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8-K - 8-K - PULSE ELECTRONICS CORP | w82962e8vk.htm |
EX-3.1 - EX-3.1 - PULSE ELECTRONICS CORP | w82962exv3w1.htm |
Exhibit 3.3
AMENDED AND RESTATED
BY-LAWS
OF
PULSE ELECTRONICS CORPORATION
ARTICLE I
OFFICES
Section 1. The principal office shall be at 1210 Northbrook Drive, Suite 470, in Trevose,
Commonwealth of Pennsylvania. The location of the principal office shall, at all times, be within
the limits of the Commonwealth of Pennsylvania.
Section 2. The corporation may also have offices at such other places, both within and without
the Commonwealth of Pennsylvania; as the board of directors may, from time to time, determine or
the business of the corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. All meetings of the shareholders shall be held in the City of Philadelphia,
Pennsylvania, or at such other places within or without the Commonwealth of Pennsylvania as the
board of directors may designate.
Section 2. The annual meeting of the shareholders shall be held each year on such day and at
such time and place as shall be determined in advance by the board of directors, when the
shareholders shall elect such number of directors for such terms as provided in Article III,
Section 1, of these by-laws, to serve until their successors are elected or chosen and qualify, and
transact such other business as may properly be brought before the meeting. Any previously
scheduled annual meeting may be postponed by action of the board of directors taken prior to the
time such postponed meeting is scheduled to occur.
Section 3. Special meetings of the shareholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the articles of incorporation, may be called at any time by the
president, or a majority of the board of directors, or the holders of at least twenty percent of
all the shares issued and outstanding and entitled to vote at the particular meeting, upon written
request delivered to the secretary of the corporation. Such request shall state the purpose or
purposes of the proposed meeting. Upon receipt of
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any such request, it shall be the duty of the secretary to call a special meeting of the
shareholders to be held at such time, not less than ten or more than sixty days thereafter, as the
secretary may fix. If the secretary shall neglect to issue such call, the person or persons making
the request may issue the call.
Section 4. Written notice of every meeting of the shareholders, specifying the place, date and
hour and the general nature of the business of the meeting, shall be served upon or mailed, postage
prepaid, at least ten days prior to the meeting, unless a greater period of notice is required by
statute, to each shareholder.
Section 5. The officer having charge of the transfer books for shares of the corporation shall
prepare and make at least ten days before each meeting of shareholders, a complete list of the
shareholders entitled to notice of the meeting and a complete list of the shareholders entitled to
vote at the meeting, arranged in alphabetical order, with the address and the number of shares held
by each which lists shall be kept on file at the principal office of the corporation and shall be
subject to inspection by any shareholder at any time during usual business hours. Such lists shall
also be produced and kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting.
Section 6. Business transacted at all special meetings of shareholders shall be limited to the
purposes stated in the notice.
Section 7. The holders of a majority of the issued and outstanding shares entitled to vote,
present in person or represented by proxy, shall be requisite and shall constitute a quorum at all
meetings of the shareholders for the transaction of business, except as otherwise provided by
statute or by the articles of incorporation or by these by-laws. The shareholders present in person
or by proxy at a duly organized meeting can continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a quorum. If, however, any
meeting of shareholders cannot be organized because a quorum has not attended, the shareholders
entitled to vote thereat, present in person or by proxy, shall have power, except as otherwise
provided by statute, to adjourn the meeting to such time and place as they may determine. Those
shareholders entitled to vote who attend a meeting called for the election of directors that has
been previously adjourned for lack of a quorum, although less than a quorum as fixed herein, shall
nevertheless constitute a quorum for the purpose of electing directors. In other cases, those
shareholders entitled to vote who attend a meeting of shareholders that has been previously
adjourned for one or more periods aggregating at least fifteen (15) days because of the absence of
a quorum, although less than a quorum as fixed herein, shall nevertheless constitute a quorum for
the purpose of acting on any matter set forth in the notice of the meeting, provided that the
notice of the meeting states that those shareholders who attend such adjourned meeting shall
nevertheless constitute a quorum for the purpose of acting upon the matter set forth in the notice.
Section 8. Whenever any corporate action is to be taken by a vote of shareholders, it shall be
authorized by a majority of the votes cast at a duly organized meeting of
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shareholders by the holders of shares entitled to vote thereon, except where a different vote
is required by law, the articles of incorporation, or these by-laws.
Section 9. Each shareholder shall at every meeting of the shareholders be entitled to one vote
in person or by proxy for each share having voting power held by such shareholder, but no proxy
shall be voted on or after three years from its date, unless coupled with an interest, and, except
where the transfer books of the corporation have been closed or a date has been fixed as a record
date for the determination of its shareholders entitled to vote, transferees of shares which are
transferred on the books of the corporation within ten days next preceding the date of such meeting
shall not be entitled to vote at such meeting. In each election for directors, every shareholder
entitled to vote shall have the right, in person or by proxy, to multiply the number of votes to
which he may be entitled by the total number of directors to be elected in the same election, and
he may cast the whole number of such votes for one candidate or he may distribute them among any
two or more candidates. Each director shall be elected by the vote of the majority of the votes
cast with respect to the director at any meeting for the election of directors at which a quorum is
present, provided that if the number of nominees exceeds the number of directors to be elected,
then the nominees receiving the highest number of votes up to the number of directors to be elected
shall be elected. For purposes of this Article, a majority of the votes cast means that the number
of shares voted for a director nominee must exceed the number of votes cast against that
director nominee (excluding abstentions).
Section 10. In advance of any meeting of shareholders, the board of directors may appoint
judges of election, who need not be shareholders, to act at such meeting or any adjournment
thereof. If judges of election be not so appointed, the chairman of any such meeting may and, on
the request of any shareholder entitled to vote or his proxy, shall make such appointment at the
meeting. The number of judges shall be one or three. If appointed at a meeting on the request of
one or more shareholders entitled to vote or proxies, the majority of shares present and entitled
to vote shall determine whether one or three judges are to be appointed. No person who is a
candidate for office shall act as a judge. The judges of election shall do all such acts as may be
proper to conduct the election or vote with fairness to all shareholders, and shall make a written
report of any matter determined by them and execute a certificate of any fact found by them, if
requested by the chairman of the meeting or any shareholder entitled to vote or his proxy. If there
be three judges of election the decision, act or certificate of a majority, shall be effective in
all respects as the decision, act or certificate of all.
Section 11. If the holders of a majority of the issued and outstanding shares entitled to
vote collectively shall consent in writing to any action to be taken by the corporation, such
action shall be as valid a corporate action as though it had been authorized at a meeting of the
shareholders.
Section 12. Without limiting any other notice requirements imposed by law, the articles of
incorporation or these by-laws, any proposal to be presented by a shareholder at an annual
shareholders meeting, other than a nomination for election to the board of
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directors, will be properly presented only if the shareholder: (1) has delivered to the
secretary of the corporation a notice complying with the provisions of this Section 12 which has
been in fact received by the secretary of the corporation no earlier than the December 1st and no
later than the December 31st prior to the annual meeting at which such proposal is to be presented
(or if the date of the annual meeting is after April 30 of any year, no earlier than one hundred
twenty (120) days and no later than ninety (90) days prior to such meeting (unless the date of the
annual meeting is publicly announced by the corporation (in a public filing or otherwise) less than
ninety (90) days prior to the date of such annual meeting, in which case the secretary of the
corporation must have received such notice no later than the close of business on the tenth (10th)
day after such meeting date is first so publicly announced)); (2) was a shareholder of record (and,
with respect to any beneficial owner, if different, on whose behalf such business is proposed, only
if such beneficial owner was the beneficial owner) of shares of the corporation at the time such
notice is given pursuant to the requirements of this Section 12; and (3) is entitled to vote at the
meeting: provided that nothing contained herein shall limit or restrict the right of a shareholder
to present at a shareholders meeting any proposal made by such shareholder in accordance with Rule
14a-8 promulgated pursuant to the Securities Exchange Act of 1934, as it may hereafter be amended,
and included in the notice of meeting given by or at the direction of the board of directors. A
shareholders notice pursuant to this Section must include (a) a reasonably brief description of
the business desired to be brought before the annual meeting and the text of any resolutions to be
proposed for consideration; (b) the name, residence, and business address of such shareholder; (c)
a representation that such shareholder is a holder of record of shares of the corporation entitled
to vote at the meeting and intends to appear at the meeting to present the proposed business
specified in the notice; (d) the number of shares of each class of stock of the corporation
beneficially owned by such shareholder; (e) any derivative, swap, stock loan, proxy or other
transaction or series of transactions engaged in by such shareholder, the purpose or effect of
which is to give such shareholder economic risk or benefit similar to the ownership of any class of
stock of the corporation, increase or decrease the voting power of such shareholder, or mitigate
the economic risk (of ownership or otherwise) of shares of any class of stock of the corporation;
(f) a description of all arrangements and understandings between such shareholder and any other
person or persons (naming such person or persons) with respect to the proposal to be made by such
shareholder; (g) a reasonably detailed description of any material interest of such shareholder in
the business to be presented at the meeting; and (h) such other information regarding the proposed
business as would have been required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had the proposal been made by the
corporation. If the board of directors or a committee of the board of directors, after affording
the shareholder a reasonable opportunity to cure any deficiency which the board of directors or
such committee identifies in the original notice, determines that notice of a proposal remains
deficient, such proposal shall not be eligible for consideration at the meeting and such
determination shall be conclusive and binding on the corporation and its shareholders.
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Shareholders seeking to nominate persons for election to the board of directors must comply
with Section 13 and this Section 12 shall not be applicable to such nominations.
Section 13. Without limiting any other notice requirements imposed by law, the articles of
incorporation or these by-laws, any nomination for election to the board of directors to be made at
a shareholders meeting by a shareholder will be properly made only if the shareholder; (1) in the
case of an annual meeting, has delivered to the secretary of the corporation a notice complying
with the provisions of this Section 13 which has been in fact received by the secretary of the
corporation no earlier than the December 1st and no later than the December 31st prior to the
annual meeting at which such proposal is to be presented (or if the date of the annual meeting is
after April 30 of any year, no earlier than one hundred twenty (120) days and no later than ninety
(90) days prior to such meeting (unless the date of the annual meeting is publicly announced by the
corporation (in a public filing or otherwise) less than ninety (90) days prior to the date of such
annual meeting, in which case the secretary of the corporation must have received such notice no
later than the close of business on the tenth (10th) day after such meeting date is first so
publicly announced)); (2) in the case of a meeting called for the election of directors other than
an annual meeting, has delivered to the secretary of the corporation a notice complying with the
provisions of this Section 13 which has been in fact received by the secretary of the corporation
no earlier than one hundred twenty (120) days and no later than ninety (90) days prior to such
meeting (unless the date of the meeting is publicly announced by the corporation (in a public
filing or otherwise) less than ninety (90) days prior to the date of such meeting, in which case
the secretary of the corporation must have received such notice no later than the close of business
on the tenth (10th) day after such notice is first so publicly announced); (3) was a shareholder of
record (and, with respect to any beneficial owner, if different, on whose behalf such nomination is
proposed, only if such beneficial owner was the beneficial owner) of shares of the corporation at
the time such notice is given pursuant to the requirements of this Section 13; and (3) is entitled
to vote at the meeting; provided that nothing contained herein shall limit or restrict the right of
a shareholder to make a nomination for election to the board of directors pursuant to any rule
which may be promulgated by the Securities and Exchange Commission pursuant to Section 14(a)(2) of
the Securities Exchange Act of 1934 and included in the proxy statement for the meeting given by or
at the direction of the board of directors. A shareholders notice pursuant to this Section must
include: (a) the name, residence and business address of the nominating shareholder; (b) a
representation that such shareholder is a holder of record of shares of the corporation entitled to
vote at the meeting and intends to appear at the meeting to nominate the individuals specified in
the notice; (c) the number of shares of each class of stock of the corporation beneficially owned
by such shareholder, (d) any derivative, swap, stock loan, proxy or other transaction or series of
transactions engaged in by such shareholder, the purpose or effect of which is to give such
shareholder economic risk or benefit similar to the ownership of any class of stock of the
corporation, increase or decrease the voting power of such shareholder, or to mitigate the economic
risk (of ownership or otherwise) of shares of any class of stock of the corporation; (e) a
representation as to whether the shareholder intends to solicit proxies from, or deliver a proxy
statement to, the other
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shareholders of the corporation; (f) all information relating to each proposed nominee that is
required to be made in connection with the solicitation of proxies for the election of directors in
a contested election pursuant to Section 14(a) under the Securities Exchange Act, as it may be
amended; (g) a description of all direct and indirect agreements, arrangements, and understandings
during the past three years, and any material relationships, between or among the nominating
shareholder, on the one hand and each proposed nominee or his or her affiliates and associates, on
the other hand, including, without limitation, all information that would be required to be
disclosed pursuant to Item 202 of Regulation S-K promulgated by the Securities and Exchange
Commission if such nominating shareholder were the registrant for purposes of such rule and the
proposed nominee were a director or officer of such registrant; (h) a representation by each
nominee that he or she does not have any undisclosed voting commitments or other arrangements with
respect to such nominees actions as a director; and (i) the written consent of each nominee to
serve as a director.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the board shall be at least five and
not more than nine, the exact number to be determined from time to time by the board. The directors
shall be divided into three classes, namely, Classes I, II and III, with each class consisting of
approximately one-third of the total number of directors. At the annual shareholders meeting in
2011, the terms of those directors which would have expired at the annual meetings in 2011 and 2012
shall expire and their successors shall be elected to serve one year terms. At the annual meeting
in 2012 and each annual meeting thereafter, the terms of all directors previously elected shall
expire and their successors shall be elected to serve one year terms. Directors elected as
hereinbefore provided may not be removed prior to the expiration of their respective terms of
office without cause. The board of directors may by a vote of not less than a majority of the
authorized directors amend this Section to increase or decrease the number of directors
constituting any class, without a vote of the shareholders, provided, however, that any such
decrease shall not eliminate any directors then in office.
Section 2. Vacancies in any class and newly created directorships resulting from any increase
in the authorized number of directors in any class shall be filled by a majority of the remaining
number of the board, though less than a quorum. Each person so elected shall be a director to serve
until the expiration of the term of the class to which he is elected and until his successor is
elected by the shareholders.
Section 3. The business of the corporation shall be managed by its board of directors which
may exercise all such powers of the corporation and do all such lawful acts and things as are not
by statute or by the articles of incorporation or by these by-laws directed or required to be
exercised and done by the shareholders.
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Section 4. No person shall be eligible to be nominated or elected as a director if at the time
of such nomination or election such person has attained the age of seventy-two (72) years. Any
director who attains the age of seventy-two (72) years during the terms of his directorship shall
be permitted to continue to serve in such capacity for the remainder of his then-current term and
shall thereafter be ineligible for nomination or election as a director.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. The board of directors of the corporation may hold meetings, both regular and
special, either within or without the Commonwealth of Pennsylvania.
Section 6. The board of directors shall hold a meeting at the corporations principal office
immediately following the annual meeting of the shareholders at which new directors are elected,
unless a different time and place shall be fixed by the shareholders at the meeting at which the
new directors were elected, and no notice of such meeting shall be necessary to the directors in
order legally to constitute the meeting, provided a majority of the whole board shall be present.
In the event such meeting is not held at such time and place, or in the event of the failure of the
shareholders to fix a different time or place for such meeting of the board of directors with its
newly elected members, the meeting may be held at such time and place as shall be specified in a
notice given as hereinafter provided for such meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be held without notice on the third
Wednesday of each month at the principal office of the corporation or at such other time or place
as shall from time to time be determined by the board.
Section 8. Special meetings of the board may be called by the president on one days notice to
each director. The president or secretary shall call a special meeting on like notice on the
written request of two directors, which request shall state the purpose or purposes of the proposed
meeting.
Section 9. At all meetings of the board a majority of the directors in office shall be
necessary to constitute a quorum for the transaction of business, and the acts of a majority of the
directors present at a meeting at which a quorum is present shall be the acts of the board of
directors, except as may be otherwise specifically provided by statute or by the articles of
incorporation. 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. If a quorum shall not be present at any meeting
of directors, the directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
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Section 10. If all the directors shall severally or collectively consent in writing to any
action to be taken by the corporation, such action shall be as valid a corporate action as though
it had been authorized at a meeting of the board of directors.
Section 11. In the event a national disaster or national emergency is proclaimed by the
President or Vice President of the United States, the directors, even though there may be less than
a quorum present, may take all actions which they could have taken if a quorum had been present.
Section 12. The board of directors shall immediately after each annual meeting of shareholders
(or at any regular or special meeting should the need arise by resignation, death or otherwise of
the then current chairman), elect from among its members a chairman of the board. The chairman of
the board may, but need not be, an officer of the corporation and shall preside at all meetings of
the board of directors and shall undertake such other duties as the board of directors may from
time to time prescribe.
COMMITTEE
Section 13. The board of directors may, by resolution passed by a majority of the whole board,
designate two or more of its number to constitute an executive committee which, to the extent
provided in such resolution shall have and exercise the authority of the board of directors in the
management and business of the corporation. Vacancies in the membership of the committee shall be
filled by the board of directors at a regular or special meeting of the board of directors. The
executive committee shall keep regular minutes of its proceedings and report the same to the board
when required.
Section 14. By resolution passed by a majority of the whole board, the board of directors may
establish such other committees for such other purposes which the board deems advisable. The board,
by majority vote, after consultation with the chairman of the board shall appoint and/or remove the
members of such other committees and fill any vacancies on such committees. Such other committees
shall keep regular minutes of their proceedings and report the same to the board when required.
COMPENSATION OF DIRECTORS
Section 15. Compensation of directors shall be in such amounts as may be determined from time
to time by resolution of the board of directors. Such compensation may include, in addition to
expenses of attendance if any, a stated fee for each regular or special meeting of the board
attended by a director as well as an annual retainer to be paid to each director if the board of
directors so determines. Members of the executive committee or of any standing or special committee
may, by resolution of the board, be allowed such additional compensation for their services on such
committees as the board may from time to time determine. Nothing herein shall be construed to
preclude any director from serving the corporation in any other capacity and receiving compensation
therefor.
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ARTICLE IV
NOTICES
Section 1. Notices to directors and shareholders shall be in writing and given either
personally or by sending a copy of such notice by mail or by facsimile transmission, e-mail or
other electronic transmission.
Section 2. Whenever any notice is required to be given under the provisions of the statutes or
of the articles of incorporation or of these by-laws, a waiver thereof in writing signed by the
person or persons entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of directors and shall
be a chief executive officer, a president, a vice president, a secretary and a treasurer. The board
of directors may also choose an executive vice president, additional vice presidents and one or
more assistant secretaries and assistant treasurers. Any two of the aforesaid offices, except those
of the president and executive vice president, president and vice president or president and
secretary, may be held by the same person.
Section 2. The board of directors, immediately after each annual meeting of shareholders,
shall elect a chief executive officer, a president, each of whom may, but need not, be a director,
and the board shall also annually choose a secretary, a treasurer and such assistant secretaries
and other vice presidents, none of which need be members of the board of directors.
Section 3. The board of directors may appoint such other officers and agents as it shall deem
necessary who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall be fixed by the
board of directors.
Section 5. The officers of the corporation shall hold office until their successors are chosen
and qualify. Any officer elected or appointed by the board of directors may be removed at any time
by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any
office of the corporation shall be filled by the board of directors.
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CHIEF EXECUTIVE OFFICER
Section 6. The chief executive officer shall be the corporations most senior officer, be
responsible for the implementation of strategies, policies and resolutions adopted by the board of
directors and shall perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE PRESIDENT
Section 7. The president shall be the chief operating officer of the corporation, shall have
general and active management of the day-to-day operations of the corporation.
Section 8. He shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the corporation, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 9. The executive vice-president, if one be appointed, shall have such powers and
perform such duties as the board of directors or the president may from time to time prescribe, and
shall perform such other duties as may be prescribed in these by-laws. He shall exercise all the
powers and discharge all the duties of the president during the latters absence or inability to
act and shall have power to sign all deeds, contracts and instruments authorized by the board of
directors unless they otherwise direct.
The vice-president, or if there be more than one, the vice-presidents in the order of length
of service unless otherwise determined by the board of directors, shall, in the absence or
disability of the president or executive vice-president, perform the duties and exercise the powers
of the president, and shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 10. The secretary shall attend all meetings of the board of directors and all meetings
of the shareholders and record all the proceedings of the meetings of the corporation and of the
board of directors in a book to be kept for that purpose and shall perform like duties for the
executive committee when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall perform such other
duties as may be prescribed by the board of directors or president, under whose supervision he
shall be. He shall keep in safe custody the seal of the corporation and affix the same to any
instrument requiring it and, when so affixed, it shall be attested by his signature or by the
signature of an assistant secretary.
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Section 11. The assistant secretary, or if there be more than one, the assistant secretaries
in the order determined by the board of directors, shall, in the absence or disability of the
secretary, perform the duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 12. The treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all money and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of directors.
Section 13. He shall disburse the funds of the corporation as may be ordered by the board of
directors, taking proper vouchers for such disbursements and shall render to the president and the
board of directors, at its regular meetings, or when the board of directors so requires, an account
of all his transactions as treasurer and of the financial condition of the corporation.
Section 14. If required by the board of directors, he shall give the corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to the corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
corporation.
Section 15. The assistant treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the board of directors shall, in the absence or disability of
the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such
other duties and have such other powers as the board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF SHARES
Section 1. The certificates of shares of the corporation shall be numbered and registered in a
share register as they are issued. They shall exhibit the name of the registered holder and the
number and class of shares or a statement that such shares are without par value as the case may
be.
Section 2. Every share certificate shall be signed by the president and the secretary and
shall be sealed with the corporate seal which may be facsimile, engraved or printed.
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Section 3. Where a certificate is signed (1) by a transfer agent or (2) by a transfer agent
and/or registrar, the signature of such president and secretary may be facsimile. In case any
officer or officers who have signed or whose facsimile signature or signatures have been used on
any such certificate or certificates shall cease to be such officer or officers of the corporation,
whether because of death, resignation or otherwise, before such certificate or certificates have
been delivered by the corporation, such certificate or certificates may nevertheless be adopted by
the corporation and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been used thereon had
not ceased to be such officer or officers of the corporation.
LOST OR DESTROYED CERTIFICATES
Section 4. The board of directors shall direct a new certificate or certificates to be issued
in place of any certificate or certificates theretofore issued by the corporation alleged to have
been lost, destroyed or wrongfully taken, upon the making of an affidavit of that fact by the
person claiming the share certificate to be lost, destroyed or wrongfully taken. When authorizing
such issue of a new certificate or certificates, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such lost, destroyed or
wrongfully taken certificate or certificates, or his legal representative, to advertise the same in
such manner as it shall require and give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with respect to the
certificate or certificates alleged to have been lost, destroyed or wrongfully taken.
TRANSFER OF SHARES
Section 5. Upon surrender to the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 6. The board of directors may fix a time, not more than ninety days, prior to the date
of any meeting of shareholders or the date fixed for the payment of any dividend 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 a record date for the determination of the shareholders
entitled to 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 to exercise the rights in
respect to any such change, conversion or exchange of shares. In such case only such shareholders
as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote
at such meeting or to receive payment of such dividend or to receive such allotment of rights or to
exercise such rights, as the case may be, notwithstanding any transfer of any
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shares on the books of the corporation after any record date so fixed. The board of directors
may close the books of the corporation against transfers of shares during the whole or any part of
such period and in such case written or printed notice thereof shall be mailed at least ten days
before the closing thereof to each shareholder of record at the address appearing on the records of
the corporation or supplied by him to the corporation for the purpose of notice.
REGISTERED SHAREHOLDERS
Section 7. The corporation shall be entitled to treat the holder of record of any share or
shares as the holder in fact thereof and shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person, and shall not be liable for any
registration or transfer of shares which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with actual knowledge that a fiduciary or
nominee of a fiduciary is committing a breach of trust in requesting such registration or transfer,
or with knowledge of such facts that its participation therein amounts to bad faith.
UNCERTIFICATED SHARES
Section 8. Notwithstanding anything herein to the contrary, any or all classes and series of
shares, or any part thereof, may be represented by uncertificated shares, except that shares
represented by a certificate that is issued and outstanding shall continue to be represented
thereby until the certificate is surrendered to the Corporation. Within a reasonable time after
the issuance or transfer of uncertificated shares, the Corporation shall, or shall instruct its
transfer agent to, send to the registered owner thereof, a written notice containing the
information required to be set forth or stated on certificates. The rights and obligations of the
holders of shares represented by certificates and the rights and obligations of the holders of
uncertificated shares of the same class or series shall be identical. Notwithstanding anything
herein to the contrary, the provisions of Sections 1 through 5 of this Article VI shall not apply
to uncertificated shares and, in lieu thereof, the Corporation shall adopt alternative procedures
for registration of transfers.
ARTICLE VII
INDEMNIFICATION, INSURANCE AND LIMITATION OF DIRECTORS LIABILITY
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS
Section 1. The corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other
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enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the 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
corporation, and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 2. The corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is or was a director
or officer of the corporation, or is or was serving at the request of the corporation as a director
or officer of another corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the corporation. No such
indemnification against expenses shall be made, however, in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless and only to the extent that the Court of Common
Pleas of the county in which the registered office of the corporation is located or the court in
which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of Common Pleas or such
other court shall deem proper.
Section 3. Indemnification under Sections 1 and 2 of this Article shall be made by the
corporation when ordered by a court or upon a determination that indemnification of the director or
officer is proper in the circumstances because he has met the applicable standard of conduct set
forth in those Sections. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written opinion or (3) by the
stockholders.
Section 4. In addition to and notwithstanding the limited indemnification provided in Sections
1, 2 and 3 of this Article, the corporation shall indemnify and hold harmless its present and
future officers and directors of, from and against any and all liability, expenses (including
attorneys fees), claims, judgments, fines and amounts paid in settlement, actually incurred by
such person in connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (including but not limited to any action
by or in the right of the corporation),
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to which such person is, was or at any time becomes, a party, or is threatened to be made a
party, by reason of the fact that such person is, was or at any time becomes, a director or officer
of the corporation, or is or was serving or at any time serves at the request of the corporation,
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other person of any nature whatsoever. Nothing contained in this Section 4 shall authorize the
corporation to provide, or entitle any officer or director to receive, indemnification for any
action taken, or failure to act, which action or failure to act is determined by a court to have
constituted willful misconduct or recklessness.
Section 5. Expenses incurred in defending a civil or criminal action, suit or proceeding of
the kind described in Sections 1, 2 and 4 of this Article shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking,
by or on behalf of the person who may be entitled to indemnification under those Sections, to repay
such amount if it shall ultimately be determined that he is not entitled to be indemnified by the
corporation.
Section 6. The indemnification, advancement of expenses and limitation of liability provided
in this Article shall continue as to a person who has ceased to be a director or officer of the
corporation and shall inure to the benefit of the heirs, executors and administrators of such a
person.
Section 7. Nothing herein contained shall be construed as limiting the power or obligation of
the corporation to indemnify any person in accordance with the Pennsylvania Business Corporation
Law as amended from time to time or in accordance with any similar law adopted in lieu thereof. The
indemnification and advancement of expenses provided under this Article shall not be deemed
exclusive of any other rights to which a person seeking indemnification or advancement of expenses
may be entitled under any agreement, vote of shareholders or directors, or otherwise, both as to
action in his official capacity and as to action in another capacity while holding that office.
Section 8. The corporation shall also indemnify any person against expenses, including
attorneys fees, actually and reasonably incurred by him in enforcing any right to indemnification
under this Article, under the Pennsylvania Business Corporation Law as amended from time to time or
under any similar law adopted in lieu thereof.
Section 9. Any person who shall serve as director, officer, employee or agent of the
corporation or who shall serve, at the request of the corporation, as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, shall be
deemed to do so with knowledge of and in reliance upon the rights of indemnification provided in
this Article, in the Pennsylvania Business Corporation Law as amended from time to time and in any
similar law adopted in lieu thereof.
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INSURANCE
Section 10. The corporation shall have power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against such liability.
LIMITATION OF DIRECTORS LIABILITY
Section 11. No director of this corporation shall be personally liable for monetary damages as
such for any action taken, or failure to take any action, on or after January 27, 1987, unless (a)
the director has breached or failed to perform the duties of his office under Section 8363 of Title
42 of the Pennsylvania Consolidated Statutes Annotated (relating to the standard of care and
justifiable reliance of directors); and (b) the breach or failure to perform constitutes self
dealing, willful misconduct or recklessness; provided, however that the provisions of this Section
11 shall not apply to the responsibility or liability of a director pursuant to any criminal
statute, or the liability of a director for the payment of taxes pursuant to local, state or
federal law.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the shares of the corporation, subject to the provisions of the
articles of incorporation, if any, may be declared by the board of directors at any regular or
special meeting, pursuant to law. Dividends may be paid in cash, in property, or in its shares,
subject to the provisions of the articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve or reserves for contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was created.
Section 3. The directors shall send, or cause to be sent, to the shareholders, within one
hundred twenty days after the close of the fiscal year of the corporation, a financial report as of
the closing date of the preceding fiscal year.
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CHECKS
Section 4. All checks or demands for money and notes of the corporation shall be signed
manually or by facsimile signature of such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall commence on the day immediately following
the last Friday of December of each year.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the
year of its organization and the words Corporate Seal, Pennsylvania. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
PENNSYLVANIA BUSINESS CORPORATION LAW
Section 7. Section 4 of the Act amending the Pennsylvania Business Corporation Law signed by
Governor Thornburgh on December 23, 1983 (specifically Senate Bill No. 1144), which section
provided for the addition of a Section 910 to the Pennsylvania Business Corporation Law shall not
be applicable to the corporation in any respect.
Section 8. Subchapter G (Sss.2561-2567) and Subchapter H (52571-2575) of the Pennsylvania
Business Corporation Law of 1988, as amended, shall not be applicable to the corporation in any
respect.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed by a majority vote of the
shareholders entitled to vote thereon at any regular or special meeting duly convened after notice
to the shareholders of that purpose or by a majority vote of the members of the board of directors
at any regular or special meeting duly convened after notice to the directors of that purpose,
subject always to the power of the shareholders to change such action by the directors.
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