Attached files
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8-K - FORM 8-K - K TRON INTERNATIONAL INC | w77971e8vk.htm |
EX-3.1 - EX-3.1 - K TRON INTERNATIONAL INC | w77971exv3w1.htm |
Exhibit 3.2
BY-LAWS
OF
K-TRON INTERNATIONAL, INC.
A New Jersey Corporation
Effective April 1, 2010
TABLE OF CONTENTS
Page | ||||
ARTICLE I OFFICES |
1 | |||
Section 1.1 Registered Office |
1 | |||
Section 1.2 Other Offices |
1 | |||
ARTICLE II MEETINGS OF SHAREHOLDERS |
1 | |||
Section 2.1 Place of Meetings |
1 | |||
Section 2.2 Annual Meetings |
1 | |||
Section 2.3 Special Meetings |
1 | |||
Section 2.4 Notice |
2 | |||
Section 2.5 Adjournments |
2 | |||
Section 2.6 Quorum |
3 | |||
Section 2.7 Voting |
3 | |||
Section 2.8 Proxies |
4 | |||
Section 2.9 Consent of Shareholders in Lieu of Meeting |
5 | |||
Section 2.10 List of Shareholders Entitled to Vote |
6 | |||
Section 2.11 Record Date |
7 | |||
Section 2.12 Stock Ledger |
8 | |||
Section 2.13 Conduct of Meetings |
9 | |||
ARTICLE III DIRECTORS |
9 | |||
Section 3.1 Number and Election of Directors |
9 | |||
Section 3.2 Vacancies |
10 | |||
Section 3.3 Duties and Powers |
10 | |||
Section 3.4 Meetings |
10 | |||
Section 3.5 Organization |
11 | |||
Section 3.6 Resignations and Removals of Directors |
12 | |||
Section 3.7 Quorum |
12 | |||
Section 3.8 Actions of the Board by Written Consent |
13 | |||
Section 3.9 Meetings by Means of Conference Telephone |
13 | |||
Section 3.10 Committees |
13 | |||
Section 3.11 Compensation |
15 | |||
Section 3.12 Interested Directors |
15 | |||
ARTICLE IV OFFICERS |
16 | |||
Section 4.1 General |
16 | |||
Section 4.2 Election |
16 | |||
Section 4.3 Voting Securities Owned by the Corporation |
17 |
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Page | ||||
Section 4.4 Chairman of the Board of Directors |
17 | |||
Section 4.5 President |
18 | |||
Section 4.6 Vice Presidents |
19 | |||
Section 4.7 Secretary |
19 | |||
Section 4.8 Treasurer |
20 | |||
Section 4.9 Assistant Secretaries |
21 | |||
Section 4.10 Assistant Treasurers |
21 | |||
Section 4.11 Other Officers |
21 | |||
ARTICLE V STOCK |
22 | |||
Section 5.1 Form of Certificates |
22 | |||
Section 5.2 Signatures |
22 | |||
Section 5.3 Lost Certificates |
22 | |||
Section 5.4 Transfers |
23 | |||
Section 5.5 Dividend Record Date |
23 | |||
Section 5.6 Record Owners |
24 | |||
Section 5.7 Transfer and Registry Agents |
24 | |||
ARTICLE VI NOTICES |
24 | |||
Section 6.1 Notices |
24 | |||
Section 6.2 Waivers of Notice |
25 | |||
ARTICLE VII GENERAL PROVISIONS |
25 | |||
Section 7.1 Dividends |
25 | |||
Section 7.2 Disbursements |
26 | |||
Section 7.3 Fiscal Year |
26 | |||
Section 7.4 Corporate Seal |
26 | |||
ARTICLE VIII INDEMNIFICATION |
26 | |||
Section 8.1 Scope of Indemnification |
26 | |||
Section 8.2 Proceedings Initiated by Indemnified Representatives |
28 | |||
Section 8.3 Advancing Expenses |
29 | |||
Section 8.4 Securing of Indemnification Obligations |
29 | |||
Section 8.5 Payment of Indemnification |
30 | |||
Section 8.6 Arbitration |
30 | |||
Section 8.7 Discharge of Duty |
31 | |||
Section 8.8 Contract Rights; Amendment or Repeal |
32 | |||
Section 8.9 Scope of Article |
32 | |||
Section 8.10 Reliance on Provisions |
33 | |||
Section 8.11 Interpretation |
33 |
ii
Page | ||||
ARTICLE IX AMENDMENTS |
33 | |||
Section 9.1 Amendments |
33 | |||
Section 9.2 Entire Board of Directors |
33 |
iii
BY-LAWS
OF
K-TRON INTERNATIONAL, INC.
(hereinafter called the Corporation)
OF
K-TRON INTERNATIONAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of the Corporation shall be in the
City of West Trenton, Mercer County, State of New Jersey.
Section 1.2 Other Offices. The Corporation may also have offices at such other places,
both within and without the State of New Jersey, as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1 Place of Meetings. Meetings of the shareholders for the election of directors
or for any other purpose shall be held at such time and place, either within or without the State
of New Jersey, as shall be designated from time to time by the Board of Directors.
Section 2.2 Annual Meetings. The Annual Meeting of Shareholders for the election of
directors shall be held on such date and at such time as shall be designated from time to time by
the Board of Directors. Any other proper business may be transacted at the Annual Meeting of
Shareholders.
Section 2.3 Special Meetings. Unless otherwise required by law or by the certificate of
incorporation of the Corporation, as amended and restated from time to time (the Certificate of
Incorporation), Special Meetings of Shareholders, for any
purpose or purposes, may be called by either (i) the Chairman, if there be one, or (ii) the
President, (iii) any Vice President, if there be one, (iv) the Secretary or (v) any Assistant
Secretary, if there be one, and shall be called by any such officer at the request in writing of
(i) the Board of Directors, (ii) a committee of the Board of Directors that has been duly
designated by the Board of Directors and whose powers and authority include the power to call such
meetings or (iii) shareholders owning a majority of the capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed
meeting. At a Special Meeting of Shareholders, only such business shall be conducted as shall be
specified in the notice of meeting (or any supplement thereto).
Section 2.4 Notice. Whenever shareholders are required or permitted to take any action at
a meeting, a written notice of the meeting shall be given which shall state the place, date and
hour of the meeting, and, in the case of a Special Meeting, the purpose or purposes for which the
meeting is called. Unless otherwise required by law, written notice of any meeting shall be given
not less than ten (10) nor more than sixty (60) days before the date of the meeting to each
shareholder entitled to notice of and to vote at such meeting.
Section 2.5 Adjournments. Any meeting of the shareholders may be adjourned from time to
time to reconvene at the same or some other place, and notice need not be given of any such
adjourned meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the
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adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting
in accordance with the requirements of Section 4 hereof shall be given to each shareholder of
record entitled to notice of and to vote at the meeting.
Section 2.6 Quorum. Unless otherwise required by applicable law or the Certificate of
Incorporation, the holders of a majority of the Corporations capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the shareholders for the transaction of business. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however,
such quorum shall not be present or represented at any meeting of the shareholders, the
shareholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, in the manner provided in Section 5 hereof, until a
quorum shall be present or represented.
Section 2.7 Voting. Unless otherwise required by law, the Certificate of Incorporation or
these By-Laws or permitted by the rules of any stock exchange on which the Corporations shares are
listed and traded, any question brought before any meeting of the shareholders, other than the
election of directors, shall be decided by the vote of the holders of a majority of the total
number of votes of the Corporations capital stock represented at the meeting and entitled to vote
on such question, voting as a single class. Unless otherwise provided in the Certificate of
Incorporation, and subject to Section 11(a) of this Article II, each shareholder represented at a
meeting of the shareholders shall be entitled to cast one (1) vote for each share of the capital
stock entitled to vote thereat held by such shareholder. Such votes may be cast in person or by
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proxy as provided in Section 8 of this Article II. The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of the shareholders, in such officers
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 2.8 Proxies. Each shareholder entitled to vote at a meeting of the shareholders or
to express consent or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such shareholder as proxy, but no such proxy shall be voted
upon after three years from its date, unless such proxy provides for a longer period. Without
limiting the manner in which a shareholder may authorize another person or persons to act for such
shareholder as proxy, the following shall constitute a valid means by which a shareholder may grant
such authority:
(i) A shareholder may execute a writing authorizing another person or persons
to act for such shareholder as proxy. Execution may be accomplished by the
shareholder or such shareholders authorized officer, director, employee or agent
signing such writing or causing such persons signature to be affixed to such
writing by any reasonable means, including, but not limited to, by facsimile
signature.
(ii) A shareholder may authorize another person or persons to act for such
shareholder as proxy by transmitting or authorizing the transmission of a telegram
or cablegram to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
telegram or cablegram,
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provided that any such telegram or cablegram must either set forth or be
submitted with information from which it can be determined that the telegram or
cablegram was authorized by the shareholder. If it is determined that such
telegrams or cablegrams are valid, the inspectors or, if there are no inspectors,
such other persons making that determination shall specify the information on
which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the writing, telegram or
cablegram authorizing another person or persons to act as proxy for a shareholder may be
substituted or used in lieu of the original writing, telegram or cablegram for any and all purposes
for which the original writing, telegram or cablegram could be used; provided, however, that such
copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the
entire original writing, telegram or cablegram.
Section 2.9 Consent of Shareholders in Lieu of Meeting. Unless otherwise provided in the
Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special
Meeting of Shareholders of the Corporation may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the Corporation by delivery to its
registered office in the State of New Jersey, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of meetings of the
5
shareholders are recorded. Delivery made to the Corporations registered office shall be by hand
or by certified or registered mail, return receipt requested. Every written consent shall bear the
date of signature of each shareholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless, within sixty (60) days of the
earliest dated consent delivered in the manner required by this Section 9 to the Corporation,
written consents signed by a sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in the State of New Jersey, its principal place of
business, or an officer or agent of the Corporation having custody of the book in which proceedings
of meetings of the shareholders are recorded. Any copy, facsimile or other reliable reproduction
of a consent in writing may be substituted or used in lieu of the original writing for any and all
purposes for which the original writing could be used, provided that such copy, facsimile or other
reproduction shall be a complete reproduction of the entire original writing. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written consent shall be
given to those shareholders who have not consented in writing and who, if the action had been taken
at a meeting, would have been entitled to notice of the meeting if the record date for such meeting
had been the date that written consents signed by a sufficient number of holders to take the action
were delivered to the Corporation as provided above in this Section 9.
Section 2.10 List of Shareholders Entitled to Vote. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of the shareholders, a complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order, and
6
showing the address of each shareholder and the number of shares registered in the name of each
shareholder. Such list shall be open to the examination of any shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting (i) either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held or (ii) during ordinary business hours, at the principal place of
business of the Corporation. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any shareholder who is present.
Section 2.11 Record Date
(a) In order that the Corporation may determine the shareholders entitled to notice of or to
vote at any meeting of the shareholders or any adjournment thereof, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed
by the Board of Directors, the record date for determining shareholders entitled to notice of or to
vote at a meeting of the shareholders shall be at the close of business on the day next preceding
the day on which notice is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of shareholders of record entitled
to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
7
(b) In order that the Corporation may determine the shareholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than ten (10) days after the
date upon which the resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for determining shareholders
entitled to consent to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in the State of New Jersey, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which proceedings of meetings
of the shareholders are recorded. Delivery made to the Corporations registered office shall be by
hand or by certified or registered mail, return receipt requested. If no record date has been
fixed by the Board of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining shareholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action.
Section 2.12 Stock Ledger. The stock ledger of the Corporation shall be the only evidence
as to who are the shareholders entitled to examine the stock ledger, the list required by Section
10 of this Article II or the books of the Corporation, or to vote in person or by proxy at any
meeting of the shareholders.
8
Section 2.13 Conduct of Meetings. The Board of Directors of the Corporation may adopt by
resolution such rules and regulations for the conduct of any meeting of the shareholders as it
shall deem appropriate. Except to the extent inconsistent with such rules and regulations as
adopted by the Board of Directors, the chairman of any meeting of the shareholders shall have the
right and authority to prescribe such rules, regulations and procedures and to do all such acts as,
in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the
chairman of the meeting, may include, without limitation, the following: (i) the establishment of
an agenda or order of business for the meeting; (ii) the determination of when the polls shall open
and close for any given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at
or participation in the meeting to shareholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting shall determine; (v)
restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi)
limitations on the time allotted to questions or comments by participants.
ARTICLE III
DIRECTORS
Section 3.1 Number and Election of Directors. The Board of Directors shall consist of not
less than one nor more than twenty-five members, the exact number of which shall initially be fixed
by the Incorporator and thereafter from time to time by the Board of Directors. Except as provided
in Section 2 of this Article III, directors shall
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be elected by a plurality of the votes cast at each Annual Meeting of Shareholders and each
director so elected shall hold office until the next Annual Meeting of Shareholders and until such
directors successor is duly elected and qualified, or until such directors earlier death,
resignation or removal. Directors need not be shareholders.
Section 3.2 Vacancies. Unless otherwise required by law or the Certificate of
Incorporation, vacancies on the Board of Directors or any committee thereof arising through death,
resignation, removal, an increase in the number of directors constituting the Board of Directors or
such committee or otherwise may be filled only by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director. The directors so chosen shall, in the
case of the Board of Directors, hold office until the next annual election and until their
successors are duly elected and qualified, or until their earlier death, resignation or removal
and, in the case of any committee of the Board of Directors, shall hold office until their
successors are duly appointed by the Board of Directors or until their earlier death, resignation
or removal.
Section 3.3 Duties and Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the 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 Certificate
of Incorporation or by these By-Laws required to be exercised or done by the shareholders.
Section 3.4 Meetings. The Board of Directors and any committee thereof may hold meetings,
both regular and special, either within or without the State of New Jersey. Regular meetings of
the Board of Directors or any committee thereof may be held without notice at such time and at such
place as may from time to time be
10
determined by the Board of Directors or such committee, respectively. Special meetings of the
Board of Directors may be called by the Chairman, if there be one, the President, or by any
director. Special meetings of any committee of the Board of Directors may be called by the
chairman of such committee, if there be one, the President, or any director serving on such
committee. Notice thereof stating the place, date and hour of the meeting shall be given to each
director (or, in the case of a committee, to each member of such committee) either by mail not less
than forty-eight (48) hours before the date of the meeting, by telephone or telegram on twenty-four
(24) hours notice, or on such shorter notice as the person or persons calling such meeting may
deem necessary or appropriate in the circumstances.
Section 3.5 Organization. At each meeting of the Board of Directors or any committee
thereof, the Chairman of the Board of Directors or the chairman of such committee, as the case may
be, or, in his or her absence or if there be none, a director chosen by a majority of the directors
present, shall act as chairman. Except as provided below, the Secretary of the Corporation shall
act as secretary at each meeting of the Board of Directors and of each committee thereof. In case
the Secretary shall be absent from any meeting of the Board of Directors or of any committee
thereof, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the
absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of
the meeting may appoint any person to act as secretary of the meeting. Notwithstanding the
foregoing, the members of each committee of the Board of Directors may appoint any person to act as
secretary of any meeting of such committee and the Secretary or any
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Assistant Secretary of the Corporation may, but need not if such committee so elects, serve in such
capacity.
Section 3.6 Resignations and Removals of Directors. Any director of the Corporation may
resign from the Board of Directors or any committee thereof at any time, by giving notice in
writing to the Chairman of the Board of Directors, if there be one, the President or the Secretary
of the Corporation and, in the case of a committee, to the chairman of such committee, if there be
one. Such resignation shall take effect at the time therein specified or, if no time is specified,
immediately; and, unless otherwise specified in such notice, the acceptance of such resignation
shall not be necessary to make it effective. Except as otherwise required by applicable law and
subject to the rights, if any, of the holders of shares of preferred stock then outstanding, any
director or the entire Board of Directors may be removed from office at any time by the affirmative
vote of the holders of at least a majority in voting power of the issued and outstanding capital
stock of the Corporation entitled to vote in the election of directors. Any director serving on a
committee of the Board of Directors may be removed from such committee at any time by the Board of
Directors.
Section 3.7 Quorum. Except as otherwise required by law, the Certificate of Incorporation
or the rules and regulations of any securities exchange or quotation system on which the
Corporations securities are listed or quoted for trading, at all meetings of the Board of
Directors or any committee thereof, a majority of the entire Board of Directors or a majority of
the directors constituting such committee, as the case may be, shall constitute a quorum for the
transaction of business and the act of a majority of the directors or committee members present at
any meeting at which there is a quorum
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shall be the act of the Board of Directors or such committee, as applicable. If a quorum shall not
be present at any meeting of the Board of Directors or any committee thereof, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting of the time and place of the adjourned meeting, until a quorum shall be present.
Section 3.8 Actions of the Board by Written Consent. Unless otherwise provided in the
Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all the members of the Board of Directors or such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors or such committee.
Section 3.9 Meetings by Means of Conference Telephone. Unless otherwise provided in the
Certificate of Incorporation or these By-Laws, members of the Board of Directors of the
Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 9 shall constitute presence in person at such meeting.
Section 3.10 Committees. The Board of Directors, by resolution adopted by a majority of the
entire Board of Directors, may designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. Each member of a committee must meet the requirements
for membership, if any, imposed by
13
applicable law and the rules and regulations of any securities exchange or quotation system on
which the securities of the Corporation are listed or quoted for trading. The Board of Directors
may designate one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of any such committee. Subject to the rules and
regulations of any securities exchange or quotation system on which the securities of the
Corporation are listed or quoted for trading, in the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such member or members constitute a quorum, may
unanimously appoint another qualified member of the Board of Directors to act at the meeting in the
place of any absent or disqualified member. Any committee, to the extent permitted by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may
require it. Each committee shall keep regular minutes and report to the Board of Directors when
required. Notwithstanding anything to the contrary contained in this Article III, the resolution
of the Board of Directors establishing any committee of the Board of Directors and/or the charter
of any such committee may establish requirements or procedures relating to the governance and/or
operation of such committee that are different from, or in addition to, those set forth in these
By-Laws and, to the extent that there is any inconsistency between
14
these By-Laws and any such resolution or charter, the terms of such resolution or charter shall be
controlling.
Section 3.11 Compensation. The directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary for service as director, payable in cash or
securities. No such payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing committees may be
allowed like compensation for service as committee members.
Section 3.12 Interested Directors. No contract or transaction between the Corporation and
one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or officers
are directors or officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because any such directors or officers vote is counted for such purpose if: (i) the material
facts as to the directors or officers relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to the directors or officers relationship or
interest and as to the contract or transaction are disclosed or are known to the
15
shareholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the shareholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a
committee thereof or the shareholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 4.1 General. The officers of the Corporation shall be chosen by the Board of
Directors and shall be a President, a Secretary and a Treasurer. The Board of Directors, in its
discretion, also may choose a Chairman of the Board of Directors (who must be a director) and one
or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any
number of offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these By-Laws. The officers of the Corporation need not be
shareholders of the Corporation nor, except in the case of the Chairman of the Board of Directors,
need such officers be directors of the Corporation.
Section 4.2 Election. The Board of Directors, at its first meeting held after each Annual
Meeting of Shareholders (or action by written consent of shareholders in lieu of the Annual Meeting
of Shareholders), shall elect the officers of the Corporation 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 of Directors; and each officer of the Corporation shall hold office until such
officers successor is elected and
16
qualified, or until such officers earlier death, resignation or removal. Any officer elected by
the Board of Directors may be removed at any time by the Board of Directors. Any vacancy occurring
in any office of the Corporation shall be filled by the Board of Directors. The salaries of all
officers of the Corporation shall be fixed by the Board of Directors.
Section 4.3 Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or any
Vice President or any other officer authorized to do so by the Board of Directors and any such
officer may, in the name of and on behalf of the Corporation, take all such action as any such
officer may deem advisable to vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such meeting shall possess and
may exercise any and all rights and power incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any other person or
persons.
Section 4.4 Chairman of the Board of Directors. The Chairman of the Board of Directors, if
there be one, shall preside at all meetings of the shareholders and of the Board of Directors. The
Chairman of the Board of Directors shall be the Chief Executive Officer of the Corporation, unless
the Board of Directors designates the President as the Chief Executive Officer, and, except where
by law the signature of the President is required, the Chairman of the Board of Directors shall
possess the same
17
power as the President to sign all contracts, certificates and other instruments of the Corporation
which may be authorized by the Board of Directors. During the absence or disability of the
President, the Chairman of the Board of Directors shall exercise all the powers and discharge all
the duties of the President. The Chairman of the Board of Directors shall also perform such other
duties and may exercise such other powers as may from time to time be assigned by these By-Laws or
by the Board of Directors.
Section 4.5 President. The President shall, subject to the control of the Board of
Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of
the business of the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Corporation requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when so authorized by these By-Laws, the
Board of Directors or the President. In the absence or disability of the Chairman of the Board of
Directors, or if there be none, the President shall preside at all meetings of the shareholders
and, provided the President is also a director, the Board of Directors. If there be no Chairman of
the Board of Directors, or if the Board of Directors shall otherwise designate, the President shall
be the Chief Executive Officer of the Corporation. The President shall also perform such other
duties and may exercise such other powers as may from time to time be assigned to such officer by
these By-Laws or by the Board of Directors.
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Section 4.6 Vice Presidents. At the request of the President or in the Presidents absence
or in the event of the Presidents inability or refusal to act (and if there be no Chairman of the
Board of Directors), the Vice President, or the Vice Presidents if there are more than one (in the
order designated by the Board of Directors), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 4.7 Secretary. The Secretary shall attend all meetings of the Board of Directors
and all meetings of the shareholders and record all the proceedings thereat in a book or books to
be kept for that purpose; the Secretary shall also perform like duties for committees of the Board
of Directors when required. The Secretary 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, the Chairman of the Board of Directors or
the President, under whose supervision the Secretary shall be. If the Secretary shall be unable or
shall refuse to cause to be given notice of all meetings of the shareholders and special meetings
of the Board of Directors, and if there be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to cause such notice to be given.
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The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest to the affixing by such officers
signature. The Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or filed, as the case
may be.
Section 4.8 Treasurer. 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 moneys 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. The Treasurer 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 transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer 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 the office of the Treasurer and for the
restoration to the Corporation, in case of the Treasurers death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
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whatever kind in the Treasurers possession or under the Treasurers control belonging to the
Corporation.
Section 4.9 Assistant Secretaries. Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Board of
Directors, the President, any Vice President, if there be one, or the Secretary, and in the absence
of the Secretary or in the event of the Secretarys inability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 4.10 Assistant Treasurers. Assistant Treasurers, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Board of
Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence
of the Treasurer or in the event of the Treasurers inability or refusal to act, shall perform the
duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer
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 the office of
Assistant Treasurer and for the restoration to the Corporation, in case of the Assistant
Treasurers death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in the Assistant Treasurers possession or under the
Assistant Treasurers control belonging to the Corporation.
Section 4.11 Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to
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time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any
other officer of the Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
ARTICLE V
STOCK
Section 5.1 Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by, or in the name of the Corporation (i) by the Chairman of
the Board of Directors, or the President or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by such shareholder in the Corporation.
Section 5.2 Signatures. Any or all of the signatures on a certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
Section 5.3 Lost Certificates. The Board of Directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issuance of a new
certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such
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lost, stolen or destroyed certificate, or such owners legal representative, to advertise the same
in such manner as the Board of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made against the Corporation
on account of the alleged loss, theft or destruction of such certificate or the issuance of such
new certificate.
Section 5.4 Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by applicable law and in these By-Laws. Transfers of stock shall be made on the books
of the Corporation only by the person named in the certificate or by such persons attorney
lawfully constituted in writing and upon the surrender of the certificate therefor, properly
endorsed for transfer and payment of all necessary transfer taxes; provided, however, that such
surrender and endorsement or payment of taxes shall not be required in any case in which the
officers of the Corporation shall determine to waive such requirement. Every certificate
exchanged, returned or surrendered to the Corporation shall be marked Cancelled, with the date of
cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent
thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it
shall have been entered in the stock records of the Corporation by an entry showing from and to
whom transferred.
Section 5.5 Dividend Record Date. In order that the Corporation may determine the
shareholders entitled to receive payment of any dividend or other distribution or allotment of any
rights or the shareholders entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not
23
precede the date upon which the resolution fixing the record date is adopted, and which record date
shall be not more than sixty (60) days prior to such action. If no record date is fixed, the
record date for determining shareholders for any such purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating thereto.
Section 5.6 Record Owners. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise required by law.
Section 5.7 Transfer and Registry Agents. The Corporation may from time to time maintain
one or more transfer offices or agencies and registry offices or agencies at such place or places
as may be determined from time to time by the Board of Directors.
ARTICLE VI
NOTICES
Section 6.1 Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these By-Laws, to be given to any director, member of a committee or shareholder,
such notice may be given by mail, addressed to such director, member of a committee or shareholder,
at such persons address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be
24
deemed to be given at the time when the same shall be deposited in the United States mail. Written
notice may also be given personally or by telegram, telex or cable.
Section 6.2 Waivers of Notice. Whenever any notice is required by applicable law, the
Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee
or shareholder, a waiver thereof in writing, signed by the person or persons entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of
a person at a meeting, present in person or represented by proxy, shall constitute a waiver of
notice of such meeting, except where the person attends the meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any
Annual or Special Meeting of Shareholders or any regular or special meeting of the directors or
members of a committee of directors need be specified in any written waiver of notice unless so
required by law, the Certificate of Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Dividends. Dividends upon the capital stock of the Corporation, subject to the
requirements of the New Jersey Business Corporation Act of the State of New Jersey (the NJBCA)
and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting of the Board of Directors (or any action by written
consent in lieu thereof in accordance with Section 8 of Article III hereof), and may be paid in
cash, in property, or in shares of the Corporations capital stock. Before payment of any
dividend, there may
25
be set aside out of any funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants,
rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness
of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 7.2 Disbursements. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
Section 7.3 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution
of the Board of Directors.
Section 7.4 Corporate Seal. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words Corporate Seal, New Jersey. The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Scope of Indemnification. (a) The Corporation shall indemnify an indemnified
representative against any liability incurred in connection with any proceeding in which the
indemnified representative may be involved as a party or otherwise, by reason of the fact that such
person is or was serving in an indemnified capacity, including without limitation liabilities
resulting from any actual or alleged
26
breach or neglect of duty, error, misstatement or misleading statement, negligence, gross
negligence or act giving rise to strict or products liability, except to the extent that any such
indemnification against a particular liability is expressly prohibited by applicable law or where a
judgment or other final adjudication adverse to the indemnified representative establishes that his
or her acts or omissions (i) were in breach of such persons duty of loyalty to the Corporation or
its shareholders, (ii) were not in good faith or involved a knowing violation of law or (iii)
resulted in receipt by such person of an improper personal benefit.
(b) If an indemnified representative is not entitled to indemnification in respect of a
portion of any liabilities to which such person may be subject, the Corporation shall nonetheless
indemnify such indemnified representative to the maximum extent for the remaining portion of the
liabilities.
(c) The termination of a 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
indemnified representative is not entitled to indemnification.
(d) For purposes of this
Article:
(1) an act or omission in breach of a persons duty of loyalty to the Corporation or its
shareholders means an act or omission which that person knows or believes to be contrary to the
best interests of the Corporation or its shareholders in connection with a matter in which he or
she has a material conflict of interest;
(2) indemnified capacity means any and all past, present or future service by an indemnified
representative in one or more capacities as a director, officer, employee or agent of the
Corporation or, at the request of the Corporation, as a director, officer,
27
employee, agent, fiduciary or trustee of another Corporation, partnership, joint venture, trust,
employee benefit plan or other entity or enterprise;
(3) indemnified representative means any and all directors and officers of the Corporation,
or of any constituent corporation absorbed by the Corporation in a consolidation or merger
designated by the Board of Directors, and any other person designated as an indemnified
representative by the Board of Directors of the Corporation (which may, but need not, include any
person serving at the request of the Corporation, as a director, officer, employee, agent,
fiduciary or trustee of another corporation, partnership, joint venture, trust, employee benefit
plan or other entity or enterprise);
(4) liability means any damage, judgment, amount paid in settlement, fine, penalty, punitive
damages, excise tax assessed with respect to an employee benefit plan, or cost or expense of any
nature (including, without limitation, attorneys fees and disbursements); and
(5) proceeding means any threatened, pending or completed action, suit, appeal or other
proceeding of any nature, whether civil, criminal, arbitrative, administrative or investigative,
whether formal or informal, and whether brought by or in the right of the Corporation, a class of
its security holders or otherwise.
Section 8.2 Proceedings Initiated by Indemnified Representatives. Notwithstanding any other
provision of this Article, the Corporation shall not indemnify under this Article an indemnified
representative for any liability incurred in a proceeding initiated (which shall not be deemed to
include counter-claims or affirmative defenses) or participated in as an intervenor or amicus
curiae by the person seeking indemnification unless such initiation of or participation in the
proceeding is authorized, either before or
28
after its commencement, by the affirmative vote of a majority of the directors in office. This
Section 2 of this Article VIII does not apply to reimbursement of expenses incurred in successfully
prosecuting or defending an arbitration under Section 6 of this Article VIII or otherwise
successfully prosecuting or defending the rights of an indemnified representative granted by or
pursuant to this Article.
Section 8.3 Advancing Expenses. The Corporation shall pay the expenses (including
attorneys fees and disbursements) incurred in good faith by an indemnified representative in
advance of the final disposition of a proceeding described in Section 1 of this Article VIII or
authorized pursuant to Section 2 of this Article VIII upon receipt of an undertaking by or on
behalf of the indemnified representative to repay such amount if it shall ultimately be determined
pursuant to Section 6 of this Article VIII that such person is not entitled to be indemnified by
the Corporation pursuant to this Article. The financial ability of an indemnified representative to
repay an advance shall not be a prerequisite to the making of such advance.
Section 8.4 Securing of Indemnification Obligations. To further effect, satisfy or secure
the indemnification obligations provided herein or otherwise, the Corporation may maintain
insurance, obtain a letter of credit, act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification agreements, pledge or grant a
security interest in any assets or properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon such other terms and conditions as
the Board of Directors shall deem appropriate. Absent fraud, the determination of the Board of
Directors with respect
29
to such amounts, costs, terms and conditions shall be conclusive against all security holders,
officers and directors and shall not be subject to voidability.
Section 8.5 Payment of Indemnification . An indemnified representative shall be entitled to
indemnification within 30 days after a written request for indemnification has been delivered to
the Secretary of the Corporation.
Section 8.6 Arbitration. Any dispute related to the right to indemnification or advancement
of expenses as provided under this Article VIII, except with respect to indemnification for
liabilities under the Securities Act of 1933, as amended, which the Corporation has undertaken to
submit to a court for adjudication, shall be decided only by arbitration, in accordance with the
commercial arbitration rules then in effect of the American Arbitration Association, before a panel
of three arbitrators, one of whom shall be selected by the Corporation, the second of whom shall be
selected by the indemnified representative and the third of whom shall be selected by the other two
arbitrators. In the absence of the American Arbitration Association, or if for any reason
arbitration under the arbitration rules of the American Arbitration Association cannot be
initiated, or if one of the parties fails or refuses to select an arbitrator, or if the arbitrators
selected by the Corporation and the indemnified representative cannot agree on the selection of the
third arbitrator within seven days after such time as the Corporation and the indemnified
representative have each been notified of the selection of the others arbitrator, the necessary
arbitrator or arbitrators shall be selected by the presiding judge of the court of general
jurisdiction of the State of New Jersey (or, if the Corporations principal executive offices have
been relocated to another metropolitan area, then by the presiding judge of the court of general
jurisdiction for the county in
30
which such offices have been relocated). Each arbitrator selected as provided herein is required to
be or have been a director or executive officer of a Corporation whose shares of common stock were
listed during at least one year of such service on the New York Stock Exchange or the American
Stock Exchange or quoted on the National Association of Securities Dealers Automated Quotations
System. The party or parties challenging the right of an indemnified representative to the benefits
of this Article VIII shall have the burden of proof. The Corporation shall reimburse an indemnified
representative for the expenses (including attorneys fees and disbursements) incurred in
successfully prosecuting or defending such arbitration. Any award entered by the arbitrators shall
be final, binding and non-appealable and judgment may be entered thereon by any party in accordance
with applicable law in any court of competent jurisdiction. This arbitration provision shall be
specifically enforceable.
Section 8.7 Discharge of Duty . An indemnified representative shall be deemed to have
discharged such persons duty to the Corporation if he or she has relied in good faith on
information, opinions, reports or statements, including financial statements and other financial
data, in each case prepared or presented by any of the following:
(a) one or more officers or employees of the Corporation whom such indemnified representative
reasonably believes to be reliable and competent with respect to the matter presented;
(b) legal counsel, public accountants or other persons as to matters that the indemnified
representative reasonably believes are within the persons professional or expert competence; or
31
(c) a committee of the Board of Directors on which he or she does not serve as to matters
within its area of designated authority, which committee he or she reasonably believes to merit
confidence.
Section 8.8 Contract Rights; Amendment or Repeal. All rights to indemnification and
advancement of expenses under this Article VIII shall be deemed to be a contract between the
Corporation and the indemnified representative pursuant to which the Corporation and each
indemnified representative intend to be legally bound. Any repeal, amendment or modification hereof
shall be prospective only and shall not affect any rights or obligations then existing nor shall
any repeal, amendment or modification reduce the rights of any indemnified representative to be
indemnified hereunder for any actions taken before the indemnified representative has received
actual notice thereof.
Section 8.9 Scope of Article. The rights granted by this Article VIII shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under any statute, certificate or articles of incorporation, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in all indemnified
capacities and as to action in another capacity while holding such office. The rights of
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall continue as to a person who has ceased to be an indemnified representative in respect of
matters arising prior to such time or involving such person at a time when he or she was an
indemnified representative, and shall inure to the benefit of the heirs, executors and
administrators of such a person.
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Section 8.10 Reliance on Provisions. Each person who shall act as an indemnified
representative of the Corporation shall be deemed to be doing so in reliance upon the rights of
indemnification and advancement of expenses provided by this Article VIII.
Section 8.11 Interpretation. The provisions of this Article VIII are intended to
constitute by-laws authorized by Section 14A:3-5(8) of the NJBCA.
ARTICLE IX
AMENDMENTS
Section 9.1 Amendments. These By-Laws may be altered, amended or repealed, in whole or in
part, or new By-Laws may be adopted by the shareholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained
in the notice of such meeting of the shareholders or Board of Directors, as the case may be. All
such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 9.2 Entire Board of Directors. As used in this Article IX and in these By-Laws
generally, the term entire Board of Directors means the total number of directors which the
Corporation would have if there were no vacancies.
* * *
Adopted as of: April 1, 2010
Last Amended as of:
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