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 - April 25, 2000
STERLING FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania 0-16276 23-2449551
- ------------------------------- ---------------- ----------------------
(State or other jurisdiction of (Commission File (IRS Employer
incorporation) Number) Identification Number)
101 North Pointe Boulevard
Lancaster, Pennsylvania 17601-4133
- --------------------------------------------------- ----------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (717) 581-6030
--------------
N/A
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
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.
<PAGE>
Item 4. Changes in Registrant's Certifying Accountant.
Not Applicable.
Item 5. Other Events.
The Registrant hereby files its Amended and Restated 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 and Restated Bylaws of the Registrant.
Item 8. Change in Fiscal Year.
Not Applicable.
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: April 25, 2000 /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 INDEX
Page Number
in Manually
Exhibit Signed Original
- ------- ---------------
3(ii) Amended and Restated Bylaws of the
Registrant, dated April 25, 2000.
STERLING FINANCIAL CORPORATION
BYLAWS
Amended and Restated April 25, 2000
ARTICLE 1
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 thirtieth day of
June in each year, at which 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,
<PAGE>
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. Section 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 filled with the Secretary of the
Company.
<PAGE>
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.
<PAGE>
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 information
requirements of this Section 2.3.
<PAGE>
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 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 Direcvtors shall
be given to each director either: (a) in person; (b) by telephone; or
<PAGE>
(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 Direcvtors 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.
<PAGE>
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 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.
Section8361 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
<PAGE>
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 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 Baord 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.
<PAGE>
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 to 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 sustantially 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
presons 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
<PAGE>
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 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.
<PAGE>
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 was 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:
<PAGE>
(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) Section 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 matter 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.
<PAGE>
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
<PAGE>
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 provision 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.
<PAGE>
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
President and the Secretary or 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 register, 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.
<PAGE>
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.
<PAGE>
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
any person under the provision 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
answer back 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 provision 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
<PAGE>
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. When 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
<PAGE>
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.
<PAGE>
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 at any meeting
of the Board, provided that ten (10) days notice of the proposed amendment has
been given to each director.
