<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 22, 1998
REGISTRATION NO. 333-59557
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CELL PATHWAYS HOLDINGS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 2834 23-246900
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
CELL PATHWAYS HOLDINGS, INC.
702 ELECTRONIC DRIVE
HORSHAM, PENNSYLVANIA 19044
TELEPHONE: (215) 706-3800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROBERT J. TOWARNICKI
CHIEF EXECUTIVE OFFICER
CELL PATHWAYS HOLDINGS, INC.
702 ELECTRONIC DRIVE
HORSHAM, PENNSYLVANIA 19044
TELEPHONE: (215) 706-3800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
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JAMES C.T. LINFIELD, ESQ. RICHARD H. TROY STEPHEN M. GOODMAN, ESQ.
REX R. O'NEAL, ESQ. SENIOR VICE PRESIDENT -- CORPORATE MICHAEL J. SHIM, ESQ.
COOLEY GODWARD LLP DEVELOPMENT AND GENERAL COUNSEL MORGAN, LEWIS & BOCKIUS LLP
2595 CANYON BOULEVARD, SUITE 250 CELL PATHWAYS HOLDINGS, INC. 2000 ONE LOGAN SQUARE
BOULDER, COLORADO 80302 702 ELECTRONIC DRIVE PHILADELPHIA, PENNSYLVANIA 19103
(303) 546-4000 HORSHAM, PENNSYLVANIA 19044 (215) 963-5000
(215) 706-3800
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable following the effectiveness of this Registration Statement and the
effective time of (i) the proposed merger (the "Tseng Merger") of Tseng Sub,
Inc. with and into Tseng Labs, Inc. ("Tseng") and (ii) the proposed merger (the
"CPI Merger") of CPI Sub, Inc. with and into Cell Pathways, Inc. ("CPI"), as
described in the Agreement and Plan of Reorganization, dated as of June 23, 1998
(the "Reorganization Agreement"), attached as Appendix A to the Joint Proxy
Statement/Prospectus forming a part of this Registration Statement. The CPI
Merger and the Tseng Merger are referred to herein together as the
"Transactions."
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(a) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law (the "Delaware
Code"), the Registrant has broad powers to indemnify its directors and officers
against liabilities they may incur in such capacities, including liabilities
under the Securities Act of 1933, as amended (the "Securities Act"). Generally,
the Registrant's Bylaws provide that the Registrant will indemnify each of its
directors and officers to the fullest extent not prohibited by Delaware law,
provided that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal proceeding, had no reasonable cause
to believe his or her conduct was unlawful. With respect to a suit brought by or
in the right of the Registrant, indemnification will not be provided for
expenses incurred in connection with any claim, issue or matter as to which such
person shall have been adjudged liable to the Registrant unless and only to the
extent that the Court of Chancery of the State of Delaware 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 Court of Chancery of the State of Delaware or such other court shall
deem proper. The Registrant's Bylaws also provide that CPHI may indemnify
employees and other agents of CPHI who are not directors or officers as set
forth in the Delaware Code.
The Registrant's Certificate of Incorporation provides for the elimination
of liability for monetary damages for breach of the directors' fiduciary duty of
care to the Registrant and its stockholders. These provisions do not eliminate
the directors' duty of care and, in appropriate circumstances, equitable
remedies such an injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
In addition, the Registrant will provide directors' and officers' insurance
to each of its directors and officers.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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<S> <C>
2.1* Agreement and Plan of Reorganization dated as of June 23,
1998 among Cell Pathways, Inc., and Tseng Labs, Inc.
(attached as Appendix A to Joint Proxy
Statement/Prospectus).
3.1* Certificate of Incorporation of Cell Pathways Holdings, Inc.
3.2* Bylaws of Cell Pathways Holdings, Inc.
3.3* Articles of Incorporation of Tseng Labs, Inc.
3.4 By-Laws of Tseng Labs, Inc.
3.5* Sixth Amended and Restated Certificate of Incorporation of
Cell Pathways, Inc. (attached as Appendix B to Joint Proxy
Statement/Prospectus)
4.1* Reference is made to Exhibits 3.1 and 3.2.
4.2* Specimen certificate of Registrant.
5.1* Legal opinion of Cooley Godward LLP.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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<S> <C>
8.1* Tax opinion of Cooley Godward LLP.
8.2* Tax opinion of Morgan, Lewis & Bockius LLP.
10.1* Fourth Amended and Restated Stockholders' Agreement, dated
April 1998, among Cell Pathways, Inc. and the stockholders
listed on the signature pages thereto.
10.2* Lease, dated June 25, 1998, between Cell Pathways, Inc. and
ARE-702 Electronic Drive, L.P.
10.3* 1997 Equity Incentive Plan of Cell Pathways, Inc.
10.4* Form of Incentive Stock Option Agreement.
10.5* 1997 Non-Employee Director Stock Option Plan of Cell
Pathways, Inc.
10.6* Form of Stock Option Agreement.
10.7* 1997 Employee Stock Purchase Plan of Cell Pathways, Inc.(1).
10.8* Employment Agreement, dated November 6, 1997, between Cell
Pathways, Inc. and Brian J. Hayden (1).
10.9* 1995 Stock Award Plan of Cell Pathways, Inc.(1).
10.10* Employment Agreement, dated October 12, 1996, between Cell
Pathways, Inc. and Robert J. Towarnicki(1).
10.11* Employment Agreement, dated February 1, 1993, between Cell
Pathways, Inc. and Rifat Pamukcu(1).
10.12* Memorandum of Employment, dated January 1, 1993, between
Cell Pathways, Inc. and Richard H. Troy(1).
10.13* Agreement, dated June 30, 1994, between Cell Pathways, Inc.
and the Division of Cancer Prevention and Control, National
Cancer Institute(1).
10.14* Amendment to Agreement, dated September 4, 1996, between
Cell Pathways, Inc. and the Division of Cancer Prevention
and Control, National Cancer Institute(1).
10.15* Research and License Agreement, dated June 26, 1991, between
Cell Pathways, Inc. and the University of Arizona, as
amended(1).
10.16* Lease, dated August 9, 1993, between Cell Pathways, Inc. and
WRC Properties, Inc.(1).
10.17* Severance Agreement, dated April 17, 1998, between Tseng
Labs, Inc. and John J. Gibbons.
10.18* Severance Agreement, dated April 17, 1998, between Tseng
Labs, Inc. and Mark Karsch.
10.19* Tseng Labs, Inc. Nonqualified Stock Option Plan.
10.20* Tseng Labs, Inc. 1991 Stock Option Plan.
10.21* Tseng Labs, Inc. 1991 Special Directors Stock Option Plan.
10.22* Tseng Labs, Inc. 1995 Stock Option Plan.
10.23* Asset Purchase Agreement between Tseng Labs, Inc. and ATI
Research, Inc. dated as of December 16, 1997.
10.24* Agreement of Sale and Purchase dated as of August 20, 1998
among Tseng International Labs, Inc. and Liberty Property
Limited Partnership.
22.1* Subsidiaries of Tseng Labs, Inc.
23.1* Consent of Cooley Godward LLP (included in opinions filed as
Exhibits 5.1 and 8.1).
23.2* Consent of Morgan, Lewis & Bockius LLP (included in opinions
filed as Exhibit 8.2).
23.3* Consent of Arthur Andersen LLP
23.4* Consent of Arthur Andersen LLP
23.5* Consent of Janney Montgomery Scott Inc.
24.1* Power of Attorney.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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27.1* Financial Data Schedule as of and for the period ended
December 31, 1997.
27.2* Financial Data Schedule as of and for the period ended June
30, 1998.
99.1* Form of Proxy Card for the Cell Pathways, Inc. Special
Meeting.
99.2* Form of Proxy Card for the Tseng Labs, Inc. Special Meeting.
99.3* Consent of Director Nominee John J. Gibbons.
99.4* Consent of Director Nominee Louis M. Weiner, M.D.
99.5* Consent of Louis M. Weiner, M.D. to being named in the
Registration Statement.
99.6* Consent of Panitch Scharze Jacobs & Nadel, P.C. to being
named in the Registration Statement.
</TABLE>
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* Previously filed.
(1) Filed as an exhibit to Cell Pathways, Inc.'s Registration Statement on Form
S-1, filed October 9, 1997, file number 333-37557, or amendments thereto and
incorporated by reference.
(b) FINANCIAL STATEMENT SCHEDULES.
All other schedules are omitted because they are not required, are not
applicable, or the information is included in the consolidated financial
statements or notes thereto.
ITEM 22. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(2) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
(3) That every prospectus: (i) that is filed pursuant to paragraph (2)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act of 1933 and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the Registration
II-3
<PAGE> 5
Statement and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(4) Insofar as the indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(5) To respond to requests for information that is incorporated by
reference into the Prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form,
within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
Registration Statement through the date of responding to the request.
(6) To supply by means of a post-effective amendment all information
concerning a transaction, and CPI being acquired involved therein, that was not
the subject of and included in the Registration Statement when it became
effective.
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<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post-effective Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Horsham, County of Montgomery, Commonwealth of
Pennsylvania, on the 22nd day of September, 1998.
CELL PATHWAYS HOLDINGS, INC.
By: /s/ ROBERT J. TOWARNICKI
------------------------------------
Robert J. Towarnicki
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-effective Amendment No. 1 to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ROBERT J. TOWARNICKI President, Chief Executive September 22, 1998
- --------------------------------------------------- Officer and Director
Robert J. Towarnicki (principal executive
officer)
/s/ BRIAN J. HAYDEN Chief Financial Officer; September 22, 1998
- --------------------------------------------------- Vice President -- Finance;
Brian J. Hayden Treasurer (principal
financial and accounting
officer)
* Senior Vice President -- September 22, 1998
- --------------------------------------------------- Corporate Development;
Richard H. Troy General Counsel, Secretary
and Director
* Chairman of the Board of September 22, 1998
- --------------------------------------------------- Directors
William A. Boeger
* Director September 22, 1998
- ---------------------------------------------------
Thomas M. Gibson
* Director September 22, 1998
- ---------------------------------------------------
Judith A. Hemberger, Ph.D.
* Director September 22, 1998
- ---------------------------------------------------
Roger J. Quy, Ph.D.
* Director September 22, 1998
- ---------------------------------------------------
Bruce R. Ross
</TABLE>
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SIGNATURE TITLE DATE
--------- ----- ----
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* Director September 22, 1998
- ---------------------------------------------------
Peter G. Schiff
* Director September 22, 1998
- ---------------------------------------------------
Randall M. Toig, M.D.
*By: /s/ ROBERT J. TOWARNICKI
---------------------------------------------
Robert J. Towarnicki
Attorney-in-Fact
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF DOCUMENT PAGE
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<S> <C> <C>
2.1* Agreement and Plan of Reorganization dated as of June 23,
1998 among Cell Pathways, Inc., and Tseng Labs, Inc.
(attached as Appendix A to Joint Proxy
Statement/Prospectus).......................................
3.1* Certificate of Incorporation of Cell Pathways Holdings,
Inc. .......................................................
3.2* Bylaws of Cell Pathways Holdings, Inc. .....................
3.3* Articles of Incorporation of Tseng Labs, Inc. ..............
3.4 By-Laws of Tseng Labs, Inc. ................................
3.5* Sixth Amended and Restated Certificate of Incorporation of
Cell Pathways, Inc. (attached as Appendix B to Joint Proxy
Statement/Prospectus).......................................
4.1* Reference is made to Exhibits 3.1 and 3.2 ..................
4.2* Specimen certificate of Registrant..........................
5.1* Legal opinion of Cooley Godward LLP.........................
8.1* Tax opinion of Cooley Godward LLP...........................
8.2* Tax opinion of Morgan, Lewis & Bockius LLP..................
10.1* Fourth Amended and Restated Stockholders' Agreement, dated
April 1998, among Cell Pathways, Inc. and the stockholders
listed on the signature pages thereto.......................
10.2* Lease, dated June 25, 1998, between Cell Pathways, Inc. and
ARE-702 Electronic Drive, L.P. .............................
10.3* 1997 Equity Incentive Plan of Cell Pathways, Inc. ..........
10.4* Form of Incentive Stock Option Agreement....................
10.5* 1997 Non-Employee Director Stock Option Plan of Cell
Pathways, Inc. .............................................
10.6* Form of Stock Option Agreement..............................
10.7* 1997 Employee Stock Purchase Plan of Cell Pathways,
Inc.(1).....................................................
10.8* Employment Agreement, dated November 6, 1997, between Cell
Pathways, Inc. and Brian J. Hayden(1).......................
10.9* 1995 Stock Award Plan of Cell Pathways, Inc.(1).............
10.10* Employment Agreement, dated October 12, 1996, between Cell
Pathways, Inc. and Robert J. Towarnicki(1)..................
10.11* Employment Agreement, dated February 1, 1993, between Cell
Pathways, Inc. and Rifat Pamukcu(1).........................
10.12* Memorandum of Employment, dated January 1, 1993, between
Cell Pathways, Inc. and Richard H. Troy(1)..................
10.13* Agreement, dated June 30, 1994, between Cell Pathways, Inc.
and the Division of Cancer Prevention and Control, National
Cancer Institute(1).........................................
10.14* Amendment to Agreement, dated September 4, 1996, between
Cell Pathways, Inc. and the Division of Cancer Prevention
and Control, National Cancer Institute(1)...................
10.15* Research and License Agreement, dated June 26, 1991, between
Cell Pathways, Inc. and the University of Arizona, as
amended(1)..................................................
10.16* Lease, dated August 9, 1993, between Cell Pathways, Inc. and
WRC Properties, Inc.(1).....................................
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF DOCUMENT PAGE
- ------- ----------------------- ------------
<S> <C> <C>
10.17* Severance Agreement, dated April 17, 1998, between Tseng
Labs, Inc. and John J. Gibbons..............................
10.18* Severance Agreement, dated April 17, 1998, between Tseng
Labs, Inc. and Mark Karsch..................................
10.19* Tseng Labs, Inc. Nonqualified Stock Option Plan.............
10.20* Tseng Labs, Inc. 1991 Stock Option Plan.....................
10.21* Tseng Labs, Inc. 1991 Special Directors Stock Option Plan...
10.22* Tseng Labs, Inc. 1995 Stock Option Plan.....................
10.23* Asset Purchase Agreement between Tseng Labs, Inc. and ATI
Research, Inc. dated as of December 16, 1997................
10.24* Agreement of Sale and Purchase dated as of August 20, 1998
among Tseng International Labs, Inc. and Liberty Property
Limited Partnership.........................................
22.1* Subsidiaries of Tseng Labs, Inc. ...........................
23.1* Consent of Cooley Godward LLP (included in opinions filed as
Exhibits 5.1 and 8.1).......................................
23.2* Consent of Morgan, Lewis & Bockius LLP (included in opinions
filed as Exhibit 8.2).......................................
23.3* Consent of Arthur Andersen LLP..............................
23.4* Consent of Arthur Andersen LLP..............................
23.5* Consent of Janney Montgomery Scott Inc. ....................
24.1* Power of Attorney...........................................
27.1* Financial Data Schedule as of and for the period ended
December 31, 1997...........................................
27.2* Financial Data Schedule as of and for the period ended June
30, 1998....................................................
99.1* Form of Proxy Card for the Cell Pathways, Inc. Special
Meeting.....................................................
99.2* Form of Proxy Card for the Tseng Labs, Inc. Special
Meeting.....................................................
99.3* Consent of Director Nominee of John J. Gibbons..............
99.4* Consent of Director Nominee Louis M. Weiner, M.D. ..........
99.5* Consent of Louis M. Weiner, M.D. to being named in the
Registration Statement......................................
99.6* Consent of Panitch Scharze Jacobs & Nadel, P.C. to being
named in the Registration Statement.........................
</TABLE>
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* Previously filed.
(1) Filed as an exhibit to Cell Pathways, Inc.'s Registration Statement on Form
S-1, filed October 9, 1997, file number 333-37557, or amendments thereto and
incorporated by reference.
<PAGE> 1
EXHIBIT 3.4
BY-LAWS OF
TSENG LABS, INC.
ARTICLE I
OFFICES AND FISCAL YEAR
Section 1.01. REGISTERED OFFICE. The registered office of the
Corporation for the State of Utah shall be CT Corporation System, 50 West
Broadway, 8th Floor, Salt Lake City, UT 84101-2006 and the registered office of
the corporation in the Commonwealth of Pennsylvania, which is also its principal
office, shall be at 6 Terry Drive, Newtown Commons, Bucks County, Pennsylvania
until otherwise established by an Amendment of the Articles or by the Board of
Directors and a record of such change is filed with the Utah Division of
Corporations and Commercial Code and the Pennsylvania Department of Revenue
Corporation Bureau in the manner provided by law.
Section 1.02. OTHER OFFICE. The Corporation may also have offices at
such other places within or without Utah or Pennsylvania as the Board of
Directors may from time to time appoint or the business of the Corporation may
require.
Section 1.03. FISCAL YEAR. The fiscal year of the Corporation shall
begin the 1st day of January in each year.
ARTICLE II
NOTICE - WAIVERS - MEETINGS GENERALLY
Section 2.01. MANNER OF GIVING NOTICE.
(a) General Rule. Whenever written notice is required to be
given to any person under the provisions of the Utah Revised Business
Corporation Act (the "Corporation Act") or by the Articles or these By-Laws, it
may be given to the person either personally or by sending a copy thereof by
first class or express mail, postage prepaid, or by telegram (with messenger
service specified), telex or TWX (with answer back received) or courier service,
charges prepaid, or by facsimile transmission, to the address (or to the telex,
TWX or facsimile number) of the person appearing on the books of the Corporation
or, in the case of Directors, supplied by the Directors to the Corporation for
the purpose of notice. Written notice shall be deemed to have been given to the
person entitled thereto at the earliest of the date received; five (5) days
after it is mailed; or on the date shown on the return receipt if sent by
registered or certified mail, return receipt requested and signed by or on
behalf of the addressee. Oral notice is effective when communicated. A notice of
meeting shall specify the place, day and hour of the meeting and any other
information required by any other provision of the Corporation Act, the Articles
or these By-Laws.
(b) Adjourned Shareholder Meetings. When a meeting of
Shareholders is adjourned to a different date, time, or place, notice need not
be given of the new date, time, or place other than by announcement at the
meeting at which the adjournment is taken, unless, after the adjournment, the
Board fixes a new record date for the adjourned meeting or the adjournment is
for more than 30 days, in which
<PAGE> 2
case notice of the new date, time and place of the meeting must be given in
accordance with these ByLaws.
Section 2.02 NOTICE OF MEETINGS OF BOARD OF DIRECTORS.
Notice of a regular meeting of the Board of Directors need not be
given. Notice of every special meeting of the Board of Directors shall be given
to each Director orally or in writing at least two (2) days before the time at
which the meeting is to be held. Every such notice shall state the time and
place of the meeting. In the case of a special meeting of Directors, the notice
shall specify the purpose or purposes for which the meeting is called.
Section 2.03 NOTICE OF MEETINGS OF SHAREHOLDERS.
(a) General Rule. Written notice of every meeting of the
Shareholders shall be given by, or at the direction of, the Secretary to each
Shareholder of record entitled to vote at the meeting at least ten (10) days and
not more than sixty (60) days before the meeting date. If the Secretary neglects
or refuses to give notice of a meeting, the person or persons calling the
meeting may do so. In the case of a special meeting of Shareholders, the notice
shall specify the purpose or purposes for which the meeting is called.
Section 2.04. WAIVER OF NOTICE.
(a) Written Waiver. Whenever any notice is required to be
given under the provisions of the Corporation Act, the Articles or these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to the notice and delivered to the Corporation, whether before or after the time
stated therein, shall be deemed equivalent to the giving of the notice.
(b) Waiver By Attendance. Attendance of a person at any
meeting shall constitute a waiver of notice of the meeting and the consideration
of a particular matter at the meeting that is not within the purposes described
in the meeting notice, 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 or, in the case
of a particular matter, a person objects to its consideration when it is
presented.
ARTICLE III
SHAREHOLDERS
Section 3.01. PLACE OF MEETING. All meetings of the Shareholders of the
Corporation shall be held at the principal office of the Corporation in
Pennsylvania unless another place is designated by the Board of Directors in the
notice of a meeting.
Section 3.02. ANNUAL MEETING. The Board of Directors may fix the date
and time of the annual meeting of the Shareholders, but if no such date and time
is fixed by the Board, the meeting for any calendar year shall be held on the
third Tuesday of August in such year, if not a legal holiday under the laws of
Pennsylvania and, if a legal holiday, then on the next succeeding business day,
not a Saturday, at 10 o'clock a.m., and at said meeting the Shareholders then
entitled to vote shall elect Directors and shall transact such other business as
may properly be brought before the meeting. If the annual meeting shall not have
been called and held within six months after the designated time, any
Shareholder may call the
2
<PAGE> 3
meeting at any time thereafter. At least one meeting of the Shareholders shall
be held in each calendar year for the election of Directors.
Section 3.03. SPECIAL MEETINGS.
(a) Call of Special Meetings. Special meetings of the
Shareholders may be called at any time by the Board of Directors, or by the
holders of stock representing at least ten percent (10%) of the votes entitled
to be cast on any issue proposed to be considered at the proposed special
meeting by delivering to the Corporation's Secretary a signed, written demand
for the meeting, stating the purpose or purposes for which it is to be held.
(b) Fixing Of Time For Meeting. Upon receipt of a written
request for a special meeting, it shall be the duty of the Secretary to fix the
time of the meeting which shall be held not more than 60 days after the receipt
of the request at the Corporation's principal office or such other place as
designated by the Board of Directors. If the Secretary neglects or refuses to
fix a time of the meeting, the person or persons calling the meeting may do so.
Section 3.04. QUORUM AND ADJOURNMENT.
(a) General Rule. A meeting of Shareholders of the Corporation
duly called shall not be organized for the transaction of business unless a
quorum is present. The presence of Shareholders entitled to cast a majority of
the votes that all Shareholders are entitled to cast on a particular matter to
be acted upon at the meeting shall constitute a quorum for the purposes of
consideration and action on the matter.
(b) Withdrawal Of A Quorum. Once a share is represented for
any purpose at a meeting, including for determining that a quorum exists, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting, unless a new record date is or must be set for that
adjourned meeting.
Section 3.05. ACTION BY SHAREHOLDERS.
(a) General Rule. If a quorum exists, action on a matter,
other than the election of Directors, taken by vote of the shareholders, shall
be approved if the votes cast in favor of the action exceed the votes cast
opposing the action, unless the Articles of Incorporation or the Corporation Act
or these By-Laws provide otherwise.
(b) Election of Directors. At each election of Directors,
every shareholder entitled to vote at the election has the right to cast, in
person or by proxy, all of the votes to which the shareholder's shares are
entitled for as many persons as there are Directors to be elected and for whose
election the shareholder has the right to vote. Directors are elected by a
plurality of the votes cast by the shares entitled to vote in the election, at a
meeting of shareholders at which a quorum is present. A "plurality" means that
the individuals with the largest number of votes are elected as Directors up to
the maximum number of Directors to be chosen at the election pursuant to the
most recent Resolution adopted by the Directors.
Section 3.06. VOTING RIGHTS OF SHAREHOLDERS. Every Shareholder of the
Corporation shall be entitled to one vote for every share standing in the name
of the Shareholder on the books of the Corporation.
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Section 3.07. VOTING AND OTHER ACTION BY PROXY.
(a) General Rule. A shareholder may vote his or her shares in
person or by proxy. The presence of, or vote or other action at a meeting of
Shareholders, or the expression of consent or dissent to a specific 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.
(b) Execution and Filing. Every proxy shall be executed in
writing by the Shareholder or by the duly authorized Attorney-in-Fact of the
Shareholder and filed with the Secretary of the Corporation. A telegram, telex,
cablegram, datagram or similar transmission from a Shareholder or
Attorney-In-Fact, or a photographic, facsimile or similar reproduction of a
writing executed by a Shareholder or Attorney-In-Fact:
(1) May be treated as properly executed for purposes
of this Section; and
(2) Shall be so treated if it sets forth a
confidential and unique identification
number or other mark furnished by the Corporation to the Shareholder for the
purposes of a particular meeting or transaction.
Section 3.08. DETERMINATION OF SHAREHOLDERS OF RECORD. The Board of
Directors may fix a time prior to the date of any meeting of Shareholders as a
record date for the determination of the Shareholders entitled to notice of, or
to vote at, the meeting, which time, except in the case of an adjourned meeting,
shall be not more than 70 days prior to the date of the meeting of Shareholders.
Only Shareholders of record on the date fixed shall be so entitled
notwithstanding any transfer of shares on the books of the Corporation after any
record date fixed as provided in this subsection. The Board of Directors may
similarly fix a record date for the determination of Shareholders of record for
any other purpose. When a determination of Shareholders of record has been made
as provided in this Section for purposes of a meeting, the determination shall
apply to any adjournment thereof unless the Board fixes a new record date for
the adjourned meeting, which it must do if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
Section 3.09 SHAREHOLDER'S LIST. The Officer or agent having charge of
the transfer books for shares of the Corporation shall make a complete list of
the shareholders entitled to vote at any meeting of the shareholders, arranged
in alphabetical order, with the address of, and the number of shares held by,
each shareholder. The list shall be prepared and available for inspection by any
shareholder, during regular business hours, beginning on the earlier of ten (10)
days before the meeting for which the list was prepared or two (2) business days
after notice of the meeting is given and continuing through the meeting and any
adjournments thereof, at the Corporation's principal office. The list shall also
be made available at the meeting and shall be subject to inspection by any
shareholder or his or her agent, designated in writing, during the meeting or
any adjournment.
Section 3.10. CONSENT OF SHAREHOLDERS IN LIEU OF MEETING.
(a) Unanimous Written Consent. Any action required or
permitted to be taken at a meeting of the Shareholders may be taken without a
meeting and without prior notice if, prior or subsequent to the action, a
consent or consents thereto by all of the Shareholders who would be entitled to
vote at a meeting for such purpose shall be filed with the Secretary of the
Corporation. The effective
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date of the Shareholder action so approved may be any date specified in the
written consents as the effective date.
(b) Partial Written Consent. Any action required or permitted
to be taken at a meeting of the Shareholders, other than the election of
Directors, may be taken without a meeting upon the written consent of
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. The consents must
be filed with the Secretary of the Corporation and received by it within a sixty
(60) day period in order for the action to be effective. The action shall not
become effective until the last written consent necessary to effect the action
is received by the Corporation, and the action shall not be consummated until
after at least ten (10) days written notice of the action has been given to each
Shareholder entitled to vote thereon who has not consented thereto.
(c) Revocation of Consent. Any shareholder giving a written
consent may revoke the consent by a signed writing describing the action and
stating that the Shareholder's prior consent is revoked, if the writing is
received by the Corporation prior to the effectiveness of the action.
ARTICLE IV
BOARD OF DIRECTORS
Section 4.01. POWERS, NOTATION OF DISSENT, AND QUALIFICATIONS.
(a) General Rule. Unless otherwise provided by the Corporation
Act all powers vested by law in the Corporation shall be exercised by or under
the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the Board of Directors.
(b) Notation Of Dissent. A Director who is present at a
meeting of the Board of Directors, or of a committee of the Board, at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless his or her dissent is entered in the minutes of the
meeting or unless the Director files a written dissent to the action with the
Secretary of the meeting before the adjournment thereof or transmits the dissent
in writing to the Secretary of the Corporation immediately after the adjournment
of the meeting. The right to dissent shall not apply to a Director who voted in
favor of the action. Nothing in this Section shall bar a Director from asserting
that minutes of the meeting incorrectly omitted his or her dissent if, promptly
upon receipt of a copy of such minutes, the Director notifies the Secretary in
writing, of the asserted omission or inaccuracy.
(c) Qualifications. Each Director of the Corporation shall be
a natural person of full age who need not be a resident of Pennsylvania or a
Shareholder of the Corporation.
Section 4.02. QUALIFICATION AND SELECTION OF DIRECTORS.
(a) Election of Directors. Except as otherwise provided in
these By-Laws, Directors of the Corporation shall be elected by the
Shareholders. In elections for Directors, voting need not be by ballot, except
upon demand made by a Shareholder entitled to vote at the election and before
the voting begins. The candidates receiving the highest number of votes shall be
elected.
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Section 4.03. NUMBER AND TERM OF OFFICE.
(a) Number and Term. The Board of Directors shall consist of
such number of Directors, not less than 3 nor more than 9, as may be determined
from time to time solely pursuant to a Resolution adopted by the Board of
Directors. Each Director shall hold office until the next annual meeting of
shareholders and until a successor has been selected and qualified or until his
or her earlier death, resignation or removal.
(b) Resignation. Any Director may resign at any time upon
written notice to the Corporation. The resignation shall be effective upon
receipt thereof by the Corporation or at such subsequent time as shall be
specified in the notice of resignation.
Section 4.04. VACANCIES.
(a) General Rule. Vacancies in the Board of Directors,
including vacancies resulting from an increase in the number of Directors
pursuant to a Resolution adopted by the Directors, may be filled by a majority
vote of the remaining members of the Board though less than a quorum, or by a
sole remaining Director. Each person so selected shall serve until the next
Shareholder's Meeting at which Directors are elected and until a successor has
been selected and qualified or until his or her earlier death, resignation or
removal. A vacancy that will occur at a specific later date may be filled before
the vacancy occurs, but the new Director may not take office until the vacancy
occurs.
Section 4.05. REMOVAL OF DIRECTORS.
(a) Removal By The Shareholders. The Shareholders may remove
one or more Directors with or without cause if the number of votes cast to
remove the Director(s) exceeds the number of votes cast against removal. In case
one or more Directors are so removed, new Director(s) may be elected at the same
meeting. A Director may be removed by the Shareholders only at a meeting, for
which notice stating said purpose has been given.
Section 4.06. PLACE OF MEETINGS. Meetings of the Board of Directors may
be held at such place within or without the state in which its principal office
is located as the Board of Directors may from time to time designate or as may
be designated in the notice of the meeting.
Section 4.07. ORGANIZATION OF MEETINGS. At every meeting of the Board
of Directors, the Chairman of the Board, if there be one, or, in the case of a
vacancy in the office or absence of the Chairman of the Board, one of the
following Officers present in the order stated: the President, the Executive
Vice President/Chief Operating Officer, the Vice Presidents in their order of
rank and seniority, or a person chosen by a majority of the Directors present,
shall act as Chairman of the meeting. The Secretary or, in the absence of the
Secretary, an Assistant Secretary, or, in the absence of the Secretary and the
Assistant Secretaries, any person appointed by the Chairman of the meeting,
shall act as Secretary.
Section 4.08. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by the President, Executive Vice
President/Chief Operating Officer or by two or more of the Directors.
Section 4.09. QUORUM OF AND ACTION BY DIRECTORS.
(a) General Rule. A majority of the Directors in office of the
Corporation immediately before the meeting begins shall be necessary to
constitute a quorum for the transaction of business and the
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acts of a majority of the Directors present and voting at a meeting at which a
quorum is present shall be the acts of the Board of Directors.
(b) Action By Written Consent. Any action required or
permitted to be taken at a meeting of the Directors may be taken without a
meeting if, prior or subsequent to the action, a consent or consents thereto by
all of the Directors in office is filed with the Secretary of the Corporation.
Section 4.10. EXECUTIVE AND OTHER COMMITTEES.
(a) Establishment And Powers. The Board of Directors may, by
resolution adopted by a majority of the Directors in office when the action is
taken, establish one or more committees to consist of two or more Directors of
the Corporation who serve at the pleasure of the Board. Any committee shall have
and may exercise such powers and authority as may be vested in it by the Board
of Directors.
(b) Alternate Committee Members. The Board may designate one
or more Directors as alternate members of any committee who may replace any
absent or disqualified member at any meeting of the committee or for the
purposes of any written action by the committee. In the absence or
disqualification of a member and alternate member or members of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
Director to act at the meeting in the place of the absent or disqualified
member.
(c) Committee Procedures. The term "Board of Directors" or
"Board", when used in any provision of these By-Laws relating to the
organization or procedures of or the manner of taking action by the Board of
Directors, shall be construed to include and refer to any executive or other
committee of the Board.
Section 4.11. COMPENSATION. The Board of Directors shall have the
authority to fix the compensation of the Directors for their services as
Directors.
ARTICLE V
OFFICERS
Section 5.01. OFFICERS GENERALLY.
(a) Number, Qualification and Designation. The Officers of the
Corporation shall be a President, an Executive Vice President/Chief Operating
Officer, one or more additional Vice Presidents, Secretary, Treasurer and such
other Officers as may be elected in accordance with the provisions of Section
5.03. Officers may but need not be Directors or Shareholders of the Corporation,
and shall be natural persons of full age.
(b) Resignations. Any Officer may resign at any time upon
written notice to the Corporation. The resignation shall be effective upon
receipt thereof by the Corporation or at such subsequent time as may be
specified in the notice of resignation.
Section 5.02. ELECTION AND TERM OF OFFICE. The Officers of the
Corporation, except those elected by delegated authority pursuant to Section
5.03, shall be elected annually by the Board of Directors, and each such Officer
shall hold office until the next meeting of the Board of Directors at which
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Officers are elected, and until a successor has been selected and qualified or
until his or her earlier death, resignation or removal.
Section 5.03. SUBORDINATE OFFICERS, COMMITTEES AND AGENTS. The Board of
Directors may from time to time elect such other Officers and appoint such
committees, employees or other agents as the business of the Corporation may
require, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these By-Laws or as the Board of
Directors may from time to time determine. The Board of Directors may delegate
to any Officer or committee the power to elect subordinate Officers and to
retain or appoint employees or other agents, or committees thereof and to
prescribe the authority and duties of such subordinate Officers, committees,
employees or other agents.
Section 5.04. REMOVAL OF OFFICERS. Any Officer of the Corporation may
be removed by the Board of Directors with or without cause.
Section 5.05. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause, shall be filled by
the Board of Directors or by the Officer or committee to which the power to fill
such office has been delegated pursuant to Section 5.03, as the case may be, and
if the office is one for which these By-Laws prescribe a term, shall be filled
for the unexpired portion of the term.
Section 5.06. AUTHORITY. All Officers of the Corporation, as between
themselves and the Corporation, shall have such authority and perform such
duties in the management of the Corporation as may be provided by or pursuant to
resolution or orders of the Board of Directors or in the absence of controlling
provisions in the resolutions or orders of the Board of Directors, as may be
determined by or pursuant to these By-Laws.
Section 5.07. PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation and, subject to the control of the Directors, shall
in general supervise and control all of the business and affairs of the
Corporation. He or she may, when present, preside at all meetings of the
stockholders and of the Directors. He or she may sign, with the Executive Vice
President/Chief Operating Officer or any other proper Officer of the Corporation
thereunto authorized by the Directors, certificates for shares of the
Corporation, any deeds, mortgages, bonds, contracts, or other instruments which
the Directors have authorized to be executed, except in cases where the signing
and execution thereof shall be expressly delegated by the Directors or by these
By-Laws to some other Officer or agent of the Corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties originally incident to the office of President and such other duties as
may be prescribed by the Directors from time to time.
Section 5.08 EXECUTIVE VICE PRESIDENT. There shall be an Executive Vice
President, who shall be the Chief Operating Officer for the Corporation. In the
absence of the President, at his direction or in event of his or her death,
inability or refusal to act, the Executive Vice President/Chief Operating
Officer shall perform the duties of the President and when so acting, shall have
all the powers of and be subject to all the restrictions upon the President. The
Executive Vice President/Chief Operating Officer shall perform such other duties
as from time to time may be assigned to him or her by the President or by the
Directors.
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Section 5.09 VICE PRESIDENT. There may be one or more additional Vice
Presidents, who may be an Executive Vice President, and who shall perform such
duties as from time to time may be assigned to him or her by the President or
Executive Vice President/Chief Operating Officer.
Section 5.10 SECRETARY. The Secretary shall keep the minutes of the
Stockholders' and of the Directors' meetings in one or more books provided for
that purpose, see that all notices are duly given in accordance with the
provisions of these By-Laws or as required, be custodian of the corporate
records and of the seal of the Corporation and keep a register of the post
office address of each stockholder which shall be furnished to the Secretary by
such stockholder or the agent of such stockholder, have general charge of the
stock transfer books of the Corporation and in general perform all duties
incident to the Office of Secretary and such other duties as from time to time
may be assigned to him or her by the President, Executive Vice President/Chief
Operating Officer or by the Directors.
Section 5.11 TREASURER. If required by the Directors, the Treasurer
shall give a bond from the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Directors shall determine. He or she
shall have charge and custody of and be responsible for all funds and securities
of the Corporation; receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit all such monies in the name
of the Corporation in such banks, trust companies or other depositories as shall
be selected in accordance with these By-Laws and in general perform all of the
duties incident to the Office of Treasurer and such other duties as from time to
time may be assigned to him or her by the President, Executive Vice
President/Chief Operating Officer or by the Directors.
Section 5.12 SALARIES. The salaries of the Officers elected by the
Board of Directors shall be fixed from time to time by the Executive
Compensation Committee of the Board of Directors. The salaries or other
compensation of any other Officers, employees and other agents shall be fixed
from time to time by the Officer or committee to which the power to elect such
Officers or to retain or appoint such employees or other agents has been
delegated pursuant to Section 5.03. No Officer shall be prevented from receiving
such salary or other compensation by reason of the fact that the Officer is also
a Director of the Corporation.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER, ETC.
Section 6.01. SHARE CERTIFICATES. The Corporation may provide for
certificated or uncertificated shares, in such form as approved by the Board of
Directors, and as permitted by the Corporation Act. Certificates for shares of
the Corporation shall state that the Corporation is incorporated under the laws
of Utah, the name of the person to whom issued, and the number and class of
shares and the designation of the series (if any) that the certificate
represents. The share register or transfer books and blank share certificates,
as well as records of and relating to uncertificated shares, shall be kept by
the Secretary or by any Transfer Agent or Registrar designated by the Board of
Directors for that purpose.
Section 6.02. ISSUANCE. Uncertificated shares shall be in the form, be
recorded upon, and identified among appropriate records as being issued pursuant
to and in accordance with the applicable laws, rules and regulations governing
such matters, including, without limitation, any exchange upon which the shares
are listed. Share certificates of the Corporation shall be numbered and
registered in the share register or transfer books of the Corporation as they
are issued. They shall be signed by the President and by the Secretary or by
such other Officers authorized by the Board of Directors; but where such
certificate is signed by a Transfer Agent or a Registrar the signature of any
corporate Officer upon such certificate
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may be a facsimile, engraved or printed. In case any Officer who has signed, or
whose facsimile signature has been placed upon, any share certificate shall have
ceased to be such Officer because of death, resignation or otherwise, before the
certificate is issued, it may be issued with the same effect as if the Officer
had not ceased to be such at the date of its issue. The provisions of this
Section 6.02 shall be subject to any inconsistent or contrary agreement at the
time between the Corporation and any Transfer Agent or Registrar.
Section 6.03. TRANSFER. Transfers of certificated shares shall be made
on the share register or transfer books of the Corporation upon surrender of the
certificate therefor, endorsed by the person named in the certificate or by an
attorney lawfully constituted in writing, and transfers of uncertificated shares
shall be made upon the receipt of such written documentation, executed by the
shareholder or agent, as is reasonably required by the Corporation, and the
transfer shall be recorded in such records maintained for such purpose.
Section 6.04. RECORD HOLDER OF SHARES. The Corporation shall be
entitled to treat the person in whose name any share or shares of the
Corporation stand on the book or records of the Corporation as the absolute
owner thereof, and shall not be bound to recognize any equitable or other claim
to, or interest in, such share or shares on the part of any other person.
Section 6.05. LOST, DESTROYED OR MUTILATED CERTIFICATES. The holder of
any shares of the Corporation shall immediately notify the Corporation of any
loss, destruction or mutilation of the certificate therefor, and the Board of
Directors may, in its discretion, cause a new certificate or certificates to be
issued to such holder, in case of mutilation of the certificate, upon the
surrender of the mutilated certificate or, in case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction and, if the
Board of Directors shall so determine, the deposit of a bond in such form and in
such sum, and with such surety or sureties, as it may direct.
ARTICLE VII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 7.01 SCOPE OF INDEMNIFICATION.
(a) General Rule. The Corporation shall indemnify each Officer
and Director, who was or is a party to any proceeding by reason of the fact that
he or she is or was an Officer or Director of the Corporation, against liability
incurred in the proceeding, if he or she acted in good faith, and in a manner he
or she reasonably believed to be in or not opposed to the best interest of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful, except that:
(i) No indemnification may be provided in connection
with any proceeding by or in the right of the Corporation in which the Officer
or Director was adjudged liable to the Corporation;
(ii) Unless otherwise ordered by a court of competent
jurisdiction, no indemnification may be provided in connection with any other
proceeding charging that the Officer or Director derived an improper personal
benefit, whether or not involving action in his or her official capacity, in
which proceeding he or she was adjudged liable on the basis that he or she
derived an improper personal benefit; and
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(iii) In connection with a proceeding by or in the
right of the Corporation, indemnification is limited to reasonable expenses
incurred in connection with the proceeding.
Section 7.02 NO PRESUMPTIONS FROM ADVERSE OUTCOME. The termination of a
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or an equivalent termination adverse to an Officer or Director is
not, of itself, determinative that the Officer or Director did not meet the
standard of conduct described in Section 7.01.
Section 7.03 MANDATORY INDEMNIFICATION. The Corporation shall indemnify
an Officer or Director who has been successful on the merits or otherwise in
defense of any proceeding, or in defense of any claim, issue, or matter in the
proceeding, to which he or she was a party because he or she was an Officer or
Director of the Corporation, against reasonable expenses he or she incurred in
connection with the proceeding or claim with respect to which he or she has been
successful.
Section 7.04 ADVANCE OF EXPENSES. The Corporation shall pay for or
reimburse the reasonable expenses incurred by an Officer or Director, who is a
party to a proceeding because he or she is or was an Officer or Director, in
advance of final disposition of the proceeding if:
(a) The Officer or Director furnishes to the Corporation
written affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct described in Section 7.01; and
(b) The Officer or Director furnishes to the Corporation a
written undertaking, executed personally or on his or her behalf to repay the
advance if it is ultimately determined that he or she did not meet the requisite
standard of conduct described in Section 7.01; and
(c) A determination is made in accordance with Section 7.05
that the facts then known to those making the determination would not preclude
indemnification under this Article or applicable law.
The Corporation shall also pay or reimburse the reasonable expenses
incurred by a Director or Officer in connection with said person's appearance as
a witness in a proceeding, at a time when the Officer or Director has not been
made a named defendant or respondent therein but is testifying by reason of his
or her position with the Corporation.
Section 7.05 INDEMNIFICATION DETERMINATIONS. Indemnification under
Section 7.01 of this Article shall be made by the Corporation only upon a
determination that in the specific case the Officer or Director is eligible
under the circumstances for indemnification because he or she has met the
applicable standard of conduct set forth in Section 7.01. The aforesaid
determination and that required by Section 7.04(c) shall be made:
(a) By a majority vote of the Directors present at a board of
Directors meeting at which a quorum is present, not counting for purposes of
satisfying the quorum those Directors who are a party to the proceeding; or
(b) If such a quorum cannot be obtained, by a majority vote of
a committee of the Board of Directors designated by the board and consisting of
two or more Directors who are not parties to the proceeding; or
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(c) By a majority of the votes entitled to be cast by holders
of qualified shares present in person or by proxy at a meeting at which a quorum
is present. For this purpose a majority of the votes entitled to be cast by the
holders of all qualified shares constitutes a quorum.
Section 7.06 INSURANCE. The Corporation may purchase and maintain
liability insurance on behalf of a person who is or was an Officer or Director
of the Corporation against liability asserted against or incurred by him or her
other in that capacity arising from his or her status as such, whether or not
the Corporation would have power to indemnify such person against the same
liability under this Article or applicable law.
Section 7.07 CHOICE OF LAWYER. Any Officer of Director named in a
proceeding by reason of the fact that he or she is or was an Officer or Director
may select his or her own counsel to represent him or her in the proceeding, and
shall not be obligated to use the counsel selected to represent the Corporation.
Any expense (including attorney's fees and costs) of such separate
representation not covered by an applicable insurance policy shall be borne by
the Officer or Director, unless a conflict of interest exists such that
independent representation of the affected Officer or Director is required, in
which case such expense shall be borne by the Corporation subject to the
provisions of this Article VII. Any affected Officer or Director may, at his or
her own expense, secure independent counsel to make the determination whether a
conflict of interest exists. If a dispute as to the existence of a conflict
arises between the Corporation and the affected Officer or Director, the matter
shall be submitted for an opinion to the Pennsylvania Bar Association's Legal
Ethics Committee, whose opinion shall be binding.
Section 7.08 DEFINITIONS. For purposes of this Article:
(a) "Officer" or "Director" means an individual who is or was
serving in the indicated relationship to the corporation or an individual who,
while serving in the indicated relationship to the Corporation, was serving at
the Corporation's request or for its benefit in the capacity of Director,
Officer, partner, trustee, employee, fiduciary, or agent of another domestic or
foreign entity or other person or of an employee benefit plan. Unless the
context requires otherwise, "Officer" or "Director" includes the estate or
personal representative of such person;
(b) "Expenses" include counsel fees.
(c) "Liability" means the obligation incurred with respect to
a proceeding to pay a judgment, settlement, penalty, fine (including an excise
tax assessed with respect to an employee benefit plan), or reasonable expenses.
(d) "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a proceeding.
(e) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. CORPORATE SEAL. The Corporation seal shall have inscribed
thereon the name of the Corporation, and the words "Corporate Seal, Utah".
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Section 8.02. CHECKS. All checks, notes, bills of exchange or other
orders in writing shall be signed by such person or persons as the Board of
Directors or any person authorized by resolution of the Board of Directors may
from time to time designate.
Section 8.03. CONTRACTS.
(a) General Rule. Except as otherwise provided in the
Corporation Act in the case of transactions that require action by the
Shareholders, the Board of Directors may authorize any Officer or agent to enter
into any contract or to execute or deliver any instrument on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
(b) Statutory Form Of Execution Of Instruments. Any note,
mortgage, evidence of indebtedness, contract or other document, or any
assignment or endorsement thereof, executed or entered into between the
Corporation and any other person, when signed by one or more Officers or agents
having actual or apparent authority to sign it, or by the President or Vice
President and Secretary or Assistant Secretary or Treasurer or Assistant
Treasurer of the Corporation, shall be held to have been properly executed for
and in behalf of the Corporation, without prejudice to the rights of the
Corporation against any person who shall have executed the instrument in excess
of his or her actual authority.
Section 8.04. DEPOSITS. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositaries as the Board of Directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more Officers or employees as the Board of Directors shall from time to
time determine.
Section 8.05. CORPORATE RECORDS.
(a) Required Records. The Corporation shall keep as permanent
records complete and accurate books and records of the minutes of the
proceedings of the incorporators, shareholders and board of Directors,
shareholder and board of Director actions taken without a meeting, and a record
of all waivers of notice of meetings of the shareholders or Directors. The
Corporation shall also keep a copy of the following records at its principal
place of business: its Articles of Incorporation, current By-Laws, minutes of
shareholder meetings, and shareholder actions taken without a meeting, for the
past three (3) years; all written communications within the past three (3) years
to shareholders; a list of the names and business addresses of its current
Officers and Directors; its most recent annual report; and all quarterly and
annual financial statements prepared for periods ending during the last three
(3) years. Complete and accurate books and records of account shall also be
maintained by the Corporation. The share register shall be kept at the
Corporation's principal place of business or at the office of its registrar or
transfer agent. Any books, minutes or other records may be in written form or
any other form capable of being converted into written form within a reasonable
time.
(b) Right of Inspection. Every shareholder shall, upon written
verified demand at least five (5) business days before the date he or she wishes
to inspect and copy, have a right to examine and copy during the usual hours of
business the records specified in the second sentence of subparagraph (a) above.
In addition, a shareholder may inspect and copy, during usual business hours,
excerpts from the records specified in subparagraph (a) if the shareholder gives
written notice of his or her good faith demand at least five (5) business days
before the date proposed for inspection and copying, stating with specificity
the purpose thereof, which must be proper, and the records to be inspected which
must be directly connected with said purpose. A proper purpose shall mean a
purpose reasonably related to the interest of
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the person as a Shareholder. The demand shall be directed to the Corporation at
its principal place of business.
Section 8.06. AMENDMENT OF BY-LAWS. These By-Laws may be amended or
repealed or new by-Laws may be adopted, unless otherwise required by the
Corporation Act, by vote of a majority of the Board of Directors of the
Corporation in office at any regular or special meeting of Directors, or by vote
of a majority of the shareholders of the Corporation at any annual or special
meeting thereof. Any change in these By-Laws shall take effect when adopted
unless otherwise provided in the resolution effecting change. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board need be specified in a notice of a meeting.
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