EXHIBIT 3.1
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WILSHIRE ENTERPRISES, INC.
BY-LAWS
AS AMENDED AND RESTATED
THROUGH
AUGUST 7, 2009
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WILSHIRE ENTERPRISES, INC.
BY-LAWS
ARTICLE I
STOCKHOLDERS
Section 1. The Annual Meeting of the Stockholders of the Corporation
shall be held each year, on such date, at such time and at such place, either
within or without the State of Delaware, as may be designated by the Board of
Directors, from time to time, and stated in the Notice of the Meeting, for the
purpose of electing Directors and transacting such other business as may
properly be brought before the meeting.
Section 2. Special meetings of the stockholders may be held upon
call of the Board of Directors or the Executive Committee, if any, or the
Chairman of the Board, if any, or the President, at such time and at such place
within or without the State of Delaware as may be stated in the call and notice.
Section 3. Except as otherwise herein provided, notice of the time
and place of every meeting of the stockholders shall be delivered personally or
mailed at least ten days previous thereto to each stockholder of record entitled
to vote at the meeting, at the address furnished by him to the Corporation or
its Transfer Agent. Such further notice shall be given as may be required by
law. Any meeting may be held without notice if notice thereof is waived, whether
before or after such meeting, by all of the stockholders entitled to vote
thereat.
Section 4. At every meeting of the stockholders the holders of
record of a majority of the outstanding shares of stock of the Corporation,
entitled to vote at the meeting, whether present in person or represented by
proxy, shall, except as otherwise provided by law, or by the Certificate of
Incorporation, constitute a quorum. If at any meeting there shall be no quorum,
the holders of record, entitled to vote, of a majority of such shares of stock
so present or represented may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall have been
obtained, when any business may be transacted which might have been transacted
at the meeting as first convened had there been a quorum.
Section 5. Unless otherwise provided in the Certificate of
Incorporation of the Corporation, meetings of the stockholders shall be presided
over by the Chairman of the Board, if any, or the President or, if neither is
present, by a person selected by the Board of Directors, or if no selection is
made, by a Chairman to be chosen at the meeting. The Secretary of the
Corporation or, if he is not present, an Assistant Secretary of the Corporation,
if present, shall act as Secretary of the meeting, but if no such officer is
present a Secretary shall be chosen at the meeting.
The order of business at each such meeting shall be as determined by
the chairman of the meeting. The chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allocated to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof and the opening
and closing of the voting polls.
Section 6. Each stockholder entitled to vote at any meeting shall
have one vote in person or by proxy for each share of stock held by him which
has voting power upon the matter in question at the time, but no proxy shall be
voted on after three years from its date, unless such proxy provides for a
longer period, and, except when the stock transfer books of the Corporation
shall have been closed or a date shall have been fixed in advance as a record
date for the determination of stockholders entitled to vote, as hereinafter
provided, no share of stock shall be voted on at any election for directors
which shall have been transferred on the books of the Corporation within twenty
days next preceding such election of directors.
Section 7. The Board of Directors shall have power to close the
stock transfer books of the Corporation for a period not exceeding sixty days
preceding the date of any meeting of stockholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any change or
conversion or exchange of stock shall go into effect or for a period of not
exceeding sixty days in connection with obtaining the consent of stockholders
for any purpose; provided, however, that in lieu of closing the stock transfer
books as aforesaid, the Board of Directors may fix in advance a date, not
exceeding sixty days preceding the date of any meeting of stockholders, or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of stock shall go into
effect, or a date in connection with obtaining such consent, as a record date
for the determination of the stockholders entitled to notice of, and to vote at,
any such meeting and any adjournment thereof, or entitled to receive payment of
any such dividend, or to any such allotment of rights, or to exercise the rights
in respect of any such change, conversion or exchange of stock, or to give such
consent, and in such case such stockholders and only such stockholders as shall
be stockholders of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after any such record date
fixed as aforesaid.
Section 8. The provisions of this Article I, and of these By-Laws,
are subject to the provisions of the Certificate of Incorporation of the
Corporation, as from time to time amended, and in the case of any inconsistency
between the provisions of these By-Laws and of the Certificate of Incorporation
the Certificate of Incorporation shall govern and such inconsistency shall be
resolved so as to carry into effect the intent and purposes of the provisions of
the Certificate of Incorporation.
Section 9. Advance Notice of Stockholder Proposals. At any annual or
special meeting of stockholders, proposals by stockholders and persons nominated
for election as directors by stockholders shall be considered only if advance
notice thereof has been timely given as provided herein and such proposals or
nominations are otherwise proper for consideration under applicable law and the
certificate of incorporation and by-laws of the Corporation. Notice of any
proposal to be presented by any stockholder or of the name of any person to be
nominated by any stockholder for election as a director of the Corporation at
any meeting of stockholders shall be delivered to the Secretary of the
Corporation at its principal executive office 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 if the date of the
annual meeting is more than thirty (30) days before or more than sixty (60) days
after such anniversary date, notice to be timely must be so delivered not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the close of
business on the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made by the Corporation. In no event shall
the public announcement of an adjournment or postponement of a meeting commence
a new time period (or extend any time period) for the giving of a notice as
described above. Any stockholder who gives notice of any such proposal shall
deliver therewith the text of the proposal to be presented, a brief written
statement of the reasons why such stockholder favors the proposal, such
stockholder's name and address, the number and class of all shares of each class
of stock of the Corporation beneficially owned by such stockholder, any material
interest of such stockholder in the proposal (other than as a stockholder) and
any other information required by applicable law. Any stockholder who gives
notice of any person or persons to be nominated for election as a director shall
set forth as to each person whom the proponent proposes to nominate (a) all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected), and (b) all information requested by the Nominating Committee of the
Corporation's Board of Directors. The person presiding at the meeting, in
addition to making any other determinations that may be appropriate to the
conduct of the meeting, shall determine whether such notice has been duly given
and shall direct that proposals and nominees not be considered if such notice
has not been given.
Section 10. Inspectors. Prior to any meeting of stockholders, the
Board of Directors or the Chief Executive Officer shall appoint one or more
inspectors to act at such meeting and make a written report thereof and may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at the meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain the number of shares
outstanding and the voting power of each, determine the shares represented at
the meeting and the validity of proxies and ballots, count all votes and
ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint or retain
other persons to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted therewith, any
information provided by a stockholder who submits a proxy by telegram, cablegram
or other electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and records of
the corporation, and they may also consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record holder owner to cast or
more votes than the stockholder holds of record. If the inspectors consider
other reliable information for such purpose, they shall, at the time they make
their certification, specify the precise information considered by them,
including the person or persons from whom they obtained the information, when
the information was obtained, the means by which the information was obtained
and the basis for the inspectors' belief that such information is accurate and
reliable.
ARTICLE II
BOARD OF DIRECTORS
Section 1. The Board of Directors of the Corporation shall consist
of seven persons. Directors shall hold office until the third Annual Meeting of
Stockholders next succeeding their election, or until their successors shall
have been elected and shall have qualified. A majority of the Directors then in
office shall constitute a quorum present. The Directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall have been obtained, at which time any business may
be transacted which might have been transacted at the meeting as first convened
had there been a quorum.
Whenever any vacancy shall have occurred in the Board of Directors
by death, resignation or otherwise, or the number of Directors shall be
increased by amendment of this Section, such vacancy may be filled, or the
additional directors may be elected, by the vote of a majority of the directors
then in office.
Section 2. Meetings of the Board of Directors shall be held at such
place within or without the State of Delaware as may from time to time be fixed
by resolution of the Board or as may be specified in the call of any meeting.
Regular meetings of the Board shall be held at such time as may from time to
time be fixed by resolution of the Board, and notice of such meetings need not
be given. Special meetings of the Board may be held at any time upon call of the
Chairman of the Board, if any, or the President, by oral, telegraphic or written
notice, duly served on or given, sent or mailed to each director not less than
two days before any such meeting. A meeting of the Board may be held without
notice immediately after the annual meeting of the stockholders at the same
place at which such meeting is held. Meetings may be held at any time without
notice if all the directors are present or if those not present waive notice of
the meeting in writing or by telegram, before or after any such meeting.
Directors and members of committees shall be reimbursed for their
necessary traveling expenses incurred in attending meetings of the Board or such
committees and shall be paid such reasonable fees for their attendance as the
Board of Directors may fix.
ARTICLE III
OFFICERS
Section 1. The Board of Directors, as soon as may be after the
election of directors held in each year, shall elect from their number a
Chairman of the Corporation, and shall also elect one or more Senior
Vice-Presidents, Vice-Presidents, a Secretary and Treasurer, and from time to
time may appoint such Assistant Vice-Presidents, Assistant Secretaries,
Assistant Treasurers and other officers, agents and employees as it may deem
proper. The Board of Directors may also elect a President of the Company. Any
two offices may be held by the same person; and more than two offices, other
than the offices of President and Secretary, may be held by the same person.
Section 2. The term of office of all officers shall be one year, or
until their respective successors are chosen and qualified; but any officer may
be removed from office at any time by the affirmative vote of a majority of the
members of the whole Board.
Section 3. Subject to such limitations as the Board of Directors may
from time to time prescribe, the officers of the Corporation shall each have
such powers and duties as from time to time may be conferred by the Board of
Directors. The Board of Directors may require the Treasurer, the Assistant
Treasurers and any other officers, agents or employees of the Corporation to
give bond for the faithful discharge of their duties, in such sum and of such
character as the Board may from time to time prescribe.
Section 4. The Chairman of the Board, if any, or in his absence or
inability to act, the President, shall have the power to vote or give a proxy
for the voting of all shares of stock of any corporation owned by the
Corporation at any meeting of the stockholders of any such corporation.
ARTICLE IV
STOCK
Section 1. The shares of stock of the Corporation shall be
represented by a certificate, unless and until the Board of Directors adopts a
resolution permitting shares to be uncertificated. Any such resolution shall not
apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by
certificates and, upon request, every holder of uncertificated shares, shall be
entitled to a certificate signed by the President or a Vice-President and by the
Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer,
and shall be countersigned and registered in such manner, if any, as the Board
may by resolution prescribe; provided, however, that, in case such certificates
are required by such resolution to be signed by a transfer agent or an assistant
transfer agent or by a transfer clerk acting on behalf of the Corporation and by
a registrar, the signatures of any such President, Vice-President, Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary may be facsimile.
Section 2. 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, and in the case of certificated
shares of stock, only by the person named in the certificate or by such person's
attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, properly endorsed for transfer and payment of all
necessary transfer taxes; or, in the case of uncertificated shares of stock,
upon receipt of proper transfer instructions from the registered holder of the
shares or by such person's attorney lawfully constituted in writing, and upon
payment of all necessary transfer taxes and compliance with appropriate
procedures for transferring shares in uncertificated form; provided, however,
that such surrender and endorsement, compliance or payment of taxes shall not be
required in any case in which the officers of the Corporation shall determine to
waive such requirement. With respect to certificated shares of stock, 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 3. No certificate for shares of stock of the Corporation
shall be issued in place of any certificate alleged to have been lost, stolen or
destroyed, except upon production of such evidence of the loss, theft or
destruction and upon indemnification of the Corporation and its agents to such
extent and in such manner as the Board of Directors may from time to time
prescribe.
ARTICLE V
CHECKS, NOTES, ETC.
All checks and drafts on the Corporation's bank accounts and all
bills of exchange and promissory notes, and all acceptances, obligations and
other instruments for the payment of money, shall be signed by such officer or
officers or agent or agents as shall be thereunto authorized from time to time
by the Board of Directors.
ARTICLE VI
FISCAL YEAR
The fiscal year of the Corporation shall be as determined by
resolution of the Board of Directors.
ARTICLE VII
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation and the year of its incorporation, and shall be in such form as may
be approved by the Board of Directors, which shall have power to alter the same
at pleasure.
ARTICLE VIII
OFFICES
The Corporation and the stockholders and the directors may have
offices outside of the State of Delaware, at such places as shall be determined
from time to time by the Board of Directors.
ARTICLE IX
AMENDMENTS
The By-Laws of the Corporation may be altered, amended, added to or
repealed at any meeting of the Board of Directors, by the affirmative vote of a
majority of the total number of directors, if notice of the proposed change is
given in the notice of the meeting or if all of the directors are present at the
meeting, or if all directors not present at the meeting assent in writing to
such change; PROVIDED, however, that no change of the time or place for the
annual meeting of the stockholders for the election of directors shall be made
except in accordance with the laws of the State of Delaware. By-Laws made by the
directors may be altered or repealed by the stockholders having voting power, or
by the directors.