EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
PENN TREATY AMERICAN CORPORATION
A Pennsylvania Corporation
(December 3, 1996)
TABLE OF CONTENTS
Page
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ARTICLE I - OFFICES ......................................................... 1
1. Registered Office .............................................. 1
2. Additional Offices ............................................. 1
ARTICLE II - SEAL ........................................................... 1
1. Corporate Seal ................................................. 1
ARTICLE III - SHAREHOLDERS' MEETING ......................................... 1
1. Location of Shareholders Meeting ............................... 1
2. Date of Annual Shareholders Meeting ............................ 1
3. Failure to Hold Annual Meeting ................................. 2
4. Quorum ......................................................... 2
5. Shareholder Action ............................................. 3
6. Proxies ........................................................ 3
7. Voting ......................................................... 4
8. Notice of Annual Meeting of Shareholders ....................... 6
9. Judges of Election ............................................. 7
10. Special Meetings of Shareholders ............................... 7
11. Business Transacted at Special Meetings of Shareholders ........ 8
12. Notice of Special Meetings of Shareholders ..................... 8
13. Shareholders List .............................................. 8
14. Action by Unanimous Consent of Shareholders in Lieu
of a Meeting ................................................. 9
15. Action by Majority Consent of Shareholders in Lieu
of a Meeting ................................................. 9
ARTICLE IV - DIRECTORS ...................................................... 9
1. Number and Class of Directors .................................. 9
2. Removal of Directors; Vacancies ................................ 11
3. Powers of Directors ............................................ 11
4. Location of Meetings of the Board of Directors ................. 11
5. Meetings of the Board of Directors ............................. 11
6. Annual Meetings of the Board of Directors ...................... 12
7. Special Meetings of the Board of Directors ..................... 12
8. Quorum ......................................................... 12
9. Compensation ................................................... 12
10. Standard of Care ............................................... 13
11. Liability of Directors ......................................... 14
12. Tender Offers - Directors Duty ................................. 14
13. Nomination of Board of Directors ............................... 16
ARTICLE V - OFFICERS ........................................................ 17
1. Officers ....................................................... 17
2. Compensation ................................................... 17
3. Term of Office ................................................. 18
4. The Chief Executive Officer .................................... 18
5. The President .................................................. 18
6. The Secretary .................................................. 19
7. The Treasurer .................................................. 19
ARTICLE VI - VACANCIES ...................................................... 20
1. Vacancies ...................................................... 20
ARTICLE VII - CORPORATE RECORDS ............................................. 20
1. Minute Books and Share Register ................................ 20
2. Inspection of Corporate Records ................................ 20
ARTICLE VIII - SHARE CERTIFICATES, DIVIDENDS, ETC. .......................... 21
1. Share Certificates ............................................. 21
2. Transfers of Shares ............................................ 21
3. Record Date .................................................... 21
4. Lost Stock Certificate ......................................... 23
5. Dividends ...................................................... 23
6. Payment of Dividends ........................................... 24
ARTICLE IX - MISCELLANEOUS PROVISIONS ....................................... 24
1. Checks or Demands for Money .................................... 24
2. Fiscal Year .................................................... 24
3. Written Notice ................................................. 24
4. Waiver of Notice ............................................... 25
5. Participation in Meetings by Telephone Conference Call ......... 26
6. Opt-Out Provisions ............................................. 26
ARTICLE X - ANNUAL STATEMENT ................................................ 27
1. Annual Statement ............................................... 27
ARTICLE XI - AMENDMENTS ..................................................... 27
1. Procedure ...................................................... 27
ARTICLE XII - INDEMNIFICATION OF DIRECTORS, OFFICERS
EMPLOYEES AND AGENTS; INSURANCE ............................... 28
1. General Rule ................................................... 28
2. Derivative Actions ............................................. 29
3. Success on Merits .............................................. 30
4. Determination .................................................. 30
5. Advancing Expenses ............................................. 30
6. Not Exclusive of Other Rights .................................. 31
7. Power to Purchase Insurance .................................... 31
8. Creation of a Fund to Secure Indemnification ................... 32
9. Willful Misconduct or Recklessness ............................. 32
10. Authority ...................................................... 32
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AMENDED AND RESTATED
BY-LAWS
OF
PENN TREATY AMERICAN CORPORATION
ARTICLE I - OFFICES
1. Registered Office. The registered office of the Corporation shall be at
0000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000.
2. Additional Offices. The Corporation may also have offices at such other
places as the Board of Directors may from time to time appoint or the business
of the Corporation may require.
ARTICLE II - SEAL
1. Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, PENNSYLVANIA."
ARTICLE III - SHAREHOLDERS' MEETING
1. Location of Shareholders Meeting. Meetings of shareholders may be held
at the registered office of the Corporation or at such other place within or
without the Commonwealth of Pennsylvania as may from time to time be selected by
the Board of Directors.
2. Date of Annual Shareholders Meeting. The annual meeting of the
shareholders, shall be held on the fourth Friday of May in each year if not a
legal holiday, and if a legal holiday, then on the next secular day following at
such time and place as may be specified in the notice thereof, at which time
they shall elect a Board of Directors, and transact such other business as may
properly be brought before the meeting. If the annual meeting is not called and
held within six months after the designated time, any shareholder may call the
meeting at anytime thereafter.
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3. Failure to Hold Annual Meeting. Failure to hold the annual meeting at
the designated time shall not work a dissolution of the Corporation or affect
otherwise valid corporate acts.
4. Quorum. (a) A meeting of the Corporation duly called shall not be
organized for the transaction of business unless a quorum is present. The
presence of shareholders, in person or by proxy, entitled to cast a 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 the
purposes of consideration and action on the matter. The shareholders present, in
person or by proxy, at a duly organized meeting can continue to do business
until adjournment notwithstanding the withdrawal of enough shareholders to leave
less than a quorum. If a meeting cannot be organized because a quorum has not
attended, those shareholders present and entitled to vote may, except as
otherwise provided in this paragraph, adjourn the meeting to such time and place
as they may determine.
(b) Those shareholders entitled to vote, in person or by proxy, who
attend a meeting of shareholders that has been previously adjourned for one or
more periods aggregating at least fifteen days because of an absence of a
quorum, although less than a quorum as fixed in this paragraph or in these
by-laws, 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. When a meeting of
shareholders is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or the business to be transacted at an adjourned meeting,
other than by announcement at the meeting at which the adjournment is taken
unless the Board fixes a new record date for the adjourned meeting.
5. Shareholder Action. Unless otherwise provided in this paragraph or
these by-laws, whenever any corporate action is to be taken by a vote of the
shareholders of the Corporation it shall be authorized by a majority of the
votes cast at a duly organized meeting of the shareholders by the holders of
shares entitled to vote thereon.
6. Proxies. Every shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person to act for
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him by proxy. The presence of, or vote or other action at a meeting of
shareholders, or the expression of consent or dissent to corporate action in
writing, by a proxy of a shareholder shall constitute the presence of, or vote
or action by, or written consent or dissent of the shareholder for the purposes
of this paragraph. 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. Every proxy shall be executed in
writing by the shareholder or by 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 the execution unless a longer time is expressly provided therein. A
proxy shall not be revoked by death or incapacity of the maker unless, before
the vote is counted or the authority is exercised, written notice of the death
or incapacity is given to the Secretary of the Corporation.
7. Voting. (a) Shares of the Corporation standing in the name of a trustee
or other fiduciary and shares held by an assignee for the benefit of creditors
or by a receiver may be voted by the trustee, fiduciary, assignee or receiver. A
shareholder whose shares are pledged shall be entitled to vote the shares until
the shares have been transferred into the name of the pledgee, or a nominee of
the pledgee, but nothing in this paragraph shall affect the validity of a proxy
given to a pledgee or nominee. Where shares of the Corporation are held jointly
or as tenants in common by two or more persons, as fiduciaries or otherwise: (i)
if only one or more such persons is present in person or by proxy, all of the
shares standing in the names of such person shall be deemed to be represented
for the purpose of determining a quorum and the Corporation shall accept as the
vote of all the shares the vote cast by him or a majority of them; and (ii) if
the persons are equally divided upon whether the shares held by them shall be
voted or upon the manner of voting the shares, the voting of the shares shall be
divided equally among the persons without prejudice to the right of the joint
owners or the beneficial owners thereof among
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themselves. If there has been filed with the Secretary of the Corporation a
copy, certified by an attorney at law to be correct, of the relevant portions of
the agreement under which the shares are held or the instrument by which the
trust or estate was created or the order of court appointing them or of any
order of court directing the voting of the shares, the persons specified as
having such voting power in the latest document so filed, and only those persons
shall be entitled to vote the shares but only in accordance therewith.
(b) Any other domestic or foreign corporation for profit or
not-for-profit that is a shareholder of the Corporation may vote by any of its
officers or agents, or by proxy appointed by any officer or agent, unless some
other person, by resolution of the board of directors of the other corporation
or a provision of its articles or by-laws, a copy of which resolution or
provision certified to be correct by one of its officers has been filed with the
Secretary of the Corporation, is appointed its general or special proxy in which
case that person shall be entitled to vote the shares. Shares of a domestic or
foreign corporation for profit or not-for-profit other than a business
corporation, standing in the name of a shareholder that is a business
corporation, may be voted by the persons and in the manner provided for in the
case of business corporations by the foregoing sentence unless the laws of the
jurisdiction in which the issuer of the shares is incorporated require the
shares or memberships to be voted by some other person or persons or in some
other manner in which case, to the extent that those laws are inconsistent
herewith, this paragraph shall not apply. Shares of the Corporation owned,
directly or indirectly, by it and controlled, directly or indirectly, by the
Board of Directors of the Corporation, as such, shall not be voted at any
meeting and shall not be counted in determining the total number of outstanding
shares for voting purposes at any given time.
8. Notice of Annual Meeting of Shareholders. Written notice of the annual
meeting shall be mailed to each shareholder entitled to vote thereat, at such
address as appears on the books of the Corporation, at least five days prior to
the meeting unless a greater period is required by statute in a particular case.
For a meeting called to consider a fundamental change under Chapter 19 of the
Business Corporation Law of 1988, written notice shall be given at least ten
days prior to the meeting.
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9. Judges of Election. 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 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. If appointed at a meeting on the request
of one or more shareholders or proxies, the majority of shares present and
entitled to vote shall determine whether one or three judges are to be
appointed. 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. No person who is a candidate for office shall act as a judge.
10. Special Meetings of Shareholders. Special meetings of the shareholders
may be called at any time by the Board of Directors or by the President. At any
time, upon written request of any person who has called a special meeting, it
shall be the duty of the Secretary to fix the time of the meeting which, if the
meeting is called pursuant to a statutory right, shall be held not more than
sixty days after receipt of the request. If the Secretary neglects or refuses to
fix the time of the meeting, the person or persons calling the meeting may do
so.
11. Business Transacted at Special Meetings of Shareholders. Business
transacted at all special meetings shall be confined to the objects stated in
the call and matters germane thereto.
12. Notice of Special Meetings of Shareholders. Written notice of a
special meeting of shareholders stating the time and place and object thereof,
shall be mailed, postage prepaid, to each shareholder entitled to vote thereat
at such address as appears on the books of the corporation, at least five days
before such meeting, unless a greater period of notice is required by statute in
a particular case. For a meeting called to consider a fundamental change under
Chapter 19 of the Business Corporation Law of 1988, written notice shall be
given at least ten days prior to the meeting.
13. Shareholders List. The office or agent having charge of the transfer
books shall make a complete list of the shareholders entitled to vote at any
meeting of shareholders arranged in alphabetical order, with the address of and
the number of shares held by each. Such list shall be subject to inspection by
any shareholder during the whole time of the meeting.
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14. Action by Unanimous Consent of Shareholders in Lieu of a Meeting. Any
action required or permitted to be taken at a meeting of the shareholders or of
a class of shareholders of the Corporation may be taken if, prior or subsequent
to the action a consent or consents thereto by all the shareholders who would be
entitled to vote at a meeting are filed with the Secretary.
15. Action by Majority Consent of Shareholders in Lieu of a Meeting. If
the Articles so permit, any action required or permitted to be taken at a
meeting of the shareholders may be taken without a meeting upon the written
consent of the shareholders who would have been entitled to cast the minimum
number of votes that would be necessary to authorize the action at a meeting at
which all shareholders entitled to vote thereon were present and voting. Such
consents shall be filed with the secretary of the Corporation. The action shall
not become effective until at least ten days' written notice of the action has
been given to each shareholder entitled to vote thereon who has not consented
thereto.
ARTICLE IV - DIRECTORS
1. Number and Class of Directors. Except as otherwise fixed pursuant to
the provisions of Article Fifth of the Articles of Incorporation relating to the
rights of the holders of any class or series of stock having a preference over
the common stock as to dividends or upon liquidation to election of additional
directors under specified circumstances, the number of directors shall be fixed
at nine (9). The directors shall be natural persons of full age, who need not be
residents of this Commonwealth or shareholders in the Corporation. At the annual
election of directors to be held at the annual meeting of shareholders in 1987,
the directors shall be divided into three (3) classes, as nearly equal as
possible, known as Class I, Class II, and Class III. The initial directors of
Class I shall serve until the 1988 annual meeting of shareholders, at which time
the directors of Class I shall be elected for a term of three (3) years and
shall thereafter be elected every three (3) years for three (3) year terms. The
initial directors of Class II shall serve until the 1989 annual meeting of
shareholders, at which time the directors of Class II shall be elected for a
term of three (3) years and shall thereafter be elected every three (3) years
for three (3) year terms. The initial directors of Class III shall serve until
the 1990 annual meeting of shareholders, at which time the directors of Class
III shall be elected for a term of three (3) years and shall thereafter be
elected
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every three (3) years for three (3) year terms. Each director elected shall hold
office until his or her successor is elected and qualified.
The term "entire Board" as used in these by-laws means the total number of
directors which the Corporation would have if there were no vacancies.
2. Removal of Directors; Vacancies. Any member of the Board of Directors
may be removed for cause only by the affirmative vote of the holders of 67% of
the combined voting power of all shareholders who are entitled to vote for the
election of directors, voting together as a single class. Proper "cause" shall
be determined by the vote of not less than 67% of the entire Board of Directors.
A director elected to fill a vacant position, however created, shall serve for
the remainder of the term of the director he or she is replacing.
3. Powers of Directors. In addition to the powers and authorities by these
by-laws expressly conferred upon them, the Board may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the Articles or by these by-laws directed or required to be exercised or done
by the shareholders.
4. Location of Meetings of the Board of Directors. The meetings of the
Board of Directors may be held at such place within this Commonwealth, 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.
5. Meetings of the Board of Directors. Each newly elected Board may meet
at such place and time as shall be fixed by the shareholders at the meeting at
which such directors are elected and no notice shall be necessary to the newly
elected directors in order to legally constitute the meeting, or they may meet
at such place and time as may be fixed by the consent in writing of all the
directors.
6. Annual Meetings of the Board of Directors. Annual meetings of the Board
shall be held without notice immediately following the annual meeting of the
shareholders, at the registered office of the Corporation, or at such other time
and place as shall be determined by the Board.
7. Special Meetings of the Board of Directors. Special meetings of the
Board may be called by the President on one day's notice to each director,
either personally or by mail or by telegram;
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special meetings shall be called by the President or Secretary in like manner
and on like notice on the written request of two directors.
8. Quorum. 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. If all the directors shall severally or
collectively consent in writing to any action to be taken by the Corporation,
such action shall be as valid a corporate action as though it had been
authorized at a meeting of the Board of Directors.
9. Compensation. Directors as such, shall not receive any stated salary
for their services, but by resolution of the Board, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board, provided that nothing herein contained shall be construed
to preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
10. Standard of Care. 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 upon
which he may serve, in good faith, in a manner he reasonably believes to be in
the best interests of the Corporation, and with such are, 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) Counsel, public accountants or other persons to matters which
the director reasonably believes to be within the professional or expert
competence of such person; and/or
(c) A committee of the Board 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.
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A director shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause his reliance to be
unwarranted.
11. Liability of Directors. A director of the Corporation shall not be
personally liable for monetary damages as such for any action taken, or any
failure to take any action, unless:
(a) the director has breached his duty of good faith or duty of
loyalty or failed to perform the duties of his office; and/or
(b) the breach or failure to perform constitutes self-dealing,
willful misconduct or recklessness.
12. Tender Offers - Directors Duty. (a) The Board of Directors may, if it
deems advisable, oppose a tender offer, or other offer for the Corporation's
securities, whether the offer is in cash or in the securities of a corporation
or otherwise. When considering whether to oppose an offer, the Board of
Directors may, but is not legally obligated to, consider any pertinent issue. By
way of illustration, but not of limitation, the Board of Directors may, but
shall not be legally obligated to, consider any or all of the following:
(i) whether the offer is acceptable based on historical and present
operating results or the financial condition of the Corporation and its
subsidiaries, and their future prospects;
(ii) whether a more favorable offer could be obtained for the
Corporation's, or its subsidiaries,' securities or assets in the future;
(iii) the social, economic or any other material impact which an
acquisition of the Corporation, or substantially all of its assets, would
have upon the employees, insureds and customers of the Corporation and its
subsidiaries and the communities in which they serve;
(iv) the reputation and business practices of the offeror and its
management and affiliates as they would affect the employees, insureds and
customers of the Corporation and its subsidiaries and the future value of
the corporation's stock;
(v) the value of the securities (if any) which the offeror is
offering in exchange for the Corporation's, or its subsidiaries',
securities or assets based on an analysis of the
9
worth of the Corporation, or if its subsidiaries, as compared to the
offeror corporation or other entity whose securities are being offered;
and/or
(vi) any antitrust or other legal or regulatory issues that are
raised by the offer.
(b) If the Board of Directors determines that an offer should be
rejected, it may take any lawful action to accomplish its purposes including,
but not limited to, any or all of the following: advising shareholders not to
accept the offer; litigation against the offeror; filing complaints with all
governmental and regulatory authorities; acquiring the Corporation's securities;
selling or otherwise issuing authorized shares of preferred stock with such
designations, preferences, qualifications, limitations, restrictions and/or
special rights as the Board of Directors deems appropriate; selling or otherwise
issuing authorized but unissued securities or treasury stock or granting options
with respect thereto; acquiring a company to create an antitrust or other
regulatory problem for the offeror; and obtaining a more favorable offer from
another individual or entity.
13. Nomination of Board of Directors. Nominations for election to the
Board of Directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or, subject to the rights of the holders of
preferred stock, by any shareholder of any outstanding class of common stock of
the Corporation entitled to vote for election of directors. Nominations, other
than those made by or on behalf of the Board of Directors of the Corporation,
shall be made in writing and shall be delivered or mailed to the President of
the Corporation not less than fifty (50) days nor more than seventy-five (75)
days prior to any meeting of shareholders called for the election of directors,
provided, however that if less than fifty (50) days' notice of the meeting is
given to shareholders, such nomination shall be mailed or delivered to the
President of the Corporation not later than the close of business on the seventh
day following the day on which the notice of the meeting was mailed. Such
notification shall contain the following information to the extent known to the
notifying shareholder(s): (a) the name and address of each proposed nominee; (b)
the principal occupation of each proposed nominee; (c) the total number of
shares of common stock of the Corporation that will be voted for each proposed
nominee by the notifying shareholder(s); (d) the name and residence address of
the notifying shareholder(s). Nominations not made
10
in accordance herewith shall be disregarded by the chairman of the meeting and
votes cast for such nominee shall not be counted.
ARTICLE V - OFFICERS
1. Officers. The executive officers of the Corporation shall be chosen by
the directors and shall be a Chief Executive Officer, President, Secretary, and
Treasurer. The Board of Directors may also choose one or more Vice-Presidents
and such other officers and agents as it shall deem necessary, who shall hold
their offices for such terms and shall have such authority and shall perform
such duties as from time to time shall be prescribed by the Board. Any two or
more offices may be held by the same person. It shall not be necessary for the
officers to be directors.
2. Compensation. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
3. Term of Office. The officers of the Corporation shall hold office for
one year and until their successors are chosen and shall have qualified. Any
officer elected or appointed by the Board of Directors may be removed by the
Board of Directors whenever in their judgment the best interests of the
Corporation will be served thereby.
4. The Chief Executive Officer. The Chief Executive Officer shall preside
at all meetings of the shareholders and directors. He shall oversee the general
and active management of the Corporation and shall execute bonds, mortgages and
other contracts requiring a seal, under the seal of the Corporation. He shall be
Ex-Officio a member of all committees, and shall have the general powers and
duties of supervision and management usually vested in the office of Chief
Executive Officer of a corporation and shall perform such other duties as from
time to time may be assigned by the Board of Directors.
5. The President. The President shall have general and active management
of the business of the Corporation, shall see that all orders and resolutions of
the Board are carried into effect, subject, however, to the right of the
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. He shall execute bonds, mortgages and other contracts requiring a
seal, under the seal of the Corporation. He shall have
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the general powers and duties of supervision and management usually vested in
the office of President of a corporation and shall perform such other duties as
from time to time may be assigned by the Board of Directors.
6. The Secretary. The Secretary shall attend all sessions of the Board and
all meetings of the shareholders and act as clerk thereof, and record all the
votes of the Corporation and the minutes of all its transactions in a book to be
kept for that purpose; and shall perform like duties for all committees of the
Board of Directors when required. He shall give, or cause to be given, notice of
all meetings of the shareholders and the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors, Chief
Executive Officer or President, and under whose supervision he shall be. He
shall keep in safe custody the corporate seal of the Corporation, and when
authorized by the Board, affix the same to any instrument requiring it.
7. The Treasurer. The Treasurer shall have custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall keep the moneys of
the Corporation in a separate account to the credit of the Corporation. He shall
disburse the funds of the Corporation as may be ordered by the Board, taking
proper vouchers for such disbursements, and shall render to the Chief Executive
Officer, President and directors, at the annual meetings of the Board, or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation.
ARTICLE VI - VACANCIES
1. Vacancies. If the office of any one or more officer or agent becomes
vacant for any reason, the Board of Directors may choose a successor or
successors, who shall hold office for the unexpired term in respect of which
such vacancy occurred.
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ARTICLE VII - CORPORATE RECORDS
1. Minute Books and Share Register. There shall be kept at the registered
office or principal place of business of the Corporation an original or
duplicate record of the proceedings of the shareholders and of the directors,
and the original or a copy of its by-laws, including all amendments or
alterations thereto to date, certified by the Secretary of the Corporation. At
the registered office, principal place of business or at the office of the
Corporation's transfer agent, an original or duplicate share register shall also
be kept giving the names of the shareholders in alphabetical order, and showing
their respective addresses, the number and classes of shares held by each, the
number and date of certificates issued for the shares, and the number and date
of cancellation of every certificate surrendered for cancellation.
2. Inspection of Corporate Records. Every shareholder upon written
verified demand stating the purpose thereof, shall have a right to examine, in
person or by agent or attorney, at any reasonable time or times, for any
reasonable purpose, the share register, books or records of account, and records
of the proceedings of the shareholders and directors, and make extracts
therefrom.
ARTICLE VIII - SHARE CERTIFICATES, DIVIDENDS, ETC.
1. Share Certificates. The share certificates of the Corporation shall be
numbered and registered in the share ledger and transfer books of the
Corporation, as they are issued. Every share certificate may be executed by
facsimile or otherwise on behalf of the Corporation in any manner approved by
the Board of Directors. In case any officer who has signed, or whose facsimile
signature has been placed upon any share certificate shall have ceased to be
such officer because of death, resignation or otherwise before the certificate
is issued, it may be issued by the Corporation with the same effect as if the
officer had not ceased to be such at the date of its issue.
2. Transfers of Shares. Transfers of shares shall be made on the books of
the Corporation upon surrender of the certificates therefor, endorsed by the
person named in the certificate or by attorney, lawfully constituted in writing.
No transfer shall be made inconsistent with the provisions of Article 8 of the
Uniform Commercial Code, and its amendments and supplements.
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3. Record Date. (a) The Board of Directors may fix a time, not more than
ninety days, prior to the date of any meeting of shareholders, or the date fixed
for the payment of any dividend or distribution, or the date for the allotment
of rights, or the date when any change or conversion or exchange of shares will
be made or go into effect, as a record date for the determination of the
shareholders entitled to notice of, or to vote at, any such meeting, or entitled
to receive payment of any such dividend or distribution, or to receive any such
allotment of rights, or to exercise the rights with respect to any such change,
conversion, or exchange of shares. In such case, only such shareholders as shall
be shareholders of record on the date so fixed shall be entitled to notice of,
or to vote at, such meeting, or to receive payment of such dividend, or to
receive such allotment of rights, or to exercise such rights as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation after
any record date fixed, as aforesaid. When a determination of shareholders of
record has been made as provided in this paragraph for purposes of a meeting the
determination shall apply to any adjournment thereof unless the Board of
Directors fixes a new record date for the adjourned meeting.
(b) If a record date is not fixed:
(1) The record date for determining shareholders entitled to
notice of to vote at a meeting of shareholders shall be at the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day immediately
preceding the day on which the meeting is held.
(2) The record date for determining shareholders entitled to
express consent or dissent to corporate action in writing without a
meeting when prior action by the Board of Directors is not necessary,
shall be the close of business on the day on which the first written
consent or dissent is filed with the Secretary.
(3) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
4. Lost Stock Certificate. Any person claiming a share certificate to be
lost or destroyed shall make an affidavit or affirmation of that fact and
advertise the same in such manner as the Board of
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Directors may require, and shall give the Corporation a bond of indemnity with
sufficient surety to protect the Corporation or any person injured by the issue
of a new certificate from any liability or expense which it or they may incur by
reason of the original certificate remaining outstanding, whereupon a new
certificate may be issued of the same tenor and for the same number of shares as
the one alleged to be lost or destroyed, but always subject to the approval of
the Board of Directors.
5. Dividends. Subject to the provisions of Section 1551, the Board of
Directors may, in its discretion, declare and pay dividends and make other
distributions upon the outstanding shares of the Corporation from time to time
and to such extent as they deem advisable, in cash, property or in shares of the
Corporation.
6. Payment of Dividends. Before payment of any dividend there may be set
aside out of the net profits of the Corporation such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interests of the
Corporation, and the directors may abolish any such reserve in the manner in
which it was created.
ARTICLE IX - MISCELLANEOUS PROVISIONS
1. Checks or Demands for Money. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
2. Fiscal Year. The fiscal year shall end the 31st day of December of each
year.
3. Written Notice. Whenever written notice is required to be given to any
person by statute, or by the Articles of Incorporation or these by-laws, it may
be given to such person, either personally or by sending a copy thereof by first
class or express mail, postage pre-paid or by telegram (with messenger service
specified), telex or TWX (with answer back 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
directors, supplied by him to the Corporation for the
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purpose of notice. If the notice is sent by mail, telegraph or courier service,
it shall be deemed to have been given to the person entitled thereto when
deposited in the United States mail or with a telegraph office or courier
service for delivery to that person or, in the case of telex or TWX, when
dispatched. A notice of meeting shall specify the place, day and hour of the
meeting and, in the case of a special meeting, the general nature of the
business to be transacted.
4. Waiver of Notice. Whenever any written notice is required to be given
by statute, or by the Articles or the by-laws of this Corporation, a waiver
thereof in writing, signed by the person or persons entitled to the notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of the notice. Except as otherwise provided by statute and in these
by-laws, neither the business to be transacted at, nor the purpose of, a meeting
need be specified in the waiver of notice of the meeting. In the case of a
special meeting of shareholders, the waiver of notice shall specify the general
nature of the business to be transacted. Attendance of a person either in person
or by proxy, at any meeting shall constitute a waiver of notice of the meeting
except where a person attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting was not lawfully called or convened.
5. Participation in Meetings by Telephone Conference Call. One or more
persons may participate in a meeting of the Board, of a committee of the
incorporators, the Board or of the shareholders, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this paragraph shall constitute presence in person at this meeting.
6. Opt-Out Provisions. The Corporation hereby explicitly opts out of the
provisions of Subchapter H (entitled "Disgorgement by Certain Controlling
Shareholders Following Attempts to Acquire Control") of Act No. 1990-36, 15 Pa.
C.S. 2571-2575 and these provisions shall accordingly not be applicable to the
Corporation. (This amendment to the By-laws was approved by the Board of
Directors on July 19, 1990.) The Corporation hereby explicitly opts out of the
provisions of Subchapter G (entitled "Control Share Acquisitions") of Act No.
1990-36, 15 Pa.C.S. 2561-2567 and these provisions shall
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accordingly not be applicable to the Corporation. (This amendment to the By-laws
was approved by the Board of Directors on July 19, 1990.)
ARTICLE X - ANNUAL STATEMENT
1. Annual Statement. The President and Board of Directors shall present at
each annual meeting a full and complete statement of the business and affairs of
the Corporation for the preceding year. Such statement shall be prepared and
presented in whatever manner the Board of Directors shall deem advisable and
need not be verified by a certified public accountant.
ARTICLE XI - AMENDMENTS
1. Procedure. These by-laws may be altered, amended or repealed, or new
by-laws may be adopted by the Board of Directors, subject always to the power of
the shareholders to change such action, at any regular meeting of the Board of
Directors or at any special meeting of the Board of directors if notice of such
alteration, amendment, repeal or adoption of new by-laws be contained in the
notice of such special meeting; provided that notwithstanding the foregoing, the
provisions of Article IV, paragraphs 1, 2, 10, 11, 12 and 13, Article XII or
this Article XI of these by-laws may be altered, amended, or repealed only upon
the affirmative vote of 67% of the combined voting power of all shareholders who
are entitled to vote thereon, voting as a single class.
ARTICLE XII - INDEMNIFICATION OF DIRECTORS, OFFICERS
EMPLOYEES AND AGENTS; INSURANCE
1. General Rule. Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he is or was a
director, officer, employee, or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified by this Corporation against expenses (including attorneys'
fees)
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judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceedings by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
2. Derivative Actions. Any person who was or is a party, or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by this Corporation
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Corporation; except, however, that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Common Pleas of the county in which the registered
office of the Corporation is located or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Co urt
of Common Pleas or such other court shall deem proper.
3. Success on Merits. To the extent that a director, officer, employee or
agent as above described has been successful on the merits or otherwise in
defense of any action, suit or proceeding
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referred to in paragraph 1 or 2 of this Article or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
4. Determination. Any indemnification under paragraph 1 or 2 of this
Article (unless ordered by a court) shall be made only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in such subparagraph. Such
determination shall be made:
(a) By the vote of the Board of Directors consisting of directors
who were not parties to such action, suit or proceedings; or
(b) If such action is not obtainable, or even if obtainable the vote
of the disinterested directors so directs, by independent legal counsel in a
written opinion, or
(c) By the shareholders.
5. Advancing Expenses. Expenses incurred by an officer, director, employee
or agent in defending a civil or criminal action, suit or proceeding may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation
as authorized in this Article.
6. Not Exclusive of Other Rights. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, 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, and 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.
7. Power to Purchase Insurance. The Corporation may, by action of the
Board of Directors, 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 corporation, partnership, joint venture, trust or other
enterprise
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against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article.
8. Creation of a Fund to Secure Indemnification. The Corporation may
create a fund of any nature, which may, but need not be, under the control of a
trustee, or otherwise secure in any matter its indemnification obligations,
whether arising under or pursuant to this Article or otherwise.
9. Willful Misconduct or Recklessness. Indemnification pursuant to this
Article 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 to have
constituted willful misconduct or recklessness.
10. Authority. Indemnification pursuant to this Article, under any by-law,
agreement, vote of shareholders, members or directors or otherwise, may be
granted for any action taken or any failure to take any action and may be made
whether or not the Corporation would have the power to indemnify the person
under any provision of law except as provided in this Article and whether or not
the indemnified liability arises or arose from any threatened, pending or
completed action by or in the right of the Corporation.
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