United States
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 (Date of earliest event reported) January 31, 2008
S&T Bancorp, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Pennsylvania | 0-12508 | 25-1434426 | ||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 800 Philadelphia Street, Indiana, PA | 15701 | |
| (Address of Principal Executive Offices) | Zip Code |
Registrant’s telephone number, including area code (800) 325-2265
Former name or address, if changed since last report Not Applicable
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
SECTION 8 – OTHER EVENTS
| Item 8.01. | Other Events. |
This Current Report on Form 8-K is being filed to provide in one document, a description of the equity securities of S&T Bancorp, Inc. (“S&T”). S&T is filing this Form 8-K in accordance with the interpretation of the staff of the Division of Corporation Finance of the Securities and Exchange Commission (“SEC”) set forth in Sections G.99 and H.29 of the Division of Corporation Finance Manual of Publicly Available Telephone Interpretations (July 1997). S&T intends to incorporate this description by reference into certain of our filings with the SEC, including registration statements on Form S-3 and Form S-8.
The following description summarizes selected information regarding S&T’s capital stock, as well as relevant provisions of (i) S&T’s articles of incorporation, as amended, (ii) S&T’s by-laws, as amended, and (iii) the Pennsylvania Business Corporation Law of the Commonwealth of Pennsylvania. For a complete description of the terms of S&T’s common and preferred stock, please refer to S&T’s articles of incorporation, as amended, and bylaws, as amended, which is filed as Exhibit 3.1 hereto.
Common Stock
Pursuant to the articles of incorporation, S&T is authorized to issue 50,000,000 shares of common stock, par value $2.50 per share. Holders of S&T common stock will be entitled to receive, when and if declared by the board of directors, from time to time, such dividends and other distributions in cash, stock or property from S&T’s assets or funds legally available for such purposes. Holders of S&T common stock are entitled to one vote for each share held of record on all matters on which shareholders may vote. S&T’s articles of incorporation prohibit cumulative voting in the election of directors.
Preferred Stock
S&T, by resolution of its board of directors and without further action by the shareholders, have the authority to issue, from time to time, up to an aggregate of 10,000,000 shares of preferred stock, without par value, in one or more classes or series and to determine the designation and number of shares of any class or series as well as dividend rates, voting rights, conversion rights, redemption rights, preferences on liquidation or dissolution, and other relative rights, preferences, and limitations, if any. These rights and preferences could adversely affect the voting power of the holders of common stock. Issuance of preferred stock, while providing desirable flexibility in connection with possible acquisitions or other corporate purposes, could have the effect of making it more difficult for a third party from acquiring a majority of S&T’s common stock.
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Special Meetings of Shareholders
Special meetings of the S&T shareholders can be called by S&T’s board of directors, its president, or by the shareholders entitled to cast at least one-fifth (1/5) of the vote which all shareholders are entitled to cast at the particular meeting.
Shareholders Rights Plan
While Pennsylvania law authorizes a corporation to adopt a shareholder rights plan, S&T does not have a shareholders rights plan currently in effect.
Director Classification
S&T board of directors is divided into three classes, as nearly equal in number as possible, with each class being elected annually for a three-year term.
Amendment of Articles of Incorporation
S&T’s articles of incorporation may be amended as provided under Pennsylvania law, with the following exception: any amendment to Article 9 (Classification of Directors) or Article 12 (Shareholder Action) requires the affirmative vote of holders of at least 66 2/3% of the votes that all shareholders are entitled to cast thereon at a regular or special meeting of shareholders.
Amendment of By-laws
S&T’s by-laws may be amended by a majority vote of the board of directors at any regular or special meeting of the board duly convened.
Required Vote for Certain Business Combinations
Any plan or proposal for the merger, consolidation, liquidation or dissolution of S&T, or any action that would result in the sale or other disposition of all or substantially all of the assets of S&T will require the affirmative vote of the holders of at least 66 2/3% of the outstanding shares of common stock.
Pennsylvania Anti-Takeover Provisions
Under the Pennsylvania Business Corporation Law, certain anti-takeover provisions may apply to Pennsylvania registered corporations ( e.g. , publicly traded companies) including those relating to (i) control share acquisitions, (ii) disgorgement of profits by certain controlling persons, (iii) business combination transactions with interested shareholders, and (iv) the rights of shareholders to demand fair value for their stock following a control transaction. Pennsylvania law allows corporations to opt-out of these anti-takeover sections. S&T has opted out the anti-takeover provisions discussed in (i) and (ii). A general summary of the anti-takeover provisions applicable to S&T are set forth below.
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Business Combination Transactions with Interested Shareholders
Pennsylvania law prohibits certain business combinations with certain ‘interested shareholders,’ persons who acquire the direct or indirect beneficial ownership of shares entitled to cast at least 20% of the votes entitled to be cast for the election of directors. A corporation subject to this provision may not effect mergers or certain other business combinations with the interested shareholder for a period of five years, unless:
| • |
the business combination or the acquisition of stock by means of which the interested shareholder became an interested shareholder is approved by the corporation’s board of directors prior to such stock acquisition; |
| • |
the business combination is approved by the affirmative vote of the holders of all the outstanding common shares of the corporation; or |
| • |
the business combination is approved by the affirmative vote of the holders of a majority of all shares entitled to vote, excluding votes of shares held by the interested shareholders, and at the time of such vote, the interested shareholder is the beneficial owner of at least 80% of the voting shares of the corporation. This exception applies only if the value of the consideration to be paid by the interested shareholder in connection with the business combination satisfies certain fair price requirements. |
After the five-year restricted period, an interested shareholder of the corporation may engage in a business combination with the corporation if (i) the business combination is approved by the affirmative vote of a majority of the shares other than those beneficially owned by the interested shareholder and its affiliates, or (ii) the merger is approved at a shareholders meeting and certain fair price requirements are met.
Rights of Shareholders to Demand Fair Value for Stock Following a Control Transaction.
Pennsylvania law regarding the ability of shareholders to dispose of their stock following a control transaction provides, generally, that a person or group that acquires more than 20% of the voting power to elect directors of the corporation is a controlling person and must give prompt notice to each shareholder of record. The other shareholders are then entitled to demand that the controlling person pay them the fair value of their shares under specified procedures. Fair value may not be less than the highest price paid per share by the controlling person at any time during the 90-day period ending on and including the date on which the controlling person became such, plus any increment representing any value, such as a control premium, that is not reflected in such price.
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Transfer Agent and Registrar
The transfer agent and registrar for S&T’s common stock is American Stock Transfer and Trust Company.
SECTION
Item 9.01—Financial Statements and Exhibits
(d) Exhibits. The exhibit listed on the Exhibit Index accompanying this Form 8-K is filed herewith.
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Exhibit No. |
Description |
|
| 3.1 | By-laws of S&T Bancorp, Inc. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed by the undersigned thereunto duly authorized.
| S&T Bancorp, Inc. |
|
/s/ Robert E. Rout |
| Robert E. Rout |
| Senior Executive Vice President, |
| Chief Financial Officer and Secretary |
January 31, 2008
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Exhibit 3.1
INDEX
TO BY-LAWS OF
S&T BANCORP, INC.
| ARTICLE I—MEETINGS OF SHAREHOLDERS | ||||
|
Section 101. |
Place of Meetings | 1 | ||
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Section 102. |
Annual Meetings | 1 | ||
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Section 103. |
Special Meetings | 1 | ||
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Section 104. |
Conduct of Shareholders’ Meetings | 2 | ||
| ARTICLE II—DIRECTORS AND BOARD MEETINGS | ||||
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Section 201. |
Management by Board of Directors | 2 | ||
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Section 202. |
Nomination for Directors | 2 | ||
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Section 203. |
Directors Must be Shareholders | 3 | ||
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Section 204. |
Eligibility and Mandatory Retirement | 3 | ||
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Section 205. |
Number of Directors | 3 | ||
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Section 206. |
Classification of Directors | 3 | ||
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Section 207. |
Vacancies | 4 | ||
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Section 208. |
Resignations | 4 | ||
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Section 209. |
Compensation of Directors | 4 | ||
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Section 210. |
Regular Meetings | 4 | ||
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Section 211. |
Special Meetings | 5 | ||
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Section 212. |
Chairman of the Board | 5 | ||
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Section 213. |
Vice Chairman of the Board | 5 | ||
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Section 214. |
Reports and Records | 5 | ||
| ARTICLE III—COMMITTEES | ||||
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Section 301. |
Committees | 5 | ||
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Section 302. |
Executive Committee | 5 | ||
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Section 303. |
Audit Committee | 6 | ||
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Section 304. |
Appointment of Committee Members | 6 | ||
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Section 305. |
Organization and Proceedings | 6 | ||
| ARTICLE IV—OFFICERS | ||||
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Section 401. |
Officers | 6 | ||
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Section 402. |
President | 7 | ||
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Section 403. |
Vice Presidents | 7 | ||
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Section 404. |
Secretary | 8 | ||
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Section 405. |
Treasurer | 8 | ||
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Section 406. |
Assistant Officers | 8 | ||
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Section 407. |
General Powers | 8 | ||
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Index to S&T Bancorp, Inc. By-Laws (continued)
| ARTICLE V—INDEMNIFICATION | ||||
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Section 501. |
Indemnification | 8 | ||
| ARTICLE VI—SHARES OF CAPITAL STOCK | ||||
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Section 601. |
Authority to Sign Share Certificates | 12 | ||
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Section 602. |
Lost or Destroyed Certificates | 12 | ||
| ARTICLE VII—GENERAL | ||||
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Section 701. |
Fiscal Year | 12 | ||
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Section 702. |
Record Date | 12 | ||
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Section 703. |
Absentee Participation in Meetings | 12 | ||
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Section 704. |
Emergency By-Laws | 12 | ||
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Section 705. |
Severability | 13 | ||
| ARTICLE VIII—AMENDMENT OR REPEAL | ||||
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Section 801. |
Amendment or Repeal by the Board of Directors | 13 | ||
| ARTICLE IX—PENNSYLVANIA BUSINESS CORPORATION LAW AMENDMENT | ||||
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Section 901. |
Applicability of Certain Provisions of the Pennsylvania Business Corporation Law | 13 | ||
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BYLAWS
OF
S&T BANCORP, INC.
These By-Laws are supplemental to the Pennsylvania Banking Code and other applicable provisions of law, as the same shall from time to time be in effect.
ARTICLE I. MEETINGS OF SHAREHOLDERS.
Section 101. Place of Meetings. All meetings of the shareholders shall be held at such place or places, within or without the Commonwealth of Pennsylvania, as shall be determined by the Board of Directors (the “Board”) from time to time.
A written or printed notice of every such meeting shall be mailed, charges prepaid, at least ten days before the date of the meeting, (a) in the case of an individual, to his last known residence or place of business, (b) in the case of an unincorporated association, or a corporation organized under the laws of the Commonwealth of Pennsylvania, to its principal office, and (c) in the case of a corporation incorporated under the laws of some other state, to its registered office in Pennsylvania, or if there is no registered office in Pennsylvania, to its home office in the State of its incorporation or in any other State.
Section 102. Annual Meetings. The annual meeting of the shareholders for the election of Directors and the transaction of such other business as may properly come before the meeting shall be held on such day, at such hour, and at such place, consistent with applicable laws, as the Board shall from time to time designate or as may be designated at any notice from the Secretary calling the meeting. Any business which is a proper subject for shareholder action may be transacted at the annual meeting, irrespective of whether the notice of said meeting contains any reference thereto, except as otherwise provided by applicable law.
Section 103. Special Meetings. Special meetings of the shareholders may be called at any time by the Board of Directors, the President or by the shareholders entitled to cast at least one-fifth ( 1 / 5 ) of the vote which all shareholders are entitled to cast at the particular meeting. A written or printed notice for every special meeting, specifying the purpose and time and place thereof, shall be mailed by the Secretary to the shareholders of record, in the manner provided in Section 101 of this Article, at least ten (10) days before the date of such meeting.
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Section 104. Conduct of Shareholders’ Meeting. The Chairman of the Board, a Vice Chairman, the President, or such other appropriate officer, shall preside at all shareholders’ meetings. The Officer presiding over the shareholders’ meeting may establish such rules and regulations for the conduct of the meeting as he/she may deem to be reasonably necessary or desirable for the orderly and expeditious conduct of the meeting. Unless the Officer presiding over the shareholders’ meeting otherwise requires, shareholders need not vote by ballot on any question.
ARTICLE II. DIRECTORS AND BOARD MEETINGS.
Section 201. Management by Board of Directors. The business and affairs of the Corporation shall be managed by its Board of Directors. The Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute, regulations, the Article of Incorporation or these By-Laws directed or required to be exercised or done by the shareholders.
Section 202. Nomination for Directors. Nominations for election to the Board of Directors may be made by the Nominating and Corporate Governance Committee or by any holder or holders of any outstanding class of shares of the Corporation entitled to vote for the election of directors. Nominations for directors to be elected at an annual meeting of shareholders, other than those made by the Nominating and Corporate Governance Committee, must be submitted to the Secretary of the Corporation in writing not earlier than the close of business on the 120th day, nor later than the close of business on the 60th day, immediately preceding the date of the meeting. Such notification shall contain the following information: (a) name and address of each proposed nominee; (b) the principal occupation of each proposed nominee; (c) the total number of shares of capital stock of the Corporation that are registered in the name of each proposed nominee; (d) the name and residence address of the notifying shareholder; (e) the number of shares of capital stock of the Corporation owned by the notifying shareholder and (f) such other information regarding the proposed nominee as would be required to be included in a proxy statement under Section 14(a) of the Securities Exchange Act of 1934, as amended (or any successor provision or statue), if proxies were solicited in connection with such proposed nominee’s election. Nominations not made in accordance herewith may, in his or her discretion, be disregarded by the Presiding Officer of the meeting, and upon his or her instruction, the vote tellers may disregard all votes cast for each such nominee.
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Section 203. Directors Must be Shareholders. Every Director must be a shareholder of the Corporation and shall own in his/her own right the number of shares (if any) required by law in order to qualify as such Director. Any Director shall forthwith cease to be a Director when he/she no longer holds such shares, which fact shall be reported to the Board of Directors by the Secretary, whereupon the Board of Directors shall declare the seat of such Director vacated.
Section 204. Eligibility and Mandatory Retirement. Commencing with the annual meeting of the shareholders in 2003, no person shall be eligible to be newly elected or appointed as a Director after he/she shall have attained the age of seventy-five years on or prior to the date of his/her election. Any Director of this corporation who attains the age of seventy-five years shall be retired as of the next Annual Meeting following the attainment of age seventy-five without any action on his/her part. Upon retirement from the Board of Directors due to age, as described above, said Director may be appointed by the active Board as a Director Emeritus.
Section 205. Number of Directors. The Board of Directors shall consist of not less than twelve (12) nor more than twenty-five (25) persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full Board of Directors. Notwithstanding anything contained in these By-Laws or in the Certificate of Incorporation of the Corporation to the contrary, either (i) the affirmative vote of at least sixty-six and two-thirds (66 2 / 3 ) percent of the outstanding shares of Common Stock entitled to vote generally in the election of directors voting together as a single class, or (ii) the affirmative vote of a majority of the full Board of Directors shall be required to alter, amend, adopt any provision inconsistent with or repeal this Section 205.
Section 206. Classification of Directors. The Directors shall be divided into three (3) classes, as equal in number as possible, known as Class 1, Class 2, and Class 3. Each class shall consist of not more than nine (9) Directors. The Directors of each class shall be elected for a term of three (3) years and, after expiration of such terms, their successors shall thereafter be elected every three (3) years for three (3) year terms. Each Director shall serve until his or her successor shall have been elected and shall qualify, even though his or her term of office has herein provided has otherwise expired, except in the event of his or her earlier death, resignation, removal or disqualification from office. Notwithstanding anything contained in these By-Laws or in the Certificate of Incorporation of the Corporation to the contrary, either (i) the affirmative vote of at least sixty-six and two-thirds (66 2 / 3 ) percent of the
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outstanding shares of Common Stock entitled to vote generally in the election of directors, voting together as a single class, or (ii) the affirmative vote of a majority of the full Board of Directors shall be required to alter, amend, adopt any provision inconsistent with or repeal this Section 206.
Section 207. Vacancies. Any Director elected to fill a vacancy in the Board of Directors shall become a member of the same Class of Director in which the vacancy existed unless the vacancy is due to an increase in number of Directors, in which case a majority of the members of the Board of Directors shall designate such directorship as belonging to Class 1, Class 2, or Class 3 so as to maintain the three (3) classes of Directors as equal in number as possible. Notwithstanding anything contained in these By-Laws or in the Certificate of the Corporation to the contrary, either (i) the affirmative vote of at least sixth-six and two-thirds (66 2 / 3 ) percent of the outstanding shares of Common Stock entitled to vote generally in the election of directors, voting together as a single class, or (ii) the affirmative vote of a majority of the full Board of Directors shall be required to alter, amend, adopt any provision inconsistent with or repeal this Section 207.
Section 208. Resignation. Any Director may resign at any time. Such resignations shall be in writing, but the acceptance thereof shall not be necessary to make it effective.
Section 209. Compensation of Directors. No Director shall be entitled to any salary as such; but the Board of Directors may fix, from time to time, a reasonable annual fee for acting as a Director and a reasonable fee to be paid each Director for his/her services in attending meetings of the Board and meetings of committees appointed by the Board. The Corporation may reimburse Directors for expenses related to their duties as a member of the Board.
Section 210. Regular Meetings. Regular meetings of the Board of Directors shall be held at such place within the Commonwealth of Pennsylvania as a majority of the directors may from time to time designate, or as may be designated in the notice calling the meeting. The Board of Directors shall meet for reorganization at the first regular meeting following the annual meeting of shareholders at which the Directors are elected. Subsequent regular meetings of the Board of Directors shall be held at a time and place designated by the Board of Directors. At least two day’s notice of regular meetings shall be given.
A majority of the members of the Board of Directors shall constitute a quorum for the transaction of business. If at the time fixed for the 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.
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Except as otherwise provided herein, a majority of those Directors present and voting at any meeting of the Board of Directors, shall decide each matter considered. A director cannot vote by proxy, or otherwise act by proxy at a meeting of the Board of Directors.
Section 211. Special Meetings. Special meetings of the Board of Directors may be called by the President or at the request of three (3) or more members of the Board of Directors. A special meeting of the Board of Directors shall be deemed to be any meeting other than the regular meeting of the Board of Directors. Written or printed notice of the time and place of every special meeting, which need not specify the business to be transacted there at shall be given by the Secretary to each member of the Board at least twenty-four (24) hours before the time of such meeting excepting the Organizational Meeting following the election of Directors.
Section 212. Chairman of the Board. The Chairman of the Board, a Vice Chairman, the President, or such other appropriate officer, shall preside at all meetings of the Board of Directors.
Section 213. Vice Chairman of the Board. The Board of Directors may elect one (1) or more Vice Chairmen of the Board as the Board of Directors may from time to time deem advisable. The Vice Chairmen of the Board shall have such duties as are prescribed by the Board of Directors.
Section 214. Reports and Records. The reports of Officers and Committees and the records of the proceedings of all Committees shall be filed with the Secretary of the Corporation and presented to the Board of Directors, if practical, at its next regular meeting. The Board of Directors shall keep complete records of its proceedings in a minute book kept for that purpose. When a Director shall request it, the vote of each Director upon a particular question shall be recorded in the minutes.
ARTICLE III. COMMITTEES
Section 301. Committees. The following two (2) Committees of the Board of Directors shall be established by the Board of Directors in addition to any other Committee the Board of Directors may in its discretion establish: Executive, Audit Committee.
Section 302. Executive Committee. The Executive Committee shall consist of the President and any three (3) or more Directors. A majority of the members of the Executive Committee shall constitute a
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quorum, and actions of a majority of those present at a meeting at which a quorum is present shall be actions of the Committee. Meetings of the Committee may be called at any time by the Chairman, President or Secretary of the Committee, and shall be called whenever two (2) or more members of the Committee so request in writing. The Executive Committee shall have and exercise the authority of the Board of Directors in the management of the Corporation so far as may be permitted by applicable law and except as specifically limited by the Board of Directors pursuant to Section 301 or by specific resolution. All acts done and powers conferred by the Executive Committee shall be deemed to be, and may be certified as being, done or conferred under authority of the Board of Directors.
Section 303. Audit Committee. The Audit Committee shall consist of at least three (3) Directors, none of whom shall be Officers of the Corporation. Meetings of the Committee may be called at any time by the Chairman or Secretary of the Committee, and shall be called whenever two (2) or more members of the Committee so request in writing. A majority of the members of the Committee shall constitute a quorum, and actions of a majority of those present at a meeting at which a quorum is present shall be actions of the Committee. The duties and responsibilities of the Audit Committee shall be those imposed on the Audit Committee by applicable law, rule or regulation and such other duties and responsibilities as determined by the Board of Directors.
Section 304. Appointment of Committee Members. The Board of Directors shall appoint, upon the recommendation of the Nominating and Corporate Governance Committee, the members of the Executive and Audit Committees and the Chairman of such Committee, to serve for the ensuing year. The Board of Directors may appoint, from time to time, other committees, for such purposes and with such powers as the Board may determine.
Section 305. Organization and Proceedings. Each Committee of the Board of Directors shall effect its own organization by the appointment of a Secretary and such other Officers, except Chairman and Vice Chairman, as it may deem necessary. A record of proceedings of all Committees shall be kept by the Secretary of such Committee and filed and presented as provided in Section 214 of these By-Laws.
ARTICLE IV. OFFICERS
Section 401. Officers. The Officers of the Corporation shall be a Chairman, one (1) or more Vice Chairmen, a President, one (1) or more Vice Presidents, a Secretary, a Treasurer, and such
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other Officers and Assistant Officers as the Board of Directors may from time to time deem advisable. Except for the President, Secretary, and Treasurer, the Board may refrain from filling any of the said offices at any time and from time to time. The same individual may hold any two (2) or more offices except both the offices of President and Treasurer. The following Officers shall be elected by the Board of Directors at the time, in the manner and for such terms as the Board of Directors from time to time shall determine: President, Executive Vice President, Senior Vice President, Administrative Vice President, Secretary, and Treasurer. The President may, subject to the change by the Board of Directors, appoint such Officers and Assistant Officers as he/she may deem advisable provided such Officers or Assistant Officers have a title not higher than Vice President, who shall hold office for such periods as the President shall determine. Any Officer may be removed at any time, with our without cause, and regardless of the term for which such Officers was elected, but without prejudice to any contract right of such Officer. Each Officer shall hold his office for the current year for which he was elected or appointed by the Board unless he shall resign, becomes disqualified, or be removed at the pleasure of the Board of Directors.
Section 402. President. The President shall have general supervision of all the departments and business of the Corporation and shall prescribe the duties of the other Officers and Employees and see to the proper performance thereof. The President shall be responsible for having all orders and resolutions of the Board of Directors carried into effect. The President shall execute on behalf of the Corporation and may affix or cause to be affixed a seal to all authorized documents and instruments requiring such execution, except to the extent that signing and execution thereof shall have been delegated to some other Officer or Agent of the Corporation by the Board of Directors or by the President. The President shall be a member of the Board of Directors. In the absence or disability of the Chairman of the Board or his/her refusal to act, a Vice Chairman, the President or other appropriate officer shall preside at meetings of the Board. In general, the President shall perform all the duties and exercise all the powers and authorities incident to such officer or as prescribed by the Board of Directors.
Section 403. Vice President. The Vice Presidents shall perform such duties, do such acts and be subject to such supervision as may be prescribed by the Board of Directors or the President. In the event of the absence or disability of the President or his/her refusal to act, the Vice Presidents, in the order of their rank, and within the same rank in the order of their authority, shall perform the duties and have the powers and authorities of the President, except to the extent inconsistent with applicable law.
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Section 404. Secretary. The Secretary shall act under the supervision of the President or such other Officers as the President may designate. Unless a designation to the contrary is made at a meeting, the Secretary shall attend all meetings of Board of Directors and all meetings of the shareholders and record all proceedings of such meetings in a book to be kept for that purpose, and shall perform like duties for the standing Committees when required by these By-Laws or otherwise. The Secretary shall give, or cause to be given, notice of all meetings of shareholders and of the Board of Directors. The Secretary shall keep a seal of the Corporation, and, when authorized by the Board of Directors or the President, cause it to be affixed to any documents and instruments requiring it. The Secretary shall perform such other duties as may be prescribed by the Board of Directors, President, or such other Supervising Officer as the President may designate.
Section 405. Treasurer. The Treasurer shall act under the supervision of the President or such other Officer as the President may designate. The Treasurer shall have custody of the Corporation’s funds and such other duties as may be prescribed by the Board of Directors, President or such other Supervising Officer as the President may designate.
Section 406. Assistant Officer. Unless otherwise provided by the Board of Directors, each assistant officer shall perform such duties as shall be prescribed by the Board of Directors, the President or the Officer to whom he/she is an Assistant. In the event of the absence or disability of an Officer or his/her refusal to act, his/her Assistant Officer shall, in the order of their rank, and within the same rank in the order of their seniority, have the powers and authorities of such Officer.
Section 407. General Powers. The Officers are authorized to do and perform such corporate acts as are necessary in the carrying on of the business of the Corporation, subject always to the direction of the Board of Directors.
ARTICLE V. INDEMNIFICATION
Section 501. Indemnification. (1) Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “Proceeding”), by
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reason of the fact that he or she is or was a director or officer of the Corporation or that he or she, being at the time a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, trustee, officer, employee or agent of another corporation, for profit or not-for-profit, or of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan (collectively, “Another Enterprise” or “Other Enterprise”), whether in either case the basis of such Proceeding is alleged action or inaction in an official capacity as a director, or officer of the Corporation, or as a director, trustee, officer, employee or agent of such Other Enterprise, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the laws of the Commonwealth of Pennsylvania as the same exist or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including without limitation attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in connection therewith if such person 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 proceeding, had no reasonable cause to believe his conduct was unlawful. The persons indemnified by paragraph (1) of this Section 501 are hereinafter referred to as “Indemnitees.” Such indemnification as to such alleged action or inaction shall continue as to an Indemnitee who has after such alleged action or inaction ceased to be a director or officer of the Corporation, and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators. The right to indemnification conferred in this Section 501: (a) shall be a contract right; (b) shall not be affected adversely as to any Indemnitee by an amendment of these By-laws with respect to any action or inaction occurring prior to such amendment; and (c) shall include the right to be paid by the Corporation, the expenses incurred in defending any such Proceeding in advance of its final disposition (hereinafter an “Advancement of Expenses”), provided, however, that, if and to the extent the laws of the Commonwealth of Pennsylvania require, an Advancement of Expenses incurred by an Indemnitee shall be made only upon delivery to the
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Corporation of an undertaking (hereinafter an “Undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “Final Adjudication”) that such Indemnitee is not entitled to be indemnified for such expense under this Section 501 or otherwise; it being understood that the Corporation shall not be entitled to refuse to make any Advancement of Expenses to an Indemnitee required by this Section 501 prior to a Final Adjudication that such Indemnitee is not entitled to be indemnified under this Section 501 or otherwise.
(2) If a claim under paragraph (1) of this Section 501 is not paid in full by the Corporation within sixty (60) days after it has been received in writing by the Corporation, except in the case of a claim for an Advancement of Expenses, in which case the applicable period shall be twenty (20) days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to be paid also the expenses of prosecuting such suit. In any suit brought by the Indemnitee to enforce a right of indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an Advancement of Expenses) it shall be a defense that the Indemnitee has not met the applicable standard of conduct for indemnification set forth in Section 501(1). In any suit by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Corporation shall be entitled to recover such expenses only upon a Final Adjudication that, the Indemnitee has not met the applicable standard of conduct for indemnification set forth in Section 501(1). Neither the failure of the Corporation (including the Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct for indemnification set forth in Section 501(1), nor an actual determination by the Corporation (including the Board of Directors, independent legal counsel or its stockholders) that the Indemnitee has not met such
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applicable standard of conduct, shall create a presumption that the Indemnitee is not entitled to indemnification or be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an Advancement of Expenses hereunder, or by the Corporation to recover an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to have or retain such Advancement of Expenses, under this Section 501 or otherwise, shall be on the Corporation.
(3) The rights to indemnification and to the Advancement of Expenses conferred in this Section 501 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Articles of Incorporation, these By-Laws, an agreement or vote of stockholders or disinterested Directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, trustee, employee or agent of the Corporation or Another Enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the laws of the Commonwealth of Pennsylvania.
(5) The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and to the Advancement of Expenses, to any employee or agent of the Corporation (or any person serving at the Corporation’s request as a director, trustee, officer, employee or agent of Another Enterprise) or to a person who is or was a director, officer, employee or agent of any of the Corporation’s affiliates, predecessor or subsidiary corporations or of a constituent corporation absorbed by the Corporation in a consolidation or merger or who is or was serving at the request of such affiliate, predecessor or subsidiary corporation or of such constituent corporation as a director, officer, employee or agent of Another Enterprise, in each case as determined by the Board of Directors to the fullest extent of the provisions of this Section 501 in cases of the indemnification and Advancement of Expenses of directors and officers of the Corporation, or to any lesser extent (or greater, if permitted by law) determined by the Board of Directors.
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ARTICLE VI. SHARES OF STOCK.
Section 601. Authority to Sign Share Certificates. Every share certificate of the Corporation shall be signed by the President and Treasurer or one of the Assistant Treasurers. Certificates may be signed by a facsimile signature of the President and Treasurer or one of the Assistant Treasurers of the Corporation.
Section 602. Lost or Destroyed Certificates. Any person claiming a share certificate to be lost, destroyed or wrongfully taken shall receive a replacement certificate if such person shall have: (a) requested such replacement certificate before the Corporation has notice that the shares have been acquired by a bona fide purchaser; (b) provided the Corporation with an indemnity agreement satisfactory in form and substance to the Board of Directors, or the President or the Secretary; and (c) satisfied any other reasonable requirements (including providing an affidavit and a surety bond) fixed by the Board of Directors, or the President or the Secretary.
ARTICLE VII. GENERAL
Section 701. Fiscal Year. The fiscal year of the Corporation shall begin on the first (1st) day of January in each year and end on the thirty-first (31st) day of December in each year.
Section 702. Record Date. The Board of Directors may fix any time whatsoever (whether or not the same is more than fifty (50) days) prior to the date of any meeting of shareholders, or the date 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 will go into effect, as a record date for the determination of the shareholders entitled to notice of, or to vote at, any such meetings, or entitled to receive payment of any such dividend or distribution, or to exercise the rights in respect to any such change, conversion or exchange of shares.
Section 703. Absentee Participation in Meetings. One (1) or more Directors may participate in a meeting of the Board of Directors, or of a Committee of the Board, by means of a conference telephone or similar communication equipment, by means of which all persons participating in the meeting can hear each other.
Section 704. Emergency By-Laws. In the event of any emergency resulting from a nuclear attack or similar disaster, and during the continuance of such emergency, the following Bylaw provisions shall be in effect, notwithstanding any other provisions of the Bylaws:
(a) A meeting of the Board of Directors or any of any Committee thereof may be called by any Officer or Director upon one (1) hour’s notice to all persons entitled to notice whom, in the sole judgment of the notifier, it is feasible to notify;
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(b) The Director or Directors in attendance at the meeting of the Board of Directors or of any Committee thereof shall constitute a quorum; and
(c) These Bylaws may be amended or repealed, in whole or in part, by a majority vote of the Directors attending any meeting of the Board of Directors, provided such amendment or repeal shall only be effective for the duration of such emergency.
Section 705. Severability. If any provision of these By-Laws is illegal or unenforceable as such, such illegality or unenforceability shall not effect any other provision of these By-Laws and such other provisions shall continue in full force and effect.
ARTICLE VIII. AMENDMENT OR REPEAL.
Section 801. Amendment or Repeal by the Board of Directors. These By-Laws may be amended or repealed, in whole or in part, by a majority vote of members of the Board of Directors at any regular or special meeting of the Board duly governed. Notice need not be given of the purpose of the meeting of the Board of Directors at which the amendment is to be considered.
ARTICLE IX. APPLICABILITY OF CERTAIN PROVISIONS OF THE PENNSYLVANIA BUSINESS CORPORATION LAW
Section 901. 1990 Anti-takeover Amendments. Subchapters G (relating to Control Share Acquisitions), H (relating to Disgorgement by Certain Controlling Shareholders Following Attempts to Acquire Control), I (relating to Severance Compensation for Employees Terminated Following Certain Control-Share Acquisitions), and J (relating to the status of Labor Contracts following certain Business Combination Transactions) of Chapter 25 of the Pennsylvania Business Corporation Law of 1988 (the “BCL”) shall not be applicable to the Corporation.
Section 511(d), (e), and (f), and Sections 1721(e), (f) and (g) of the BCL shall not be applicable to
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the Corporation. The Corporation shall be governed by Sections 1721(c) and (d) of the BCL. In adopting this paragraph of this Section 901, while intending thereby to indicate the importance of all of the shareholders’ interest the Board of Directors does not intend to limit its ability to oppose a tender offer, or limit its discretion when considering whether to oppose a tender offer, in accordance with Section 8(A) of the Corporation’s Articles of Incorporation or otherwise; nor does it intend to limit the factors and interests which it, committees of the Board, and individual directors may consider in considering the best interests of the Corporation, either as provided in Section 8(A) of the Corporation’s Articles of Incorporation or otherwise; nor does it intend to impose limits upon the ability of the Board, committees of the Board and individual directors in considering the best interests of the Corporation or the effects of any action, to consider and to balance and weigh such factors and interests to the extent they deem appropriate, either as provided in Section 8(A) of the Corporation’s Articles of Incorporation or otherwise; nor does it intend to limit the discretion of the Board, committees of the Board, or individual directors in exercising the powers vested in the Corporation, including, but not limited to, their ability to take the actions described in Section 8(B) of the Corporations Articles of Incorporation.
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