Exhibit 3.41.2
BYLAWS OF
APICO HILLS, INC.
ARTICLE 1
CORPORATION OFFICE
Section 1.1 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 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
SHAREHOLDER MEETINGS
Section 2.1 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 2.2 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 2.3 Special meetings of the shareholders may be called at
any time by (i) the Chairman or President, (ii) the Board of Directors or (iii)
shareholders entitled to cast at least one-fifth of the votes that all
shareholders are entitled to cast at the particular meeting. The request of any
person who has called a special meeting of shareholders shall be addressed to
the Secretary of the Corporation, shall be signed by the persons making the
request and shall state the purpose or purposes of the meeting. Upon receipt of
any such request it shall be the duty of the Secretary to fix the time and
provide written notice of the special meeting of shareholders, which shall be
held not more than 60 days after the receipt of the request. If the Secretary
shall neglect or refuse to fix the time or provide written notice of the special
meeting, the person or persons making the request may fix the time and provide
written notice of the special meeting.
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Section 2.4 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. Such
notice shall be given, in accordance with the provisions of Article 30 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 2.5
(a) 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 2.4 of these Bylaws shall not be required. Any
action or meeting that is taken or held without notice or 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 Subsection 2.5(a) shall cease to be applicable to such shareholder.
(b) The Corporation shall not be required to give notice to any
shareholder pursuant to Section 2.4 hereof if and for so long as communication
with such shareholder is unlawful.
Section 2.6 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.
Article 3
QUORUM OF SHAREHOLDERS
Section 3.1 A meeting of shareholders duly called shall not be
organized for the transaction of business unless a quorum is present.
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Section 3.2 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 acted upon at the meeting shall
constitute a quorum for purposes of consideration and action on such matter.
Section 3.3 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 3.4 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 3.5 Notwithstanding the provisions of Sections 3.1, 3.2, 3.3
and 3.4 of these Bylaws:
a) 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.
b) Those shareholders entitled to vote who attend a meeting called
for election of directors that has been 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.
c) 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.
Article 4
VOTING RIGHTS
Section 4.1 Except as my be otherwise provided by the Corporation's
Articles of Incorporation, at every meeting of shareholders, every shareholder
entitled to vote thereat shall be entitles to one vote for every share having
voting power standing in his name on the books of the Corporation on the record
date
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fixed for the meeting. Except as otherwise provided in the Corporation's
Articles of Incorporation, in each election of directors every shareholder
entitled to vote shall have the right to multiply the number of votes to which
he may be entitled by the total number of directors to be elected in the same
election and he may cast the whole number of his votes for one candidate or he
may distribute them among any two or more candidates.
Section 4.2 Except as otherwise provided by statute, at any duly
organized meeting of shareholders the vote of the holders of a majority of the
votes cast shall decide any question brought before such meeting.
Section 4.3 Unless demand is made before the voting begins by a
shareholder entitled to vote at any election for directors, the election of such
directors need not be by ballot.
Section 4.4 No shareholder shall be permitted to nominate a
candidate for election as a director unless such shareholder shall provide to
the Secretary of the Corporation (a) information about such candidate which is
equivalent to the information concerning the candidates nominated by the Board
of Directors which was contained in the Corporation's proxy statement for the
immediately preceding annual meeting of shareholders at which directors were
elected if the Corporation distributed a proxy statement to its shareholders in
connection with such election of directors or (b) if the Corporation did not
distribute such a proxy statement, the following information about such
candidate: name, age, any position or office held with the Corporation, a
description of any arrangement between the candidate and any other person(s)
(naming such person(s)) pursuant to which he was nominated as a director,
principal occupation for the five years prior to the election, the number of
shares of the Corporation's stock beneficially owned by the candidate and a
description of any material transaction or series of transactions to which the
Corporation or any of its affiliates is a party and in which the candidate or
any of his affiliates has a direct or indirect material interest, which
description shall specify the candidates interest in the transaction, the amount
of the transaction and, where practicable, the amount of the candidate's
interest in the transaction. Such information shall be provided in writing not
later than 120 days before the first anniversary of the preceding annual meeting
of shareholders.
Article 5
PROXIES
Section 5.1 Every shareholder entitled to vote at a meeting of
shareholders, or to express consent or dissent to corporate action in
writing without a meeting, may authorize another person or persons to act for
him by proxy. Every proxy
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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 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 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 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 a conversion or exchange of
shares.
Section 6.2 The Board of Directors may by resolution adopt a
procedure whereby a shareholder of the corporation may certify in writing to the
corporation that all or a portion of the shares registered in such shareholder's
name are held for the account of a specified person or persons. Such resolution
my set forth: (a) the classification of shareholder who may certify; (b) the
purpose or purposes for which the certification may be made; (c) the form of
certification and information to be contained therein; (d) if the certification
is with request to a record date, the time after the record date within which
the certification must be received by the Corporation; and (e) such other
provisions with respect to the procedure as are deemed necessary or desirable.
Upon receipt by the Corporation of a certification complying with
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the procedure, the person specified in the certification shall be deemed, for
the purposes set forth in the certification, to be the holders of record of the
number of shares specified in place of the shareholder making the certification.
Article 7
SHAREHOLDER LIST
Section 7.1 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 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 The original transfer books for the 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.
Article 8
JUDGES OF ELECTION
Section 8.1 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 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 The judges of election shall determine the number of
shares outstanding and the voting power of each, the
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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 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
CONSENT OF SHAREHOLDERS IN LIEU OF MEETING
Section 9.1 Any action required or permitted to be taken at a
meeting of the shareholders may be taken without a meeting if, prior or
subsequent to the action, a written consent or consents thereto signed by all of
the shareholders who would be entitled to vote at a meeting for such purpose
shall be filed with the Secretary of the Corporation.
Article 10
DIRECTORS
Section 10.1 The number of directors shall be determined by the
Board of Directors from time to time. The Chairman of the Board of Directors
shall preside at all meetings of shareholders ad directors. The Chairman may be
an officer of the Corporation.
Section 10.2 Each director shall be a natural person of full age and
need not be a resident of the Commonwealth of Pennsylvania or a shareholder of
the Corporation.
faction 10.3 Except as otherwise provided in Article 12 of these
Bylaws, directors shell be selected by the shareholders. The candidates
receiving the highest number of votes from the shareholders or each class or
group of classes, if any, entitled to elect directors separately up to the
number of directors to be elected by the shareholders, or class or group of
classes, if any, shall be elected. Each director shall be selected for a term of
one year and until his successor has been selected
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and qualified or until his 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.
Article 11
REMOVAL OF DIRECTORS
Section 11.1 The entire Board of Directors, or a class of the Board
of Directors where the Board of Directors is classified with respect to the
power of shareholders to select directors, or any individual director may be
removed from office without assigning any cause by the vote of the shareholders
or of the holders of a class or series of shares, entitled to elect directors or
the class of directors. Notwithstanding the foregoing, an individual director
shall not be removed (unless the entire Board of Directors or class of directors
is removed) from the Board of Directors if sufficient votes are cast against the
resolution for such director's removal which, if cumulatively voted at an annual
or other regular election of directors, would be sufficient to elect one or more
directors to the Board of Directors or a class thereof. If any directors are so
removed, new directors may be elected at the same meeting.
Section 11.2 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 The Board of Directors may be removed at any time with
or without cause by the unanimous vote or consent of shareholders entitled to
vote thereon.
Article 12
VACANCIES ON BOARD OF DIRECTORS
Section 12.1 Vacancies on the Board of Directors, 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 selected
shall be a director to serve for the balance of the unexpired term.
Section 12.2 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 resigned, shall have the power of a majority vote to fill the
vacancies, the vote thereon to take effect when resignation become effective.
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Article 13
POWERS OF THE BOARD
Section 13.1 The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are
directed or required to be exercised and done by statute, the Articles of
Incorporation or these Bylaws.
Section 13.2 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:
a) The submission to shareholders of any action requiring approval
of shareholders;
b) The creation or filling of vacancies in the Board of Directors;
c) The adoption, amendment or repeal of these Bylaws;
d) 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
e) Action on matters committed by the Bylaws or resolution of the
Board of Directors to another committee of the Board of Directors.
Article 14
MEETINGS OF THE BOARD OF DIRECTORS
Section 14.1 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 14.2 Meetings of the Board of Directors shall be held at
such times and places within or without the Commonwealth of Pennsylvania as the
Board of Directors may from time to time appoint or as may be designed in the
notice of the meeting. One or more directors may participate in any meeting of
the Board of Directors, or of any committee thereof, by means of a conference
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telephone or similar 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.
Section 14.3 Special meetings of the Board of Directors may be
called by the Chairman of the Corporation on one day's notice to each director,
either by telephone, or if in writing, in accordance with the provisions of
Article 30 of these Bylaws. Special meetings shall be called by the Chairman or
Secretary in like manner and on like notice upon the written request of a
majority of the directors in the office.
Section 14.4 At all meetings of the Board of Directors 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 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.
Article 15
ACTION BY WRITTEN CONSENT
Section 15.1 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.
Article 16
COMPENSATION OF DIRECTORS
Section 17.1 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
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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: (a) one or more officers or employees of the Corporation whom
the director reasonably believes to be reliable and competent in the matters
presented; (b) 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 (c) 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 questions that would
cause his reliance to be unwarranted.
Section 17.1 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 the effects of any action upon employees, suppliers and customers of
the Corporation and communities in which offices or other establishments of the
Corporation are located, and all other pertinent factors. The consideration of
these factors shall not constitute a violation of Section 17.1 hereof.
Section 17.3 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 17.4 A director of the Corporation shall not be personally
liable, as such, for monetary damages for any action taken, or any failure to
take any action, unless: (a) the director has breached or failed to perform the
duties of his office under Sections 17.1 through 17.3 hereof; and (b) the breach
or failure to perform constitutes self-dealing, willful misconduct or
recklessness.
Section 17.5 The provisions of Section 17.4 hereof shall not apply
to: (a) the responsibility or liability of a director pursuant to any criminal
statute; or (b) the liability of a director for the payment of taxes pursuant to
local, state or federal law.
Section 17.6 Notwithstanding any other provision of these Bylaws,
approval of shareholders 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 17.1, 17.2,
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17.3, 17.4, 17.5 or 17.6 of this Article 17, 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.
Article 18
OFFICERS
Section 18.1 The Corporation shall have 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 President and Secretary shall be natural persons of full age.
The Treasurer may be a corporation but if a natural person shall be of full age.
It shall not be necessary for the officers to be directors. Any number of
offices may be held by the same person. Each officer shall hold office at the
pleasure of the Board of Directors and until his successor has been selected 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. The Corporation may secure the
fidelity of any or all of the officers by bond or otherwise.
Section 18.2 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 18.2 Any officer or agent of the Corporation may be removed
by the Board of Directors with or without cause. The removal shall be without
prejudice to the contract rights, if any, of any person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
If the office of any officer becomes vacant for any reason, the vacancy may be
filled by the Board of Directors.
Article 19
THE PRESIDENT
Section 19.1 In the absence of the Chairman of the Board of
Directors, the President shall preside at all meetings of shareholders and
directors. Unless otherwise provided by
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resolution of the Board of Directors, he shall be the chief executive officer of
the Corporation; 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.
Article 20
THE VICE PRESIDENT
Section 20.1 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.
Article 21
THE SECRETARY
Section 21.1 The Secretary shall attend all meetings of the Board of
Directors and of the shareholders as keep accurate records thereof in one or
more minute books kept for that purpose and shall perform the duties customarily
performed by the secretary of a corporation and such other duties as may be
assigned to him by the Board of Directors or President.
Article 22
THE TREASURER
Section 22.1 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 direct.
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Article 23
ASSISTANT OFFICERS
Section 23.1 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.
Article 24
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section 24.1 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 act 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 domestic or foreign corporation for profit or not-for-profit,
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 24.2 The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article 24 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 directors or otherwise, both as to action in his
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 24 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 law 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.
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Section 24.3 The Corporation shall pay expenses incurred by an
officer or director, and may pay expenses incurred by any other employee or
agent, in defending an action, or proceeding referred to in this Article 24 in
advance of the final disposition of such action 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 24.4 The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article 24 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 24.5 The Corporation shall have the authority to create a
fund of any nature, which may, but need not be, under the control of a trustee,
or otherwise secure or insure in any manner, its indemnification obligations,
whether arising under these Bylaws or otherwise. This 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 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 24. The
provisions of this Article 24 shall not be deemed to preclude the
indemnification of, or advancement of expenses to, any person who is not
specified in Section 24.1 of this Article 24 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 24.5
shall be exercised by the Board of Directors of the Corporation.
Section 24.6 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 24.7 As soon as practicable after receipt by any person
specified in Section 24.1 of this Article 24 of notice of the commencement of
any action, suit or proceeding specified in Section 24.1 of this Article 24,
such person shall, if a claim with respect thereto may be made against the
Corporation under Article 24 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
24 of these Bylaws unless the Corporation
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shall have been prejudiced thereby or from any other liability which it may have
to such person other than under Article 24 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 herein, 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 24 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 herein.
Such person shall have the right to employ his own counsel in such action, but
the fees and expenses of such 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 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 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 24 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 advancements
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 24.8 The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who 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 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
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have the power to indemnify him against such liability under the provisions of
this Article 24.
Section 24.9 Notwithstanding any other provisions of these Bylaws,
the approval of shareholders 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 24, 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.
Article 25
SHARES: SHARE CERTIFICATES
Section 25.1 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 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 data of
its issue.
Article 26
TRANSFER OF SHARES
Section 26.1 Upon surrender to 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 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 recorded on the share register of the cancelled and the transfer
recorded on the share register of the Corporation. Except as otherwise provided
pursuant to Section 6.2 hereof, a transferee of shares of the Corporation shall
not be a record holder of such share 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
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transfer shall be made if it would be inconsistent with the provisions of
Article 8 of the Pennsylvania Uniform Commercial Code.
Article 27
LOST CERTIFICATES
Section 27.1 Where a shareholder of the Corporation alleges the
loss, theft or destruction of one or more certificates for shares of the
Corporation and requests the issuance of a substitute certificate therefor, the
Board of Directors may direct a new certificate of the same tenor and for the
same number of shares to be issued to such person upon such person's making of
an affidavit in form satisfactory to the Board of Directors setting forth the
facts in connection therewith, provided that prior to the receipt of such
request the Corporation shall not have either registered a transfer of such
certificate or received notice that such certificate has been acquired by a bona
fide purchaser. When authorizing such issue of a new certificate the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or his
heirs or legal representatives, as the case may be, to advertise the same in
such manner as it shall require and/or give the Corporation a bond in such form
and sum and with surety or sureties, with fixed or open penalty, as shall be
satisfactory to the Board of Directors, as indemnity for any liability or
expense which it may incur by reason of the original certificate remaining
outstanding.
Article 28
FINANCIAL REPORT TO SHAREHOLDERS
Section 28.1 Except as otherwise agreed in a writing (that is
separate from the Articles of Incorporation these Bylaws and the share
certificate) between a shareholder and the Corporation and then only with
respect to that shareholder, the Corporation shall furnish to its shareholders
financial statements, including at least a balance sheet as of the end of the
fiscal year and a statement of income and expenses for the fiscal year. The
financial statements shall be prepared in accordance with generally accepted
accounting principles, if the Corporation prepares financial statements for the
fiscal year on that basis for any purpose, and shall be mailed to each
shareholder within 120 days after the close of each fiscal year.
If the Corporation's financial statements are audited or reviewed by
a public accountant, the report of the accountant shall be mailed to
shareholders together with the financial statements. If the Corporation's
financial statements are not audited or reviewed by a public accountant, the
financial
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statements shall be accompanied by the report of the controller or other person
in charge of the Corporation's financial records stating such person's
reasonable belief as to whether or not the financial statements were prepared in
accordance with generally accepted accounting principles and, if not, describing
the basis of presentation and describing any material respects in which the
financial statements were not prepared on a basis consistent with those prepared
for the previous year.
Article 29
FISCAL YEAR
Section 29.1. The fiscal year of the Corporation shall be determined
by the Board of Directors.
Article 30
MANNER OF GIVING WRITTEN NOTICE: WAIVERS OF NOTICE
Section 30.1. Whenever written notice is required to be given to any
person under the provisions of these Bylaws, it may be given to the person
either personally or by sending a copy thereof by first class or express mail,
postage prepaid, or by telegram (with messenger service specified), telex or TWX
(with answerback received) or courier service, charges prepaid, or by
telecopier, to his address (or to his telex, TWX, telecopier or telephone
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 or TWX or
telecopier, when dispatched.
Section 30.2 Any written notice required to be given to any person
under the provision 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 31
AMENDMENTS
Section 31.1 Except as provided for in Section 17.6 and 24.9 hereof,
these Bylaws may be amended or repealed, and new Bylaws adopted, by the
affirmative vote of a majority of the votes cast by the shareholders at any
regular or special meeting duly convened after written notice to the
shareholders that the purpose, or one of the purposes, of the meeting is to
consider the amendment or repeal of these Bylaws and the adoption of new Bylaws.
There shall be included in, or enclosed with, the notice, a copy of the proposed
amendment or a summary of the changes to be effected thereby.
Section 31.2 Except as provided in Sections 17.6 and 24.9 hereof,
and except as provided in section 1504(b) of the BCL, these Bylaws may be
amended or repealed, and new Bylaws adopted, by the affirmative vote of a
majority of the members of the Board of Directors at any regular or special
meeting duly convened, subject to the power of the shareholders to change such
action of the Board of Directors.
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