Exhibit 3.3
INTERDIGITAL COMMUNICATIONS CORPORATION
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(A PENNSYLVANIA CORPORATION)
BY-LAWS
(AS AMENDED THROUGH SEPTEMBER 30, 2004)
Section 1.1 REGISTERED OFFICE:
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The Registered Office of the Corporation shall be at 781 Third Avenue,
King of Prussia, Pennsylvania until otherwise changed by the Board of Directors.
Section 2.1 PLACE OF SHAREHOLDERS' MEETINGS:
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Meetings of the shareholders shall be held at the Registered Office of
the Corporation or at such other place within or without Pennsylvania as the
Board of Directors may fix.
Section 2.2 ANNUAL MEETING OF SHAREHOLDERS:
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An Annual Meeting of shareholders shall be held in every calendar year
at such time as the Board of Directors may fix. At the Annual Meeting of
shareholders, directors shall be elected to serve for the ensuing year or until
their successors shall be duly elected and qualified, and there shall be
transacted such other business as may properly be brought before the Meeting.
A financial report of the Corporation's business as of the close of the
preceding fiscal year shall be presented at the Annual Meeting, and shall be
sent to shareholders.
Section 2.3 SPECIAL MEETINGS OF SHAREHOLDERS:
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Special Meetings of shareholders may be called at any time by the
Chairman of the Board, the President, the Board of Directors, or by the
shareholders if permitted by, and in accord with, the Pennsylvania Business
Corporation Law, as then in effect. At any time, upon written request of any
person entitled to call a Special Meeting, it shall be the duty of the Secretary
to fix the date of such Special Meeting to be held not less than five or more
than sixty days after the receipt of the request and to give due notice thereof.
If the Secretary shall neglect or refuse to fix the date of the meeting and give
notice thereof, the person or persons making the request may do so.
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Section 2.4 NOTICE OF SHAREHOLDERS' MEETINGS:
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At least five days' written notice shall be given of any meeting of
shareholders, unless a greater period of notice is required by law. Such notice
shall specify the place, day and hour of the meeting, and in the case of a
Special Meeting of shareholders, the general nature of the business to be
transacted.
Section 2.5 WAIVER OF NOTICE OF SHAREHOLDERS' MEETINGS:
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Whenever written notice is required to be given by law, by the Articles
or these By-Laws, a written waiver thereof signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Except in the case of a
Special Meeting of shareholders, neither the business to be transacted nor the
purpose of the meeting need be specified in the Waiver of Notice of such
Meeting.
Attendance of a person, either 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 to the transaction of any
business because the meeting was not lawfully called or convened.
Section 2.6 QUORUM FOR SHAREHOLDERS' MEETINGS:
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The presence, in person or by proxy, of the shareholders entitled to
cast a majority of the votes which all shareholders are entitled to cast on a
matter to be voted upon at a meeting of shareholders shall constitute a quorum,
and the acts of such quorum, at a duly organized meeting of shareholders, shall
constitute the acts of all the shareholders. 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 2.7 CONDUCT OF SHAREHOLDERS' MEETINGS:
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Meetings of the shareholders shall be presided over by the Chairman of
the Board, or if he is not present, by the President or, if he is not present,
by a Vice-President or, if none of the Chairman of the Board or the President or
Vice-President is present, by a Chairman to be chosen at the meeting. The
Secretary of the Corporation, or in his absence, an Assistant Secretary or one
temporarily designated as such shall act as Secretary of the meeting.
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Section 2.8 SHAREHOLDERS PARTICIPATION BY TELEPHONE:
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One or more shareholders may participate in any meeting of shareholders
by means of conference telephone or similar communications equipment by means of
which all persons participating in such meeting can hear each other.
Section 2.9 VOTING BY SHAREHOLDERS:
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Except as otherwise provided by law or in the Articles, every
shareholder of record shall have the right, at every shareholders' meeting, to
one vote for every share standing in his name on the books of the Corporation.
Every shareholder entitled to vote at a meeting of shareholders or to express
consent to corporate action in writing without a meeting may authorize another
person or persons to act for him by proxy.
All voting and elections shall be taken viva voce unless a vote by
ballot shall be demanded by a shareholder before the voting or election begins,
or unless otherwise required by law or by the Articles.
Section 2.10 JUDGES OF ELECTION:
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In advance of any meeting of shareholders, the Board of Directors may
appoint Judges of Election, who need not be shareholders, to act at such meeting
or any adjournment thereof. If Judges of Election be not so appointed, the
Chairman of the meeting may, and on the request of any shareholder or his proxy
shall, make such appointment at the meeting. The number of Judges shall be one
or three, and no candidate shall act as a Judge. On request of the Chairman of
the meeting or of any shareholder or his proxy, the Judges shall make a report
in writing of any challenge or question or matter determined by them and execute
a certificate of any fact found by them.
Section 2.11 ADJOURNMENT OF MEETINGS:
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Adjournment of any meeting may be taken, but any meeting at which
Directors are to be elected shall be adjourned only from day to day, or for such
longer periods not exceeding fifteen days each, as may be directed by the
holders of at least a majority of the shares entitled to be voted at an election
of directors, until such Directors have been elected. When a meeting is
adjourned, it shall not be necessary to give any notice of the adjourned meeting
or of the business to be transacted thereat, other than by announcement at the
meeting at which such adjournment is taken. In case of any meeting called for
the election of Directors, those who attend the second of such adjourned
meeting, although less than a quorum, shall nevertheless constitute a quorum for
the purpose of electing Directors.
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Section 2.12. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS:
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(a) Annual Meetings of Shareholders.
(i) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
shareholders at an annual meeting of shareholders may be made (A) pursuant to
the Corporation's notice of meeting, (B) by or at the direction of the Board of
Directors or (C) by any shareholder of the Corporation who was a shareholder of
record at the time of giving of notice provided for in this Section 2.12, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 2.12.
(ii) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (C) of paragraph (a)(i) of
this Section 2.12, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for shareholder action. To be timely, a
shareholder's notice must be received by the Secretary at the principal
executive offices of the Corporation not later than the 60th day nor earlier
than 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 must be so received not earlier than the 90th
day prior to the annual meeting and not later than the later of the 60th day
prior to the annual meeting or the 15th day following the day on which public
announcement of the date of the meeting is first made by the Corporation. In no
event shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period for the giving of a shareholder's
notice as described above. A shareholder's notice shall set forth (A) as to each
person whom the shareholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934 ("Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (B) as to any other
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business that the shareholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (C) as to the shareholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(1) the name and address of such shareholder, as they appear on the
Corporation's books, and of such beneficial owner; (2) the class and number of
shares of the Corporation which are owned beneficially and of record by such
shareholder and such beneficial owner; and (3) a representation that such
shareholder and beneficial owner intend to appear in person or by proxy at the
meeting.
(iii) Notwithstanding anything in paragraph (a)(ii) of this Section
2.12 to the contrary, in the event that the number of directors to be elected to
the Board of Directors of the Corporation at the annual meeting is increased
pursuant to an act of the Board of Directors of the Corporation and there is no
public announcement by the Corporation naming all of the nominees for director
or specifying the size of the increased Board of Directors on or before the date
which is 15 days before the latest date by which a shareholder may timely notify
the Corporation of nominations or other business to be brought by a shareholder
in accordance with paragraph (a)(ii) of this Section 2.12, a shareholder's
notice required by this Section 2.12 shall also be considered timely, but only
with respect to nominees for any new positions created by such increase, if it
shall be received by the Secretary at the principal executive offices of the
Corporation not later than the 15th day following the day on which such public
announcement is first made by the Corporation.
(B) SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. 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 (i) by or at the direction of the Board of
Directors or (ii) 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 paragraph (b), who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this paragraph (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
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to such position(s) as specified in the Corporation's notice of meeting, if the
shareholder's notice required by paragraph (a)(ii) of this Section 2.12 shall be
received by the Secretary at the principal executive offices of the Corporation
not earlier than the 90th day prior to such special meeting and not later than
the later of the 60th day prior to such special meeting or the 15th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period for
the giving of a shareholder's notice as described above.
(C) GENERAL.
(i) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.12 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 2.12. Except as otherwise provided by law, the
Certificate of Incorporation or these bylaws, the Chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 2.12 and, if any
proposed nomination or business is not in compliance with this Section 2.12, to
declare that such defective proposal or nomination shall be disregarded.
(ii) For purposes of this Section 2.12, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news 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.
(iii) If the Corporation is required under Rule 14a-8 under the
Exchange Act to include a shareholder's proposal in its proxy statement, such
shareholder shall be deemed to have given timely notice for purposes of this
Section 2.12 with respect to such proposal.
Nothing in this Section 2.12 shall be deemed to affect any rights of
the holders of any series of Preferred Stock to elect directors.
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Section 3.1 BOARD OF DIRECTORS, NUMBER, QUALIFICATION,
ELECTIONS, TERM OF OFFICE AND COMPENSATION:
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The business and affairs of the Corporation shall be managed by a Board
of not less than five (5) nor more than fifteen (15) Directors, as may be fixed
from time to time by the vote of a majority of the whole Board. Directors shall
be of full age, but need not be residents of Pennsylvania or shareholders of the
Corporation.
Any nominee for any vacancy on the Board of Directors which has not
been proposed by this Board of Directors or by the Nomination and Search
Committee of this Board may be proposed by a nominator only if (i) such
nominator is a shareholder of this corporation, (ii) such nominator supplies the
Nomination and Search Committee with such information concerning such candidate
or candidates as would be required to be included in the form of proxy statement
filed with the Securities and Exchange Commission with respect to such nominee,
(iii) the foregoing is sent to the attention of the Nomination and Search
Committee, c/o the Secretary of the Corporation, at least 120 days prior to the
date of the meeting at which such nominee, if permitted to stand for election,
would be voted upon by the shareholders of this Corporation, and (iv) such
proposed nominee has been approved to stand for election by a majority of the
members of the Nomination and Search Committee and by a majority of the Board of
Directors of this Corporation, which approval does not require that he be the
only nominee for a particular vacancy and does not require that such Board or
Committee recommend his election to such vacancy.
The Directors, other than any who may be elected by the holders of
shares of any class or series of stock entitled to elect Directors separately
pursuant to the terms of Articles Fifth of the Articles of Incorporation or any
resolution or resolutions providing for the issuance of such stock adopted by
the Board of Directors shall be classified, with respect to the duration of the
term for which they severally hold office, into three classes as nearly equal as
possible (each, individually a "Three Year Class", and collectively the "Three
Year Classes"). Such Three Year Class which shall be elected at the Annual
Meeting of Shareholders held in 1993 for a term expiring at the Annual Meeting
of Shareholders to be held in 1996 shall be designated as "Class A"; the second
Three Year Class to be elected at the Annual Meeting of Shareholders held in
1994 for a term expiring at the Annual Meeting of Shareholders to be held in
1997 shall be designated as "Class B"; and the third Three Year Class to be
elected at the Annual Meeting of Shareholders held in 1995 for a term expiring
at the Annual Meeting of Shareholders to be held in 1998 shall be designated as
"Class C". 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 pursuant to this Section 3.1, in order to
ensure that the three Three Year Classes shall be as nearly equal in number of
possible. At each Annual Meeting of Shareholders, the successors of the class of
Directors whose term expires at that meeting shall be elected to hold office for
a term expiring at the Annual Meeting of Shareholders held in the third year
following the year of their election.
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The Board of Directors shall have the authority to fix the compensation
of Directors for their services and to authorize payment for expenses of
attendance at meetings. A Director may also be a salaried officer or employee of
the Corporation.
The Board of Directors may elect a Chairman who shall, when present,
preside at all meetings of the Board of Directors and at all meetings of
shareholders. The Chairman may appoint another member of the Board to preside in
his absence.
Section 3.2 QUORUM FOR DIRECTORS' MEETINGS:
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A majority of the Directors in office shall be necessary to constitute
a quorum for the transaction of business, and the acts of a majority of the
Directors present at a meeting at which a quorum is present shall be the acts of
the Board of Directors. A Director who is present at a meeting shall be counted
in determining the presence of a quorum even though a contract or transaction
between the Corporation and such Director or another business in which such
Director has a financial interest is authorized at the meeting.
Section 3.3 DIRECTORS' CONSENT IN LIEU OF MEETING:
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Any action which may be taken at a meeting of the Board of Directors or
of any Committee thereof may be taken without a meeting if a consent or consents
in writing, setting forth the action so taken, shall be signed by all of the
Directors or the members of the Committee, as the case may be, and shall be
filed with the Secretary of the Corporation. One or more Directors may
participate in a meeting of the Board of Directors or a Committee thereof by
means of a conference telephone or similar communications equipment by means of
which all persons participating in such meeting can hear each other.
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Section 3.4 VACANCIES IN BOARD OF DIRECTORS:
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Except as otherwise provided for or fixed pursuant to the Articles of
Incorporation of the Corporation, newly created directorships resulting from an
increase in the number of Directors, and any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or other cause
shall be filled by the vote of a majority of the remaining members of the Board,
even though less than a quorum. Any person so elected shall hold office for the
remainder of the full term of the class of Directors in which the directorship
was created or the vacancy occurred and until such Director's successor shall
have been elected and qualified. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any incumbent
Director.
Section 3.5 PLACE OF MEETING OF BOARD OF DIRECTORS:
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The meetings of the Board of Directors may be held at such place within
Pennsylvania, or elsewhere, as a majority of the Directors may from time to time
appoint or as may be designated in the notice calling the meeting.
Section 3.6 ORGANIZATION MEETING OF THE BOARD OF DIRECTORS:
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After the election of Directors by the shareholders, the newly elected
Board may meet for the purpose of organization or otherwise:
(a) Immediately following their election, or at such time and place as
shall be fixed by vote of the shareholders at the Annual Meeting (and in either
such case no notice of such meeting to the newly elected Directors shall be
necessary in order legally to constitute the meeting, provided a majority of the
whole Board shall be present); or
(b) At such time and place as may be fixed by consent in writing of all
the Directors.
Section 3.7 REGULAR MEETINGS OF THE BOARD OF DIRECTORS:
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Regular Meetings of the Board of Directors shall be held at such time
and place as shall be determined by a majority of the Board.
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Section 3.8 SPECIAL MEETINGS OF THE BOARD OF DIRECTORS:
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Special Meetings of the Board of Directors may be called by the
Chairman of the Board, President or Secretary on at least two days' notice to
each Director, either personally or by mail or by facsimile transmission, of the
time and place of such Special Meeting. At the written request of two Directors,
Special Meetings shall be called by the Chairman of the Board or President or
Secretary in like manner and on like notice.
Section 3.9 ADJOURNMENTS OF MEETINGS OF THE BOARD OF DIRECTORS:
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If a meeting of the Board of Directors is adjourned, it shall not be
necessary to give any notice of the adjourned meeting, or of the business to be
transacted at an adjourned meeting, other than by announcement at the meeting at
which such adjournment is taken.
Section 3.10 POWERS OF BOARD OF DIRECTORS:
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A. Organizational Meeting: At the first meeting of the Board of
Directors in each year (at which a quorum shall be present) held next after the
Annual Meeting of shareholders, it shall be the duty of the Board of Directors
to elect or appoint the officers of the Corporation.
B. General Powers: The Board of Directors shall have all the power and
authority granted by law to Directors except as may be specifically excepted by
the Articles or by these By-Laws.
C. Committees: The Board of Directors, by Resolution adopted by a
majority thereof, may designate an Executive Committee and one or more other
committees, each of which shall consist of at least two Directors and such other
Directors as shall be appointed by the Board of Directors to serve as alternate
members of any such Committee to replace any absent or disqualified member at
any Committee Meeting. In the event that any member of any such Committee shall
be absent from or disqualified at such Meeting, the member or members thereof
present at any such 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 any such absent or disqualified member. Any such
Committee shall have and exercise the authority of the Board of Directors in the
management of the business and affairs of the Corporation to the extent provided
in the Resolution creating such Committee.
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Section 3.11 REMOVAL OF DIRECTORS BY SHAREHOLDERS:
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Subject to the right of any class or series of stock entitled to elect
Directors separately, any Director may be removed from office, without assigning
any cause, but only by the affirmative vote of the holders of at least 80
percent of the combined voting power of the then outstanding shares of stock
entitled to vote generally in the election of Directors, voting together as a
single class.
Section 3.12 THE CHAIRMAN OF THE BOARD - POWERS AND DUTIES:
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The Chairman of the Board shall, when present, preside at all meetings
of the Board of Directors and at all meetings of shareholders. Unless otherwise
directed by the Board of Directors, the Chairman of the Board shall have full
power and authority on behalf of the Corporation to attend and act and vote at
any meeting of the shareholders of any corporation in which the corporation may
hold stock, and at any such meeting he shall possess and may exercise any and
all of the rights and powers incident to the ownership of such stock which the
Corporation, as the owner thereof, might have possessed and exercised if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons. He shall also do and perform such
other duties as from time to time may be assigned to him by the Board of
Directors.
Section 4.1 OFFICERS:
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The Officers of the Corporation shall be a Chief Executive Officer, a
President, a Secretary, and a Treasurer, all of whom shall be elected or
appointed by the Board of Directors. The Board of Directors may also elect one
or more Vice-Presidents, one or more Assistant Treasurers and one or more
Assistant Secretaries. Any two or more offices may be held by the same person.
The Board of Directors may at any time also elect or appoint such other
officers, assistant officers and agents as it shall deem necessary and as the
needs of the Corporation may require. Such other officers, assistant officers
and agents shall have such authority and shall perform such duties as from time
to time may be prescribed by the Board of Directors.
The Officers shall be elected each year at the organization meeting of
the Board of Directors, but if not so elected, they, and any assistant officers
or agents the Board of Directors shall desire to appoint, may be elected from
time to time during the year. It shall not be necessary for any officer of the
Corporation to be a Director.
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Section 4.2 THE CHIEF EXECUTIVE OFFICER - POWERS AND DUTIES:
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The Chief Executive Officer shall have responsibility for general
supervision and direction of the business of the Corporation, subject to the
overall supervision of the Board of Directors. Unless otherwise directed by the
Board of Directors, the Chief Executive Officer shall have full power and
authority on behalf of the Corporation to attend and act and vote at any meeting
of the shareholders of any corporation in which the Corporation may hold stock,
and at any such meeting he shall possess and may exercise any and all of the
rights and powers incident to the ownership of such stock which the Corporation,
as owner thereof, might have possessed and exercised if present. Further, unless
otherwise directed by the Board of Directors, the Chief Executive Officer is
authorized to execute in the name of the Corporation contracts and other
documents requiring the signature of the Corporation. He shall also do and
perform such other duties as from time to time may be assigned to him by the
Board of Directors.
Section 4.3 THE PRESIDENT - POWERS AND DUTIES:
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The President shall have responsibility for day-to-day supervision and
direction of the regular business and operations of the Corporation, subject to
the overall supervision of the Board of Directors and the Chief Executive
Officer. Unless otherwise directed by the Board of Directors, the President
shall have full power and authority on behalf of the shareholders of the
Corporation to attend and act and vote at any meeting of the shareholders of any
corporation in which the Corporation may hold stock, and at any such meeting
shall possess and may exercise any and all of the rights and powers incident to
the ownership of such stock which the Corporation, as the owner thereof, might
have possessed and exercised if present. Further, unless otherwise directed by
the Board of Directors, the President is authorized to execute in the name of
the Corporation contracts and other documents requiring the signature of the
Corporation. He shall also do and perform such other duties as from time to time
may be assigned to him by the Board of Directors.
Section 4.4 THE CHIEF OPERATING OFFICER - POWERS AND DUTIES:
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The Chief Operating Officer shall have responsibility for supervision
of the operation of the Corporation, subject to the policies and directions of
the Chief Executive Officer and the Board of Directors. He shall provide for the
proper operation of the corporation and oversee the internal interrelationship
amongst any and all departments of the Corporation, as may be designated from
time to time by the Chief Executive Officer. Further, unless otherwise directed
by the Board of Directors, the Chief Operating Officer is authorized to execute
in the name of the Corporation contracts and other documents requiring the
signature of the Corporation. He shall also do and perform such other duties as
from time to time may be assigned to him by the Board of Directors or the Chief
Executive Officer. Unless otherwise ordered by the Board of Directors, in the
event the office of President is vacant, then in the case of death, disability,
resignation, indeterminate absence or absence exceeding two weeks of the Chief
Executive Officer, the Chief Operating Officer shall perform the duties of the
Chief Executive Officer until the return of the Chief Executive Officer from any
such absence, or until any such disability shall have been removed or a new
Chief Executive Officer shall have been elected.
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Section 4.5 GENERAL PATENT COUNSEL - POWERS AND DUTIES
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The General Patent Counsel shall have the responsibility for the
intellectual property portfolio and the management and enforcement of the
intellectual property of the Corporation, subject to the policies and directions
of the Chief Executive Officer and the Board of Directors. General Patent
Counsel shall manage the day-to-day operation of the Patent Department of the
Corporation, shall act as the chief legal advisor to the Board of Directors and
the Chief Executive Officer in administering the patent and intellectual
property matters of the Corporation, and shall have such powers and shall
perform such duties as may be from time-to-time assigned to him by the Board of
Directors or by the Chief Executive Officer.
Section 4.6 GENERAL COUNSEL - POWERS AND DUTIES
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The General Counsel shall have the responsibility for supervision of
the legal activities of the Corporation, subject to the policies and directions
of the Chief Executive Officer and the Board of Directors. General Counsel shall
manage the day-to-day operation of the Legal Department of the Corporation,
shall act as the chief legal advisor to the Board of Directors, the Chief
Executive Officer and other officers of the Corporation in formulating and
administering the legal policies of the Corporation, and shall have such powers
and shall perform such duties as may be from time-to-time assigned to him by the
Board of Directors or by the Chief Executive Officer.
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Section 4.7 THE VICE-PRESIDENT - POWERS AND DUTIES:
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A Vice-President or Vice-Presidents shall be elected by the Board of
Directors, if the Board of Directors determines that such offices shall be
created. The Vice-President (or, if there are more than one, then each
Vice-President) shall have such powers and shall perform such duties as may from
time to time be assigned to him or them by the Board of Directors or by the
Chairman of the Board or by the President.
Section 4.8 TREASURER - POWERS AND DUTIES:
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The Treasurer shall have the custody of all the funds and securities of
the Corporation which may come into his hands. When necessary or proper (unless
otherwise ordered by the Board of Directors) he shall (a) endorse for collection
on behalf of the Corporation, checks, notes and other obligations, (b) deposit
the same to the credit of the Corporation in such banks or depositaries as the
Board of Directors may designate and (c) sign all receipts and vouchers for
payments made by the Corporation. He shall, at all reasonable times, exhibit his
books and accounts to the Board of Directors of the Corporation upon the request
of any Director, and he shall also, if so directed by the Board of Directors,
annually prepare and submit to the Annual Meeting of the shareholders a full
statement of the assets and liabilities of the Corporation and of its
transactions during the preceding year, and he shall have such other powers and
shall perform such other duties as may be assigned to him from time to time by
the Board of Directors. He shall give such bond for the faithful performance of
his duties as may be required by the Board of Directors.
Section 4.9 ASSISTANT-TREASURER - POWERS AND DUTIES:
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Each Assistant-Treasurer shall have such powers and perform such duties
as may be assigned to him by the Board of Directors.
Section 4.10 SECRETARY - POWERS AND DUTIES:
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Unless otherwise ordered by the Board of Directors, the Secretary shall
keep the minutes of all meetings of the shareholders and of the Board of
Directors in proper minute books to be kept for such purpose, and shall attend
to the giving of all notices by the Corporation, including notices of meetings,
the administration of certificate books, transfer books, the capital stock
ledger and such other books and papers of the Corporation as the Board of
Directors may direct. The Secretary shall in general perform all the duties
incident to the office of Secretary and shall have such other powers and perform
such other duties as may be assigned by the Board of Directors. Absent a
separate appointment by the Board of Directors, the General Counsel of the
Corporation shall serve as the Secretary of the Corporation. In the event the
Board of Directors appoints as Secretary someone other than the General Counsel,
such person shall report to and work under the supervision of the General
Counsel with respect to the duties of the Secretary.
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Section 4.11 ASSISTANT SECRETARY - POWERS AND DUTIES:
----------------------------------------
Each Assistant Secretary shall have such powers and perform such duties
as may be assigned to him or them by the Board of Directors.
Section 4.12 REMOVAL AND VACANCIES:
----------------------
The Board of Directors shall have power to remove any officer from
office at any time and shall also have the power to fill any vacancies in any
office occurring from whatever reason. Such power shall be exercised by a
majority vote of the Directors in office at the time of such removal or vacancy,
although less than a quorum.
Section 5.1 SHARE CERTIFICATES:
-------------------
Every shareholder of record shall be entitled to a share certificate
representing the shares owned by him, provided that the shares represented
thereby shall have been fully paid for. Such share certificate shall be signed
by the Chairman of the Board, President, or a Vice-President, and by the
Secretary or Treasurer except where such share certificate is signed by a
transfer agent or a registrar, in which case the signature of any officer of the
Corporation upon such share certificate may be a facsimile, engraved or printed.
Section 5.2 TRANSFER OF SHARE CERTIFICATES:
-------------------------------
The transfer of a share certificate and the shares represented thereby
shall be made on the books of the Corporation only by the registered owner
thereof or by his attorney duly authorized in writing to make such transfer, and
only upon surrender of such share certificate, which shall be canceled at the
time of transfer.
The Corporation shall be entitled to treat the holder of record of any
share certificate or certificates and the shares represented thereby as the
holder in fact thereof, and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share certificate or
certificates and shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise expressly provided by
law or by the Articles.
Section 5.3 LOST SHARE CERTIFICATE:
-----------------------
The holder of any certificate representing shares of stock of the
Corporation shall immediately notify the Corporation of any mutilation, loss or
destruction thereof, and the Board of Directors may, in its discretion, cause
one or more new certificates for the same number of shares in the aggregate to
be issued to such holder upon the surrender of the mutilated certificate, or in
the case of loss or destruction of the certificate, upon satisfactory proof of
such loss or destruction and deposit of indemnity by bond or otherwise in such
form and amount and with such surety or sureties as the Board of Directors may
require to indemnify the Corporation against loss or liability by reason of the
issuance of such new certificate, but the Board may, in its discretion, refuse
to issue such new certificates save upon the order of some court having
jurisdiction in such matters.
Section 6.1 FISCAL YEAR:
------------
The fiscal year of the Corporation shall be established by the
Board of Directors.
Section 7.1 INDEMNIFICATION:
----------------
(a) The Corporation shall indemnify and hold
harmless to the fullest extent permitted under the Pennsylvania Business
Corporation Law, the Directors' Liability Act (the "DLA") and other applicable
law, as such laws existed on the date this Section 7.1 was adopted by the Board
Of Directors or, except as provided in Section 7.1(f) hereof, as such laws may
thereafter by amended ("Pennsylvania Law"), any person who was or is a party or
was or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation (collectively, for purposes of this Section 7.1 and Section 7.2
hereof, "Proceeding"), by reason of the fact that he is or was or has agreed to
become a director or officer of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director or officer of
another corporation, or if a director or officer of the Corporation, is or was
serving or has agreed to serve at the request of the Corporation as an employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
any such capacity, and may indemnify and hold harmless to the fullest extent
permitted under Pennsylvania Law any person who was or is a party or was or is
threatened to be made a party to such a Proceeding by reason of the fact that he
is or was or has agreed to become an employee or agent of the Corporation, or,
if any employee or agent of the Corporation, is or was serving or has agreed to
serve at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, liability and loss (including, without limitation, attorneys' fees and
disbursements, punitive and other damages, judgments, fines, penalties, excise
taxes assessed with respect to an employee benefit plan, amounts paid or to be
paid in settlement and costs and expenses of any nature) incurred by him in
connection with such Proceeding and any appeal therefrom: PROVIDED, that such
indemnification shall not be made in any case where the act or failure to act
giving rise to the claim for indemnification is determined by a court in a
final, binding adjudication to have constituted willful misconduct or
recklessness.
16
(b) The Corporation may indemnify and hold harmless to the fullest
extent permitted under Pennsylvania Law any person who was or is a party or was
or is threatened to be made a party to any Proceeding, by reason of any of his
actions in a non-official capacity while serving as a director, officer,
employee or agent of the Corporation, against expenses, liability and loss
including, without limitation, attorneys' fees and disbursements, punitive and
other damages, judgments, fines, penalties, excise taxes assessed with respect
to an employee benefit plan, amounts paid or to be paid in settlement and costs
and expenses of any nature incurred by him in connection with such Proceeding
and any appeal therefrom: PROVIDED, that such indemnification shall not be made
in any case where the act or failure to act giving rise to the claim for
indemnification is determined by a court in a final, binding adjudication to
have constituted willful misconduct or recklessness.
(c) The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of guilty or NOLO CONTENDERE, or its equivalent,
shall not, of itself, create a presumption that the persons' conduct constituted
willful misconduct or recklessness.
17
(d) Expenses incurred by a director or officer in defending a
Proceeding shall be paid by the Corporation in advance of the final disposition
of the Proceeding, provided that, if Pennsylvania Law requires, the payment of
such expenses shall be made only upon receipt of an undertaking by or on behalf
of the director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
mandated in this Section 7.1 or otherwise. Expenses incurred by other employees
and agents may be so paid to the extent provided by the Board of Directors, upon
receipt of the foregoing undertaking by or on behalf of the employee or agent.
(e) The indemnification provided by this Section 7.1 shall be in
addition to and not exclusive of any other rights to which those seeking
indemnification may be entitled under Pennsylvania Law, or under any By-Law,
agreement executed by the Corporation, insurance policy, fund of any nature
established by the Corporation, vote of shareholders or disinterested directors
or otherwise. The indemnification so provided by this Section 7.1 or otherwise,
may be granted whether or not the Corporation would have the power to indemnify
such person under any provision of Pennsylvania Law other than the DLA.
(f) The indemnification provisions of this Section 7.1 shall constitute
a contract between the Corporation and each of its directors, officers,
employees and agents who are or may be entitled to indemnification hereunder and
who serve in any such capacity at any time while such provisions are in effect.
Any appeal or modification of the indemnification provisions of this Section 7.1
shall not limit any such person's rights to indemnification (including the
advancement of expenses) then existing or arising out of events, acts or
omissions occurring prior to such repeal or modification, including, without
limitation, the right to indemnification with respect to Proceedings commenced
after such repeal or modification based in whole or in part upon any such event,
act or omission.
(g) The Corporation may create a fund of any nature, which may, but
need not be, under the control of a trustee, or otherwise may secure or insure
in any manner its indemnification obligations, whether arising under or pursuant
to this Section 7.1 or otherwise.
18
(h) The Corporation may purchase and maintain insurance to insure its
indemnification obligations on behalf of any person who is or was or has agreed
to become 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 any expense, liability or loss asserted against him and
incurred by him or on his behalf 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 Section 7.1 or under any
provision of Pennsylvania Law other than the DLA.
(i) The indemnification provided by this Section 7.1 shall 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 a
person.
(j) If Section 7.1 or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director or officer, and may indemnify each employee
or agent of the Corporation, as to expenses, liability and loss (including,
without limitation, attorneys' fees and disbursements, punitive and other
damages, judgments, fines, penalties, excise taxes assessed with respect to an
employee benefit plan, amounts paid or to be paid in settlement and costs and
expenses of any nature) incurred by him in connection with any Proceeding,
including an action by or in the right of the Corporation, to the fullest extent
permitted by any applicable portion of this Section 7.1 that shall not have been
invalidated and to the fullest extent permitted by applicable law.
Section 7.2 LIMITATION ON DIRECTORS' PERSONAL LIABILITY:
-------------------------------------------
(a) To the fullest extent permitted under the DLA, as it existed on the
date this Section 7.2 was adopted or, except as provided in subsection 7.2(e),
as such law may thereafter be amended, a director of this Corporation shall not
be personally liable for monetary damages as a result of any action or failure
to act unless both: (1) the director has breached or failed to perform the
duties of his office under Section 8363 of the DLA: and (2) the breach or
failure to perform constitutes self-dealing, willful misconduct or recklessness.
(b) The provisions of this Section 7.2 shall not apply to: (1) the
responsibility or liability of a director pursuant to any criminal statute: or
(2) the liability of a director for the payment of taxes pursuant to local,
state or federal law.
(c) The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of guilty or NOLO CONTENDERE, or its equivalent,
shall not, of itself, create a presumption that the director breached or failed
to perform the duties of his office under Section 8363 of the DLA and that the
breach or failure to perform constituted self-dealing, willful misconduct or
recklessness.
19
(d) Notwithstanding the date of adoption of this Section 7.2, the
provisions of Section 7.2 shall apply to any action filed or breaches of
performance of duty or any failure of performance of duty by any director on or
after January 27, 1987.
(e) No amendment to or repeal of this Section 7.2 or the relevant
provisions of the DLA shall reduce the limitation on directors' personal
liability for or with respect to any events, acts or omissions of such director
occurring prior to such amendment or repeal, including, without limitation, the
limitation on personal liability with respect to any Proceedings commenced after
such repeal or modification based in whole or in part upon any such event, act
or omission.
Section 8.1 AMENDMENTS TO BY-LAWS:
----------------------
The holders of all the shares outstanding and entitled to vote may, by
a majority vote, make, alter, amend or repeal any provision of these By-Laws at
any Annual or Special Meeting duly convened after notice to the shareholder of
the meeting to be held for such purpose, provided, however, that the affirmative
vote of the holders of at least 80 percent of the combined voting power of all
the then outstanding shares of stock entitled to vote generally in the election
of directors, voting together as a single class shall be required to alter,
amend or repeal Sections 3.1, 3.4, 3.11 or this Section 8.1, or to adopt any
provision inconsistent therewith.
The Board of Directors, by a majority vote of the members thereof, may
make, alter, amend or repeal any provisions of these By-Laws at any Regular or
Special Meeting, duly convened after notice to the Directors of such purpose.
The shareholders shall have the right to change such action by a majority vote
of the shareholders entitled to vote thereon at any Annual Meeting which may be
duly convened for the purpose of changing such action, after notice to the
shareholders entitled to notice thereof, provided, however, that the vote of the
holders of at least 80 percent of the combined voting power of all of the then
outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class, shall be required to change such
action with respect to Sections 3.1, 3.4, 3.11 or this Section 8.1.
20
Section 9.1 CONTROL-SHARE ACQUISITIONS:
---------------------------
Subchapter G - "Control-Share Acquisitions" of Chapter 25 of
Title 15 of the Pennsylvania Consolidated Statutes, as existing on July 18, 1990
or as may thereafter be amended, shall not be applicable to the Corporation.
Section 10.1 DISGORGEMENT BY CERTAIN CONTROLLING
SHAREHOLDERS:
-----------------------------------
Subchapter H - "Disgorgement by Certain Controlling Shareholders
Following Attempts to Acquire Control" of Chapter 25 of Title 15 of the
Pennsylvania Consolidated Statutes, as existing on July 18, 1990 or as may
thereafter be amended, shall not be applicable to the Corporation.
21