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Exhibit 3.3
BYLAWS
OF
TALENTPOINT, INC.
ARTICLE 1
OFFICES
Section 1.1. Registered Office. The registered office of TALENTPOINT, INC.
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(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 of Directors") 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 of Directors may from time to time determine or 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 such
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places, within or without the Commonwealth of Pennsylvania, as the Board of
Directors 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 of Directors. If the annual meeting is not called and held
within six months after the designated time for such meeting, any shareholder
may call the meeting at any time after the expiration of such six-month period.
(2) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the shareholders at
an annual meeting of shareholders may be made (A) pursuant to the Corporation's
notice of meeting, (B) by or at the direction of the Board of Directors or (C)
by any shareholder of the Corporation who was a shareholder of record at the
time of giving of notice provided for in this 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 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, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Exchange Act and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other 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
of Directors of the Corporation at the annual meeting is increased pursuant to
an act of the Board of Directors of the Corporation and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors on or before the date
which is 15 days before the latest date by which a shareholder may timely notify
the Corporation of nominations or other business to be brought by a shareholder
in accordance with paragraph (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. Only such business shall be
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conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (1) by or at the direction of the Board of
Directors or (2) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this 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 of Directors, 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 of Directors to be elected at
such meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period for the giving of a
shareholder's notice as described above.
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 of Directors and only such business shall be
conducted at a meeting of shareholders as shall have been brought before the
meeting in accordance with the procedures set forth in this 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 of the
Corporation or, in the absence of the Secretary of the Corporation, any
Assistant Secretary of the Corporation, 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
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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. Adjournment. Any meeting of the shareholders, including one
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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.
Other than as provided in the last sentence of Section 2.6 of these Bylaws,
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 of Directors 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,
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provided that such original notice shall have complied with the last sentence of
Section 2.6 of these Bylaws.
Section 2.9. Majority Voting.
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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 of Directors, 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. 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 of the Corporation. A proxy, unless coupled with an
interest, shall be revocable at will, notwithstanding any other agreement or any
provision in the proxy to the contrary, but the revocation of a proxy shall not
be effective until written notice of revocation has been given to the Secretary
of the Corporation. 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 of the Corporation.
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 of Directors may appoint judges of election, who need
not be shareholders, to act at such meeting or any adjournment thereof. If
judges of election 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 of Directors to be appropriate 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
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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 of Directors.
ARTICLE 3
CONSENT OF SHAREHOLDERS
Section 3.1. 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 3.2. Written Consent in Lieu of a Meeting. Any action required or
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permitted to be taken at a meeting of the shareholders or of a class of
shareholders 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
shall be filed with the Secretary of the Corporation.
Section 3.3. Record Date - Consents. Except as otherwise provided in
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Section 8.1 of these Bylaws, the record date for determining shareholders
entitled to (a) dissent to corporate action in writing without a meeting, when
prior action by the Board of Directors is not necessary, (b) call a special
meeting of the shareholders, or (c) propose an amendment of the Articles, shall
be at the close of business on the day on which the first written dissent,
request for a special meeting or petition proposing an amendment of the Articles
is filed with the Secretary of the Corporation. If prior action by the Board of
Directors is necessary, the record date for determining such shareholders shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating to such action.
ARTICLE 4
DIRECTORS
Section 4.1. Number and Qualifications. The Board of Directors shall
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consist of one or more directors as determined from time to time by the Board of
Directors. Except as provided
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in Section 4.4 of these Bylaws, directors, other than those constituting the
first board of directors, 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.
Section 4.2. 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 4.3. Nominations of Directors. Nominees for election to the Board
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of Directors shall be selected by the Board of Directors or a committee of the
Board of Directors to which the Board of Directors has delegated the authority
to make such selections pursuant to Section 4.12 of these Bylaws. The Board of
Directors or such committee, as the case may be, may consider written
recommendations from shareholders for nominees for election to the Board of
Directors, provided that such recommendations are made in accordance with
Section 2.2 and, such recommendations, together with (a) such information
regarding each nominee as would be required to be included in a proxy statement
filed pursuant to the Exchange Act, (b) a description of any arrangements or
understandings among the recommending shareholder and each nominee and any other
person with respect to such nomination, and (c) the consent of each nominee to
serve as a director of the Corporation if so elected, is received by the
Secretary of the Corporation, in the case of an annual meeting of shareholders,
not later than the date specified in the most recent proxy statement of the
Corporation as of the date by which shareholder proposals for consideration at
the next annual meeting of shareholders must be received and, in the case of a
special meeting of shareholders, not later than the tenth (10th) day after the
giving of notice of such meeting. Only persons duly nominated for election to
the Board of Directors in accordance with this Section 4.3, 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 of Directors.
Section 4.4. Vacancies.
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(a) Vacancies in the Board of Directors and newly created
directorships may be filled exclusively by the 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
of Directors. Any director so chosen 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 certificate of incorporation, 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 of Directors.
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Section 4.5. Removal.
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(a) Removal by the Shareholders. The entire Board of
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Directors or any individual director may be removed from office only for cause
by the affirmative vote of a majority of the votes cast by the shareholders
entitled to vote thereon. In case the Board of Directors or any one or more
directors are so removed, new directors may be elected at the same meeting. The
repeal of a provision of the Articles or Bylaws prohibiting, or the addition of
a provision to the Articles or Bylaws permitting, the removal by the
shareholders of the Board of Directors or any individual director without
assigning any cause shall not apply to any incumbent director during the balance
of the term for which the director was selected.
(b) Removal by the Board. The Board of Directors may declare
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vacant the office of a director who has been judicially declared of unsound mind
or who has been convicted of an offense punishable by imprisonment for a term of
more than one year or if, within 60 days after notice of his or her selection,
the director does not accept the office either in writing or by attending a
meeting of the Board of Directors.
Section 4.6. Powers. The business and affairs of the Corporation
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shall be managed under the direction of the Board of Directors, 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 4.7. Place of Board Meetings. Meetings of the Board of
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Directors may be held at such place within or without the Commonwealth of
Pennsylvania as the Board of Directors may from time to time appoint or as may
be designated in the notice of the meeting.
Section 4.8. First Meeting of Newly Elected Board of Directors. The
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first meeting of each newly elected Board of Directors 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 of Directors is not so held, notice of
such meeting shall be given in the same manner as set forth in Section 4.9 of
these Bylaws with respect to notice of regular meetings of the Board of
Directors.
Section 4.9. Regular Board Meetings; Notice. Regular meetings of the
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Board of Directors may be held at such times and places as shall be determined
from time to time by resolution of at least a majority of the whole Board of
Directors at a duly convened meeting, or by unanimous written consent. Notice of
each regular meeting of the Board of Directors 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 12.4 of these Bylaws.
Section 4.10. Special Board Meetings; Notice. Special meetings of the
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Board of Directors may be called by the Chairman of the Board of Directors, 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
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director, either by telephone, or, if in writing, in accordance with the
provisions of Section 12.4 of these Bylaws.
Section 4.11. Quorum of the Board. At all meetings of the Board of
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Directors, 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 of Directors. 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 4.12. Committees of Directors. The Board of Directors may, by
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resolution adopted by a majority of the directors in office, establish one or
more 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 of Directors or in these
Bylaws, shall have and may exercise all of the powers and authority of the Board
of Directors; 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 of
Directors, (c) amend or repeal these Bylaws or adopt new bylaws, (d) amend or
repeal any resolution of the Board of Directors that by its terms is amendable
or repealable only by the Board of Directors, (e) act on any matter committed by
these Bylaws or by resolution of the Board of Directors to another committee of
the Board of Directors, (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 of Directors
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 of
Directors promptly after such meeting is held or such action is taken. Each
committee of the Board of Directors shall serve at the pleasure of the Board of
Directors.
Section 4.13. Participation in Board Meetings by Telephone. One or more
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directors may participate in a meeting of the Board of Directors or of a
committee of the Board of Directors by means of conference 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 4.14. Action by Consent of Directors. Any action required or
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permitted to be taken at a meeting of the Board of Directors or of a committee
of the Board of Directors may be taken without a meeting if, prior or subsequent
to the action, a consent or consents in writing setting
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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
of the Corporation.
Section 4.15. Compensation of Directors. The Board of Directors may, by
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resolution, fix 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 4.16. Directors' Liability. A director of the Board of Directors
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shall not be 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 By-laws of the Corporation or applicable provisions of
law and the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
ARTICLE 5
OFFICERS
Section 5.1. Principal Officers. The officers of the Corporation shall be
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chosen by the Board of Directors, and may include a Chief Executive Officer, a
Chief Operating Officer, a President, one or more Vice Presidents, a Secretary
and a Treasurer (collectively, the "Principal Officers"). The Board of
Directors shall designate one officer (who need not be a Principal Officer but
shall not be an assistant officer) to be the chief financial officer of the
Corporation, and another officer (who need not be a Principal Officer but shall
not be an assistant 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 5.2. Electing Principal Officers. The Board of Directors,
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immediately after each annual meeting of the shareholders, shall elect the
Principal Officers of the Corporation, none of whom need be members of the Board
of Directors.
Section 5.3. Other Officers. The Corporation may have such other officers,
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assistant officers, agents and employees as the Board of Directors may deem
necessary, each of whom shall hold office for such period, have such authority
and perform such duties as the Board of Directors or the Chief Executive Officer
may from time to time determine. The Board of Directors may delegate to any
Principal Officer the power to appoint or remove, and set the compensation of,
any such other officers and any such agents or employees.
Section 5.4. Compensation. Except as provided in Section 5.3 of these
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Bylaws, the salaries of all officers of the Corporation shall be fixed by the
Board of Directors.
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Section 5.5. 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 of Directors. Any officer or agent may be removed
by the Board of Directors 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 5.6. 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
of Directors, 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 of Directors 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 of Directors 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 of Directors to act, the Chief Executive Officer shall
preside at all meetings of shareholders and directors, and shall perform such
other duties as the Board of Directors may bestow upon him.
(d) Unless otherwise ordered by the Board of Directors, the Chief
Executive Officer shall have full power and authority on behalf of the
corporation to attend and act and vote at any meeting of the shareholders of any
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 of Directors
may, by resolution, from time to time confer like powers upon any other person
or persons.
Section 5.7. The Vice Presidents. The Vice-President or Vice-Presidents,
-------------------
in the order designated by the Board of Directors, 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 of Directors may prescribe or the Chief Executive Officer may delegate
to them.
Section 5.8. The Secretary. The Secretary shall attend all sessions of the
-------------
Board of Directors 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
of Directors when required. The Secretary shall give, or cause to be given,
notice of all meetings of the shareholders and of the Board of Directors, and
shall perform
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such other duties as may be prescribed by the Board of Directors 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 5.9. The Treasurer.
-------------
(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 of
Directors.
(b) The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Chief Executive Officer and
directors, at the regular meetings of the Board of Directors, or whenever they
may require it, an account of all his or her transactions as Treasurer.
Section 5.10. Bonds. If required by the Board of Directors, any officer
-----
shall give the Corporation a bond in such sum, and with such surety or sureties
as may be satisfactory to the Board of Directors, 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 6
CERTIFICATES FOR SHARES
Section 6.1. Share Certificates. The certificates representing shares of
------------------
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
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 of Directors to fix and determine such
rights.
Section 6.2. 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,
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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 7
TRANSFER OF SHARES
Section 7.1. Transfer. Upon presentment to the Corporation or its transfer
--------
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 7.1(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 7.2. 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 7.1 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.
Section 7.3. 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 7.2 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.
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ARTICLE 8
RECORD DATE; IDENTITY OF SHAREHOLDERS
Section 8.1. Record Date. The Board of Directors may fix a time, prior to
-----------
the date of 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 8.2 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 of Directors 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 of Directors fixes a new record date for
the adjourned meeting.
Section 8.2. Certification of Nominee. The Board of Directors may adopt a
------------------------
procedure whereby a shareholder may certify in writing to the Secretary of the
Corporation 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
of Directors, 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 of the Corporation, and (e) such other provisions with respect to
the procedure as the Board of Directors deems necessary or desirable. Upon
receipt by the Secretary of the Corporation 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 9
REGISTERED SHAREHOLDERS
Section 9.1. 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 8.2 of these Bylaws.
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ARTICLE 6
LOST CERTIFICATES
Section 10.1. 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 of Directors or its
designated agent, and has complied with such other reasonable requirements, if
any, as the Board of Directors may deem appropriate.
ARTICLE 11
DISTRIBUTIONS
Section 11.1. 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 of Directors at any regular or special meeting of the
Board of Directors and may be paid directly or indirectly in cash, in property
or by the incurrence of indebtedness by the Corporation.
Section 11.2. 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 of Directors 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 of Directors shall deem
conducive to the interests of the Corporation, and the Board of Directors may
abolish any such reserve in the manner in which it was created.
Section 11.3. 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 of Directors at any regular or special
meeting of the Board of Directors.
ARTICLE 12
GENERAL PROVISIONS
Section 12.1. 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 of
Directors may from time to time designate.
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<PAGE>
Section 12.2. Fiscal Year. The fiscal year of the Corporation shall be as
-----------
determined by the Board of Directors.
Section 12.3. 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 12.4. 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 12.5. 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.
ARTICLE 13
AMENDMENTS
Section 13.1. Amendments. The Bylaws may be adopted, amended or repealed by
----------
a majority vote of the shareholders entitled to vote thereon at any regular or
special meeting duly convened or, except for a bylaw on a subject expressly
committed to the shareholders by the 1988 BCL, by a majority vote of the members
of the Board of Directors at any regular or special meeting duly convened,
subject always to the power of the shareholders to change such action by the
directors; however, whenever the Bylaws require for the taking of any action by
the shareholders or a class of shareholders a specific number or percentage of
votes, the provision of the Bylaws setting forth that requirement shall not be
amended or repealed by any lesser number or percentage of votes of the
shareholders or of the class of shareholders. In the case of a meeting of
shareholders, written notice shall be given to each shareholder that the
purpose, or one of the purposes, of a meeting is to consider the adoption,
amendment or repeal of the Bylaws. There shall be included in, or enclosed with
the notice, a copy of the proposed amendment or a summary of the changes to be
effected
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thereby. Any change in the Bylaws shall take effect when adopted unless
otherwise provided in the resolution effecting the change.
ARTICLE 14
INDEMNIFICATION
Section 14.1. 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 14.2. 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 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.
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Section 14.3. 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 14, 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 14.1
and 14.2, subject to the limitations set forth in Section 14.2 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 14.4. 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 14.1, 14.2 or 14.3 of this Article 14, 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 14.5. 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 14 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 14.
Section 14.6. Procedure.
---------
(a) Unless ordered by a court, any indemnification under
Section 14.1, 14.2 or 14.3 or advancement of expenses under Section 14.5 of this
Article 14 shall be made by the Corporation only as authorized in a specific
case upon a determination that indemnification 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 14.1, 14.2 or 14.3.
(b) All determinations under this Section 14.6 shall be made:
(i) With respect to indemnification under Section 14.3
and advancement of expenses to an employee or agent of the Corporation, other
than an officer, by the Board of Directors by a majority vote.
(ii) With respect to indemnification under Section 14.1
or 14.2 and advancement of expenses to a director or officer of the Corporation,
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(A) By the Board of Directors 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 if 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 14.7. Nonexclusivity of Indemnification.
---------------------------------
(a) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article 14 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 14.7. 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 14 or otherwise.
(b) Indemnification pursuant to Section 14.7(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 14.7(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 14.7 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.
Section 14.8. 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 14 or otherwise.
Section 14.9. Past Officers and Directors. The indemnification and
---------------------------
advancement of expenses provided by, or granted pursuant to, this Article 14
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.
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Section 14.10. Surviving or New Corporations. References to "the
-----------------------------
Corporation" in this Article 14 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 14 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 14.11. Employee Benefit Plans.
----------------------
(a) References in this Article 14 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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