SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report - March 7, 1996
STERLING FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania 0-16276 23-2449551
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification
Number)
101 North Point Boulevard
Lancaster, Pennsylvania 17601-4133
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (717 581-6030)
(Former name or former address, if changed since last report)
<PAGE>
Item 1. Changes in Control of Registrant.
Not applicable.
Item 2. Acquisition or Disposition of Assets.
Not applicable.
Item 3. Bankruptcy or Receivership.
Not Applicable.
Item 4. Changes in Registrant's Certifying Accountant.
Not Applicable.
Item 5. Other Events.
The Registrant hereby files its amended Bylaws. See
Item 7 and Exhibit 3(ii) below.
Item 6. Resignations of Registrant's Directors.
Not Applicable.
Item 7. Financial Statements and Exhibits.
Exhibits:
3(ii) Amended Bylaws of the Registrant.
Item 8. Change in Fiscal Year.
Not Applicable.
<PAGE>
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 hereunto duly authorized.
Sterling Financial Corporation
(Registrant)
Dated March 7, 1996 /s/ John E. Stefan
John E. Stefan, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
/s/ Ronald L. Bowman
Ronald L. Bowman, Vice President and
Secretary
<PAGE>
EXHIBIT 3(ii)
AMENDED BYLAWS OF THE REGISTRANT
STERLING FINANCIAL CORPORATION
BYLAWS
Amended and Restated November 28, 1995
ARTICLE I
SHAREHOLDER MEETINGS
Section 1.1. Annual Meeting. The annual meeting of shareholders of
the Company shall be held at such time and place as may be fixed from time to
time by the Board of Directors and shall be held no later than the thirty-
first day of May in each year, when the shareholders shall elect members to
the Board of Directors and transact such other business as may be properly
brought before the meeting.
Section 1.2. Special Meetings. Special meetings of the
shareholders may be called at any time by: (i) the Chief Executive Officer,
(ii) the Executive Committee of the Board of Directors, or (iii) the Board of
Directors pursuant to a resolution adopted by the affirmative vote of the
whole Board of Directors. Special meetings may not be called by the
shareholders.
Section 1.3. Notice of Meetings. Written notice of all meetings of
shareholders shall be given to each shareholder of record entitled to vote at
the meeting at least ten (10) days prior to the day of the meeting by mail
addressed to the shareholder at his address as it appears on the books of the
Company. Such notice shall state the date, hour and place of the meeting and
shall also state the general nature of the business to be transacted in the
case of a special meeting. Notices shall be deemed to have been delivered
when deposited in the United States mail, postage prepaid, addressed to the
shareholder at his address as it appears on the books of the Company.
Section 1.4. Record Date. The Board of Directors may fix a date
not more than ninety (90) days prior to the date of any meeting of
shareholders, or the date fixed for the payment of any dividends or
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of shares will be made or go into effect, as
the record date for the determination of the shareholders entitled to receive
notice of, and to vote at, any such meeting, or entitled to receive payment of
any such dividend or distribution, or to receive any such allotment of rights
or exercise such rights, as the case may be, notwithstanding any transfer of
any shares of the books of the Company after any record date fixed as
aforesaid. The Board of Directors may close the books of the Company against
transfers of shares during the whole or any part of such period, and in such
case written or printed notice thereof to each shareholder shall be mailed at
least ten (10) days before the closing thereof to each shareholder of record
at the address appearing on the records of the Company or supplied by him or
her to the Company for the purpose of notice. While the stock transfer books
of the Company are closed, no transfer of shares shall be made thereon. If no
record date is fixed by the Board of Directors for the determination of
shareholders entitled to receive notice of, and vote at, a shareholders
meeting, transferees of shares which are transferred on the books of the
Company within ten (10) business days next preceding the date of such meeting
shall not be entitled to notice of or vote at such meeting.
Section 1.5. Voting List. The officer or agent having charge of
the transfer books for the shares of the Company shall make, at least five (5)
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order, with the
address of and the number of shares held by each. Such list shall be kept on
file at the registered office of the Company until the time of the meeting
and, upon proper purpose shown in accordance with the provisions of Section
308 of the Pennsylvania Business Corporation Law (15 P.S. 1308) as now or
hereafter in effect, shall be: (i) subject to inspection by any shareholder
during usual business hours, (ii) made available for inspection by any
shareholder at any time during the meeting.
Section 1.6. Quorum and Majority Action. A majority of the
outstanding shares, represented in person or by proxy, shall constitute a
quorum at any meeting of shareholders. A majority of votes cast shall decide
each matter submitted to the shareholders, except in cases where the vote of a
larger number of shares is required under the Articles of Incorporation or
these Bylaws or by law and except that in elections of directors, the
candidates receiving the highest number of votes shall be elected.
Section 1.7. Voting of Shares. Each outstanding share entitled to
vote at a meeting shall be entitled to one (1) vote on each matter.
Shareholders shall not have the right to cumulate their votes for the election
of directors.
Shareholders may vote at any meeting of shareholders by proxy duly
authorized in writing. A proxy shall be valid only for one meeting to be
specified therein and any adjournments of such meeting. Proxies shall be
dated and shall be filed with the Secretary of the Company.
Section 1.8. Conduct of Meetings. At every meeting of the
shareholders, the Chairman of the Board or, in his absence, the President, or,
in his absence, a chairman (who shall be one of the officers, if any is
present) chosen by the shareholders of the Company present, shall act as
chairman of the meeting. The chairman of the meeting shall appoint a person
to serve as secretary of the meeting.
Section 1.9. No Action by Written Consent. No action required to
be taken or which may be taken at any annual or special meeting of the
shareholders or of a class of the shareholders of the Company may be taken
without a duly called meeting and the power of the shareholders of the Company
to consent in writing to action without a meeting is specifically denied,
except that action may be taken without a meeting, if: (i) the number of
shareholders of record is three or less, and (ii) a consent in writing setting
forth the action so taken is signed by all of the shareholders of record and
filed with the Secretary of the Company.
ARTICLE II
DIRECTORS
Section 2.1. Powers. The business and affairs of the Company and
all Corporate powers shall be exercised by or under the authority of the Board
of Directors, subject to any limitation imposed by law, the Articles of
Incorporation, or these Bylaws as to action which requires approval by the
shareholders.
Section 2.2. Number and Qualifications of Directors. The Board of
Directors shall consist of not less than one (1) nor more than twenty-five
(25) shareholders. The directors shall be classified with respect to the time
they shall severally hold office by dividing them into three (3) classes, each
consisting as nearly as possible of one-third (1/3) of the number of the whole
Board of Directors; provided, however, that nothing herein shall be construed
to require exact equality in the number of directors in each class. At the
Annual Meeting of Shareholders to be held in 1988, the directors of one class
shall be elected for a term of one (1) year; directors of a second class shall
be elected for a term of two (2) years; and directors of a third class shall
be elected for a term of three (3) years and at each Annual Meeting of
Shareholders thereafter the successors to the class of directors whose term
shall expire that year shall be elected to hold office for a term of three (3)
years, so that the term of office of one (1) class of directors shall expire
in each year. The directors shall hold office until the expiration of the
term for which they were elected and until their successors are elected and
have qualified. The number of directors in each class of directors shall be
determined by the Board of Directors.
Any shareholder who owns in his own right shares of the common stock of
the corporation having an aggregate par value of not less than $1,000.00 shall
be eligible to be elected as a director of the Company, except that no person
shall be nominated who will attain the age of seventy (70) years on or before
the date of the Annual Meeting of Shareholders at which he is to be elected.
Section 2.3. Nomination of Directors. Only persons who are
nominated in accordance with the procedures set forth in this Section 2.3
shall be eligible for election as directors. The Board of Directors, or a
duly appointed committee thereof, shall act as a nominating committee for
selecting nominees for election as directors. Except in the case of a nominee
substituted as a result of the death or incapacity of a nominee of the
nominating committee, the nominating committee shall deliver written
nominations to the Secretary at least 90 days prior to the one year
anniversary date of the previous meeting of shareholders called for election
of directors. Provided such nominating committee makes such nominations, no
nominations for directors, except those made by the nominating committee,
shall be voted upon at the annual meeting unless other nominations by
shareholders are made in accordance with the provisions of this Section 2.3.
No person shall be elected as a director of the Company unless nominated in
accordance with the procedures set forth in this Section 2.3. Ballots bearing
the names of all persons nominated by the nominating committee and by
shareholders shall be provided for use at the annual meeting.
Nominations of individuals for election to the Board of Directors of the
Company at an annual meeting of shareholders may be made by any shareholder of
the Company entitled to vote for the election of directors at that meeting who
complies with the procedures set forth in this Section 2.3. Such nominations,
other than those made by the Board of Directors or a nominating committee
thereof, shall be made pursuant to timely notice in writing to the Secretary
of the Company as set forth in this Section 2.3. To be timely, a
shareholder's notice shall be delivered to or received at the principal
executive offices of the Company not less than 90 days prior to the
anniversary date of the immediately preceding meeting of shareholders of the
Company called for the election of directors. Each such shareholder's notice
shall set forth: (a) the name and address of the shareholder who intends to
make the nomination and of the person or persons to be nominated; (b) a
representation that the shareholder is a holder of record of stock of the
Company entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the shareholder; (d) such other information regarding each nominee
proposed by such shareholder as would be required to be disclosed in
solicitations of proxies with respect to nominees for election as directors,
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended, including, but not limited to, information required to be disclosed
by Items 4, 5, 6, and 7 of Schedule 14A and information which would be
required to be filed on Schedule 14B with the Securities and Exchange
Commission (or any successors of such items or schedules); (e) the consent of
each nominee to serve as director of the Company if so elected; and (f) the
class and number of shares of stock of the Company which are beneficially
owned by such shareholder on the date of such shareholder notice and, to the
extent known, by any other shareholders known by such shareholder to be
supporting such nominees on the date of such shareholder notice. At the
request of the Board of Directors, any person nominated by the Board of
Directors, or a nominating committee thereof, for election as a director shall
furnish to the Secretary of the Company that information required to be set
forth in a shareholder's notice of nomination which pertains to the nominee
together with the required written consents, each as described herein.
The Board of Directors may reject any nomination by a shareholder not
timely made in accordance with the requirements of this Section 2.3. If the
Board of Directors, or a designated committee thereof, determines that the
information provided in a shareholder's notice does not satisfy the
informational requirements of this Section in any material aspect, the
Secretary of the Company shall notify such shareholder of the deficiency in
the notice. The shareholder shall have an opportunity to cure the deficiency
by providing additional information to the Secretary within such period of
time, not to exceed five days from the date such deficiency notice is given to
the shareholder, as the Board of Directors or such committee shall reasonably
determine. If the deficiency is not cured within such period, or if the Board
of Directors or such committee reasonably determines that the additional
information provided by the shareholder, together with information previously
provided, does not satisfy the requirements of this Section 2.3 in any
material respect, then the Board of Directors may reject such shareholder's
nomination. The Secretary of the Company shall notify a shareholder in
writing whether his nomination has been made in accordance with the time and
informational requirements of this Section 2.3. Notwithstanding the
procedures set forth in this paragraph, if neither the Board of Directors nor
such committee makes a determination as to the validity of any nominations by
a shareholder, the presiding officer of the annual meeting shall determine and
declare at the annual meeting whether the nomination was made in accordance
with the terms of this Section 2.3. If the presiding officer determines that
a nomination was made in accordance with the terms of this Section 2.3, he
shall so declare at the annual meeting and ballots shall be provided for use
at the annual meeting with respect to such nominee. If the presiding officer
determines that a nomination was not made in accordance with this Section 2.3,
he shall so declare at the annual meeting and the defective nomination shall
be disregarded.
Section 2.4. Elections. If directors of more than one class are to
be elected at a meeting of the shareholders by reason of vacancy or otherwise,
there shall be a separate election for each class of directors to be elected
at that meeting.
Section 2.5. Organizational Meeting. An organizational meeting may
be held immediately following the annual shareholders meeting without the
necessity of notice to the directors to constitute a legally convened meeting,
or the directors may meet at such time and place as may be fixed by either a
vote or waiver of notice or consent by all such directors, for the purpose of
organizing the new Board, appointing officers and transacting such other
business as properly may come before the meeting.
Section 2.6. Vacancies. A vacancy in the Board of Directors shall
occur in the case of the happening of any of the following events: (a) a
director shall die or resign; (b) the shareholders shall fail to elect the
number of directors authorized to be elected at any meeting of shareholders at
which any director is to be elected; (c) the Board of Directors shall by
resolution have elected to increase the number of directors; (d) the Board of
Directors shall declare vacant the office of any director for such cause as
the Board may determine; or (e) a vacancy shall occur for any other reason.
Any vacancy occurring in the Board of Directors shall be filled by a
majority of the remaining members of the Board of Directors, though less than
a quorum, and each person so elected shall hold office until the next Annual
Meeting of Shareholders and until his successor is duly elected and has
qualified.
Section 2.7. Place of Meetings. All meetings of the Board of
Directors shall be held at the administrative office of the Company in
Lancaster, Pennsylvania or at such other place within or without this
Commonwealth as may be designated from time to time by a majority of the
directors or as may be designated in the notice calling the meeting.
Section 2.8. Regular Meetings. Regular meetings of the Board of
Directors shall be held not less than annually at a time and place to be
determined by the Board of Directors at the preceding meeting or by resolution
on an annual basis.
Section 2.9. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, by the President, or at
the request of three (3) or more directors. Not less than twenty-four (24)
hours' notice of the date, time and place of any special meeting of the Board
of Directors shall be given to each director either: (a) in person; (b) by
telephone; or (c) by notice to the director's personal residence or business
address appearing on the books of the Company by telephone, mail, telegram or
written notice delivered to such place.
Section 2.10. Quorum and Majority Action. A majority of all the
members of the Board of Directors in office shall constitute a quorum for the
transaction of business. If at any time fixed for a meeting, including the
meeting to organize the new Board following the Annual Meeting of
Shareholders, a quorum is not present, the directors in attendance may adjourn
the meeting from time to time until a quorum is obtained and the meeting may
be held as adjourned without further notice. Except as otherwise provided
herein, a majority of those directors present at any meeting of the Board of
Directors at which a quorum is present shall decide each matter considered.
A director may not vote by proxy or otherwise act by proxy at a meeting
of the Board of Directors.
Section 2.11. Conduct of Meetings. At every meeting of the Board of
Directors, the Chairman of the Board, or in his absence, the President, or, in
his absence, a chairman chosen by a majority of the directors present, shall
preside. A person to be designated by the Chairman of the Board shall serve
as secretary of the Board of Directors.
One or more directors may participate in a meeting of the Board of
Directors by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other.
Section 2.12. Compensation. The Board of Directors, by the
affirmative vote of a majority of the directors then in office and
irrespective of any personal interest of any of its members, shall have
authority to establish a fee to be paid to each director for attendance at
meetings; provided, however, that no such fee may be paid to any director who
is also a salaried officer of the Company or of any subsidiary of the Company.
Section 2.13. Retirement. The office of a director shall be
considered vacant at the Annual Meeting of Shareholders next following his
attaining the age of seventy (70) years.
Section 2.14. Personal Liability of Directors.
(a) General Rule: A director of the Company shall not be personally
liable for monetary damages for any action taken or any failure to take any
action, except to the extent that exemption from liability for monetary
damages is not permitted under the laws of the Commonwealth of Pennsylvania as
now or hereafter in effect. The provisions of this Subsection (a) are
intended to exempt the directors of the Company from liability for monetary
damages to the maximum extent permitted under the Pennsylvania Directors'
Liability Act (42 Pa. C.S. 8361 et seq.) or under any other law now or
hereafter in effect.
(b) Specific Rule Under Directors' Liability Act: Without limitation
of Subsection (a) above, a director of the Company shall not be personally
liable for monetary damages for any action taken or any failure to take any
action, unless: (i) the director has breached or failed to perform the duties
of his office under Section 8363 of the Directors' Liability Act, and (ii) the
breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of the preceding sentence shall not exempt a
director from: (i) the responsibility or liability of a director pursuant to
any criminal statute; or (ii) the liability of a director for the payment of
taxes pursuant to local, state or federal law.
(c) Modification or Repeal: The provisions of this Section may be
modified or repealed by the Board of Directors in accordance with the
procedures for amending these Bylaws; provided, however, that any such
modification or repeal shall not have any effect upon the liability of a
director relating to any action taken, any failure to take any action, or
events which occurred prior to the effective date of such modification or
repeal.
(d) Effective Date: This Section shall become effective immediately
following the ratification of these Bylaws by the shareholders of the Company
ARTICLE III
COMMITTEES
Section 3.1. Authority. The Board of Directors, by resolution
adopted by a majority of the whole Board of Directors, may create such
permanent or temporary committees as the Board of Directors deems necessary
for the proper conduct of the business of the Company. Each committee shall
consist of at least three (3) directors and shall have and may exercise such
powers as shall be conferred or authorized by resolution of the Board and
which are not inconsistent with these Bylaws. The creation of any committee
and the delegation to it of authority shall not relieve the Board of Directors
of any responsibility imposed by law upon it.
Section 3.2. Appointment of Committees. The Chairman of the Board
shall submit to the Board of Directors, at its first meeting after the Annual
Meeting of Shareholders, his recommendations for the members of and chairmen
of each standing committee. The Board of Directors shall then appoint, in
accordance with such recommendations or otherwise, the members and a chairman
for each such committee. If the appointees accept their appointment, they
shall serve for one (1) year or until their successors are appointed. The
Board of Directors may fill any vacancy occurring on any committee and may
remove and replace any member of any committee. A director may be a member of
more than one committee.
The Chairman of the Board and the President shall be ex-officio members
of all committees of the Board of Directors, except the Audit Committee (if
one be appointed).
Section 3.3. Place and Notice of Committee Meetings. All committee
meetings shall be held at such place and time as may be designated by the
chairman of the committee or as may be designated in the notice calling for
the meeting.
Section 3.4. Conduct of Committees. A majority of the membership
of a committee shall constitute a quorum for the transaction of business;
provided, however, that in any case where the Chairman of the Board and the
President are members ex-officio of a committee and have not been specifically
appointed to a committee by resolution of the Board of Directors, then the
number of members of that committee necessary to constitute a quorum shall be
that number which is a majority of the number of members of that committee
other than the ex-officio members, but, for purposes of determining the
presence of a quorum at any meeting of that committee, any ex-officio members
who are present shall be counted. In any case, ex-officio committee members
shall be entitled to vote.
Regular meetings of a committee may be held, without call or notice, at
such times as the committee members decide or as the Board of Directors may
require. Special meetings of a committee may be called at any time by its
chairman or by the Chairman of the Board or by the President. Except for its
chairman (who shall be appointed by the Board of Directors), each committee
may appoint a secretary and such other officers as the committee members deem
necessary. Each committee shall have the power and authority to obtain from
the appropriate officers of the Company all information necessary for the
conduct of the proper business of the committee.
One or more directors may participate in a meeting of a committee by
means of conference telephone or similar communication equipment by means of
which all persons participating in the meeting can hear each other.
Section 3.5. Executive Committee. There shall be a standing
committee of the Board of Directors to be known as the Executive Committee
consisting of: (i) the Chairman of the Board, (ii) the President and (iii) not
less than three (3) other directors. In addition to the foregoing, the Board
of Directors may appoint as non-voting members of the Executive Committee
persons who are not directors of the Company. Such committee, during the
intervals between meetings of the Board of Directors, shall exercise all the
powers and authority of the Board of Directors in the management of the
affairs of the company, except the power and authority to do the following:
(a) to fill vacancies in the Board of Directors and the Executive Committee;
(b) to propose to the shareholders amendment of the Articles of Incorporation;
(c) to make, alter, amend or repeal these Bylaws; (d) to adopt or propose to
the shareholders for adoption any plan of merger, consolidation, liquidation,
or dissolution; (e) to approve the sale of substantially all of the assets of
the Company; (f) to approve the sale and issuance of long term debt; (g) to
declare dividends; (h) to authorize the issuance of stock; or (i) to authorize
redemption of stock or distributions to shareholders. The Executive Committee
shall keep minutes of its proceedings and shall report on its activities at
each regular meeting of the Board of Directors.
Meetings of the Executive Committee may be called from time to time by
the persons specified in Section 3.4 above or, in their absence or inability
to act, by a Vice President.
ARTICLE IV
OFFICERS
Section 4.1. Number and Titles. The officers of the Company 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 appointed by the
Board of Directors. The same person may hold two (2) or more offices, except
both the offices of President and Secretary.
Section 4.2. Election and Term. The officers of the Company,
except such officers as may be appointed in accordance with the provisions of
Section 4.4 below, shall be elected annually by the Board of Directors and
shall hold office until they shall resign, shall be removed or otherwise
disqualified to serve, or their successors shall be elected and have
qualified.
Section 4.3. Chief Executive Officer. At the annual organization
meeting of the new Board of Directors, the Board shall designate whether the
Chairman of the Board or the President or both shall have general executive
powers and which one shall be the Chief Executive Officer of the Company.
Section 4.4. Subordinate Officers. The Chief Executive Officer may
appoint such other officers or agents as he may deem necessary, subject to the
authority of the Board of Directors to disapprove any such appointment. A
subordinate officer shall hold office for such period, have such authority and
perform such duties as may be determined by the Chief Executive Officer. The
Board of Directors may delegate to any officer or committee the power to
appoint subordinate officers and to specify their duties and authority and to
determine their compensation.
Section 4.5. Chairman of the Board. The Chairman of the Board
shall be a member of the Board of Directors. The Chairman of the Board shall,
if present, preside at all meetings of the Board of Directors and shall be an
ex-officio member of all committees of the Board of Directors except the Audit
Committee (if one be appointed). The Chairman of the Board shall supervise
the administration of the policies adopted or approved by the Board of
Directors and he shall also have and may exercise such further powers and
duties as from time to time may be conferred upon or assigned to him by the
Board of Directors. The Chairman of the Board shall have authority to sign
the share certificates of the Company.
Section 4.6. President. The President of the Company shall be a
member of the Board of Directors. Subject to such supervisory powers as may
be given by the Board of Directors to the Chairman of the Board, the President
shall have and may exercise any and all powers and duties of supervision,
direction, and control of the business and affairs of the Company vested by
law, regulation and practice in the office of President of a corporation and,
in addition, he shall also have and may exercise such further powers and
duties as from time to time may be conferred upon or assigned to him by the
Board of Directors. The President shall be an ex-officio member of all
committees of the Board of Directors, except the Audit Committee (if one be
appointed). The President shall have the authority to sign the share
certificates of the Company.
Section 4.7. Vice President. Each Vice President of the Company
shall have such powers and duties as may be assigned to him by the Board of
Directors. One Vice President shall be designated by the Board of Directors,
in the absence or inability to act of the President, to perform all of the
duties of the President.
Section 4.8. Secretary. The Secretary of the Company shall be
responsible for the minute book of the Company. The Secretary shall attest
such documents as may be required and, in addition, shall have and may
exercise such further powers and duties as from time to time may be conferred
upon or assigned to him by the Board of Directors. The Secretary shall have
authority to sign the share certificates of the Company.
Section 4.9. Treasurer. The Treasurer of the Company shall be
responsible for all of the Company's funds and securities, shall be
responsible for keeping complete and accurate records relating thereto, and
shall prepare such reports of the financial condition of the Company as may
from time to time be requested by the Board of Directors. In addition, the
Treasurer shall have and may exercise such further powers and duties as from
time to time may be conferred upon or assigned to him by the Board of
Directors.
ARTICLE V
INDEMNIFICATION
Section 5.1. General Rule. Subject to the provisions of Section
5.2 below, the Company shall, to the fullest extent permitted under the laws
of the Commonwealth of Pennsylvania as now or hereafter in effect, indemnify
any person (and his heirs, executors and administrators) who was or is a
party, witness or other participant, or is threatened to be made a party,
witness or other participant, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, actions by or in the right of the
corporation), by reason of the fact that he is or was a director or officer of
the Company, or is or was serving at the request of the Company as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise, against all expenses (including attorneys' fees, court costs,
transcript costs, fees of experts and witnesses, travel expenses and all other
similar expenses), judgments, fines, penalties and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit,
or proceeding.
Section 5.2. Standard of Conduct. Except as provided in Section
5.4 below, indemnification shall be provided under Section 5.1 above only if
it is determined in accordance with the procedure set forth in Section 5.3
below that : (i) the person seeking indemnification acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company; and (ii) the act or failure to act giving rise to
the claim for indemnification does not constitute willful misconduct or
recklessness. Notwithstanding the foregoing, no person shall be indemnified
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.
Section 5.3. Procedure. Except as provided under Section 5.4
below, indemnification under Section 5.1 above (unless ordered by a court)
shall be made by the Company only as authorized in the specific case upon a
determination that indemnification is proper in the circumstances because the
person seeking indemnification has met the applicable standard of conduct set
forth in Section 5.2 above. All such determinations shall be made in
accordance with the following procedure:
(a) Method of Determination: All determinations shall be made
as follows:
(1) If a Change in Control has occurred, unless the person
seeking indemnification shall have requested in writing that such
determination be made in accordance with Subsection (2) below, the
determination shall be made by Independent Counsel in a written opinion to the
Board of Directors, a copy of which shall be delivered to the person seeking
indemnification; or
(2) If a Change in control has not occurred, the
determination shall be made by the Board of Directors by majority vote of a
quorum consisting of directors who were not parties to the action, suit, or
proceeding in respect of which indemnification is sought. In the event that
such a quorum is not obtainable, or, even if obtainable, a majority of such
quorum so directs, the determination shall be made by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be delivered
to the person seeking indemnification.
(b) Selection and Payment of Independent Counsel: In the event
that a determination is to be made by Independent Counsel, such Independent
Counsel shall be selected and his fee paid as follows:
(1) If a Change in Control has not occurred, the
Independent Counsel shall be selected by the Board of Directors and the law
firm or person so selected shall be subject to the approval of the person
seeking indemnification, which approval shall not be unreasonably withheld.
(2) If a Change in Control has occurred, the Independent
Counsel shall be selected by the person seeking indemnification and the law
firm or person so selected shall be subject to the approval of the Board of
Directors, which approval shall not be unreasonably withheld.
(3) The Company shall pay all reasonable fees and expenses
of the Independent Counsel.
(c) No Presumption: The termination of any action, suit or
proceeding referred to in Section 5.1 above or of any claim, issue or matter
therein, by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that a
person did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Company or that the act
or failure to act giving rise to the claim for indemnification constitutes
willful misconduct or negligence.
Section 5.4. Successful Defense. Notwithstanding any other
provision of this Article, to the extent that a person has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
to in Section 5.1 above, or in defense of any claim, issue or mater therein,
he shall be indemnified by the Company against all expenses (including
attorneys' fees, court costs, transcript costs, fees of experts and witnesses,
travel expenses and all other similar expenses) actually and reasonably
incurred by him in connection therewith.
Section 5.5. Advance Payment of Expenses. Subject to such terms,
conditions and limitations, if any, as the Board of Directors may in its
discretion determine to be appropriate, the Company shall advance all
reasonable expenses (including attorneys' fees, court costs, transcript costs,
fees of experts and witnesses, travel expenses and all other similar expenses)
reasonably incurred in connection with the defense of or other response to any
action, suit or proceeding referred to in Section 5.1 above upon receipt of an
undertaking by or on behalf of the person seeking the advance to repay all
amounts advanced if it shall ultimately be determined upon final disposition
of such action, suit or proceeding that he is not entitled to be indemnified
by the Company under the provisions of this Article. Notwithstanding the
provisions of the preceding sentence, the Company shall not be required to
make any advance payment of expenses (or to make any further advance if one or
more advances shall have been previously made) in the event that a
determination is made by the Board of Directors that the making of an advance
or further advance would be inappropriate in the circumstances because there
is reason to believe that the person seeking the advance did not meet the
applicable standard of conduct set forth in Section 5.2 above or otherwise.
Section 5.6. No Duplication of Payments. The Company shall not be
liable under this Article to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that the person seeking
indemnification has otherwise actually received payment under any insurance
policy, contract, agreement or otherwise. In the event that the Company makes
an advance payment of expenses to or on behalf of any person, such person
shall repay to the Company the amount so advanced, if and to the extent that
he subsequently receives payment therefor under any insurance policy,
contract, agreement or otherwise.
Section 5.7. Insurance. The Company may purchase and maintain at
its own expense one or more policies of insurance to protect itself and to
protect any director, officer, employee or agent of the Company or of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss incurred by such person in such capacity, whether
or not the Company would have the authority to indemnify such person against
any such expense, liability or loss under this Article or under the laws of
the Commonwealth of Pennsylvania.
Section 5.8. Indemnification Agreements. The Company shall have
authority by vote of a majority of the Board of Directors to enter into an
Indemnification Agreement with any person who may be indemnified by the
Company pursuant to the provisions of this Article or otherwise. Any such
Indemnification Agreement may contain such terms and conditions as a majority
of the Board of Directors shall in the exercise of their discretion determine
to be necessary or appropriate, provided that such terms and conditions may
not be inconsistent with the substantive provisions of this Article. The fact
that the Company has not entered into an Indemnification Agreement with any
person shall not in any way limit the indemnification rights of such person
under this Article or otherwise.
Section 5.9. Non-exclusivity. The right to indemnification and to
the payment of expenses incurred in defending against or otherwise responding
to any action, suit or proceeding in advance of its final disposition as set
forth in this Article shall not be exclusive of any other rights which any
person may now have or hereafter acquire under any agreement, vote of
shareholders, vote of disinterested directors, or under any applicable law or
under the Articles of Incorporation of the Company, or otherwise.
Section 5.10. Certain Definitions. For purposes of this Article,
the following terms shall have the meanings set forth below:
(a) Change in Control: Shall mean a change in control of the
kind that would be required to be reported in response to Item 1 of Securities
and Exchange Commission Form 8-K promulgated under the Securities Exchange Act
of 1934 and as in effect on the effective date of this Article. Without
limitation of the foregoing, a Change in Control of the Company shall be
deemed to have occurred upon the occurrence of any of the following events:
(1) Any person or group of persons acting in concert,
shall have acquired, directly or indirectly, beneficial ownership of 20
percent or more of the outstanding shares of the voting stock of the Company;
or
(2) The composition of the Board of Directors of the
Company shall have changed such that during any period of 24 consecutive
months, the persons who at the beginning of such period were members of the
Board of Directors cease for any reason to constitute a majority of the Board
of Directors, unless the nomination or election of each director who was not a
director at the beginning of such period was approved in advance by directors
representing not less than two-thirds of the directors then in office who were
directors at the beginning of the period; or
(3) The Company shall be merged or consolidated with or
its assets purchased by another corporation and, as a result of such merger,
consolidation or sale of assets, less than a majority of the outstanding
voting stock of the surviving, resulting or purchasing corporation is owned,
immediately after the transaction, by the holders of the voting stock of the
Company outstanding immediately before the transaction; or
(4) The shareholders of the Company shall have approved
any plan or proposal for the liquidation or dissolution of the Company.
(b) Independent Counsel: Shall mean a law firm, or a member of
a law firm, that is experienced in matters of corporation law and that has not
in the immediately preceding five years been retained to represent the
Company, the person seeking indemnification or any other party to the action,
suit or proceeding giving rise to the claim for indemnification.
Section 5.11. Survival of Rights. The indemnification rights
provided to a person under the provisions of this Article shall continue after
such person ceases to be a director or officer of the Company or of another
entity, as to any action taken, any failure to take action, or any events
which occurred while such person was a director or officer of the Company or
of another entity.
Section 5.12. Modification or Repeal. The provisions of this
Article may be modified or repealed by the Board of Directors in accordance
with the procedures for amending these Bylaws; provided, however, that any
such modification or repeal shall not have any effect upon the indemnification
rights of any person as they relate to any action taken, any failure to take
action, or events which occurred prior to the effective date of such
modification or repeal.
Section 5.13. Effective Date. This Article shall become effective
immediately following the ratification of these Bylaws by the shareholders of
the Company and shall thereafter be subject to modification or repeal by the
Board of Directors as provided in Section 5.12 above.
ARTICLE VI
EMERGENCIES
Section 6.1. Emergency Executive Committee. In the event of any
emergency declared by governmental authority, the result of a regional or
national disaster and of such severity as to prevent the normal conduct and
management of the affairs of the Company by its directors and officers as
contemplated by these Bylaws, any three (3) available directors shall
constitute the Executive Committee and may exercise the full authority of that
committee until such time as a duly elected Board of Directors can again
assume full responsibility for and control of the Company.
ARTICLE VII
SHARE CERTIFICATES
Section 7.1. Requirements. The share certificates of the Company
shall be numbered and registered in a share register as they are issued; shall
bear the name of the registered holder, the number and class of shares
represented thereby, the par value of each share or a statement that such
shares are without par value, as the case may be; shall be signed by the
Chairman of the Board or the President and the Secretary or the Treasurer or
any other person properly authorized by the Board of Directors, and shall bear
the corporate seal, which seal may be a facsimile engraved or printed. Where
the certificate is signed by a transfer agent or a registrar, the signature of
any corporate officer on 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 by the Company with the same effect as if the officer had not
ceased to be such at the date of its issue.
ARTICLE VIII
TRANSFER OF SHARES
Section 8.1. Procedure. Upon surrender to the Company, or its
Transfer Agent in accordance with Article 8 of the Pennsylvania Uniform
Commercial Code, of a share certificate duly endorsed by the person named in
the certificate or by an attorney duly appointed in writing and accompanied
where necessary 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 cancelled and the transfer recorded upon the transfer
books for shares of the Company. No transfer shall be made if it would be
inconsistent with the provisions of Article 8 of the Pennsylvania Uniform
Commercial Code.
ARTICLE IX
FINANCIAL REPORT TO SHAREHOLDERS
Section 9.1. Requirement. The Chairman of the Board and the Board
of Directors shall present prior to each annual meeting of the shareholders a
full and complete statement of the business and affairs of the Company for the
preceding year.
ARTICLE X
INSTRUMENTS
Section 10.1. Execution. Any note, mortgage, evidence or
indebtedness, contract or other document, or any assignment or endorsement
thereof, executed or entered into between the Company and any other person,
when signed by one or more officers or agents having actual or apparent
authority to sign it, or by the Chairman of the Board, the President, or the
Executive Vice President and Secretary or Assistant Secretary or Treasurer or
Assistant Treasurer of the Company, shall be held to have been properly
executed for and on behalf of the Company.
Section 10.2. Seal. The affixation of the corporate seal shall not
be necessary to the valid execution, assignment or endorsement by the Company
of any instrument or other document.
ARTICLE XI
FISCAL YEAR
Section 11.1. Calendar Based. The fiscal year of the Company shall
be the calendar year.
ARTICLE XII
SEAL
Section 12.1. Requirements. The corporate seal shall have inscribed
thereon the name of the Company, 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 in any manner reproduced.
ARTICLE XIII
NOTICES AND WAIVERS THEREOF
Section 13.1. Procedure. Whenever written notice is required to be
given to any person under the provisions of applicable law, by the Articles of
Incorporation or of 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 his address (or to his telex, TWX, telecopier, or telephone
number) appearing on the books of the Company or, in the case of directors,
supplied by him to the Company 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. A notice of meeting shall
specify the place, day and hour of the meeting and any other information
required by any other provision of these Bylaws.
Section 13.2. Waiver. Whenever any written notice is required to be
given under the provisions of applicable law, the Articles of Incorporation or
of 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 these Bylaws, neither the business to be transacted at, nor the
purpose of, a meeting need be specified in the waiver of notice of the
meeting. In the case of a special meeting of shareholders, the waiver of
notice shall specify the general nature of the business to be transacted.
Section 13.3. Attendance as Waiver of Notice. Attendance of a
person at any meeting shall constitute a waiver of notice of the meeting
except where a person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because
the meeting was not lawfully called or convened.
Section 13.4. When Notice is not Required. Whenever any notice or
communication is required to be given to any person under the provisions of
applicable law, the Articles of Incorporation, these Bylaws, the terms of any
agreement and any 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 and
there shall be no duty to apply for a license or other permission to do so.
Any action or meeting that is taken or held without notice or communication to
that person shall have the same validity as if the notice or communication had
been duly given. If the action taken is such as to require the filing of any
document with respect thereto under any provision of law or any agreement or
other instrument, it shall be sufficient, if such is the fact and if notice or
communication is required, to state therein that notice or communication was
given to all persons entitled to receive notice or communication except
persons with whom communication was unlawful.
Section 13.5. When Shareholder is Incommunicado. Section 13.4 shall
also be applicable to any shareholder with whom the Company has been unable to
communicate for more than twenty-four (24) consecutive months because
communications to the shareholder are returned unclaimed or the shareholder
has otherwise failed to provide the Company with a current address. Whenever
the shareholder provides the Company with a current address, Section 13.4
shall cease to be applicable to the shareholder under this Section 13.5
ARTICLE XIV
LOST CERTIFICATES
Section 14.1. Procedure. Where a shareholder of the Company alleges
the loss, theft or destruction of one or more certificates for shares of the
Company and requests the issuance of a substitute certificate therefor, the
Board of Directors, or authorized officers of the Company, may direct a new
certificate of the same tenor and for the same number of shares to be issued
to such person upon such person's making of an affidavit in form satisfactory
to the Board of Directors, or authorized officers of the Company, setting
forth the facts in connection therewith, provided that prior to the receipt of
such request the Company shall not have either registered a transfer of such
certificate or received notice that such certificate has been acquired by a
bona fide purchaser. When authorizing such issue of a new certificate the
Board of Directors, or authorized officers of the Company, may, in their
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his heirs or legal
representatives, as the case may be, to advertise the same in such manner as
it shall require and/or give the Company a bond in such form and with surety
or sureties, with fixed or open penalty, as shall be satisfactory to the Board
of Directors, as indemnity for any liability or expense which it may incur by
reason of the original certificate remaining outstanding.
ARTICLE XV
DIVIDENDS
Section 15.1. Procedure. The Board of Directors may, from time to
time, at any duly convened regular or special meeting or by unanimous consent
in writing, declare and pay dividends upon the outstanding shares of capital
stock of the Company in cash, property or shares of the Company, so long as
any dividend shall not be in violation of law and the Articles of
Incorporation.
Section 15.2. Requirements. Before payment of any dividend, there
may be set aside out of any funds of the Company available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Company, or for such other purposes as the Board of Directors shall believe to
be for the best interests of the Company, and the Board of Directors may
reduce or abolish any such reserve in the manner in which it was created.
ARTICLE XVI
EMERGENCIES
Section 16.2. Bylaws. The Board of Directors may adopt emergency
Bylaws, subject to repeal or change by action of the shareholders, which
shall, notwithstanding any different provisions of law, of the Articles of
Incorporation or of these Bylaws, be effective during any emergency resulting
from an attack on the United States, a nuclear disaster or another catastrophe
as a result of which a quorum of the Board of Directors cannot readily be
assembled. The emergency Bylaws may make any provision that may be
appropriate for the circumstances of the emergency including, procedures for
calling meetings of the Board of Directors, quorum requirements for meetings
and procedures for designating additional or substitute directors.
Section 16.3. Lines of Succession. The Board of Directors, either
before or during any emergency, may provide, and from time to time modify,
lines of succession in the event that during the emergency any or all officers
or agents of the Company shall for any reason be rendered incapable of
discharging their duties and may, effective in the emergency, change the head
offices or designate several, alternative head offices or regional offices of
the Company or authorize the officers to do so.
Section 16.4. Liability. A representative of the Company acting in
accordance with any emergency Bylaws shall not be liable except for willful
misconduct and shall not be liable for any action taken by him in good faith
in an emergency in furtherance of the ordinary business affairs of the Company
even though not authorized by the emergency or other Bylaws then in effect.
Section 16.5. Effect of Current Bylaws. To the extent not
inconsistent with any emergency Bylaws so adopted, the Bylaws of the Company
shall remain in effect during any emergency and, upon its termination, the
emergency Bylaws shall cease to be effective.
Section 16.6. Notice. Unless otherwise provided in emergency
Bylaws, notice of any meeting of the Board of Directors during an emergency
shall be given only to those directors to whom it is feasible to reach at the
time and by such means as are feasible at the time, including publication,
radio or television. To the extent required to constitute a quorum at any
meeting of the Board of Directors during any emergency, the officers of the
Company who are present shall, unless otherwise provided in emergency Bylaws,
be deemed, in order of rank and within the same rank in order of seniority,
directors for the meeting.
ARTICLE XVII
USAGE OF TERMS
Section 17.1. Usage of Terms. Whenever in these Bylaws the
masculine gender is used, it shall be deemed to include the feminine and
neutered genders as well, and singular usage shall include plural usage, and
vice versa, all as the contents shall require.
ARTICLE XVIII
AMENDMENT
Section 18.1. Procedure. The authority to make, amend, alter,
change or repeal the Bylaws of the Company is hereby expressly and solely
granted to and vested in the Board of Directors, subject always to the power
of the shareholders to make, amend, alter, change or repeal the Bylaws by the
affirmative vote of the holders of not less than 75 percent of the then
outstanding shares of stock of the Company entitled to vote generally in the
election of directors, voting together as a single class, at a meeting of
shareholders duly convened after notice to the shareholders of such purpose.
The authority hereby granted to and vested in the Board of Directors may be
exercised upon the vote of a majority of the entire Board of Directors at any
meeting of the Board, provided that ten (10) days notice of the proposed
amendment has been given to each director.
