SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 22, 1995
PSICOR, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 015340 25-1228645
(State or other jurisdiction (Commission File (IRS Employer
of incorporation or Number) Identification No.)
organization)
16818 Via Del Campo Court, San Diego, CA 92127
(Address of principal executive offices)
Registrant's telephone number, including area code: (619) 485-5599
N/A
(Former Name or Former Address, if Changed Since Last Report)
Item 1. CHANGES IN CONTROL OF REGISTRANT
On November 22, 1995, the Registrant entered into an Agreement and
Plan of Merger (the "Merger Agreement') with Baxter Healthcare Corporation
("Parent") and its wholly owned subsidiary, Baxter CVG Services II, Inc.
("Purchaser"), which provides for the merger (the "Merger") of the Purchaser
with and into the Registrant and the conversion of all of the outstanding
shares of common stock of the Registrant, no par value (the "Shares"), into
the right to receive cash in the amount of $17.50 per Share. The Merger
Agreement also provides for the Purchaser to commence a tender offer (the
"Offer") for any and all Shares at a price of $17.50 per Share, net to the
seller in cash. The Offer was commenced on November 29, 1995, and is
scheduled to expire at midnight, New York City time, on January 3, 1996 (the
"Expiration Date"), unless extended by the Purchaser. The Offer is subject
to the satisfaction or waiver of the condition that there will be validly
tendered prior to the Expiration Date and not withdrawn a number of Shares
which, together with the Shares owned by the Purchaser or Parent, represents
at least 80% of the Shares outstanding on a fully diluted basis, and to
certain other conditions. Purchaser and Parent have indicated that (i) the
total amount of funds required by them to consummate the Offer and the
Merger and to pay related fees and expenses is estimated to be approximately
$84 million; (ii) Purchaser will obtain all of such funds from Parent or its
affiliates, including without limitation Baxter International Inc.
("International"); and (iii) International will cause the funds required for
the foregoing transactions to be made available, and Parent will provide
such funds for the foregoing transactions from its working capital.
The Merger Agreement provides that promptly upon the later of (i) the
purchase of and payment for any Shares (including without limitation all
Shares subject to the Tender and Option Agreement, as defined below) by
Purchaser or any other subsidiary of Parent pursuant to the Offer or the
Tender and Option Agreement and (ii) the expiration or waiver of the
Registrant's right to terminate the Merger Agreement in the event that the
Registrant accepts an Acceptable Offer (as defined in the Merger Agreement)
prior to the later of (x) the purchase of Shares pursuant to the Offer or
Tender and Option Agreement or (y) January 3, 1996, Parent will be entitled
to designate such number of directors, rounded up to the next whole number,
on the Registrant's board of directors (the "Board") as is equal to the
product of the total number of directors then serving on the Board (which,
immediately prior to such calculation, may not consist of more than four
directors) multiplied by the ratio of the aggregate number of Shares
beneficially owned by Parent, Purchaser and any of their affiliates to the
total number of Shares then outstanding. The Registrant must, upon request
of Purchaser, take all action necessary to cause Parent's designees to be
elected or appointed to the Board, including without limitation increasing
the size of the Board or, at the Registrant's election, securing the
resignations of such number of its incumbent directors as is necessary to
enable Parent's designees to be so elected or appointed to the Board, and
must cause Parent's designees to be so elected or appointed. At such time,
the Registrant will also cause persons designated by Parent to constitute
the same percentage (rounded up to the next whole number) as is on the Board
of (i) each committee of the Board, (ii) each board of directors (or similar
body) of each subsidiary of the Registrant and (iii) each committee (or
similar body) of each such board. In addition, Parent and Purchaser have
agreed that, until the Effective Time (as defined in the Merger Agreement),
neither they nor their affiliates will take any action as directors or
shareholders of the Registrant to cause the removal of Laverne W. Rees and
Whitney A. McFarlin, independent directors of the Registrant. The foregoing
summary of certain provisions of the Merger Agreement is qualified in its
entirety by reference to the full text of the Merger Agreement which is
filed as Exhibit 2.1 to this Current Report.
Concurrently with the execution of the Merger Agreement, Mr. Michael
W. Dunaway, Chairman, Chief Executive Officer and President of the
Registrant, Mrs. Trudy V. Dunaway, the wife of Mr. Dunaway and a Director,
Vice President, Secretary and Assistant Treasurer of the Registrant, and The
Dunaway Family Trust, of which Mr. and Mrs. Dunaway are co-settlors and
co-trustees (the "Trust" and, together with Mr. and Mrs. Dunaway, the
"Selling Shareholders") each, individually and as trustee of the Trust,
entered into a Tender and Option Agreement, dated as of November 22, 1995,
with Parent and Purchaser (the "Tender and Option Agreement"). The Selling
Shareholders collectively own 1,931,426 Shares which are currently subject
to the Tender and Option Agreement, approximately 38% of the outstanding
Shares calculated on a fully diluted basis or approximately 44% of the
outstanding Shares. Pursuant to the Tender and Option Agreement, the
Selling Shareholders have agreed, among other things (i) to grant Parent and
Purchaser an irrevocable option to buy all such Shares owned of record or
beneficially by them from and after the date of the Tender and Option
Agreement at $17.50 per Share (the "Option"), and (ii) to validly tender
and, in the event such Option is not theretofore exercised, sell all such
Shares which are owned of record or beneficially by them prior to the
Expiration Date and are subject to the Tender and Option Agreement in the
Offer and vote such Shares in favor of the Merger, in each case upon the
terms and subject to the conditions set forth in the Tender and Option
Agreement. Pursuant to the Tender and Option Agreement, Parent and
Purchaser have the option to acquire from the Selling Shareholders at $17.50
per Share all but not part of their Shares on or after January 3, 1996 until
the earlier of (i) the termination of the Merger Agreement by mutual consent
of the parties, or by the Registrant if prior to the purchase of Shares
pursuant to the Offer or the Tender and Option Agreement Parent or Purchaser
materially breaches any of its representations, warranties or covenants in
the Merger Agreement or (ii) May 21, 1996. The obligation of the Selling
Shareholders to sell their Shares pursuant to such option is subject to
certain conditions specified in the Tender and Option Agreement, including
without limitation the conditions that (i) Shares shall have been accepted
for payment pursuant to the Offer or the Offer shall have otherwise expired
or been terminated in accordance with its terms and (ii) neither Parent nor
Purchaser shall have the right to terminate the Merger Agreement, in certain
circumstances, if the Offer shall have been terminated or expired prior to
any purchase of Shares thereunder. The foregoing summary of certain
provisions of the Tender and Option Agreement is qualified in its entirety
by reference to the full text of the Tender and Option Agreement which is
filed as Exhibit 2.2 to this Current Report.
Item 5. OTHER EVENTS
Since June 30, 1995, the Board has approved separate amendments to the
Registrant's Bylaws to (i) amend Section 3.01 thereof to remove obsolete
language and reflect statutory amendments to the Pennsylvania Business
Corporation Law of 1988, as amended ("PBCL") and (ii) amend Section 2.05(c)
thereof to expand the exceptions to the interested shareholder provision to
include the approval of a plan of merger when one corporation to a merger
owns 80% or more of the outstanding shares of the other constituent
corporation.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Businesses Acquired. NONE.
(b) Pro Forma Financial Information. NOT APPLICABLE.
(c) Exhibits:
Ex. No. Description
2.1 Agreement and Plan of Merger, dated as of November 22,
1995, by and among Registrant, Baxter Healthcare
Corporation and Baxter CVG Services II, Inc. (previously
filed as Exhibit 1 to the Registrant's Schedule 14D-9
filed with the Commission on November 29, 1995 and
incorporated herein by reference).
2.2 Tender and Option Agreement, dated as of November 22,
1995, by and among Michael W. Dunaway, Trudy V. Dunaway,
The Dunaway Family Trust, Baxter Healthcare Corporation
and Baxter CVG Services II, Inc. (previously filed as
Exhibit 2.5 to the Registrant's Schedule 14D-9 filed with
the Commission on November 29, 1995 and incorporated
herein by reference).
3.2 Bylaws, as amended through November 21, 1995 (filed
herewith)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PSICOR, INC.
Dated: December 6, 1995
/s/ Michael W. Dunaway
-------------------------
Michael W. Dunaway
Chairman & CEO
EXHIBIT INDEX
Ex. No. Description
2.1 Agreement and Plan of Merger, dated as of
November 22, 1995, by and among Registrant,
Baxter Healthcare Corporation and Baxter CVG
Services II, Inc. (previously filed as Exhibit
1 to the Registrant's Schedule 14D-9 filed with
the Commission on November 29, 1995 and
incorporated herein by reference).
2.2 Tender and Option Agreement, dated as of November
22, 1995, by and among Michael W. Dunaway, Trudy
V. Dunaway, The Dunaway Family Trust, Baxter
Healthcare Corporation and Baxter CVG Services II,
Inc. (previously filed as Exhibit 2.5 to the
Registrant's Schedule 14D-9 filed with the
Commission on November 29, 1995 and incorporated
herein by reference).
3.2 Bylaws, as amended through November 21, 1995
(filed herewith)
Exhibit 3.2
November 21, 1995
RESTATEMENT OF BYLAWS
OF
PSICOR, INC.
(A Pennsylvania Corporation)
ARTICLE I
Notice - Waivers - Meetings Generally
Section 1.01. Manner of giving notice.
(a) General rule.--Whenever written notice is required to be given
to any person under the provisions of the Business Corporation Law or by the
articles or these bylaws, it may be given to the person either personally
or by sending a copy thereof by first class or express mail, postage
prepaid, or by telegram (with messenger service specified), telex or TWX
(with answerback received) or courier service, charges prepaid, or by
telecopier, to the address (or to the telex, TWX, telecopier or telephone
number) of the person 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 or, in the case of telex or TWX, when dispatched or,
in the case of telecopier, when received. A notice of meeting shall specify
the place, day and hour of the meeting and any other information required
by any other provision of the Business Corporation Law, the articles or
these bylaws.
(b) Adjourned shareholder meetings.--When a meeting of shareholders
is adjourned, it shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted at an adjourned meeting, other
than by announcement at the meeting at which the adjournment is taken,
unless the board fixes a new record date for the adjourned meeting.
Section 1.02. Notice of meetings of board of directors.--Notice of a
regular meeting of the board of directors need not be given. Notice of
every special meeting of the board of directors shall be given to each
director by telephone or in writing at least 24 hours (in the case of notice
by telephone, telex, TWX or telecopier) or 48 hours (in the case of notice
by telegraph, courier service or express mail) or five days (in the case of
notice by first class mail) before the time at which the meeting is to be
held. Every such notice shall state the time and place of the meeting.
Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the board need be specified in a notice of the
meeting.
Section 1.03. Notice of meetings of shareholders.
(a) General rule.--Written notice of every meeting of the
shareholders shall be given by, or at the direction of, the secretary to
each shareholder of record entitled to vote at the meeting at least 10 days
prior to the day named for the meeting. If the secretary neglects or
refuses to give notice of a meeting, the person or persons calling the
meeting may do so. In the case of a special meeting of shareholders, the
notice shall specify the general nature of the business to be transacted.
(b) Notice of action by shareholders on bylaws.--In the case of a
meeting of shareholders that has as one of its purposes action on the
bylaws, written notice shall be given to each shareholder that the purpose,
or one of the purposes, of the 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 thereby.
Section 1.04. Waiver of notice.
(a) Written waiver.--Whenever any written notice is required to be
given under the provisions of the Business Corporation Law, 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 the notice. Except as otherwise
required by this subsection, the waiver of the notice of the meeting need
not specify the business to be transacted at, nor the purpose of, a meeting.
In the case of a special meeting of shareholders, the waiver of notice shall
specify the general nature of the business to be transacted.
(b) Waiver by attendance.--Attendance of a person at any meeting
shall constitute a waiver of notice of the meeting expect where a person
attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting was not
lawfully called or convened.
Section 1.05. Modification of proposal contained in notice.--Whenever
the language of a proposed resolution is included in a written notice of a
meeting required to be given under the provisions of the Business
Corporation Law or the articles or these bylaws, the meeting considering the
resolution may without further notice adopt it with such clarifying or other
amendments as do not enlarge its original purpose.
Section 1.06. Exception to requirement of notice.
(a) General rule.--Whenever any notice or communication is required
to be given to any person under the provisions of the Business Corporation
Law or by the articles or these bylaws or by the terms of any agreement or
other instrument or as a condition precedent to taking any corporate action
and communication with that person is then unlawful, the giving of the
notice or communication to that person shall not be required.
(b) Shareholders without forwarding addresses.--Notice or other
communications shall not be sent to any shareholder with whom the
corporation has been unable to communicate for more than 24 consecutive
months because communications to the shareholder are returned unclaimed or
the shareholder has otherwise failed to provide the corporation with a
current address. Whenever the shareholders provides the corporation with
a current address, the corporation shall commence sending notices and other
communications to the shareholder in the same manner as to other
shareholders.
Section 1.07. Use of conference telephone and similar equipment.--The
board of directors may provide by resolution with respect to a specific
meeting or with respect to a class of meetings that one or more persons may
participate in a meeting of the board of directors or the shareholders of
the corporation by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other. Participation in a meeting pursuant to this section shall
constitute presence in person at the meeting.
ARTICLE II
Shareholders
Section 2.01. Place of meeting.--All meetings of the shareholders of
the corporation shall be held at the principal office of the corporation
unless another place is designated by the board of directors in the notice
of a meeting.
Section 2.02. Annual meeting.--The board of directors may fix the date
and time of the annual meeting of the shareholders within 150 days of the
close of the corporation's fiscal year, and at said meeting the shareholders
then entitled to vote shall elect directors and shall transact such other
business as may properly be brought before the meeting. If the annual
meeting shall not have been called and held within six months after the
designated time, any shareholder may call the meeting at any time
thereafter.
Section 2.03. Special meetings.
(a) Call of special meetings.--Special meetings of the shareholders
may be called at any time by resolution of the board of directors, which may
fix the date, time and place of the meeting. If the board does not fix the
date, time or place of the meeting, it shall be the duty of the secretary
to do so. A date fixed by the secretary shall not be more than 90 days after
the date of the adoption of the resolution of the board calling the special
meeting.
Section 2.04. Quorum and adjournment.
(a) General rule.--A meeting of shareholders of the corporation duly
called shall not be organized for the transaction of business unless a
quorum is present. The presence of shareholders entitled to cast at least
a majority of the votes that all shareholders are entitled to cast on a
particular matter to be acted upon at the meeting shall constitute a quorum
for the purposes of consideration and action on the matter. Shares of the
corporation owned, directly or indirectly, by it and controlled, directly
or indirectly, by the board of directors of this corporation, as such, shall
not be counted in determining the total number of outstanding shares for
quorum purposes at any given time.
(b) withdrawal of a quorum.--The shareholders present at a duly
organized meeting can continue to do business until adjournment
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
(c) Adjournment generally.--Any regular or special meeting of the
shareholders, including one at which directors are to be elected and one
which cannot be organized because a quorum has not attended, may be
adjourned for such period and to such place as the shareholders present and
entitled to vote shall direct.
(d) Electing directors at adjourned meeting.--Those shareholders
entitled to vote who attend a meeting called for the election of directors
that has been previously adjourned for lack of a quorum, although less than
a quorum as fixed in this section, shall nevertheless constitute a quorum
for the purpose of electing directors.
(e) Other action in absence of quorum.--Those shareholders entitled
to vote who attend a meeting of shareholders that has been previously
adjourned for one or more periods aggregating at least 15 days because of
an absence of a quorum, although less than a quorum as fixed in this
section, shall nevertheless constitute a quorum for the purpose of acting
upon any matter set forth in the notice of the meeting if the notice states
that those shareholders who attend the adjourned meeting shall nevertheless
constitute a quorum for the purpose of acting upon the matter.
Section 2.05. Action by shareholders.
(a) General rule.--Except as otherwise provided in the Business
Corporation Law or the articles or these bylaws, whenever any corporate
action is to be taken by vote of the shareholders of the corporation, it
shall be authorized by a majority of the votes cast at a duly organized
meeting of shareholders by the holders of shares entitled to vote thereon.
(b) Interested shareholders.--Any merger or other transaction
authorized under 15 Pa.C.S. Subchapter 19C between the corporation or
subsidiary thereof and a shareholder of this corporation, or any voluntary
liquidation authorized under 15 Pa.C.S. Subchapter 19F in which a
shareholder is treated differently from other shareholders of the same class
(other than any dissenting shareholders), shall require the affirmative vote
of the shareholders entitled to cast at least a majority of the votes that
all shareholders other than the interested shareholder are entitled to cast
with respect to the transaction, without counting the vote of the interest
shareholder. For the purposes of the preceding sentence, interested
shareholder shall include the shareholder who is a party to the transaction
or who is treated differently from other shareholders and any person, or
group of persons, that is acting jointly or in concert with the interested
shareholder and any person who, directly or indirectly, controls, is
controlled by or is under common control with the interested shareholder.
An interested shareholder shall not include any person who, in good faith
and not for the purpose of circumventing this subsection, is an agent, bank,
broker, nominee or trustee for one or more other persons, to the extent that
the other person or persons are not interested shareholders.
(c) Exceptions.--Subsection (b) shall not apply to a
transaction:
(1) that has been approved by a majority vote of the board of
directors without counting the vote of directors who:
(i) are directors or officers of, or have a material equity interest
in, the interested shareholder; or
(ii) were nominated for election as a director by the interested
shareholder, and first elected as a director, within 24 months of the date
of the vote on the proposed transaction;
(2) in which the consideration to be received by the shareholders
for shares of any class of which shares are owned by the interested
shareholder is not less than the highest amount paid by the interested
shareholder in acquiring shares of the same class; or
(3) effected pursuant to 15 Pa.C.S. Section 1924(b)(1)(ii).
(d) Additional approvals.--The approvals required by subsection (b)
shall be in addition to, and not in lieu of, any other approval required by
the Business Corporation Law, the articles or these bylaws, or otherwise.
Section 2.06. Organization.--At every meeting of the shareholders, the
chairman of the board, if there be one, or, in the case of vacancy in office
or absence of the chairman of the board, one of the following officers
present in the order stated: the vice chairman of the board, if there be
one, the president, the vice presidents in their order of rank and
seniority, or a person chosen by vote of the shareholders present, shall act
as chairman of the meeting. The secretary or, in the absence of the
secretary, an assistant secretary, or, in the absence of both the secretary
and assistant secretaries, a person appointed by the chairman of the
meeting, shall act as secretary.
Section 2.07. Voting rights of shareholders.--Unless otherwise
provided in the articles, every shareholder of the corporation shall be
entitled to one vote for every share standing in the name of the shareholder
on the books of the corporation.
Section 2.08. Voting and other action by Proxy.
(a) General rule.-- (1) Every shareholder entitled to vote at
a meeting of shareholders may authorize another person to act for the
shareholder by proxy.
(2) The presence of, or vote or other action at a meeting of
shareholders by a proxy of a shareholder shall constitute the presence of,
or vote or action by the shareholder.
(3) Where two or more proxies of a shareholder are present, the
corporation shall, unless otherwise expressly provided in the proxy, accept
as the vote of all shares represented thereby the vote cast by a majority
of them and, if a majority of the proxies cannot agree whether the shares-
represented shall be voted or upon the manner of voting the shares, the
voting of the shares shall be divided equally among those persons.
(b) Minimum requirements.--Every proxy shall be executed in writing
by the shareholder or by the duly authorized attorney-in-fact of the
shareholder and filed with the secretary of the corporation. A proxy,
unless coupled with an interest, shall be revocable at will, notwithstanding
any other agreement or any provision in the proxy to the contrary, but the
revocation of a proxy shall not be effective until written notice thereof
has been given to the secretary of the corporation. An unrevoked proxy
shall not be valid after three years from the date of 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 the death or incapacity is
given to the secretary of the corporation.
(c) Expenses.--The corporation shall pay the reasonable expenses of
solicitation of votes, proxies or consents of shareholders by or on behalf
of the board of directors or its nominees for election to the board,
including solicitation by professional proxy solicitors and otherwise.
Section 2.09. Voting by fiduciaries and pledgees.--Shares of the
corporation standing in the name of a trustee or other fiduciary and shares
held by an assignee for the benefit of creditors or by a receiver may be
voted by the trustee, fiduciary, assignee or receiver. A shareholder whose
shares are pledged shall be entitled to vote the shares until the shares
have been transferred into the name of the pledgee, or a nominee of the
pledgee, but nothing in this section shall affect the validity of a proxy
given to a pledgee or nominee.
Section 2.10. Voting by joint holders of shares.
(a) General rule.--Where shares of the corporation are held jointly
or as tenants in common by two or more persons, as fiduciaries or otherwise:
(1) if only one or more of such persons is present in person or by
proxy, all of the shares standing in the names of such persons shall be
deemed to be represented for the purpose of determining a quorum and the
corporation shall accept as the vote of all the shares the vote cast by a
joint owner or a majority of them; and
(2) if the persons are equally divided upon whether the shares held
by them shall be voted or upon the manner of voting the shares, the voting
of the shares shall be divided equally among the persons without prejudice
to the rights of the joint owners or the beneficial owners thereof among
themselves.
(b) Exception.--If there has been filed with the secretary of the
corporation a copy, certified by an attorney at law to be correct, of the
relevant portions of the agreement under which the shares are held or the
instrument by which the trust or estate was created or the order of court
appointing them or of an order of court directing the voting of the shares,
the persons specified as having such voting power in the document latest in
date of operative effect so filed, and only those persons, shall be entitled
to vote the shares but only in accordance therewith.
Section 2.11. Voting by corporations.
(a) Voting by corporate shareholders.--Any corporation that is a
shareholder of this corporation may vote at meetings of shareholders of this
corporation by any of its officers or agents, or by proxy appointed by any
officer or agent, unless some other person, by resolution of the board of
directors of the other corporation or a provision of its articles or bylaws,
a copy of which resolution or provision certified to be correct by one of
its officers has been filed with the secretary of this corporation, is
appointed its general or special proxy in which case that person shall be
entitled to vote the shares.
(b) Controlled shares.--Shares of this corporation owned, directly
or indirectly, by it and controlled, directly or indirectly, by the board
of directors of this corporation, as such, shall not be voted at any meeting
and shall not be counted in determining the total number of outstanding
shares for voting purposes at any given time.
Section 2.12. Determination of shareholders of record.
(a) Fixing record date.--The board of directors may fix a time prior
to the date of any meeting of shareholders as a record date for the
determination of the shareholders entitled to notice of, or to vote at, the
meeting, which time, except in the case of an adjourned meeting, shall be
not more than 90 days prior to the date of the meeting of shareholders.
Only shareholders of record on the date fixed shall be so entitled
notwithstanding any transfer of shares on the books of the corporation after
any record date fixed as provided in this subsection. The board of
directors may similarly fix a record date for the determination of
shareholders of record for any other purpose. When a determination of
shareholders of record has been made as provided in this section for
purposes of a meeting, the determination shall apply to any adjournment
thereof unless the board fixes a new record date for the adjourned meeting.
(b) Determination when a record date is not fixed.-If a record date
is not fixed:
(1) The record date for determining shareholders entitled to notice
of or to vote at a meeting of shareholders shall be at the close of business
on the day next preceding the day on which notice is given or.
(2) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
(c) Certification by nominee.--The board of directors may adopt a
procedure whereby a shareholder of the corporation may certify in writing
to 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. Upon receipt by the corporation of a certification complying with
the procedure, the persons specified in the certification shall be deemed,
for the purposes set forth in the certification, to be the holders of record
of the number of shares specified in place of the shareholder making the
certification.
Section 2.13. Voting lists.
(a) General rule.--The officer or agent having charge of the
transfer books for shares of the corporation shall make a complete list of
the shareholders entitled to vote at any meeting of shareholders, arranged
in alphabetical order, with the address of and the number of shares held by
each. The 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 for the purposes thereof except that, if the
corporation has 5,000 or more shareholders, in lieu of the making of the
list the corporation may make the information therein available at the
meeting by any other means.
(b) Effect of list.--Failure to comply with the requirements of this
section shall not affect the validity of any action taken at a meeting prior
to a demand at the meeting by any shareholder entitled to vote thereat to
examine the list. The original transfer records, or a duplicate thereof
kept in Pennsylvania, shall be prima facie evidence as to who are the
shareholders entitled to examine the list or transfer records or to vote at
any meeting of shareholders.
Section 2.14. Judges of election.
(a) Appointment.--In advance of any meeting of shareholders of the
corporation, the board of directors may appoint judges of election, who need
not be shareholders, to act at the meeting or any adjournment thereof. If
judges of election are not so appointed, the presiding officer of the
meeting may, and on the request of any shareholder shall, appoint judges of
election at the meeting. The number of judges shall be one or three. A
person who is a candidate for office to be filled at the meeting shall not
act as a judge.
(b) Vacancies.--In case any person appointed as a judge fails to
appear or fails or refuses to act, the vacancy may be filled by appointment
made by the board of directors in advance of the convening of the meeting
or at the meeting by the presiding officer thereof.
(c) Duties.--The judges of election shall determine the number of
shares outstanding and the voting power of each, the shares represented at
the meeting, the existence of a quorum, the authenticity, validity and
effect of proxies, receive votes or ballots, hear and determine all
challenges and questions in any way arising in connection with nominations
by shareholders or the right to vote, count and tabulate all votes,
determine the result and do such acts as may be proper to conduct the
election or vote with fairness to all shareholders. The judges of election
shall perform their duties impartially, in good faith, to the best of their
ability and as expeditiously as is practical. If there are three 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.
(d) Report.--On request of the presiding officer of the meeting, the
judges shall make a report in writing of any challenge or question or matter
determined by them, and execute a certificate of any fact found by them.
Any report or certificate made by them shall be prima facie evidence of the
facts stated therein.
Section 2.15. Consent of shareholders in lieu of meeting.--Any action
required or permitted to be taken at a meeting of the shareholders or of a
class of shareholders may be taken without a meeting only upon the unanimous
written consent of all shareholders who would have been entitled to vote
thereon at a meeting of shareholders called to consider the matter.
Section 2.16. Minors as security holders.--The corporation may treat
a minor who holds shares or obligations of the corporation as having
capacity to receive and to empower others to receive dividends, interest,
principal and other payments or distributions, to vote or express consent
or dissent and to make elections and exercise rights relating to such shares
or obligations unless, in the case of payments or distributions on shares,
the corporate officer responsible for maintaining the list of shareholders
or the transfer agent of the corporation or, in the case of payments or
distributions on obligations, the treasurer or paying officer or agent has
received written notice that the holder is a minor.
ARTICLE III
Board of Directors
Section 3.01. Personal liability of directors.
(a) General.--A director shall not be personally liable, as
such, for monetary damages for any action taken, or any failure to take any
action, unless:
(1) the director has breached or failed to perform the duties
of his or her office under this section; and
(2) the breach or failure to perform constitutes self-dealing,
willful misconduct or recklessness.
(b) Exceptions.--The provisions of paragraph (a) shall not
apply to the responsibility or liability of a director pursuant to any
criminal statute, or the liability of a director for the payment of taxes
pursuant to local, State or Federal law.
Section 3.02. Qualifications and selection of directors.
(a) Qualifications.--Each director of the corporation shall be a
natural person of full age who need not be a resident of Pennsylvania or a
shareholder of the corporation.
(b) Election of directors.--Except as otherwise provided in these
bylaws, directors of the corporation shall be elected by the shareholders.
In elections for directors, voting need not be by ballot, except upon demand
made by a shareholder entitled to vote at the election and before the voting
begins. The candidates receiving the highest number of votes from each
class or group of classes, if any, entitled to elect directors separately
up to the number of directors to be elected by the class or group of classes
shall be elected. If at any meeting of shareholders, directors of more than
one class are to be elected, each class of directors shall be elected in a
separate election.
Section 3.03. Number and term of office.
(a) Number.--The board of directors shall consist of such number of
directors, not less than two nor more than nine, as may be determined from
time to time by resolution of the board of directors.
(b) Term of office.--Each director shall hold office until the
expiration of the term for which he or she was selected and until a
successor has been selected and qualified or until his or her earlier death,
resignation or removal. A decrease in the number of directors shall not
have the effect of shortening the term of any incumbent director.
(c) Resignation.--Any director may resign at any time upon written
notice to the corporation. The resignation shall be effective upon receipt
thereof by the corporation or at such subsequent time as shall be specified
in the notice of resignation.
Section 3.04. Vacancies.---
(a) General rule.--Vacancies in the board of directors, including
vacancies resulting from an increase in the number of directors, may be
filled by a majority vote of the remaining members of the board though less
than a quorum, or by a sole remaining director, and each person so selected
shall be a director to serve until the next selection of the class for which
such director has been chosen, and until a successor has been selected and
qualified or until his or her earlier death, resignation or removal.
(b) Action by resigned directors.--When one or more directors resign
from the board effective at a future date, the directors then in office,
including those who have so resigned, shall have power by the applicable
vote to fill the vacancies, the vote thereon to take effect when the
resignations become effective.
Section 3.05. Removal of directors.
(a) Removal by the shareholders.--The entire board of directors, or
any individual director may be removed from office with or without cause by
the vote of shareholders entitled to vote. In case the board or a class of
the board 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
these bylaws prohibiting, or the addition of a provision to the articles or
bylaws permitting, the removal of the shareholders of the board, a class of
the board or a 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
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 3.06. Place of meetings.--Meetings of the board of directors
may be held at such place within or without Pennsylvania as the board of
directors may from time to time appoint or as may be designated in the
notice of the meeting.
Section 3.07. Organization of meetings. --At every meeting of the
board of directors, the chairman of the board, if there be one, or, in the
case of a vacancy in the office or absence of the chairman of the board, one
of the following officers present in the order stated: the vice chairman of
the board, if there be one, the president, the vice presidents in their
order of rank and seniority, or a person chosen by a majority of the
directors present, shall act as chairman of the meeting. The secretary or,
in the absence of the secretary and the assistant secretaries, any person
appointed by the chairman of the meeting, shall act as secretary.
Section 3.08. Regular meetings.--Regular meetings of the board of
directors shall be held at such time and place as shall be designated from
time to time by resolution of the board of directors.
Section 3.09. Special meetings.--Special meetings of the board of
directors shall be held whenever called by the chairman or by two or more
of the directors.
Section 3.10. Quorum of and action by directors.
(a) General rule.--A majority of the directors in the office of the
corporation shall be necessary to 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.
(b) Action by written consent.--Any action required or permitted to
be taken at a meeting of the directors may be taken without a meeting if,
prior or subsequent to the action, a consent or consents thereto by all of
the directors in office is filed with the secretary of the corporation.
Section 3.11. Executive and other committees.
(a) Establishment and powers.--The board of directors may, by
resolution adopted by a majority of the directors in office, establish one
or more committees to consist of one or more directors of the corporation.
Any committee, to the extent provided in the resolution of the board of
directors, shall have and may exercise all of the powers and authority of
the board of directors except that a committee shall not have any power or
authority as to the following:
(1) The submission to shareholders of any action requiring approval
of shareholders under the Business Corporation Law.
(2) The creation or filling of vacancies in the board of directors.
(3) The adoption, amendment or repeal of these bylaws.
(4) The amendment or repeal of any resolution of the board that by
its terms is amendable or repealable only by the board.
(5) Action on matters committed by a resolution of the board of
directors to another committee of the board.
(b) Alternate committee members.--The board may designate one or
more directors as alternate members of any committee who may replace any
absent or disqualified member at any meeting of the committee or for the
purposes of any written action by the committee. In the absence or
disqualification of a member and alternate member or members of a committee,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not constituting a quorum, may unanimously appoint
another director to act at the meeting in the place of the absent or
disqualified member.
(c) Term.--Each committee of the board shall serve at the pleasure
of the board.
(d) Committee Procedures.--The term "board of directors" or "board,"
when used in any provision of these bylaws relating to the organization or
procedures of or the manner of taking action by the board of directors,
shall be construed to include and refer to any executive or other committee
of the board.
Section 3.12. Compensation.--The board of directors shall have the
authority to fix the compensation of directors for their services as
directors and a director may be a salaried officer of the corporation.
ARTICLE IV
Officers
Section 4.01. Officers generally.
(a) Number, qualifications and designation.--The officers of the
corporation shall be a chairman of the board, a president, one or more vice
presidents, a secretary, a treasurer, and such other officers as may be
elected in accordance with the provisions of Section 4.03. Officers may but
need not be directors or shareholders of the corporation. The chairman of
the board, president and secretary shall be natural persons of full age.
The treasurer may be a corporation, but if a natural person shall be of full
age. The board of directors may elect from among the members of the board
a vice chairman of the board who shall be an officer of the corporation.
Any number of offices may be held by the same person.
(b) Resignations.--Any officer may resign at any time upon written
notice to the corporation. The resignation shall be effective upon receipt
thereof by the corporation or at such subsequent time as may be specified
in the notice of resignation.
(c) Bonding.--The corporation may secure the fidelity of any or all
of its officers by bond or otherwise.
(d) Standard of care.--Except as otherwise provided in the articles,
an officer shall perform his or her duties as an officer in good faith, in
a manner he or she reasonably believes to be in the best interests of the
corporation and with such care, including reasonable inquiry, skill and
diligence, as a person of ordinary prudence would use under similar
circumstances. A person who so performs his or her duties shall not be
liable by reason of having been an officer of the corporation.
Section 4.02. Election and term of office. The officers of the
corporation, except those elected by delegated authority pursuant to Section
4.03, shall be elected annually by the board of directors, and each such
officer shall hold office for a term of one year and until a successor has
been selected and qualified or until his or her earlier death, resignation
or removal.
Section 4.03. Subordinate officers, committees and agents.--The board
of directors may from time to time elect such other officers and appoint
such committees, employees or other agents as the business of the
corporation may require, including one or more assistant secretaries, and
one or more assistant treasurers, each of whom shall hold office for such
period, have such authority, and perform such duties as are provided in
these bylaws or as the board of directors may from time to time determine.
The board of directors may delegate to any officer or committee the power
to elect subordinate officers and to retain or appoint employees or other
agents, or committees thereof and to prescribe the authority and duties of
such subordinate officers, committees, employees or other agents.
Section 4.04. Removal of officers and agents.--Any officer or agent
of the corporation may be removed by the board of directors with or without
cause. The removal shall be without prejudice to the contract rights, if
any, of any person so removed. Election or appointment of an officer or
agent shall not of itself create contract rights.
Section 4.05. Vacancies.--A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause, shall be filled
by the board of directors or by the officer or committee to which the power
to fill such office has been delegated pursuant to Section 4.03, as the case
may be, and if the office is one for which these bylaws prescribe a term,
shall be filled for the unexpired portion of the term.
Section 4.06. Authority-All officers of the corporation, as between
themselves and the corporation, shall have such authority and perform such
duties in the management of the corporation as may be provided by or
pursuant to resolutions or orders of the board of directors or in the
absence of controlling provisions in the resolutions or orders of the board
of directors, as may be determined by or pursuant to these bylaws.
Section 4.07. The chairman and vice chairman of the board.--The
chairman of the board or in the absence of the chairman, the vice chairman
of the board, if there be one, shall preside at all meetings of the
shareholders and of the board of directors, shall be the chief executive
officer of the corporation and shall have general supervision over the
business and operations of the corporation, subject however, to the control
of the board of directors. The chairman of the board shall sign, execute,
and acknowledge, in the name of the corporation, deeds, mortgages, bonds,
contracts or other instruments authorized by the board of directors, except
in cases where the signing and execution thereof shall be expressly
delegated by the board of directors, or by these bylaws, to some other
officer or agent of the corporation; and, in general, shall perform all
duties incident to the office of chairman of the board and such other duties
as from time to time may be assigned by the board of directors.
Section 4.09. The president.--The president shall perform the duties
of the chairman of the board in the absence of the chairman of the board and
such other duties as may from time to time be assigned by the board of
directors or the chairman of the board.
Section 4.10. The vice Presidents.--The vice presidents shall perform
the duties of the president in the absence of the president and such other
duties as may from time to time be assigned to them by the board of
directors, the chairman of the board or the president.
Section 4.11. The secretary.--The secretary or an assistant secretary
shall attend all meetings of the shareholders and of the board of directors
and shall record all the votes of the shareholders and of the directors and
the minutes of the meetings of the shareholders and of the board of
directors and of committees of the board in a book or books to be kept for
that purpose; shall see that notices are given and records and reports
properly kept and filed by the corporation as required by law; shall be the
custodian of the seal of the corporation and see that it is affixed to all
documents to be executed on behalf of the corporation under its seal; and,
in general, shall perform all duties incident to the office of secretary,
and such other duties as may from time to time be assigned by the board of
directors or the president.
Section 4.12. The treasurer.--The treasurer or an assistant treasurer
shall have or provide for the custody of the funds or other property of the
corporation; shall collect and receive or provide for the collection and
receipt of moneys earned by or in any manner due to or received by the
corporation; shall deposit all funds in his or her custody as treasurer in
such banks or other places of deposit as the board of directors may from
time to time designate; shall, whenever so required by the board of
directors, render an account showing all transactions as treasurer and the
financial condition of the corporation; and, in general, shall discharge
such other duties as may from time to time be assigned by the board of
directors or the president.
Section 4.13. Salaries.--The salaries of the officers elected by the
board of directors shall be fixed from time to time by the board of
directors or by such officer as may be designated by resolution of the
board. The salaries or other compensation of any other officers, employees
and other agents shall be fixed from time to time by the officer or
committee to which the power to elect such officers or to retain or appoint
such employees or other agents has been delegated pursuant to Section 4.03.
No officer shall be prevented from receiving such salary or other
compensation by reason of the fact that the officer is also a director of
the corporation.
ARTICLE V
Certificates of Stock, Transfer, Etc.
Section 5.01. Share certificates.--Certificates for shares of the
corporation shall be in such form as approved by the board of directors, and
shall state that the corporation is incorporated under the laws of
Pennsylvania, the name of the person to whom issued, and the number and
class of shares and the designation of the series (if any) that the
certificate represents. The share transfer records and blank share
certificates shall be kept by the secretary or by any transfer agent or
registrar designated by the board of directors for that purpose.
Section 5.02. Issuance.--The share certificates of the corporation
shall be numbered and registered in the transfer records of the corporation
as they are issued. They shall be signed by the chairman of the board or
the president and by the secretary or an assistant secretary or the
treasurer or an assistant treasurer, which may be a facsimile, engraved or
printed; but where such certificate is signed by a transfer agent or a
registrar the signature of any corporate officers upon such certificate may
be a facsimile, engraved or printed. In case any officer who has signed,
or whose facsimile signature has been placed upon, any share certificate
shall have ceased to be such officer because of death, resignation or
otherwise, before the certificate is issued, it may be issued with the same
effect as if the officer had not ceased to be such at the date of its issue.
The provisions of this Section 5.02 shall be subject to any inconsistent or
contrary agreement at the time between the corporation and any transfer
agent or registrar.
Section 5.03. Transfer.--Transfers of shares shall be made on the
transfer records of the corporation upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfer shall be made inconsistent
with the provisions of the Uniform Commercial Code, 13 Pa.C.S. Sections 8101
et seq., and its amendments and supplements.
Section 5.04. Record holder of shares.--The corporation shall be
entitled to treat the person in whose name any share or shares of the
corporation stand on the books of the corporation as the absolute owner
thereof, and shall not be bound to recognize any equitable or other claim
to, or interest in, such share or shares on the part of any other person.
Section 5.05. Lost, destroyed or mutilated certificates.--The holder
of any shares of the corporation shall immediately notify the corporation
of any loss, destruction or mutilation of the certificate therefor, and the
board of directors may, in its discretion, cause a new certificate or
certificates to be issued to such holder, in case of mutilation of the
certificate, upon the surrender of the mutilated certificate or, in case of
loss or destruction of the certificate, upon satisfactory proof of such loss
or destruction and, if the board of directors shall so determine, the
deposit of a bond in such form and in such sum, and with such surety or
sureties, as it may direct.
ARTICLE VI
Indemnification of Directors, Officers and
Other Authorized Representatives
Section 6.01. Scope of-indemnification.
(a) General rule.--The corporation shall indemnify an indemnified
representative against any liability incurred in connection with any
proceeding in which the indemnified representative may be involved as a
party or otherwise by reason of the fact that such person is or was serving
in an indemnified capacity, including, without limitation, liabilities
resulting from any actual or alleged breach or neglect of duty, error,
misstatement or misleading statement, negligence, gross negligence or act
giving rise to strict or products liability, except:
(1) where such indemnification is expressly prohibited by applicable
law;
(2) where the conduct of the indemnified representative has been
finally determined pursuant to Section 6.06 or otherwise:
(i) to constitute willful misconduct or recklessness within
the meaning of 15 Pa.C.S. Sections 513(b) and 1746(b) and 42 Pa.C.S. Section
8365(b) or any superseding provision of law sufficient in the circumstances
to bar indemnification against liabilities arising from the conduct; or
(ii) to be based upon or attributable to the receipt by the
indemnified representative from the corporation of a personal benefit to
which the indemnified representative is not legally entitled; or
(3) to the extent such indemnification has been finally determined
in a final adjudication pursuant to Section 6.06 to be otherwise unlawful.
(b) Partial Payment.--If an indemnified representative is entitled
to indemnification in respect of a portion, but not all, of any liabilities
to which such person may be subject, the corporation shall indemnify such
indemnified representative to the maximum extent for such portion of the
liabilities.
(c) Presumption.--The termination of a 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 indemnified
representative is not entitled to indemnification.
(d) Definitions.--For purposes of this Article:
(1) "indemnified capacity' means any and all past, present and
future service by an indemnified representative in one or more capacities
as a director, officer, employee or agent of the corporation, or, at the
request of the corporation, as a director, officer, employee, agent,
fiduciary or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other entity or enterprise;
(2) "indemnified representative" means any and all directors and
officers of the corporation and any other person designated as an
indemnified representative by the board of directors of the corporation
(which may, but need not, include any person serving at the request of the
corporation, as a director, officer, employee, agent, fiduciary or trustee
of another corporation, partnership, joint venture, trust, employee benefit
plan or other entity or enterprise);
(3) "liability" means any damage, judgment, amount paid in
settlement, fine, penalty, punitive damages, excise tax assessed with
respect to an employee benefit plan, or cost or expense, of any nature
(including, without limitation, attorneys' fees and disbursements); and
(4) "proceeding" means any threatened, pending or completed action,
suit, appeal or other proceeding of any nature, whether civil, criminal,
administrative or investigative, whether formal or informal, and whether
brought by or in the right of the corporation, a class of its security
holders or otherwise.
Section 6.02. Proceedings initiated by indemnified representatives.--
Notwithstanding any other provision of this Article, the corporation shall
not indemnify under this Article an indemnified representative for any
liability incurred in a proceeding initiated (which shall not be deemed to
include counter-claims or affirmative defenses) or participated in as an
intervenor or amicus curiae by the person seeking indemnification unless
such initiation of or participation in the proceeding is authorized, either
before or after its commencement, by the affirmative vote of a majority of
the directors in office. This section does not apply to reimbursement of
expenses incurred in successfully prosecuting or defending an arbitration
under Section 6.06 or otherwise successfully prosecuting or defending the
rights of an indemnified representative granted by or pursuant to this
Article.
Section 6.03. Advancing expenses.--The corporation shall pay the
expenses (including attorneys' fees and disbursements) incurred in good
faith by an indemnified representative in advance of the final disposition
of a proceeding described in Section 6.01 or the initiation of or
participation in which is authorized pursuant to Section 6.02 upon receipt
of an undertaking by or on behalf of the indemnified representative to repay
the amount if it is ultimately determined pursuant to Section 6.06 that such
person is not entitled to be indemnified by the corporation pursuant to this
Article. The financial ability of an indemnified representative to repay
an advance shall not be a prerequisite to the making of such advance.
Section 6.04. Securing of indemnification obligations.--To further
effect, satisfy or secure the indemnification obligations provided herein
or otherwise, the corporation may maintain insurance, obtain a letter of
credit, act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification agreements,
pledge or grant a security interest in any assets or properties of the
corporation, or use any other mechanism or arrangement whatsoever in such
amounts, at such costs, and upon such other terms and conditions as the
board of directors shall deem appropriate. Absent fraud, the determination
of the board of directors with respect to such amounts, costs, terms and
conditions shall be conclusive against all security holders, officers and
directors and shall not be subject to voidability.
Section 6.05. Payment of indemnification.--An indemnified
representative shall be entitled to indemnification within 30 days after a
written request for indemnification has been delivered to the secretary of
the corporation.
Section 6.06. Arbitration.
(a) General rule.--Any dispute related to the right to
indemnification, contribution or advancement of expenses as provided under
this Article, except with respect to indemnification for liabilities arising
under the Securities Act of 1933 that the corporation has undertaken to
submit to a court for adjudication, shall be decided only by arbitration in
the metropolitan area in which the principal executive offices of the
corporation are located at the time, in accordance with the commercial
arbitration rules then in effect of the American Arbitration Association,
before a panel of three arbitrators, one of whom shall be selected by the
corporation, the second of whom shall be selected by the indemnified
representative and the third of whom shall be selected by the other two
arbitrators. In the absence of the American Arbitration Association, or if
for any reason arbitration under the arbitration rules of the American
Arbitration Association cannot be initiated, or if one of the parties fails
or refuses to select an arbitrator or if the arbitrators selected by the
corporation and the indemnified representative cannot agree on the selection
of the third arbitrator within 30 days after such time as the corporation
and the indemnified representative have each been notified of the selection
of the other's arbitrator, the necessary arbitrator or arbitrators shall be
selected by the presiding judge of the court of general jurisdiction in such
metropolitan area.
(b) Qualifications of arbitrators.--Each arbitrator selected as
provided herein is required to be or have been a director or executive
officer of a corporation whose shares of common stock were listed during at
least one year of such service on the New York Stock Exchange or the
American Stock Exchange or quoted on the National Association of Securities
Dealers Automated Quotations Systems.
(c) Burden of Proof.--The party or parties challenging the right of
an indemnified representative to the benefits of this Article shall have the
burden of proof.
(d) Expenses.--The corporation shall reimburse an indemnified
representative for the expenses (including attorneys' fees and
disbursements) incurred in successfully prosecuting or defending such
arbitration.
(e) Effect.--Any award entered by the arbitrators shall be final,
binding and nonappealable and judgment may be entered thereon by any party
in accordance with applicable law in any court of competent jurisdiction,
except that the corporation shall be entitled to interpose as a defense in
any such judicial enforcement proceeding any prior final judicial
determination adverse to the indemnified representative under Section
6.01(a)(2) in a proceeding not directly involving indemnification under this
Article. This arbitration provision shall be specifically enforceable.
Section 6.07. Contribution.--If the indemnification provided for in
this Article or otherwise is unavailable for any reason in respect of any
liability or portion thereof, the corporation shall contribute to the
liabilities to which the indemnified representative may be subject in such
proportion as is appropriate to reflect the intent of this Article or
otherwise.
Section 6.08. Mandatory indemnification of directors, officers, etc.--
To the extent that an authorized representative of the corporation has been
successful on the merits or otherwise in defense of any action or proceeding
referred to in 15 Pa.C.S. Sections 1741 or 1742 or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
(including attorneys' fees and disbursements) actually and reasonably
incurred by such person in connection therewith.
Section 6.09. Contract rights; amendment or repeal.--All rights under
this Article shall be deemed a contract between the corporation and the
indemnified representative pursuant to which the corporation and each
indemnified representatives intend to be legally bound. Any repeal,
amendment or modification hereof shall be prospective only and shall not
affect any rights or obligations then existing.
Section 6.10. Scope of Article.--The rights granted by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification, contribution or advancement of expenses may be entitled
under any statute, agreement, vote of shareholders or disinterested or
otherwise both as to action in an indemnified capacity and as to action in
any other capacity. The indemnification, contribution and advancement of
expenses provided by or granted pursuant to this Article shall continue as
to a person who has ceased to be an indemnified representative in respect
of matters arising prior to such time, and shall inure to the benefit of the
heirs, executors, administrators and personal representatives of such a
person.
Section 6.11. Reliance on Provisions.--Each person who shall act as
an indemnified representative of the corporation shall be deemed to be doing
so in reliance upon the rights provided by this Article.
Section 6.12. Interpretation.--The provisions of this Article are
intended to constitute bylaws authorized by 15 Pa.C.S. Sections 513 and 1746
and 42 Pa.C.S. Section 8365.
ARTICLE VII
Miscellaneous
Section 7.01. Corporate seal.--The corporation shall have a corporate
seal in the form of a circle containing the name of the corporation, the
year of incorporation and such other details as may be approved by the board
of directors.
Section 7.02. Checks.--All checks, notes, bills of exchange or other
orders in writing shall be signed by such person or persons as the board of
directors or any person authorized by resolution of the board of directors
may from time to time designate.
Section 7.03. Contracts.--Except as otherwise provided in the Business
Corporation Law in the case of transactions that require action by the
shareholders, the board of directors may authorize any officer or agent to
enter into any contract or to execute or deliver any instrument on behalf
of the corporation, and such authority may be general or confined to
specific instances.
Section 7.04. Interested directors or officers; quorum.
(a) General rule.--A contract or transaction between the corporation
and one or more of its directors or officers or between the corporation and
another corporation, partnership, joint venture, trust or other enterprise
in which one or more of its directors or officers are directors or officers
or have a financial or other interest, shall not be void or voidable solely
for that reason, or solely because the director or officer is present at or
participates in the meeting of the board of directors that authorizes the
contract or transaction, or solely because his, her or their votes are
counted for that purpose, if:
(1) the material facts as to the relationship or interest and
as to the contract or transaction are disclosed or are known to the board
of directors and the board authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors even though
the disinterested directors are less than a quorum;
(2) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known
to the shareholders entitled to vote thereon and the contract or transaction
is specifically approved in good faith by vote of those shareholders; or
(3) the contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified by the board of
directors or the shareholders.
(b) Quorum.--Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board which
authorizes a contract or transaction specified in subsection (a).
Section 7.05. Deposits.--All funds of the corporation shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositories as the board of directors may approve
or designate, and all such funds shall be withdrawn only upon checks signed
by such one or more officers or employees as the board of directors shall
from time to time determine.
Section 7.06. Corporate records.
(a) Required records.--The corporation shall keep complete and
accurate books and records of account, minutes of the proceedings of the
incorporators, shareholders and directors and share transfer records giving
the names and addresses of all shareholders and the number and class of
shares held by each. The share transfer records shall be kept at either the
registered office of the corporation in Pennsylvania or at its principal
place of business wherever situated or at the office of its registrar or
transfer agent. Any books, minutes or other records may be in written form
or any other form capable of being converted into written form within a
reasonable time.
(b) Right of inspection.--Every shareholder shall, upon written
verified demand stating the purpose thereof, have a right to examine, in
person or by agent or attorney, during the usual hours for business for any
proper purpose, the share transfer records, books and records of account,
and records of the proceedings of the incorporators, shareholders and
directors and to make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to the interest of the person as a
shareholder. In every instance where an attorney or other agent is the
person who seeks the right of inspection, the demand shall be accompanied
by a verified power of attorney or other writing that authorizes the
attorney or other agent to so act on behalf of the shareholder. The demand
shall be directed to the corporation at its registered office in
Pennsylvania or at its principal place of business wherever situated.
Section 7.07. Amendment of bylaws.--These bylaws may be amended or
repealed, or new by-laws may be adopted, either (i) by vote of the
shareholders at any duly organized annual or special meeting of
shareholders, or (ii) with respect to those matters that are not by statute
committed expressly to the shareholders and regardless of whether the
shareholders have previously adopted or approved the bylaw being amended or
repealed, by vote of a majority of the board of directors of the corporation
in office at any regular or special meeting of directors. Any change in
these bylaws shall take effect when adopted unless otherwise provided in the
resolution effecting the change. See Section 1.03(b)(relating to notice of
action by shareholders on bylaws).
