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Exhibit 3.4
AMENDED AND RESTATED
BYLAWS
OF
TALENTPOINT, INC.
ARTICLE 1
OFFICES
Section 1.1. Registered Office. The registered office of TALENTPOINT,
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INC. (the "Corporation") in the Commonwealth of Pennsylvania shall be as
specified in the Articles of Incorporation of the Corporation, as they may be
amended from time to time (the "Articles"), or at such other place as the Board
of Directors of the Corporation (the "Board") may specify in a statement of
change of registered office filed with the Department of State of the
Commonwealth of Pennsylvania.
Section 1.2. Other Offices. The Corporation may also have an office or
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offices at such other place or places either within or without the Commonwealth
of Pennsylvania as the Board may from time to time determine or as the business
of the Corporation requires.
ARTICLE 2
MEETINGS OF THE SHAREHOLDERS
Section 2.1. Place. All meetings of the shareholders shall be held at
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such places, within or without the Commonwealth of Pennsylvania, as the Board
may from time to time determine.
Section 2.2. Annual Meetings.
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(1) A meeting of the shareholders for the election of directors and
the transaction of such other business as may properly be brought before the
meeting shall be held once each calendar year on such date and at such time as
may be fixed by the Board.
(2) Nominations of persons for election to the Board of the
Corporation and the proposal of business to be considered by the shareholders at
an annual meeting of shareholders may be made (A) pursuant to the Corporation's
notice of meeting, (B) by or at the direction of the Board or (C) by any
shareholder of the Corporation who was a shareholder of record at the time of
giving of notice provided for in this Article 2, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this Article 2.
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(3) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (C) of paragraph (2) of this
Section 2.2, the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation (the "Secretary") and such other business must
otherwise be a proper matter for shareholder action. To be timely, a
shareholder's notice must be received by the Secretary at the principal
executive offices of the Corporation not later than the 60th day nor earlier
than the 90th day prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 60 days after such anniversary
date, notice by the shareholder must be so received not earlier than the 90th
day prior to the annual meeting and not later than the later of the 60th day
prior to the annual meeting or the 15th day following the day on which public
announcement of the date of the meeting is first made by the Corporation. In no
event shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period for the giving of a shareholder's
notice as described above. Notwithstanding the foregoing, if the Corporation is
required under Rule 14a-8 under the Securities Exchange Act of 1934 ("Exchange
Act") to include a shareholder's proposal in its proxy statement, such
shareholder shall be deemed to have given timely notice for purposes of this
paragraph (3) of Section 2.2 with respect to such proposal. A shareholder's
notice shall set forth (A) as to each person whom the shareholder proposes to
nominate for election or reelection as a director: (i) all information relating
to such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest or is otherwise required pursuant
to Regulation 14A under the Exchange Act, (ii) a description of any arrangements
or understandings among the shareholder and each such person and any other
person with respect to such nomination, and (iii) the consent of each such
person to being named in the proxy statement as a nominee and to serving as a
director of the Corporation if so elected; (B) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the shareholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such shareholder, as they appear on the Corporation's books, and of
such beneficial owner; (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such shareholder and such
beneficial owner; and (iii) a representation that such shareholder and
beneficial owner intend to appear in person or by proxy at the meeting.
(4) Notwithstanding anything in paragraph (3) of this Section 2.2 to the
contrary, in the event that the number of directors to be elected to the Board
at the annual meeting is increased pursuant to an act of the Board and there is
no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board on or before the date
which is 15 days before the latest date by which a shareholder may timely notify
the Corporation of nominations or other business to be brought by a shareholder
in accordance with paragraph (3) of this Section 2.2, a shareholder's notice
required by this Section 2.2 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be received by the Secretary at the principal executive offices of the
Corporation not later than the 15th day following the day on which such public
announcement is first made by the Corporation.
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Section 2.3. Special Meetings of Shareholders. A special meeting of the
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shareholders for any purpose or purposes shall be called only by the Chairman of
the Board, the Chief Executive Officer, or by the Board. Only such business
shall be conducted at a special meeting of shareholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board may be made at a special
meeting of shareholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (1) by or at the direction of the Board or (2)
provided that the Board has determined that directors shall be elected at such
meeting, by any shareholder of the Corporation who is a shareholder of record at
the time of giving of notice provided for in this Section 2.3, who shall be
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 2.3. In the event the Corporation calls a special meeting
of shareholders for the purpose of electing one or more directors to the Board,
any such shareholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporation's notice of
meeting, if the shareholder's notice required by paragraph (3) of Section 2.2
shall be received by the Secretary at the principal executive offices of the
Corporation not earlier than the 90th day prior to such special meeting and not
later than the later of the 60th day prior to such special meeting or the 15th
day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Board to be elected at
such meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period for the giving of a
shareholder's notice as described above.
Section 2.4. Written Ballot. Unless required by vote of the shareholders
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before the voting begins, elections of directors need not be by written ballot.
Section 2.5. General.
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(1) Only such persons who are nominated in accordance with the procedures
set forth in this Article 2 and Section 4.3 shall be eligible to serve as
directors to the Board and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Article 2. Except as otherwise provided by law,
the Articles or the Bylaws of the Corporation, the Chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Article 2 and, if any
proposed nomination or business is not in compliance with this Article 2, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Article 2, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Nothing in this Article 2 shall be deemed to affect any rights of the
holders of any series of Preferred Stock to elect directors.
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Section 2.6. Notice of Meetings. Written notice of every meeting of the
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shareholders, stating the place, the date and hour thereof and, in the case of a
special meeting of the shareholders, the general nature of the business to be
transacted thereat, shall be given in a manner consistent with the provisions of
Section 12.4 of these Bylaws at the direction of the Secretary or, in the
absence of the Secretary, any Assistant Secretary, at least ten (10) days prior
to the day named for a meeting called to consider a fundamental change under
Chapter 19 of the Pennsylvania Business Corporation Law of 1988, as it may from
time to time be amended (the "1988 BCL"), or five (5) days prior to the day
named for the meeting in any other case, to each shareholder entitled to vote
thereat on the date fixed as a record date in accordance with Section 8.1 of
these Bylaws or, if no record date be fixed, then of record at the close of
business on the tenth (10th) 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 of the meeting, at such address (or telex, TWX, facsimile or
telephone number), as appears on the transfer books of the Corporation. Any
notice of any meeting of shareholders may state that, for purposes of any
meeting that has been previously adjourned for one or more periods aggregating
at least fifteen (15) days because of an absence of a quorum, the shareholders
entitled to vote who attend such a meeting, although less than a quorum pursuant
to Section 2.7 of these Bylaws, shall nevertheless constitute a quorum for the
purpose of acting upon any matter set forth in the original notice of the
meeting that was so adjourned.
Section 2.7. Quorum. The shareholders present in person or by proxy,
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entitled to cast at least a majority of the votes that all shareholders are
entitled to cast on any particular matter to be acted upon at the meeting, shall
constitute a quorum for the purposes of consideration of, and action on, such
matter. The shareholders present in person or by proxy at a duly organized
meeting can continue to do business until the adjournment thereof
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. If a meeting cannot be organized because a quorum has not attended, the
shareholders present in person or by proxy may, except as otherwise provided by
the 1988 BCL and subject to the provisions of Section 2.8 of these Bylaws,
adjourn the meeting to such time and place as they may determine.
Section 2.8. Adjournments and Postponements.
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(1) Any meeting of the shareholders, including one at which directors are
to be elected, may be adjourned for such period as the shareholders present in
person or by proxy and entitled to vote shall direct. Notice of the adjourned
meeting or the business to be transacted thereat need not be given, other than
announcement at the meeting at which adjournment is taken, unless the Board
fixes a new record date for the adjourned meeting or the 1988 BCL requires
notice of the business to be transacted and such notice has not previously been
given. At any adjourned meeting at which a quorum is present, any business may
be transacted that might have been transacted at the meeting as originally
noticed. Those shareholders entitled to vote present in person or by proxy,
although less than a quorum pursuant to Section 2.7 of these Bylaws, shall
nevertheless constitute a quorum for the purpose of (a) electing directors at a
meeting called for the election of directors that has been previously adjourned
for lack of a quorum, and (b) acting, at a meeting that has been adjourned for
one or more periods aggregating fifteen (15) days because of an absence of a
quorum, upon any matter set forth in the original notice of such adjourned
meeting, provided that such original notice shall have complied with the last
sentence of Section 2.6 of these Bylaws.
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(2) Any meeting of the shareholders, including one at which directors are
to be elected, may be postponed for any proper purpose for such period as the
Board shall determine.
Section 2.9. Action at a Meeting. Any matter brought before a duly
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organized meeting for a vote of the shareholders, including, without limitation,
the amendment of any bylaw, shall be decided by a majority of the votes cast at
such meeting by the shareholders present in person or by proxy and entitled to
vote thereon, unless the matter is one for which a different vote is required by
express provision of the 1988 BCL, the Articles or a bylaw adopted by the
shareholders, in any of which case(s) such express provision shall govern and
control the decision on such matter.
Section 2.10. Voting Rights. Except as otherwise provided in the Articles,
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at every meeting of the shareholders, every shareholder entitled to vote shall
have the right to one vote for each share having voting power standing in his or
her name on the books of the Corporation. Shares of the Corporation owned by it,
directly or indirectly, and controlled by the Board, directly or indirectly,
shall not be voted.
Section 2.11. Proxies. Every shareholder entitled to vote at a meeting of
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the shareholders or to express consent or dissent to a corporate action in
writing may authorize another person to act for him or her by proxy appointed by
an instrument in writing executed (or transmitted by electronic means which
results in a writing) by such shareholder or by the shareholder's attorney
thereunto authorized, and delivered to the Secretary. 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. Every proxy shall be executed in writing by the shareholder
or by the shareholder's duly authorized attorney-in-fact and filed with the
Secretary. 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 of revocation has been given to the Secretary. An unrevoked proxy shall
not be valid after three (3) years from the date of its execution, unless a
longer time is expressly provided therein. A proxy shall not be revoked by the
death or incapacity of the maker unless, before the vote is counted or the
authority is exercised, written notice of such death or incapacity is given to
the Secretary.
Section 2.12. Voting Lists. The officer or agent having charge of the
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transfer books for securities of the Corporation shall make a complete list of
the shareholders entitled to vote at a meeting of the shareholders, arranged in
alphabetical order, with the address of and the number of shares held by each
shareholder, which list shall be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any shareholder during the
whole time of the meeting. If the Corporation has five thousand (5,000) or more
shareholders, it may make such information available at the meeting by any other
means.
Section 2.13. Judges of Election. In advance of any meeting of the
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shareholders, the Board may appoint judges of election, who need not be
shareholders, to act at such meeting or any adjournment thereof. If judges of
election are not so appointed, the presiding officer of any such meeting may,
and on the request of any shareholder shall, appoint judges of election at the
meeting. The number of judges shall be one (1) or three (3), as determined by
the Board to be appropriate
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under the circumstances. No person who is a candidate for office to be filled at
the meeting shall act as a judge at the meeting. The judges of election shall do
all such acts as may be proper to conduct the election or vote with fairness to
all shareholders, and shall make a written report of any matter determined by
them and execute a certificate of any fact found by them, if requested by the
presiding officer of the meeting or any shareholder or the proxy of any
shareholder. If there are three (3) judges of election, the decision, act or
certificate of a majority shall be effective in all respects as the decision,
act or certificate of all.
Section 2.14. Participation by Conference Call. The right of any
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shareholder to participate in any shareholders' meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting may hear each other and, in which event, all
shareholders so participating shall be deemed present at such meeting, shall be
granted solely in the discretion of the Board.
Section 2.15. No Written Consent in Lieu of a Meeting. The shareholders of
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the Corporation may not take any action by written consent in lieu of a meeting,
and must take any actions at a duly called annual or special meeting of
shareholders and the power of shareholders to consent in writing without a
meeting is specifically denied.
ARTICLE 3
DIRECTORS
Section 3.1. Powers. The business and affairs of the Corporation shall be
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managed under the direction of the Board, which may exercise all powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Articles or these Bylaws directed or required to be exercised and done by
the shareholders.
Section 3.2. Number and Qualifications. The Board shall consist of one or
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more directors as determined from time to time by the Board. Except as provided
in Section 3.4 of these Bylaws, directors, other than those constituting the
first Board, shall be elected by the shareholders. Directors shall be natural
persons of full age and need not be residents of the Commonwealth of
Pennsylvania or shareholders of the Corporation. At each meeting of the
shareholders for the election of directors, at which a quorum is present,
directors shall be elected by a plurality of votes cast in such election, which
need not be by written ballot unless a shareholder demands election by ballot at
the election and before voting begins.
Section 3.3. Term. Each director shall be elected to serve a term of one
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(1) year and until a successor is elected and qualified or until the director's
earlier death, resignation or removal.
Section 3.4. Nominations of Directors. Nominees for election to the Board
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shall be selected by the Board or a committee of the Board to which the Board
has delegated the authority to make such selections pursuant to Section 3.12 of
these Bylaws. Nominees for election to the
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Board may also be selected by shareholders, provided that such nominations are
made in accordance with, and accompanied by the information required by, Section
2.2. Only persons duly nominated for election to the Board in accordance with
this Section 3.4, Section 2.2 and persons with respect to whose nominations
proxies have been solicited pursuant to a proxy statement filed pursuant to the
Exchange Act shall be eligible for election to the Board.
Section 3.5. Vacancies.
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(a) Vacancies in the Board and newly created directorships
may be filled exclusively by vote of a majority of the directors then in office,
though less than a quorum, and shall not be filled by a vote of the
shareholders, unless there are no directors remaining on the Board. Any director
so chosen shall be a director of the same class as the director whose vacancy he
or she fills, and shall hold office until the next annual election of directors
and until a successor is duly elected and qualified.
(b) Whenever the holders of any class or classes of stock
or series thereof are entitled to elect one or more directors by the provisions
of the Articles, vacancies and newly created directorships of such class or
classes or series may be filled exclusively by the vote of a majority of the
directors elected by such class or classes or series then in office, and shall
not be filled by a vote of such holders, unless there are no such directors
remaining on the Board.
Section 3.6. Removal.
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(a) Removal by the Shareholders. No director of the
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Corporation may be removed at any time unless for cause. Upon a finding of cause
as determined by a majority of the directors in office (excluding the director
which is the subject of removal), the director may be removed only upon the
affirmative vote of the holders of at least 80% of outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, considered for this purpose as one class, except as otherwise
required by law.
(b) Removal by the Board. The Board may declare vacant the
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office of a director who has been judicially declared of unsound mind or who has
been convicted of an offense punishable by imprisonment for a term of more than
one year.
Section 3.7. Place of Board Meetings. Meetings of the Board may be held at
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such place within or without the Commonwealth of Pennsylvania as the Board may
from time to time appoint or as may be designated in the notice of the meeting.
Section 3.8. First Meeting of Newly Elected Board. The first meeting of
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each newly elected Board may be held at the same place and immediately after the
meeting at which such directors were elected and no notice shall be required
other than announcement at such meeting. If such first meeting of the newly
elected Board is not so held, notice of such meeting shall be given in the same
manner as set forth in Section 3.9 of these Bylaws with respect to notice of
regular meetings of the Board.
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Section 3.9. Regular Board Meetings; Notice. Regular meetings of the Board
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may be held at such times and places as shall be determined from time to time by
resolution of the Board at a duly convened meeting, or by unanimous written
consent. Notice of each regular meeting of the Board shall specify the purpose,
date, place and hour of the meeting and shall be given to each director at least
ten (10) days before the meeting. Notice shall be given in a manner consistent
with Section 11.4 of these Bylaws.
Section 3.10. Special Board Meetings; Notice. Special meetings of the Board
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may be called by the Chairman of the Board, if any, by the Chief Executive
Officer and/or President, or by a majority of the directors in office on one
day's notice to each director, either by telephone, or, if in writing, in
accordance with the provisions of Section 11.4 of these Bylaws.
Section 3.11. Quorum of the Board; Action of the Board. At all meetings of
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the Board, the presence of a majority of the directors in office shall
constitute a quorum for the transaction of business, and the acts of a majority
of the directors present and voting at a meeting at which a quorum is present
shall be the acts of the Board. If a quorum shall not be present at any meeting
of directors, the directors present thereat may adjourn the meeting. It shall
not be necessary to give any notice of the adjourned meeting or of the business
to be transacted thereat other than by announcement at the meeting at which such
adjournment is taken.
Section 3.12. Committees of Directors. The Board may establish one or more
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committees, each committee to consist of one or more of the directors, and 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. Any such committee, to the
extent provided in such resolution of the Board or in these Bylaws, shall have
and may exercise all of the powers and authority of the Board; provided,
however, that no such committee shall have any power or authority to (a) submit
to the shareholders any action requiring approval of the shareholders under the
1988 BCL, (b) create or fill vacancies on the Board, (c) amend or repeal these
Bylaws or adopt new Bylaws, (d) amend or repeal any resolution of the Board that
by its terms is amendable or repealable only by the Board, (e) act on any matter
committed by these Bylaws or by resolution of the Board to another committee of
the Board, (f) amend the Articles or adopt a resolution proposing an amendment
to the Articles, or (g) adopt a plan or an agreement of merger or consolidation,
share exchange, asset sale or division. In the absence or disqualification of a
member or alternate member or members of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
a quorum is present, may unanimously appoint another director to act at the
meeting in the place of any absent or disqualified member. Minutes of all
meetings of any committee of the Board shall be kept by the person designated by
such committee to keep such minutes. Copies of such minutes and any writing
setting forth an action taken by written consent without a meeting shall be
distributed to each member of the Board promptly after such meeting is held or
such action is taken. Each committee of the Board shall serve at the pleasure of
the Board.
Section 3.13. Participation in Board Meetings by Telephone. One or more
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directors may participate in a meeting of the Board or of a committee of the
Board by means of conference
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telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and all directors so
participating shall be deemed present at the meeting.
Section 3.14. Action by Consent of Directors. Any action required or
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permitted to be taken at a meeting of the Board or of a committee of the Board
may be taken without a meeting if, prior or subsequent to the action, a consent
or consents in writing setting forth the action so taken shall be signed by all
of the directors in office or the members of the committee, as the case may be,
and filed with the Secretary.
Section 3.15. Compensation of Directors. The Board may, by resolution, fix
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the compensation of directors for their services as directors. A director may
also serve the Corporation in any other capacity and receive compensation
therefor.
Section 3.16. Directors' Liability. A director of the Board shall not be
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personally liable for monetary damages as such (including, without limitation,
any judgment, amount paid in settlement, penalty, punitive damages or expense of
any nature (including, without limitation, attorneys' fees and disbursements)
for any action taken, or any failure to take any action, unless the director has
breached or failed to perform the duties of his or her office under these
Articles, the Bylaws of the Corporation or applicable provisions of law and the
breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness.
ARTICLE 4
OFFICERS
Section 4.1. Principal Officers. The officers of the Corporation shall be
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chosen by the Board, and may include a Chief Executive Officer, a Chief
Operating Officer, a President, one or more Executive Vice Presidents, one or
more Senior Vice Presidents and one or more Vice Presidents, a Secretary and a
Treasurer (collectively, the "Principal Officers"). The Board shall designate
one officer (who need not be a Principal Officer) to be the chief financial
officer of the Corporation, and another officer (who need not be a Principal
Officer) to be the chief accounting officer of the Corporation. The Chief
Executive Officer, the President and all Vice Presidents and the Secretary shall
be natural persons of full age. The Treasurer may be a corporation, but if a
natural person, shall be of full age. Any number of offices may be held by the
same person.
Section 4.2. Electing Principal Officers. The Board, immediately after
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each annual meeting of the shareholders, shall elect the Principal Officers of
the Corporation, none of whom need be members of the Board.
Section 4.3. Other Officers. The Corporation may have such other officers,
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assistant officers, agents and employees as the Board may deem necessary, each
of whom shall hold office for such period, have such authority and perform such
duties as the Board or the Chief Executive Officer may from time to time
determine. The Board may delegate to any Principal
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Officer the power to appoint or remove, and set the compensation of, any such
other officers and any such agents or employees.
Section 4.4. Compensation. Except as provided in Section 4.3 of these
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Bylaws, the salaries of all officers of the Corporation shall be fixed by the
Board.
Section 4.5. Term of Office; Removal. Each officer of the Corporation
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shall hold office until his or her successor has been chosen and qualified or
until his or her earlier death, resignation or removal. Vacancies of any office
shall be filled by the Board. Any officer or agent may be removed by the Board
with or without cause, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. The election or appointment
of an officer or agent shall not of itself create any contract rights.
Section 4.6. Chief Executive Officer.
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(a) The Chief Executive Officer shall have general supervision of
the affairs of the corporation, subject to the policies and direction of the
Board, and shall supervise and direct all of the officers and employees of the
corporation but may delegate in his discretion any of his powers to any officer
or such other executives as he may designate.
(b) The Chief Executive Officer shall have general and active
management of the business of the corporation and shall see that all orders and
resolutions of the Board dealing with operations are carried into effect. He
shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board to some other officer or agent of the
corporation.
(c) In the absence or during any disability on the part of the
Chairman of the Board to act, the Chief Executive Officer shall preside at all
meetings of shareholders and directors, and shall perform such other duties as
the Board may bestow upon him.
(d) Unless otherwise ordered by the Board, the Chief Executive
Officer shall have full power and authority on behalf of the corporation to
attend and act and vote at any meeting of the shareholders of any other
corporation in which the corporation may hold stock, and at any such meeting
shall possess and may exercise any and all the rights and powers incident to the
ownership of such stock which the corporation, as the owner thereof, might have
possessed and exercised if present. The Board may, by resolution, from time to
time confer like powers upon any other person or persons.
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Section 4.7. The Executive Vice Presidents, Senior Vice Presidents and
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Vice Presidents. The Executive Vice Presidents, Senior Vice
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Presidents and Vice-Presidents, in the order designated by the Board, shall, in
the absence or disability of the Chief Executive Officer, perform the duties and
exercise the powers of the Chief Executive Officer, and shall perform such other
duties as the Board may prescribe or the Chief Executive Officer may delegate to
them.
Section 4.8. The Secretary. The Secretary shall attend all sessions of the
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Board and all meetings of the shareholders and record all the votes of the
Corporation and the minutes of all the transactions in a book to be kept for
that purpose, and shall perform like duties for the committees of the Board when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the shareholders and of the Board, and shall perform such other duties as may
be prescribed by the Board or the Chief Executive Officer, under whose
supervision the Secretary shall be. He or she shall keep in safe custody the
corporate seal, if any, of the Corporation.
Section 4.9. The Treasurer.
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(a) The Treasurer shall have the 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 deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as shall be designated by the Board.
(b) The Treasurer 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 and directors, at
the regular meetings of the Board, or whenever they may require it, an account
of all his or her transactions as Treasurer.
Section 4.10. Bonds. If required by the Board, any officer shall give the
-----
Corporation a bond in such sum, and with such surety or sureties as may be
satisfactory to the Board, for the faithful discharge of the duties of his or
her office and for the restoration to the Corporation, in the case of his or her
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his or her possession or
under his or her control belonging to the Corporation.
ARTICLE 5
CERTIFICATES FOR SHARES
Section 5.1. Share Certificates. The certificates representing shares of
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the Corporation shall be numbered and registered in a share register as they are
issued. The share register shall exhibit the names and addresses of all
registered holders and the number and class of shares and the series, if any,
held by each. The Certificate shall state that the Corporation is incorporated
under the laws of the Commonwealth of Pennsylvania, the name of the registered
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holder and the number and class of shares and the series, if any, represented
thereby. If, under its Articles, the Corporation is authorized to issue shares
of more than one class or series, each Certificate shall set forth, or shall
contain a statement that the Corporation will furnish to any shareholder upon
request and without charge, a full or summary statement of the designations,
voting rights, preferences, limitations and special rights of the shares of each
class or series authorized to be issued so far as they have been fixed and
determined and the authority of the Board to fix and determine such rights.
Section 5.2. Execution of Certificates. Every share certificate shall be
-------------------------
executed, by facsimile or otherwise, by or on behalf of the Corporation, by the
Chief Executive Officer and/or President, by any Vice-President, or by the
Secretary. 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 time of issue.
ARTICLE 6
TRANSFER OF SHARES
Section 6.1. Transfer. Upon presentment to the Corporation or its transfer
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agent of a share certificate endorsed by the appropriate person or accompanied
by proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto and the old
certificate canceled and the transfer registered upon the books of the
Corporation, unless either: (a) the Corporation has received a demand from an
appropriate person to make an indorsement on such certificate that the
Corporation not register transfer; or (b) the Corporation has been served with a
restraining order, injunction or other process from a court of competent
jurisdiction enjoining it from registering the transfer. Any demand to the
Corporation not to register transfer shall identify the registered owner and the
issue of which such share is a part and provide an address to send
communications directed to the person making the demand. No demand described in
Section 6.1(a) above shall be effective unless it is received by the Corporation
at a time and in a manner affording the Corporation a reasonable opportunity to
act on it.
Section 6.2. Request to Register Transfer After Demand. If a share
-----------------------------------------
certificate is presented to the Corporation or its transfer agent with a request
to register transfer after a demand that the Corporation not register transfer
of such certificate has become effective pursuant to Section 6.1 of these
Bylaws, then the Corporation shall promptly communicate to each of the person
who initiated the demand and the person who presented the certificate for
registration of transfer a notification stating that: (a) the certificate has
been presented for registration of transfer; (b) a demand that the Corporation
not register transfer of such certificate had previously been received; and (c)
the Corporation will withhold registration of transfer of such certificate for a
period of thirty (30) days (or such shorter period of time as stated in the
notification that is not manifestly unreasonable) from the date of the
notification in order to provide the person who initiated the demand an
opportunity to obtain legal process or an indemnity bond.
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Section 6.3. Limitation of Liability. The Corporation shall not be liable
-----------------------
to a person who initiated a demand that the Corporation not register transfer
for any loss the person suffers as a result of registration of transfer if the
person who initiated demand does not, within the time stated in the notification
described in Section 6.2 of these Bylaws, either (a) obtain an appropriate
restraining order, injunction or other process from a course of competent
jurisdiction enjoining the Corporation from registering the transfer, or (b)
file with the Corporation an indemnity bond, sufficient in the Corporation's to
protect the Corporation or its transfer agent from any loss it or they may
suffer by refusing to register the transfer.
ARTICLE 7
RECORD DATE; IDENTITY OF SHAREHOLDERS
Section 7.1. Record Date. The Board may fix a time, prior to the date of
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any meeting of the shareholders, as a record date for the determination of the
shareholders entitled to notice of, or to vote at, the meeting, which time,
except in the case of an adjourned meeting, shall not be more than ninety (90)
days prior to the date of the meeting. Except as otherwise provided in Section
7.2 of these Bylaws, only the shareholders of record at the close of business on
the date so fixed shall be entitled to notice of, or to vote at, such meeting,
notwithstanding any transfer of securities on the books of the Corporation after
any record date so fixed. The Board may similarly fix a record date for the
determination of shareholders for any other purpose. When a determination of
shareholders of record has been made as herein provided 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.
Section 7.2. Certification of Nominee. The Board may adopt a procedure
------------------------
whereby a shareholder may certify in writing to the Secretary that all or a
portion of the shares registered in the name of the shareholder are held for the
account of a specified person or persons. The Board, in adopting such procedure,
may specify (a) the classification of shareholder who may certify, (b) the
purpose or purposes for which the certification may be made, (c) the form of
certification and the information to be contained therein, (d) as to
certifications with respect to a record date, the date after the record date by
which the certification must be received by the Secretary, and (e) such other
provisions with respect to the procedure as the Board deems necessary or
desirable. Upon receipt by the Secretary of a certification complying with the
procedure, the persons specified in the certification shall be deemed, for the
purpose or purposes set forth in the certification, to be the holders of record
of the number of shares specified instead of the persons making the
certification.
ARTICLE 8
REGISTERED SHAREHOLDERS
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Section 8.1. Before due presentment for transfer of any shares, the
Corporation shall treat the registered owner thereof as the person exclusively
entitled to vote, to receive notifications and otherwise to exercise all the
rights and powers of an owner, and shall not be bound to recognize any equitable
or other claim or interest in such securities, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of the
Commonwealth of Pennsylvania or Section 7.2 of these Bylaws.
ARTICLE 9
LOST CERTIFICATES
Section 9.1. If the owner of a share certificate claims that it has been
lost, destroyed, or wrongfully taken, the Corporation shall issue a new
certificate in place of the original certificate if the owner so requests before
the Corporation has notice that the certificate has been acquired by a bona fide
purchaser, and if the owner has filed with the Corporation an indemnity bond and
an affidavit of the facts satisfactory to the Board or its designated agent, and
has complied with such other reasonable requirements, if any, as the Board may
deem appropriate.
ARTICLE 10
DISTRIBUTIONS
Section 10.1. Distributions. Distributions upon the shares of the
-------------
Corporation, whether by dividend, purchase or redemption or other acquisition of
its shares subject to any provisions of the Articles related thereto, may be
authorized by the Board at any regular or special meeting of the Board and may
be paid directly or indirectly in cash, in property or by the incurrence of
indebtedness by the Corporation.
Section 10.2. Reserves. Before the making of any distributions, there may
--------
be set aside out of any funds of the Corporation available for distributions
such sum or sums as the Board from time to time, in its absolute discretion,
deems 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 Board shall deem conducive to the interests of the
Corporation, and the Board may abolish any such reserve in the manner in which
it was created.
Section 10.3. Stock Dividends/Splits. Stock dividends or splits upon the
----------------------
shares of the Corporation, subject to any provisions of the Articles related
thereto, may be authorized by the Board at any regular or special meeting of the
Board.
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ARTICLE 11
GENERAL PROVISIONS
Section 11.1. Checks and Notes. All checks or demands for money and notes
----------------
of the Corporation shall be signed by such officer or officers as the Board may
from time to time designate.
Section 11.2. Fiscal Year. The fiscal year of the Corporation shall be as
-----------
determined by the Board.
Section 11.3. Seal. The corporate seal, if any, shall have inscribed
----
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Pennsylvania." Such seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any manner reproduced. The
affixation of the corporate seal shall not be necessary to the valid execution,
assignment or endorsement of any instrument or other document by the
Corporation.
Section 11.4. Notices. Whenever, under the provisions of the 1988 BCL or of
-------
the Articles or of these Bylaws or otherwise, written notice is required to be
given to any person, it may be given to such person either personally or by
sending a copy thereof by first class or express mail, postage prepaid, telegram
(with messenger service specified), telex, TWX (with answerback received),
courier service (with charges prepaid) or facsimile transmission, to his or her
address, (or to his or her telex, TWX, or facsimile number), appearing on the
books of the Corporation or, in the case of directors, supplied by the director
to the Corporation for the 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.
Section 11.5. Waiver of Notice. Whenever any notice is required to be given
----------------
by the 1988 BCL or by the Articles or these Bylaws, 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 such
notice. Neither the business to be transacted nor the purpose of a meeting need
be specified in the waiver of notice of the meeting. Attendance of a person at
any meeting shall constitute a waiver of notice of the meeting, except where any
person attends a meeting for the express purpose of objecting to the transaction
of any business because the meeting was not lawfully called or convened, and the
person so objects at the beginning of the meeting.
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ARTICLE 12
AMENDMENTS
Section 12.1. Amendments. The Board is expressly authorized to make, alter,
----------
amend and repeal the Bylaws of the Corporation, in any manner not inconsistent
with the laws of the Commonwealth of Pennsylvania or the Articles, subject to
the power of the holders of the then outstanding capital stock of the
Corporation to alter or repeal the Bylaws made by the Board; provided, that any
such amendment or repeal by shareholders shall require the affirmative vote of
the holders of at least 80 percent (80%) of the voting power of such capital
stock entitled to vote generally in the election of directors, voting together
as a single class.
ARTICLE 13
INDEMNIFICATION
Section 13.1. Officers and Directors - Direct Actions. The Corporation
----------------------
shall indemnify any director or officer of the Corporation (as used herein, the
phrase "director or officer of the Corporation" shall mean any person who is or
was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another domestic or
foreign corporation for profit or not-for-profit, partnership, joint venture,
trust or other enterprise), any person who was or is a party (other than a party
plaintiff suing on his or her own behalf), or who is threatened to be made such
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 or she is
or was a director or officer of the Corporation, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she met the standard of conduct of (a) acting in good faith
and in a manner he or she reasonably believed to be in, or not opposed to, the
best interests of the Corporation and (b) with respect to any criminal
proceeding, having no reasonable cause to believe his or her conduct was
unlawful. The termination of any action or proceeding by judgment, order,
settlement or conviction or upon a plea of nolo contendere or its equivalent
shall not of itself create a presumption that the person (a) did not act in good
faith and in a manner that he or she reasonably believed to be in, or not
opposed to, the best interests of the Corporation and (b) with respect to any
criminal proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
Section 13.2. Officers and Directors - Derivative Actions. The Corporation
-------------------------------------------
shall indemnify any director or officer of the Corporation who was or is a party
(other than a party suing in the right of the Corporation), or is threatened to
be made a party, to any threatened, pending or completed action, suit or
proceeding by or in the right of the Corporation to procure a judgment in the
Corporation's favor by reason of the fact that he or she is or was a director or
officer of the Corporation, against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of the action, suit or proceeding if he or she met
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the standard of conduct of acting in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Corporation. Indemnification shall not be made under this Section in respect of
any claim, issue or matter as to which the person has been adjudged to be liable
to the Corporation unless and only to the extent that the Court of Common Pleas
of the judicial district embracing the county in which the registered office of
the Corporation is located or the court in which the action, suit or proceeding
was brought determines 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 the expenses that the Court of
Common Pleas or other court deems proper.
Section 13.3. Employees and Agents. The Corporation may, to the extent
--------------------
permitted by the 1988 BCL, indemnify any employee or agent of the Corporation
(as used in this Article 13, the phrase "employee or agent of the Corporation
shall mean any person who is or was an employee or agent of the Corporation,
other than an officer, or is or was serving at the request of the Corporation as
an employee or agent of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise) who was
or is a party, or who is threatened to be made such a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding by reason of
the fact that he or she is or was an employee or agent of the Corporation,
provided he or she has met the standard of conduct set forth in Sections 13.1
and 13.2, subject to the limitations set forth in Section 13.2 in the case of an
action, suit or proceeding by or in the right of the Corporation to procure a
judgment in the Corporation's favor.
Section 13.4. Mandatory Indemnification. To the extent that a director or
-------------------------
officer of the Corporation or any employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action or proceeding
referred to in Sections 13.1, 13.2 or 13.3 of this Article 13, or in defense of
any claim, issue or matter therein, he or she shall be indemnified by the
Corporation against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
Section 13.5. Advancing Expenses. Expenses (including attorneys' fees)
------------------
incurred by a director or officer of the Corporation or an employee or agent of
the Corporation in defending any action or proceeding referred to in this
Article 13 may be paid by the Corporation in advance of the final disposition of
the action or proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it is ultimately determined that he or she is not
entitled to be indemnified by the Corporation as authorized in this Article 13.
Section 13.6. Procedure.
---------
(a) Unless ordered by a court, any indemnification under
Section 13.1, 13.2 or 13.3 or advancement of expenses under Section 13.5 of this
Article 13 shall be made by the Corporation only as authorized in a specific
case upon a determination that indemnification
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of the director, officer, employee or agent is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
Section 13.1, 13.2 or 13.3.
(b) All determinations under this Section 13.6 shall be made:
(i) With respect to indemnification under Section 13.3
and advancement of expenses to an employee or agent of the Corporation, other
than an officer, by the Board.
(ii) With respect to indemnification under Section 13.1
or 13.2 and advancement of expenses to a director or officer of the Corporation,
(A) By the Board, by a majority vote of a quorum
consisting of directors who were not parties to such action or proceeding, or
(B) If such a quorum is not obtainable, or, if
obtainable and a majority vote of a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or
(C) By the shareholders.
Section 13.7. Nonexclusivity of Indemnification.
---------------------------------
(a) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article 13 shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any Bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, both as to actions in his or her official
capacity and as to actions in another capacity while holding that office.
Section 1728 (relating to interested directors; quorum) of the 1988 BCL, or any
successor section, shall be applicable to any Bylaw, contract or transaction
authorized by the directors under this Section 13.7. The Corporation may create
a fund of any nature, which may, but need not be, under the control of a
trustee, or otherwise secure or insure in any manner its indemnification
obligations, whether arising under or pursuant to this Article 13 or otherwise.
(b) Indemnification pursuant to Section 13.7(a) hereof 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.
(c) Indemnification pursuant to Section 13.7(a) under any
Bylaw, agreement, vote of shareholders 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
other provision of law except as provided in this Section 13.7 and whether or
not the indemnified liability arises or arose from any threatened or pending or
completed action by or in the right of the Corporation.
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Section 13.8. Insurance. The Corporation shall have power to purchase and
---------
maintain insurance on behalf of any person who is or was a director or officer
of the Corporation or an employee or agent of the Corporation, against any
liability asserted against such person and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against that liability
under the provisions of this Article 13 or otherwise.
Section 13.9. Past Officers and Directors. The indemnification and
---------------------------
advancement of expenses provided by, or granted pursuant to, this Article 13
shall continue as to a person who has ceased to be a director, officer, employee
or agent of the Corporation and shall inure to the benefit of the heirs and
personal representatives of that person.
Section 13.10. Surviving or New Corporations. References to "the
-----------------------------
Corporation" in this Article 13 include all constituent corporations absorbed in
a consolidation, merger or division, as well as the surviving or new corporation
resulting therefrom, so that any director, officer, employee or agent of the
constituent, surviving or new corporation shall stand in the same position under
the provisions of this Article 13 with respect to the surviving or new
corporation as he or she would if he or she had served the surviving or new
corporation in the same capacity.
Section 13.11. Employee Benefit Plans.
----------------------
(a) References in this Article 13 to "other enterprises"
shall include employee benefit plans and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation that imposes duties on, or involves services by, the
person with respect to an employee benefit plan, its participants or
beneficiaries.
(b) Excise taxes assessed on a person with respect to an
employee benefit plan pursuant to applicable law shall be deemed "fines."
(c) Action with respect to an employee benefit plan taken or
omitted in good faith by a director, officer, employee or agent of the
Corporation in a manner he or she reasonably believed to be in the interest of
the participants and beneficiaries of the plan shall be deemed to be action in a
manner that is not opposed to the best interests of the Corporation.
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