(a) | Advance Notice of Shareholder Business at Annual Meetings. |
i. | Nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the shareholders may be made at an annual meeting of shareholders only: |
1. | pursuant to the Corporation’s notice of meeting (or any supplement thereto), |
2. | by or at the direction of the Board of Directors, or |
3. | by any shareholder who was a shareholder of record of the Corporation at the time the notice provided for in this Section 7 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 7. |
ii. | For any nominations or other business to be properly brought before an annual meeting by a shareholder pursuant to paragraph (a)(i)(3) of this Section 7, the shareholder must have given timely notice thereof in writing to the Secretary of the Corporation, and any such proposed business other than the nominations of persons for election to the Board of Directors must constitute a proper matter for shareholder action. To be timely, a shareholder’s notice must be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the shareholder must be so delivered not later than the close of business on the ninetieth (90th) day prior to such annual meeting or, if later, the tenth (10th) day following the day a document is first filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act setting forth the date of such meeting; and, provided, further that, solely with respect to the next annual meeting of shareholders immediately following the adoption of these By-Laws, for notice to be timely, it must be so delivered not later than the close of business on the thirtieth (30th) day (or if such day is a Saturday, Sunday or federal holiday, then the next business day) following the day on which a copy of these By-Laws was first filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act disclosing the amendments to these By-Laws). In no event shall any adjournment of an annual meeting or the announcement thereof commence a new time period for the giving of timely notice as described above. |
iii. | To be in proper form for purposes of this Section 7, the shareholder’s notice required by paragraph (a)(ii) of this Section 7 shall set forth: |
1. | as to each person whom the shareholder proposes to nominate for election as a director: |
A. | such person’s name, age, business address and, if known, residence address; |
B. | such person’s principal occupation or employment; |
C. | the class, series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned, beneficially or of record, by such person; |
D. | a description of all direct and indirect compensation and other material monetary and non-monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among any Proposing Person (as defined below), on the one hand, and each proposed nominee and his or her respective affiliates and associates, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such Proposing Person were the “registrant” for purposes of such rule and the proposed nominee were a director or executive officer of such registrant; |
E. | any other information concerning such person that must be disclosed as to nominees in proxy solicitations pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as if the nominee had been nominated, or intended to be nominated, by the Board of Directors; |
F. | such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; and |
G. | such other information that the Board of Directors may request from the proposed director nominee in its sole discretion to determine the eligibility of such nominee to serve as a director of the Corporation. |
2. | as to any other business that the shareholder proposes to bring before the meeting, a reasonably brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these By-Laws the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such shareholder and the beneficial owner, if any, on whose behalf the proposal is made, and any other information concerning such matter that must be disclosed in proxy solicitations pursuant to Regulation 14A under the Exchange Act, as if the matter had been proposed, or intended to be proposed, by the Board of Directors; |
3. | as to each of (x) the shareholder giving the notice, (y) the beneficial owner or beneficial owners, if different, on whose behalf the notice is made, and (z) any affiliate or associate (each within the meaning of Rule 12b-2 under the Exchange Act for purposes of these By-Laws) of such stockholder or beneficial owner (each a “Proposing Person”): |
A. | the name and address of such Proposing Person (including, if applicable, the name and |
B. | the class or series and number of shares of the Corporation that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Persons, except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future; |
C. | a representation that the shareholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination; |
D. | any derivative, swap or other transaction or series of transactions engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of which is to give such Proposing Person economic risk similar to ownership of shares of any class or series of the Corporation, including due to the fact that the value of such derivative, swap or other transactions are determined by reference to the price, value or volatility of any shares of any class or series of the Corporation, or which derivative, swap or other transactions provide, directly or indirectly, the opportunity to profit from any increase in the price or value of shares of any class or series of the Corporation (“Synthetic Equity Interests”), which Synthetic Equity Interests shall be disclosed without regard to whether (x) the derivative, swap or other transactions convey any voting rights in such shares to such Proposing Person, (y) the derivative, swap or other transactions are required to be, or are capable of being, settled through delivery of such shares or (z) such Proposing Person may have entered into other transactions that hedge or mitigate the economic effect of such derivative, swap or other transactions; |
E. | any proxy (other than a revocable proxy or consent given in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person has or shares a right to vote any shares of any class or series of the Corporation; |
F. | any agreement, arrangement, understanding or relationship, including any repurchase or similar so-called “stock borrowing” agreement or arrangement, engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of shares of any class or series of the Corporation by, manage the risk of share price changes for, or increase or decrease the voting power of, such Proposing Person with respect to the shares of any class or series of the Corporation, or which provides, directly or indirectly, the opportunity to profit from any decrease in the price or value of the shares of any class or series of the Corporation (“Short Interests”); |
G. | any rights to dividends on the shares of any class or series of the Corporation owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation, |
H. | any performance related fees (other than an asset based fee) that such Proposing Person is entitled to based on any increase or decrease in the price or value of shares of any class or series of the Corporation, or any Synthetic Equity Interests or Short Interests, if any; |
I. | any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act; and |
J. | such other information that the Board of Directors may request in its sole discretion. |
iv. | A stockholder providing notice of a nomination or other business proposed to be brought before an annual meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to paragraph (a)(iii) of this Section 7 shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for the meeting |
v. | Notwithstanding anything in the second sentence of paragraph (a)(ii) of this Section 7 to the contrary, in the event that the number of directors to be elected to the Board of Directors at an annual meeting is increased effective as of the date of the annual meeting and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a shareholder’s notice required by this Section 7 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation. |
(b) | Advance Notice of Shareholder Business at Special Meetings. |
i. | Only such business shall be conducted at a special meeting of shareholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. |
ii. | Nominations of persons for election to the Board of Directors may be made at a special meeting of shareholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (x) by or at the direction of the Board of Directors or any committee thereof, or (y) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any shareholder who is a shareholder of record at the time the notice provided for in paragraph (a)(ii) of this Section 7 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 7. |
iii. | In the event the Corporation calls a special meeting of shareholders for the purpose of electing one or more directors to the Board of Directors, any shareholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the shareholder’s notice required by paragraph (a)(ii) of this Section 7 (and updated as necessary as required by paragraph (a)(iv) of this Section 7) shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or, if later, the tenth (10th) day following the day on which a document is first filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act setting forth the date of the special meeting and the nominees proposed by the Board of Directors to be elected at such meeting. |
(c) | Advance Notice of Shareholder Business in General. |
i. | Only such persons who are nominated in accordance with the procedures set forth in this Section 7 shall be eligible to be elected at an annual or special meeting of shareholders of the Corporation to serve as directors, and only such business shall be conducted at a meeting of shareholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 7. |
ii. | Except as otherwise provided by law, the chairman of the meeting shall have the power and duty: |
1. | to determine whether a nomination, or any business proposed to be brought before the meeting, was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 7 (including whether the shareholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such shareholder’s nominee or proposal in compliance with such shareholder’s representation as required by paragraph (a)(iii)(3)(C) of this Section 7); and |
2. | if any proposed nomination or business was not made or proposed in compliance with this Section 7, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. |
iii. | Notwithstanding the foregoing provisions of this Section 7, unless otherwise required by law, if the shareholder (or a qualified representative of the shareholder) does not appear at the annual or special meeting of shareholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded, and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. |
iv. | For purposes of this Section 7, to be considered a qualified representative of the shareholder, a person must be authorized by a writing executed by such shareholder to act for such shareholder as proxy at the meeting of shareholders and such person must upon request produce such writing at the meeting of shareholders. |
v. | For purposes of this Section 7, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. |
vi. | For purposes of this Section 7, no adjournment or postponement of any meeting shall be deemed to commence a new time period for any notice required to be delivered by a shareholder pursuant to this Section 7; to be timely, such notice must be delivered within the periods set forth above with respect to the originally scheduled meeting. |
vii. | Notwithstanding the foregoing provisions of this Section 7, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 7; provided, however, that any references in these By-Laws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 7 (including paragraphs (a) and (b) hereof), and compliance with paragraphs (a) and (b) of this Section 7 shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as it may be amended from time to time). Nothing in this Section 7 shall be deemed to affect any rights of shareholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act. |
(a) | The director has breached or failed to perform the duties of his office, and |
(b) | The breach or failure to perform constituted self- dealing, willful misconduct, or recklessness; |
12. | Indemnification. |
(a) | The Corporation shall and hereby agrees to indemnify any person (an “Indemnified Person”) who was or is a party or witness in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including without limitation one brought by or in the right of the Corporation (any of the foregoing, a “Proceeding”), by reason of the fact that the Indemnified Person is or was a director or officer of the Corporation, or is or was serving while a director or officer at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Indemnified Person in connection with the Proceeding, except to the extent such indemnification is prohibited by applicable law. |
(b) | Expenses incurred by an Indemnified Person in defending a Proceeding or in connection with appearing as a witness in a Proceeding shall automatically be paid by the Corporation, without the need for action by the Board of Directors, in advance of the final disposition of the Proceeding upon receipt of an undertaking by or on behalf of the Indemnified Person to repay such amounts if it is ultimately determined that the Indemnified Person is not entitled to be indemnified by the Corporation. |
(c) | Notwithstanding anything in this Section 12 to the contrary, the Corporation is not obligated to either indemnify any person under this section or advance expenses under this section with respect to an action, suit or proceeding commenced by the person, other than mandatory counterclaims and affirmative defenses. |
(d) | The duties of the Corporation to indemnify and to advance expenses to an Indemnified Person as provided in this Section 12 are in the nature of a contract between the Corporation and the Indemnified Person, and an amendment or repeal of any provision of this Section 12 shall not alter, to the detriment of an Indemnified Person, the right of the Indemnified Person to the advancement of expenses or indemnification related to a claim based on an act or failure to act that took place prior to the amendment or repeal or the termination of the service of the Indemnified Person as a director or officer, whichever is earlier. |
(e) | The Corporation may indemnify employees and agents of the Corporation, and advance expenses to them, on the same basis as provided in this Section 12 for directors and officers, as the Board of Directors may from time to time determine or authorize. |
(f) | The indemnification provided by this Section 12 shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any other By-Law, agreement, vote of shareholders or disinterested directors of otherwise, both as to action in an official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person. If the Pennsylvania Business Corporation Law of 1988 is amended to permit a Pennsylvania corporation to provide greater rights to indemnification and advancement of expenses for its directors and officers than the express terms of this Section 12, this section shall be construed to provide for those greater rights. |