business on the 90th
day prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the 10th day following the
earlier of the date on which public announcement of the date of the annual
meeting is first made or the date notice of the meeting is first mailed to
shareholders. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for giving of a shareholder's notice
as described above. A shareholder's notice to the Secretary shall set forth as
to each matter the shareholder proposes to bring before the annual meeting (a)
the name and address of the shareholder as it appears on the Corporation's share
transfer books who intends to bring the business before the annual meeting
("Proposing Shareholder"); (b) the name and address of the beneficial owner, if
different than the Proposing Shareholder, of any of the shares owned of record
by the Proposing Shareholder ("Beneficial Owner"); (c) the number of shares of
each class and series of shares of the Corporation which are owned of record and
beneficially by the Proposing Shareholder and the number which are owned
beneficially by any Beneficial Owner; d) any interest (other than an interest
solely as a shareholder) which the Proposing Shareholder or a Beneficial Owner
has in the business being proposed by the Proposing Shareholder; e) a
description of all arrangements and understandings between the Proposing
Shareholder and any Beneficial Owner and any other person or persons (naming
such person or persons) pursuant to which the proposal in the Shareholder Notice
is being made; (f) a description of the business which the Proposing Shareholder
seeks to bring before the annual meeting, the reason for doing so and, if a
specific action is to be proposed, the text of the resolution or resolutions
which the Proposing Shareholder proposes that the Corporation adopt; and (g) a
representation that the Proposing Shareholder is at the time of giving the
Shareholder Notice, was or will be on the record date for the meeting, and will
be on the meeting date a holder of record of shares of the Corporation entitled
to vote at such meeting, and intends to appear in person or by proxy at the
meeting to bring the business specified in the shareholder notice before the
meeting. Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at an annual meeting except in compliance with the procedures
set forth in this Section 3.8. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in compliance with the provisions of this Section
3.8, and if he should so determine, he shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted.
At any special meeting of shareholders, only such business shall be conducted as
shall have been brought before the meeting by or at the direction of the Board
of Directors. For purposes of this Section 3.8, "public announcement" shall have
the same meaning as set forth in Section 3.7(c).
ARTICLE 4
Quorum of Shareholders
Section 4.1 Requirement of Quorum. A meeting of shareholders duly
called shall not be organized for the transaction of business unless a quorum is
present.
Section 4.2 Quorum. The presence, in person or by proxy, of
shareholders entitled to cast at least a majority of the votes that all
shareholders are entitled to cast on a particular matter to be voted upon at the
meeting shall constitute a quorum for purposes of consideration and action on
such matters. To the extent that a quorum is present with respect to
consideration of and action on a particular matter or matters but a quorum is
not present as to another matter or matters, consideration of an action on the
matter or matters for which a quorum is present may occur and, after such
consideration and action, the meeting may be adjourned for purposes of the
consideration of and action on the matter or matters for which a quorum is not
present.
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Section 4.3 Continuation of Business. 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.
Section 4.4 Adjournments. If a meeting of shareholders cannot be
organized because a quorum is not present, those present in person or by proxy,
may, except as otherwise provided by statute, adjourn the meeting to such time
and place as they may determine, without notice other than an announcement at
the meeting, until the requisite number of shareholders for a quorum shall be
present in person or by proxy.
Section 4.5 Limits on Adjournments. Notwithstanding the provisions of
Sections 4.1, 4.2, 4.3 and 4.4 of these Bylaws:
(1) Any meeting at which directors are to be elected may 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.
(2) Those shareholders entitled to vote who attend a meeting
called for election of directors that has been once previously
adjourned for lack of a quorum, although less than a quorum as
fixed in these Bylaws, shall nevertheless constitute a quorum
for the purpose of electing directors.
(3) Those shareholders entitled to vote who attend a meeting 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 these Bylaws,
shall nevertheless constitute a quorum for the purpose of
acting upon any matter set forth in the notice of the meeting
if the notice states that those shareholders who attend the
adjourned meeting shall nevertheless constitute a quorum for
the purpose of acting upon the matter.
Section 4.6 Votes Necessary. Except as otherwise provided by statute,
the Articles of Incorporation or these Bylaws, at any duly organized meeting of
shareholders, the affirmative vote of a majority of the votes cast by all
shareholders entitled to vote thereon shall decide any question brought before
such meeting, and, if any shareholders are entitled to vote thereon as a class,
the affirmative vote of a majority of the votes by the shareholders entitled to
vote as a class shall decide any such question.
ARTICLE 5
Proxies
Section 5.1 Proxies; Revocability. 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 or persons to
act for him by proxy. Every proxy shall be executed in writing by the
shareholder or his duly authorized attorney-in-fact 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
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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 such death or incapacity is given to the Secretary of the Corporation.
Section 5.2 Multiple Proxies. 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.
ARTICLE 6
Record Date
Section 6.1 Fixing of 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 not be
more than 90 days prior to the date of the meeting of shareholders. Only
shareholders of record on the date so fixed shall be entitled to notice of, or
to vote at, such meeting, notwithstanding any transfer of shares on the books of
the Corporation after any record date fixed as aforesaid. The Board of Directors
may similarly fix a record date for the determination of shareholders of record
for any other purpose, such as the payment of a distribution or conversion or
exchange of shares.
ARTICLE 7
Shareholder List
Section 7.1 Shareholder List. The officer or agent having charge of the
share transfer books of the Corporation shall make a complete alphabetical list
of the shareholders entitled to vote at any meeting, with their addresses and
the number of shares held by each. The list shall be produced and kept open at
the time and place of the meeting for inspection by any shareholder during the
entire meeting except that if the Corporation has 5,000 or more shareholders, in
lieu of the making of the list the Corporation may make the information
available at the meeting by other means.
Section 7.2 Validity of Action. Failure to comply with the provisions
of Section 7.1 of these Bylaws 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.
Section 7.3 Transfer Books. The original transfer books for shares of
the Corporation, or a duplicate thereof kept in the Commonwealth of
Pennsylvania, shall be prima facie evidence as to who are the shareholders
entitled to examine the list or transfer books for shares or to vote at any
meeting.
Section 7.4 Registered Shareholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its records as the
owner of a share of stock to receive dividends and to vote as such owner, shall
be entitled to hold liable for calls and assessments, if any, a person
registered on its records as the owner of shares of stock, and shall not be
bound to recognize any
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equitable or other claim to or interest in such share or shares of stock on the
part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the BCL.
ARTICLE 8
Judges of Election
Section 8.1 Appointment. Prior to any meeting of shareholders, the
Board of Directors may appoint judges of election, who may but 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 any such 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. No person who is a
candidate for an office to be filled at the meeting shall act as a judge of
election.
Section 8.2 Vacancy. In case any person appointed as a judge of
election fails to appear or fails or refuses to act, the vacancy so created may
be filled by appointment made by the Board of Directors in advance of the
convening of the meeting or at the meeting by the presiding officer thereof.
Section 8.3 Duties. The judges of election shall determine the number
of shares outstanding and the voting power of each, the shares represented at
the meeting, the existence of a quorum and the authenticity, validity and effect
of proxies. The judges of election shall also 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
other 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 practicable. If
there are three judges of election, the decision, act or certificate of a
majority shall be the decision, act or certificate of all.
Section 8.4 Reports. On request of the presiding officer of the meeting
or of any shareholder, the judges of election shall make a report in writing of
any challenge, 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 found by them.
ARTICLE 9
No Consent of Shareholders in Lieu of Meeting
Section 9.1 No Action by Consent. No action of the shareholders shall
be taken by either unanimous consent or partial consent or other consent in lieu
of a meeting.
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ARTICLE 10
Directors
Section 10.1 Number; Powers. The business and affairs of the
Corporation shall be managed under the direction of a Board of Directors of not
less than 9 or more than 24 directors. The number of directors will be fixed
from time to time exclusively pursuant to a resolution adopted by the Board of
Directors. The Board of Directors shall be divided into three classes consisting
of as nearly equal in number of directors as possible, and directors of each
class shall be elected for a term of three years and until their successors are
elected and qualified or until their 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. The Board of Directors shall increase or
decrease the number of directors in one or more classes as may be appropriate
whenever it increases or decreases the number of directors that constitute the
full Board of Directors in order to ensure that the three classes shall be as
nearly equal in number of directors as possible. The Board of Directors may
exercise all such powers of the Corporation and do all such lawful acts and
things as are required or permitted to be exercised and done by statute, the
Articles of Incorporation or these Bylaws.
Section 10.2 Election. In all elections of directors, each shareholder,
or his proxy, shall be entitled to the number of votes to which the shares of
stock owned by him are entitled to cast under the Articles of Incorporation of
the Corporation and shall not be entitled to cumulate his votes.
Section 10.3 Qualification. Each director shall be a natural person of
at least 18 years of age and need not be a resident of the Commonwealth of
Pennsylvania or a shareholder of the Corporation. The Board may adopt such
policies regarding qualifications for directors as it deems appropriate.
Section 10.4 Meeting without Notice. A meeting of the Board of
Directors may be held immediately following the annual meeting of shareholders
at which directors have been elected without the necessity of notice to the
directors.
Section 10.5 Regular Meetings. Regular Meetings of the Board of
Directors shall be held at such times and places within or without the
Commonwealth of Pennsylvania as may be designated by the Board of Directors or
in the notice of meeting.
Section 10.6 Special Meetings. A special meeting of the Board of
Directors may be called at any time by the Chairman of the Board or the
President on 24 hours' notice to each director, either by telephone, or if in
writing, in accordance with Article 21 of these Bylaws and shall be called by
either of them or, in their absence, by the Secretary, upon the written request
of three members of the Board of Directors. Such special meeting of the Board of
Directors shall be held at a time and place designated in the notice.
Section 10.7 Quorum. A majority of the directors then in office shall
constitute a quorum for the transaction of business at any regular or special
meeting of the Board of Directors, 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, except as may be otherwise specifically provided by
statute or by the Articles of Incorporation or by these Bylaws.
Section 10.8 Electronic Meetings. One or more directors may participate
in any meeting of the Board of Directors, or of any committee thereof, by means
of a conference telephone or similar
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communications equipment by means of which all persons participating in the
meeting can hear one another. Participation in a meeting by such means shall
constitute presence in person at the meeting.
ARTICLE 11
Removal of Directors
Section 11.1 Removal by Shareholders. Except as otherwise provided in
Section 11.3 of these Bylaws, the entire Board of Directors, or any class of the
Board of Directors or any individual director, may be removed from office by
vote of the shareholders entitled to vote thereon only for cause. If any
directors are so removed, new directors may be elected at the same meeting.
Section 11.2 Declared Vacancies. 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.
Section 11.3 Removal of Board. The Board of Directors may be removed at
any time with or without cause by the unanimous vote of shareholders entitled to
vote thereon.
ARTICLE 12
Vacancies in the Board of Directors
Section 12.1 Filling Vacancies. Vacancies in the Board of Directors
occurring for any reason, including vacancies resulting from an increase in the
number of directors, shall be filled by a majority vote of the remaining members
of the Board of Directors, though less than a quorum, or by a sole remaining
director, and each person so elected shall be a director to serve for the
balance of the unexpired term and until his successor has been elected and
qualified or until his earlier death, resignation or removal.
Section 12.2 Vacancies; Resignations. When one or more directors
resign from the Board of Directors effective at a future date, the directors
then in office, including those who have so resigned, shall have the power by a
majority vote to fill the vacancies, the vote thereon to take effect when the
resignations become effective.
ARTICLE 13
Director Action by Unanimous Written Consent
Section 13.1 Unanimous 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 signed by all
of the directors is filed with the Secretary of the Corporation.
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ARTICLE 14
Compensation of Directors
Section 14.1 Compensation. Directors, as such, may receive a stated
salary for their services or a fixed sum and expenses for attendance at regular
and special meetings, or any combination of the foregoing as may be determined
from time to time by resolution of the Board of Directors, and nothing contained
herein shall be construed to preclude any director from receiving compensation
for services rendered to the Corporation in any other capacity.
ARTICLE 15
Committees
Section 15.1 Establishment. The Board of Directors may, by resolution
adopted by a majority of the directors in office, establish one or more
committees consisting of one or more directors as may be deemed appropriate or
desirable by the Board of Directors to serve at the pleasure of the Board. Any
committee, to the extent provided in the resolution of the Board of Directors
pursuant to which it was created, shall have and may exercise all of the powers
and authority of the Board of Directors, except that no committee shall have any
power or authority as to the following:
(1) The submission to shareholders of any action requiring approval
of shareholders;
(2) The creation or filling of vacancies in the Board of Directors;
(3) The adoption, amendment or repeal of these Bylaws;
(4) The amendment or repeal of any resolution of the Board of
Directors that by its terms is amendable or repealable only by
the Board of Directors; and
(5) Action on matters committed by the Bylaws or resolution of the
Board of Directors to another committee of the Board of
Directors, except that the Executive Committee of the Board of
Directors may take action upon a subject matter committed by the
Bylaws or resolution of the Board of Directors to another
committee of the Board of Directors, unless the Bylaws or
resolution of the Board of Directors expressly provides that
another committee shall have exclusive authority with respect to
such matters.
Section 15.2 Executive Committee. There shall be an Executive
Committee, which shall consist of at least three (3) and not more than six (6)
directors. The Executive Committee shall have supervision of all business of the
Corporation and shall have the authority in between the time of regular meetings
of the Board of Directors to exercise all powers of the Corporation and do all
such lawful acts and things as are required or permitted to be exercised and
done by statute, the Articles of Incorporation or these Bylaws. The Executive
Committee shall have the power to create offices and titles as deemed desirable
or advisable. The holders of such offices need not be directors of the
Corporation.
Section 15.3 Audit Committee. There shall be an Audit Committee, which
shall consist of at least three (3) members of the Board of Directors, none of
whom shall be an officer or employee of the Corporation or of any entity
controlling, controlled by or under common control with the Corporation and who
are not beneficial owners of a controlling interest in the voting stock of the
Corporation or any such entity. The Audit Committee shall perform such duties as
are set for the in its charter.
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Section 15.4 Alternate Members. The Board of Directors may designate
one or more directors as alternate members of any committee who may replace any
absent or disqualified members at any meeting of the committee or for the
purposes of any written action by the committee. In the absence or
disqualification of a member and alternate member or members of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another director to act at the meeting in the place of the absent or
disqualified member.
Section 15.5 Status of Committee Action. 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 committee of the Board
of Directors. Any provision of these Bylaws relating or referring to action to
be taken by the Board of Directors or the procedure required thereafter shall be
satisfied by the taking of corresponding action by a committee of the Board of
Directors to the extent the authority to take the action has been delegated to
the committee by the Board of Directors.
ARTICLE 16
Liability of Directors
Section 16.1 Fiduciary Duties. A director of the Corporation shall
stand in a fiduciary relation to the Corporation and shall perform his duties as
a director, including his duties as a member of any committee of the Board of
Directors upon which he may serve, in good faith, in a manner he 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 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: (i) one or more
officers or employees of the Corporation whom the director reasonably believes
to be reliable and competent in the matters presented; (ii) legal counsel,
public accountants or other persons as to matters which the director reasonably
believes to be within the professional or expert competence of such persons; or
(iii) a committee of the Board of Directors upon which he 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 he has
knowledge concerning the matter in question that would cause his reliance to be
unwarranted.
Section 16.2 Fiduciary Duties; Consideration. In discharging the duties
of their respective positions, the Board of Directors, committees of the Board
of Directors and individual directors may, in considering the best interests of
the Corporation, consider to the extent they deem appropriate those factors set
forth in Section 1715 of the BCL, including without limitation:
(1) The effects of any action upon any or all groups affected by such
action, including shareholders, employees, suppliers, customers
and creditors of the Corporation, and upon communities in which
offices or other establishments of the Corporation are located.
(2) The short-term and long-term interests of the Corporation,
including benefits that may accrue to the Corporation from its
long-term plans and possibility that these interests may be best
served by the continued independence of the Corporation.
(3) The resources, intent and conduct (past, stated and potential) of
any person seeking to acquire control of the Corporation.
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(4) All other pertinent factors.
The consideration of these factors shall not constitute a violation of Section
16.1 of this Article 16.
Section 16.3 Presumption of Good Faith. 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.
Section 16.4 No Personal Liability; Exceptions. 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: (i) the director has
breached or failed to perform the duties of his office under Sections 16.1
through 16.3 of this Article 16; and (ii) the breach or failure to perform
constitutes self-dealing, willful misconduct or recklessness. The provisions of
this Section 16.4 of this Article 16 shall not apply to: (i) the responsibility
or liability of a director pursuant to any criminal statute; or (ii) the
liability of a director for the payment of taxes pursuant to local, state or
federal law.
Section 16.5 Amendments. Notwithstanding any other provisions of these
Bylaws, the approval by the affirmative vote of the holders of a majority of the
outstanding voting power of the shares of stock of the Corporation shall be
required to amend, repeal or adopt any provision as part of these Bylaws that is
inconsistent with the purpose or intent of Sections 16.1, 16.2, 16.3, 16.4, or
16.5 of this Article 16, and, if any such action shall be taken, it shall become
effective only on a prospective basis from and after the date of such
shareholder approval. The provisions of Section 16.1, 16.3, and 16.4 were
originally adopted by the shareholders of the Corporation on April 27, 1987.
ARTICLE 17
Officers
Section 17.1 Numbers and Qualifications. The Corporation shall have a
Chairman of the Board, a President, a Secretary and a Treasurer or persons who
shall act as such, regardless of the name or title by which they may be
designated, elected or appointed and may have such other officers and assistant
officers as the Board of Directors may authorize from time to time. The Chairman
of the Board, President and Secretary shall be natural persons of at least 18
years of age. The Treasurer may be a corporation, but if a natural person shall
be of at least 18 years of age. The Chairman of the Board or the President shall
be the chief executive officer of the Corporation, as the Board of Directors may
determine from time to time. The Chairman of the Board of Directors and the
President shall be, and each officer may be, a director of the Corporation. The
offices of Secretary and Treasurer may be filled by one person.
Section 17.2 Election; Resignation. The officers shall be elected by
the Board of Directors, or the Board of Directors may authorize the Chairman of
the Board or President to appoint one or more classes of officers with such
titles (including the titles of Vice President, Secretary and Treasurer),
powers, duties and compensation as may be approved by such persons. Each officer
shall hold office at the pleasure of the Board of Directors and until his
successor has been elected and qualified or until his earlier death, resignation
or removal. Any officer may resign at any time upon written notice to the
Corporation. The resignation shall be effective upon receipt thereof by the
Corporation or at such subsequent time as may be specified in the notice of
resignation.
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Section 17.3 Actions in Good Faith. Except as otherwise provided in the
Articles of Incorporation, an officer shall perform his duties as an officer in
good faith, in a manner he 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 duties shall not be liable by reason
of having been an officer of the Corporation.
Section 17.4 Removal. Any officer or agent of the Corporation may be
removed by the Board of Directors, with or without cause, at any time. Any
officer appointed by the Chairman of the Board or President may also be removed,
either with or without cause, at any time, by the Chairman of the Board or
President. 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 17.5 Voting of Stock in Other Corporations. If authorized by
the Board of Directors, any officer of the Corporation may appoint an attorney
or attorneys (who may be or include such officer), in the name and on behalf of
the Corporation, to cast the votes which the Corporation may be entitled to cast
as a shareholder or otherwise in any other corporation any of whose shares or
other securities are held by or for the Corporation, at meetings of the holders
of the shares or other securities of such other corporation, or in connection
with the ownership of such shares or other securities, to consent in writing to
any action by such other corporation, and may instruct the person or persons so
appointed as to the manner of casting such votes or giving such consent, and may
execute or cause to be executed in the name and on behalf of the Corporation and
under its seal such written proxies or other instruments as such proxy may deem
necessary or proper in the circumstances.
ARTICLE 18
Duties of Officers
Section 18.1 Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors and at all meetings of the
shareholders, appoint all committees not otherwise provided for in the Bylaws.
To be eligible to serve, the Chairman of the Board must be a director of the
Corporation. He may serve as a member of any committee of the Board, attend all
meetings of any such committee and participate in the discussions of any such
committee, except as may otherwise be determined by the Board or provided in
these Bylaws. He shall perform all duties incident to the office of Chairman of
the Board and such other duties as may be from time to time assigned to him by
the Board of Directors.
Section 18.2 President. In the absence of the Chairman of the Board,
the President shall preside at all meetings of the Board of Directors and at all
meetings of the shareholders. He shall be the chief executive of the
Corporation, unless the Chairman of the Board is serving as Chief Executive
Officer in which event the President shall be the Chief Operating Officer of the
Corporation. Except as otherwise provided herein, the President shall be
responsible for the general and active management of the business of the
Corporation; shall see that all orders and resolutions of the Board of Directors
are put into effect, subject, however, to the right of the Board of Directors to
delegate any specific powers, except such as may be by statute exclusively
conferred on the President, to any other officer or officers of the Corporation;
and shall have the authority to execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation. He may serve as
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a member of any committee of the Board, attend all meetings of any such
committee and participate in the discussions of any such committee, except as
may otherwise be determined by the Board or provided in these Bylaws. He shall
perform all duties incident to the office of President and such other duties as
may be from time to time assigned to him by the Board of Directors.
Section 18.3 Vice President. The Vice President or, if more than one,
the Vice Presidents in the order, if any, established by the Board of Directors
shall, in the absence or incapacity of the President, have the authority to
exercise all the powers and perform the duties of the President. The Vice
Presidents, respectively, shall also have such other authority and perform such
other duties as may be provided in the Bylaws or as shall be determined by the
Board of Directors or the President. Any Vice President may, in the discretion
of the Board of Directors, be designated as "executive," "senior" or by
departmental or functional classification.
Section 18.4 Secretary. The Secretary shall act under the direction and
superintendence of the Corporation's chief executive officer; attend all the
meetings of shareholders, directors and committees, and keep in suitable books
the minutes thereof; superintend the keeping and have charge of the seal, books,
papers and records pertaining to his office, sign such documents as shall
require his attention, issue notices for all meetings; and perform generally all
the duties incident to the office of Secretary and such other duties as may be
assigned to him by the Board of Directors or the President.
Section 18.5 Treasurer. The Treasurer shall be responsible for the
custody of the corporate funds and securities; shall be responsible for full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation; and shall perform such other duties as may be assigned to him by
the Board of Directors or the President. He shall give bond in such sum and with
such surety as the Board of Directors may from time to time directs.
Section 18.6 Assistant Secretary. The Assistant Secretary (and if there
be more than one, the Assistant Secretaries in the order determined by the Board
of Directors (or if there is no determination then by seniority)) shall, in the
absence of the Secretary, perform the duties of the Secretary and such other
duties as may be assigned to him by the Board of Directors, Chairman of the
Board, President, Secretary, or such other officer as may be designated by one
of the foregoing.
Section 18.7 Assistant Treasurer. The Assistant Treasurer (and if there
be more than one, the Assistant Treasurers in the order determined by the Board
of Directors (or if there is no determination then by seniority)) shall, in the
absence of the Treasurer, perform the duties of the Treasurer and such other
duties as may be assigned to him by the Board of Directors, Chairman of the
Board, President, Treasurer, or such other officer as may be designated by one
of the foregoing.
Section 18.8 Assistant Officers. Each assistant officer shall assist in
the performance of the duties of the officer to whom he is assistant and shall
perform such duties in the absence of the officer. He shall perform such
additional duties as the Board of Directors, the President or the officer to
whom he is assistant may from time to time assign him. Such officers may be
given such functional titles as the Board of Directors shall from time to time
determine.
Section 18.9 Bonds. If required by the Board of Directors, any officer
or employee shall give bond for the faithful performance of their duties in such
amount as is required by the Board of Directors or the Executive Committee of
the Board of Directors.
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Section 18.10 Designations. The Board of Directors may, by resolution,
designate one or more officers to be any of the following: Chief Operating
Officer, Chief Financial Officer, General Counsel, or Chief Accounting Officer.
ARTICLE 19
Indemnification of Officers, Directors, Employees, and Agents
Section 19.1 Indemnification. The Corporation shall indemnify any
director or officer, and may indemnify any other employee or agent who was or is
a party to, or is threatened to be made a party to or who is called as a witness
in connection with, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
an action by or in the right of the Corporation 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 by him in connection
with such action, suit or proceeding unless the act or failure to act giving
rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
Section 19.2 Non-Exclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article 19 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract,
vote of shareholders or disinterested directors or pursuant to the direction,
howsoever embodied, of any court of competent jurisdiction or otherwise, both as
to action in their official capacity and as to action in another capacity while
holding such office. It is the policy of the Corporation that indemnification
of, and advancement of expenses to, directors and officers of the Corporation
shall be made to the fullest extent permitted by law. To this end, the
provisions of this Article 19 shall be deemed to have been amended for the
benefit of directors and officers of the Corporation effective immediately upon
any modification of the BCL or any modification or adoption of any other laws
that expands or enlarges the power or obligation of corporations organized under
the BCL to indemnify, or advance expenses to, directors and officers of
corporations.
Section 19.3 Expenses. The Corporation shall pay expenses incurred by
an officer or director, and may pay expenses incurred by any other employee or
agent in defending a civil or criminal action, suit or proceeding in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation.
Section 19.4 Continuation. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article 19 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
Section 19.5 Securing Obligations. The Corporation shall have the
authority to create a fund of any nature, which may, but need not, be under the
control of an independent trustee, or otherwise secure or insure in any manner,
its indemnification obligations, whether arising under these Bylaws or
otherwise. The authority shall include, without limitation, the authority to:
(i) deposit funds in trust or in escrow, (ii) establish any form of
self-insurance, (iii) secure its indemnity obligation by
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grant of a security interest, mortgage or other lien on the assets of the
Corporation or (iv) establish a letter of credit, guaranty or surety arrangement
for the benefit of such persons in connection with the anticipated
indemnification or advancement of expenses contemplated by this Article 19. The
provisions of this Article 19 shall not be deemed to preclude the
indemnification of, or advancement of expenses to, any person who is not
specified in Section 19.1 of this Article 19 but whom the Corporation has the
power or obligation to indemnify, or to advance expenses for, under the
provisions of the BCL or otherwise. The authority granted by this Section 19.5
shall be exercised by the Board of Directors of the Corporation.
Section 19.6 Separate Agreement. The Corporation shall have the
authority to enter into a separate indemnification agreement with any officer,
director, employee or agent of the Corporation or any subsidiary providing for
such indemnification of such person as the Board of Directors shall determine up
to the fullest extent permitted by law.
Section 19.7 Defense of Claims. As soon as practicable after receipt by
any person specified in Section 19.1 of this Article 19 of notice of the
commencement of any action, suit or proceeding specified in Section 19.1 of this
Article 19, such person shall, if a claim with respect thereto may be made
against the Corporation under Article 19 of these Bylaws, notify the Corporation
in writing of the commencement or threat thereof; however, the omission so to
notify the Corporation shall not relieve the Corporation from any liability
under Article 19 of the Bylaws unless the Corporation shall have been prejudiced
thereby or from any other liability which it may have to such person other than
under Article 19 of these Bylaws. With respect to any such action as to which
such person notifies the Corporation of the commencement or threat thereof, the
Corporation may participate therein at its own expense, and except as otherwise
provided below, to the extent that it desires, the Corporation, jointly with any
other indemnifying party similarly notified, shall be entitled to assume the
defense thereof, with counsel selected by the Corporation to the reasonable
satisfaction of such person. After notice from the Corporation to such person of
its election to assume the defense thereof, the Corporation shall not be liable
to such person under Article 19 of these Bylaws for any legal or other expenses
subsequently incurred by such person in connection with the defense thereof
other than as otherwise provided below. Such person shall have the right to
employ his own legal counsel in such action, but the fees and expenses of such
legal counsel incurred after notice from the Corporation of its assumption of
the defense thereof shall be at the expense of such person unless: (i) the
employment of legal counsel by such person shall have been authorized by the
Corporation; (ii) such person shall have reasonably concluded that there may be
a conflict of interest between the Corporation and such person in the conduct of
the defense of such proceeding; or (iii) the Corporation shall not in fact have
employed legal counsel to assume the defense of such action. The Corporation
shall not be entitled to assume the defense of any proceeding brought by or on
behalf of the Corporation or as to which such person shall have reasonably
concluded that there may be a conflict of interest. If indemnification under
Article 19 of these Bylaws or advancement of expenses are not paid or made by
the Corporation, or on its behalf, within 90 days after a written claim for
indemnification or a request for an advancement of expenses has been received by
the Corporation, such person may, at any time thereafter, bring suit against the
Corporation to recover the unpaid amount of the claim or the advancement of
expenses. The right to indemnification and advancement of expenses provided
hereunder shall be enforceable by such person in any court of competent
jurisdiction. The burden of proving that indemnification is not appropriate
shall be on the Corporation. Expenses reasonably incurred by such person in
connection with successfully establishing the right to indemnification or
advancement of expenses, in whole or in part, shall also be indemnified by the
Corporation.
Section 19.8 Insurance. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the
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Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another domestic or foreign corporation
for profit or not-for-profit, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article 19.
Section 19.9 Amendment. Notwithstanding any other provisions of these
Bylaws, the approval by (i) the affirmative vote of the holders of a majority of
the outstanding voting power of the shares of stock of the Corporation or (ii) a
majority vote of the members of the Board of Directors shall be required to
amend, repeal or adopt any provision as part of these Bylaws which is
inconsistent with the purpose or intent of this Article 19, and, if any such
action shall be taken, it shall become effective only on a prospective basis
from and after the date of such approval. The provisions of Sections 19.1, 19.2,
19.3, 19.4, 19.5, 19.6, 19.7 and 19.8 were originally adopted by the
shareholders of the Corporation on April 27, 1987.
ARTICLE 20
Fiscal Year
Section 20.1 Fiscal Year. The fiscal year of the Corporation shall be a
calendar year, unless otherwise determined by the Board of Directors.
ARTICLE 21
Notices
Section 21.1 Manner of Giving Written Notice. Whenever written notice
is required to be given to any person under the provisions of these Bylaws or
the BCL, it may be given to the person either personally or by sending a copy
thereof by first class or express mail, postage prepaid, or by telegram (with
messenger service specified), telex or TWX (with answer back received) or
courier service, charges prepaid, or by facsimile transmission, to his address
(or to his telex, TWX or facsimile number) appearing on the books of the
Corporation or, in the case of written notice to directors, supplied by each
director to the Corporation for the purpose of the notice. If the notice is sent
by mail, telegraph or courier service, it shall be deemed to have been given to
the person entitled thereto when deposited in the United States mail or with a
telegraph office or courier service for delivery to that person or, in the case
of telex, TWX or facsimile, when dispatched.
Section 21.2 Waiver of Notice. Any written notice required to be given
to any person under the provisions of statute, the Corporation's Articles of
Incorporation or these Bylaws may be waived in a writing signed by the person
entitled to such notice whether before or after the time stated therein. Except
as otherwise required by statute, and except in the case of a special meeting,
neither the business to be transacted at, nor the purpose of, a meeting need be
specified in the waiver of notice. In the case of a special meeting of
shareholders, the waiver of notice shall specify the general nature of the
business to be transacted. Attendance of any person, whether in person or by
proxy, at any meeting shall constitute a waiver of notice of such 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.
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ARTICLE 22
Amendments
Section 22.1 Amendments Requiring Shareholder Approval. Neither this
Section 22.1 nor Article 16 of these Bylaws may be altered, amended or repealed
unless approved by the affirmative vote of the holders of a majority of the
outstanding voting power of the shares of stock of the Corporation at a duly
organized meeting of shareholders called for that purpose, provided that 30
days' notice of the proposed amendments shall have been mailed to the last
recorded address of each shareholder as furnished to the Corporation, and that
the same shall have been submitted to the Board of Directors at least 30 days
prior to such meeting.
Section 22.2 Amendments Requiring Notice. Neither this Section 22.2 nor
Article 19 of these Bylaws may be altered, amended or repealed unless approved
by: (i) the affirmative vote of the holders of a majority of the outstanding
voting power of the shares of stock of the Corporation at a duly organized
meeting called for that purpose, provided that 30 days' notice of the proposed
amendments shall have been mailed to the last recorded address of each
shareholder as furnished to the Corporation, and that the same shall have been
submitted to the Board of Directors at least 30 days prior to such meeting, or
(ii) a majority vote of the members of the Board of Directors at any regular
meeting or any special meeting duly convened after notice to the directors of
that purpose, subject to the power of the shareholders to change such action by
the affirmative vote of the holders of a majority of the outstanding voting
power of the shares of stock of the Corporation at any duly organized meeting
called for that purpose.
Section 22.3 Other Amendments. All provisions of these Bylaws other
than Articles 16 and 19 and Sections 22.1 and 22.2 may be altered, amended or
repealed: (i) by the affirmative vote of the holders of a majority of the
outstanding voting power of the shares of stock of the Corporation at a duly
organized meeting called for that purpose, or (ii) by a majority vote of the
members of the Board of Directors at any regular meeting or any special meeting
duly convened after notice to the directors of that purpose, subject to the
power of the shareholders to change such action by the affirmative vote of the
holders of a majority of the outstanding voting power of the shares of stock of
the Corporation at any duly organized meeting called for that purpose.
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