BY-LAWS
OF
JEVIC TRANSPORTATION, INC.
(AS AMENDED EFFECTIVE , 1997)
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE IN NEW JERSEY; RESIDENT AGENT. The
address of the Corporation's registered office in the State of New Jersey and
the name and address of its resident agent in charge thereof are as filed with
the Secretary of State of the State of New Jersey.
Section 2. OTHER OFFICES. The Corporation may also have an office or
offices at such other place or places either within or without the state of New
Jersey as the Board of Directors may from time to time determine or the business
of the Corporation requires.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of the shareholders of
the Corporation shall be held at such place, within or without the State of New
Jersey, as may from time to time be designated by resolution passed by the Board
of Directors.
Section 2. ANNUAL MEETING. An annual meeting of the shareholders for
the election of directors and for the transaction of such other proper business,
notice of which was given in the notice of meeting, shall beheld on a date and
at a time as may from time to time be designated by resolution passed by the
Board of Directors.
Section 3. SPECIAL MEETINGS. A special meeting of the shareholders
for any purpose or purposes shall be called only by the Chairman of the Board or
the President of the Corporation or by the Board of Directors pursuant to a
resolution adopted by a majority of the whole Board.
Section 4. NOTICE OF MEETINGS. Except as otherwise provided by law,
written notice of each meeting of the shareholders, whether annual or special,
shall be mailed, postage prepaid, not less than ten nor more than sixty days
before the date of the meeting, to each shareholder entitled to vote at such
meeting, at the shareholder's address as it appears on the records of the
Corporation. Every such notice shall state the time, place, and purpose or
purposes of the meeting. Except when expressly required by law, notice of any
adjourned meeting of the shareholders shall not be required to be given if the
time and place to which the
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meeting is adjourned are announced at the meeting at which the adjournment is
taken and at the adjourned meeting only such business is transacted as might
have been transacted at the original meeting.
Section 5. LIST OF SHAREHOLDERS. The Secretary shall, from
information obtained from the transfer agent, prepare and make, at least ten
days before every meeting of shareholders, a complete list of the shareholders
entitled to vote at the meeting, arranged in alphabetical order within each
class, series or group or shareholders, and 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 days prior to the meeting, 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.
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. The list shall be prima facie evidence as to who are the shareholders
entitled to examine such list or to vote in person or by proxy at any meeting of
shareholders.
Section 6. QUORUM. At each meeting of the shareholders, the holders
of shares entitled to cast a majority of the votes at a meeting present either
in person or by proxy shall constitute a quorum for the transaction of business
except where otherwise provided by law or by the Certificate of Incorporation or
by these by-laws for a specified action. Except as otherwise provided by law, in
the absence of a quorum, a majority in interest of the shareholders of the
Corporation present in person or by proxy and entitled to vote shall have the
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until shareholders holding the requisite amount of
stock shall be present or represented. At any such adjourned meeting at which a
quorum may be present, any business may be transacted which might have been
transacted at a meeting as originally called, and only those shareholders
entitled to vote at the meeting as originally called shall be entitled to vote
at any adjournment or adjournments thereof. The absence from any meeting of the
number of shareholders required by law or by the certificate of Incorporation or
by these by-laws for action upon any given matter shall not prevent action at
such meeting upon any other matter or matters which may properly come before the
meeting, if the number of shareholders required in respect of such other matter
or matters shall be present. The shareholders present in person or by proxy at a
duly organized meeting may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
Section 7. ORGANIZATION. At every meeting of the shareholders the
Chairman of the Board, or, in his or her absence, the President, or in the
absence of the Chairman and the President, a director or an officer of the
Corporation designated by the Board shall act as Chairman. The Secretary, or, in
his or her absence, an Assistant secretary, shall act as Secretary at all
meetings of the shareholders. In the absence from any such meeting of the
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Secretary and the Assistant Secretaries, the Chairman may appoint any person to
act as Secretary of the meeting.
Section 8. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
(a) Annual Meetings of Shareholders.
(i) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the shareholders may be made at an annual meeting of shareholders (a) pursuant
to the Corporation's notice of meeting, (b) by or at the direction of the Board
of Directors or (c) by any shareholder of the Corporation who was a shareholder
of record at the time of giving of notice provided for in this by-law, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this by-law.
(ii) For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause (c) of
paragraph (a)(i) of this by-law, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for shareholder action. To be timely, a
shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th 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 30 days
before or more than 60 days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 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 of an annual meeting commence a new time period
for the giving of a shareholder's notice as described above. Such shareholder's
notice shall set forth (a) as to each person whom the shareholder proposes to
nominate for election or reelection as a director, 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 (the "Exchange Act") and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, 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 (c) as to the shareholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such shareholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the
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class and number of shares of the Corporation which are owned beneficially and
of record by such shareholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this by-law to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a shareholder's notice required by this by-law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(b) Special Meetings of Shareholders. 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. 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 (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this by-law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this by-law. 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 such shareholder
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 by-law shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a shareholder's notice as described
above.
(c) General.
(i) Only such persons who are nominated in accordance
with the procedures set forth in this by-law shall be eligible 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 by-law. Except as otherwise provided by law, the Certificate
of Incorporation or these by-laws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought
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before the meeting was made or proposed, as the case may be, in accordance with
the procedures set forth in this by-law and, if any proposed nomination or
business is not in compliance with this by-law, to declare that such defective
proposal or nomination shall be disregarded.
(ii) For purposes of this by-law, "public announcement"
shall mean 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.
(iii) Notwithstanding the foregoing provisions of this
by-law, 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 by-law.
Nothing in this by-law shall be deemed to affect any rights (i) of shareholders
to request inclusion of proposals in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors under specified circumstances.
Section 9. BUSINESS AND ORDER OF BUSINESS. At each meeting of the
shareholders such business may be transacted as may properly be brought before
such meeting, except as otherwise provided by law or in these by-laws. The order
of business at all meetings of the shareholders shall be as determined by the
Chairman, unless otherwise determined by a majority in interest of the
shareholders present in person or by proxy at such meeting and entitled to vote
thereat.
Section 10. VOTING. Except as otherwise provided by law, the
Certificate of Incorporation or these by-laws, each shareholder shall at every
meeting of the shareholders be entitled to one vote for each share of stock held
by such shareholder. Any vote on stock may be given by the shareholder entitled
thereto in person or by proxy appointed by an instrument in writing executed (or
transmitted by electronic means which results in a writing) by such shareholder
or by the shareholder's attorney thereunto authorized, and delivered to the
Secretary; provided, however, that no proxy shall be voted after 11 months from
its date unless the proxy provides for a longer period. Except as otherwise
provided by law, the Certificate of Incorporation or these by-laws, at all
meetings of the shareholders, all matters other than the election of directors
shall be decided by a majority of the votes cast at such meeting (which need not
be by ballot) by shareholders present in person or by proxy and entitled to vote
thereat, a quorum being present.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. GENERAL POWERS. The property, affairs and business of the
Corporation shall be managed by or under the direction of its Board of
Directors.
Section 2. ELECTION OF DIRECTORS. At each meeting of the
shareholders for the election of directors, at which a quorum is present,
directors shall be elected by a plurality of votes cast in such election, which
need not be by written ballot unless a shareholder demands election by ballot at
the election and before voting begins. Voting shall otherwise be in accordance
with the provisions of Section 10 of Article II hereof.
Section 3. QUORUM AND MANNER OF ACTING. A majority of the members of
the Board of Directors shall constitute a quorum for the transaction of business
at any meeting, and the act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board of Directors
unless otherwise provided by law, the Certificate of Incorporation or these
by-laws. In the absence of a quorum, a majority of the directors present may
adjourn any meeting from time to time until a quorum shall be obtained. Notice
of any adjourned meeting need not be given if the time and place are fixed at
the meeting adjourning and if the period of adjournment does not exceed ten days
in any one adjournment. The directors shall act only as a board and the
individual directors shall have no power as such.
Section 4. PLACE OF MEETINGS. The Board of Directors may hold its
meetings at such place or places within or without the State of New Jersey as
the Board may from time to time determine or as shall be specified or fixed in
the respective notices or waivers of notice thereof.
Section 5. FIRST MEETING. Promptly after each annual election of
directors, the Board of Directors shall meet for the purpose of organization,
the election of officers and the transaction of other business, at the same
place as that at which the annual meeting of shareholders was held or as
otherwise determined by the Board. Notice of such meeting need not be given.
Such meeting may be held at any other time or place which shall be specified in
a notice given as hereinafter provided for special meetings of the Board of
Directors.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such places and at such times as the Board shall from
time to time determine. If any day fixed for a regular meeting shall be a legal
holiday at the place where the meeting is to be held, then the meeting which
would otherwise be held on that day shall be held at the same hour on the next
succeeding business day not a legal holiday. Notice of regular meetings need not
be given.
Section 7. SPECIAL MEETINGS; NOTICE. Special meetings of the Board
of Directors shall be held whenever called by the Chairman of the Board and
shall be called by the
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Chairman of the Board or the Secretary at the written request of three
directors. Notice of each such meeting stating the time and place of the meeting
shall be given to each director by mail, telephone, other electronic
transmission or personally. If by mail, such notice shall be given not less than
five days before the meeting; and if by telephone, other electronic transmission
or personally, not less than two days before the meeting. A notice mailed at
least two weeks before the meeting need not state the purpose thereof except as
otherwise provided in these by-laws. In all other cases the notice shall state
the principal purpose or purposes of the meeting. Notice of any meeting of the
Board need not be given to a director, however, if waived by the director in
writing before or after such meeting or if the director shall be present at the
meeting without protest prior to the conclusion thereof.
Section 8. ORGANIZATION. At each meeting of the Board of Directors,
the Chairman of the Board, or, in his absence, the President, or, in the absence
of the Chairman and the President, a director or an officer of the Corporation
designated by the Board shall act as Chairman. The Secretary, or, in the
Secretary's absence, any person appointed by the Chairman, shall act as
Secretary of the meeting.
Section 9. ORDER OF BUSINESS. At all meetings of the Board of
Directors, business shall be transacted in the order determined by the Board.
Section 10. RESIGNATIONS. Any director of the Corporation may resign
at any time by giving written notice to the Corporation. The resignation of any
director shall take effect at the time specified therein, and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 11. COMPENSATION. Each director shall be paid such
compensation, if any, as shall be fixed by the Board of Directors.
ARTICLE IV
COMMITTEES
Section 1. APPOINTMENT AND POWERS. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of two or more directors of the
Corporation, which, to the extent provided in said resolution or in these
by-laws and not inconsistent with Section 14A:6-9 of the New Jersey Business
Corporation Act (the "New Jersey Act"), shall have and may exercise the powers
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. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the
Board of Directors. The Board of Directors may, by resolution passed by a
majority of the whole Board, abolish any such committee.
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Section 2. TERM OF OFFICE AND VACANCIES. Each member of a
committee shall continue in office until a director to succeed him or her shall
have been elected and shall have qualified, or until he or she ceases to be a
director or until he or she shall have resigned or shall have been removed in
the manner hereinafter provided. Any vacancy in a committee shall be filled by
the vote of a majority of the whole Board of Directors at any regular or special
meeting thereof.
Section 3. ALTERNATES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more directors as
alternate members of any committee, to act in the absence or disability of
members of any committee with all the powers of such absent or disabled members.
Section 4. ORGANIZATION. Unless otherwise provided by the Board of
Directors, each committee shall appoint a chairman. Each committee shall keep a
record of its acts and proceedings and report the same from time to time to the
Board of Directors.
Section 5. RESIGNATIONS. Any regular or alternate member of a
committee may resign at any time by giving written notice to the Chairman of the
Board, the President or the Secretary of the Corporation. Such resignation shall
take effect at the time of the receipt of such notice or at any later time
specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 6. REMOVAL. Any regular or alternate member of a committee
may be removed with or without cause at any time by resolution passed by a
majority of the whole Board of Directors at any regular or special meeting.
Section 7. MEETINGS. Regular meetings of each committee, of which no
notice shall be necessary, shall be held on such days and at such places as the
chairman of the committee shall determine or as shall be fixed by a resolution
passed by a majority of all the members of such committee. Special meetings of
each committee will be called by the Secretary at the request of any two members
of such committee, or in such other manner as may be determined by the
committee. Notice of each special meeting of a committee shall be mailed to each
member thereof at least two days before the meeting or shall be given personally
or by telephone or other electronic transmission at least one day before the
meeting. Every such notice shall state the time and place, but need not state
the purposes of the meeting. No notice of any meeting of a committee shall be
required to be given to any alternate.
Section 8. QUORUM AND MANNER OF ACTING. Unless otherwise provided by
resolution of the Board of Directors, a majority of a committee (including
alternates when acting in lieu of regular members of such committee) shall
constitute a quorum for the transaction of business and the act of a majority of
those present at a meeting at which a quorum is present shall be the act of such
committee. The members of each committee shall act only as a committee and the
individual members shall have no power as such. Actions taken at a meeting
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of any committee shall be reported to the Board of Directors at its next meeting
following such committee meeting; provided that, when the meeting of the Board
is held within 2 days after the committee meeting, such report may be made to
the Board at its second meeting following such committee meeting.
Section 9. COMPENSATION. Each regular or alternate member of a
committee shall be paid such compensation, if any, as shall be fixed by the
Board of Directors.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a
Chairman of the Board of Directors and a President, each of whom shall chosen by
the Board of Directors from among its members, and one or more Vice Presidents
(one or more of whom may be Senior Vice Presidents or otherwise as may be
designated by the Board), a Secretary and a Treasurer, all of whom shall be
elected by the Board of Directors. Any two or more offices may be held by the
same person. The Board of Directors may also from time to time elect such other
officers as it deems necessary.
Section 2. TERM OF OFFICE. Each officer shall hold office until his
or her successor shall have been duly elected and qualified in his or her stead,
or until his or her death or until he or she shall have resigned or shall have
been removed in the manner hereinafter provided.
Section 3. ADDITIONAL OFFICERS; AGENTS. The Chairman of the Board
may from time to time appoint and remove such additional officers and agents as
may be deemed necessary. Such persons shall hold office for such period, have
such authority, and perform such duties as provided in these by-laws or as the
Chairman of the Board may from time to time prescribe. The Board of Directors or
the Chairman of the Board may from time to time authorize any officer to appoint
and remove agents and employees and to prescribe their powers and duties.
Section 4. SALARIES. Unless otherwise provided by resolution passed
by a majority of the whole Board, the salaries of all officers elected by the
Board of Directors shall be fixed by the Board of Directors.
Section 5. REMOVAL. Except where otherwise expressly provided in a
contract authorized by the Board of Directors, any officer may be removed,
either with or without cause, by the vote of a majority of the Board at any
regular or special meeting or, except in the case of an officer elected by the
Board, by any superior officer upon whom the power of removal may be conferred
by the Board or by these by-laws.
Section 6. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Corporation. Any such resignation shall take effect
at the date of receipt of
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such notice or at any later time specified therein, and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 7. VACANCIES. A vacancy in any office because of death,
resignation, removal, or otherwise, shall be filled for the unexpired portion of
the term in the manner provided in these by-laws for regular election or
appointment to such office.
Section 8. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors ("Chairman of the Board") shall be chief executive officer of
the Corporation and, subject to the control of the Board of Directors, shall
have general and overall charge of the business and affairs of the Corporation
and of its officers. He shall keep the Board of Directors appropriately informed
on the business and affairs of the Corporation. He shall preside at all meetings
of the shareholders and of the Board of Directors and shall enforce the
observance of the by-laws of the Corporation and the rules of order for the
meetings of the Board and the shareholders.
Section 9. PRESIDENT. The President shall be the chief operating
officer of the Corporation and, subject to the control of the Chairman of the
Board, shall direct and be responsible for the operation of the business and
affairs of the Corporation. The President shall keep the Chairman of the Board
and the Board of Directors appropriately informed on the business and affairs of
the Corporation. In the case of the absence or disability of the Chairman of the
Board, the President shall perform all the duties and functions and exercise all
the powers of, and be subject to all the restrictions upon, the Chairman of the
Board.
Section 10. SENIOR VICE PRESIDENTS. One or more Senior Vice
Presidents shall, subject to the control of the Chairman of the Board and the
President, have lead accountability for components or functions of the
Corporation as and to the extent designated by the Chairman of the Board and the
President. Each Senior Vice President shall keep the Chairman of the Board and
President appropriately informed on the business and affairs of the designated
components or functions of the Corporation.
Section 11. VICE PRESIDENTS. The Vice Presidents shall perform such
duties as may from time to time be assigned to them or any of them by the
Chairman of the Board or the President.
Section 12. SECRETARY. The Secretary shall keep or cause to be kept
in books provided for the purpose the minutes of the meetings of the
shareholders, of the Board of Directors and of any committee constituted
pursuant to Article IV of these by-laws. The Secretary shall be custodian of the
corporate seal and see that it is affixed to all documents as required and
attest the same. The Secretary shall perform all duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him
or her.
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Section 13. ASSISTANT SECRETARIES. At the request of the Secretary,
or in his or her absence or disability, the Assistant Secretary designated by
him or her shall perform all 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. The Assistant Secretaries shall perform such other duties as from
time to time may be assigned to them.
Section 14. TREASURER. The Treasurer shall have charge of and be
responsible for the receipt, disbursement and safekeeping of all funds and
securities of the Corporation. The Treasurer shall deposit all such funds in the
name of the Corporation in such banks, trust companies or other depositories as
shall be selected in accordance with the provisions of these by-laws. From time
to time and whenever requested to do so, the Treasurer shall render statements
of the condition of the finances of the Corporation to the Board of Directors.
The Treasurer shall perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him or her.
Section 15. ASSISTANT TREASURERS. At the request of the Treasurer,
or in his or her absence or disability, the Assistant Treasurer designated by
him or her shall perform all 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. The Assistant Treasurers shall perform such other duties as from time
to time may be assigned to them.
Section 16. CERTAIN AGREEMENTS. The Board of Directors shall have
power to authorize or direct the proper officers of the Corporation, on behalf
of the Corporation, to enter into valid and binding agreements in respect of
employment, incentive or deferred compensation, stock options, and similar or
related matters, notwithstanding the fact that a person with whom the
Corporation so contracts may be a member of its Board of Directors. Any such
agreement may validly and lawfully bind the Corporation for a term of more than
one year, in accordance with its terms, notwithstanding the fact that one of the
elements of any such agreement may involve the employment by the Corporation of
an officer, as such, for such term.
ARTICLE VI
AUTHORIZATIONS
Section 1. CONTRACTS. The Board of Directors, except as otherwise
provided in these by-laws, may authorize any officer, employee or agent of the
Corporation to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority may be general
or confined to specific instances.
Section 2. LOANS. No loan shall be contracted on behalf of the
Corporation and no negotiable paper shall be issued in its name, unless
authorized by the Board of Directors.
Section 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in the
name of the
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Corporation shall be signed by such officer or officers, employee or employees,
of the Corporation as shall from time to time be determined in accordance with
authorization of the Board of Directors.
Section 4. DEPOSITS. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositories as the Board of Directors may from time to time
designate, or as may be designated by any officer or officers of the Corporation
to whom such power may be delegated by the Board, and for the purpose of such
deposit the officers and employees who have been authorized to do so in
accordance with the determinations of the Board may endorse, assign and deliver
checks, drafts, and other orders for the payment of money which are payable to
the order of the Corporation.
Section 5. PROXIES. Except as otherwise provided in these by-laws or
in the Certificate of Incorporation, and unless otherwise provided by resolution
of the Board of Directors, the Chairman of the Board, the President or any other
officer may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation to cast
the votes which the Corporation may be entitled to cast as a shareholder or
otherwise in any other corporation any of whose stock or other securities may be
held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporations, or to consent in writing to any action by
such other corporation, and may instruct the person or persons so appointed as
to the manner of casting such vote or giving such consent, and may execute or
cause to be executed in the name and on behalf of the Corporation and under its
corporate seal, or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in the premises.
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 1. CERTIFICATES OF STOCK. Certificates for shares of the
stock of the Corporation shall be in such form as shall be approved by the Board
of Directors. They shall be numbered in the order of their issue, by class and
series, and shall be signed by the Chairman of the Board, the President or a
Vice President, and may be countersigned by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation. Any or
all signatures upon 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 2. RECORD OWNERSHIP. A record of the name and address of the
holder of each certificate, the number, class and series of shares represented
thereby and the date of issuance thereof shall be made on the Corporation's
books. The Corporation shall be entitled to treat the holder of record of any
share of stock as the holder in fact thereof and accordingly
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shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have express
or other notice thereof, except as required by law.
Section 3. TRANSFER OF STOCK. Shares of stock shall be transferable
on the books of the Corporation by the person named in the certificate for such
stock in person or by such person's attorney or other duly constituted
representative upon surrender of such certificate with an assignment endorsed
thereon or attached thereto duly executed and with such guarantee of signature
as the Corporation may reasonably require.
Section 4. LOST, DESTROYED AND MUTILATED CERTIFICATES. The
Corporation may issue a new certificate of stock in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Corporation may require the owner of the lost, stolen or destroyed
certificate, or such person's legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section 5. TRANSFER AGENT AND REGISTRAR; REGULATIONS. The
Corporation shall, if and whenever the Board of Directors shall so determine,
maintain one or more transfer offices or agencies, each in charge of a transfer
agent designated by the Board of Directors, where the shares of the stock of the
Corporation shall be directly transferable, and also one or more registry
offices, each in charge of a registrar designated by the Board of Directors,
where such shares of stock shall be registered, and no certificate for shares of
the stock of the Corporation, in respect of which a registrar and transfer agent
shall have been designated, shall be valid unless countersigned by such transfer
agent and registered by such registrar. The Board of Directors may also make
such additional rules and regulations as it may deem expedient concerning the
issue, transfer and registration of certificates for shares of stock of the
Corporation.
Section 6. FIXING RECORD DATE. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or 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, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. If no record
date is fixed (1) the record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if no
notice is given, at the close of business on the day next preceding the day on
which the meeting is held and (2) the record date for determining shareholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
shareholders of record entitled to notice of or to
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vote at a meeting of 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.
Section 7. EXAMINATION OF BOOKS BY SHAREHOLDERS. The Board of
Directors shall, subject to New Jersey Act and other applicable law, have power
to determine from time to time, whether and to what extent and under what
conditions and regulations the accounts and books of the Corporation, or any of
them, shall be open to the inspection of the shareholders; and no shareholder
shall have any right to inspect any book or document of the Corporation, except
as conferred the New Jersey Act, unless and until authorized so to do by
resolution of the Board of Directors or of the shareholders of the Corporation.
ARTICLE VIII
SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal" and
"New Jersey".
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of
January in each year.
ARTICLE X
INDEMNIFICATION
Section 1. DEFINITIONS. As used in this section,
(a) "corporate agent" means any person who is or was a
director, officer, employee or agent of the Corporation or of any constituent
corporation absorbed by the Corporation in a consolidation or merger and any
person who is or was a director, officer, trustee, employee or agent of any
other enterprise, serving as such at the request of the Corporation, or of any
such constituent corporation, or the legal representative of any such director,
officer, trustee, employee or agent;
(b) "other enterprise" means any domestic or foreign
corporation, other than the Corporation, and any partnership, joint venture,
sole proprietorship, trust or other enterprise, whether or not for profit,
served by a corporate agent;
(c) "expenses" means reasonable costs, disbursements and
counsel fees;
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(d) "independent legal counsel" means a law firm, or a member
of a law firm, that (i) is experienced in matters of corporation law; (ii)
neither presently is, nor in the past five years has been, retained to represent
the Corporation or the corporate agent claiming indemnification or any other
party to the action, suit, or proceeding giving rise to a claim for
indemnification, in any matter material to the Corporation, the claimant or any
such other party; and (iii) would not, under applicable standards of
professional conduct then prevailing, have a conflict of interest in
representing either the Corporation or such corporate agent in an action to
determine the Corporation's or such person's rights under this section;
(e) "liabilities" means amounts paid or incurred in
satisfaction of settlements, judgments, fines and penalties;
(f) "proceedings" means any pending, threatened or completed
civil, criminal, administrative or arbitrative action, suit or proceeding, and
any appeal therein and any inquiry or investigation which could lead to such
action, suit or proceeding; and
(g) references to "other enterprises" include employee benefit
plans; references to "fines" include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" include any service as a corporate agent which imposes
duties on, or involves services by, the corporate agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner the person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this section.
Section 2. INDEMNIFICATION.
(a) The Corporation shall indemnify any director or officer
and may indemnify any other corporate agent against his or her expenses and
liabilities in connection with any proceeding involving the corporate agent by
reason of his being or having been such a corporate agent, other than a
proceeding by or in the right of the corporation if
(i) such corporate agent acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation; and
(ii) with respect to any criminal proceeding, such
corporate agent had no reasonable cause to believe his or her conduct was
unlawful.
The termination of any proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not of itself create a
presumption that such corporate agent did not meet the applicable standards of
conduct set forth in this section.
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(b) The Corporation shall indemnify any director or officer
and may indemnify any other corporate agent against his or her expenses in
connection with any proceeding by or in the right of the Corporation to procure
a judgment in its favor which involves the corporate agent by reason of his or
her being or having been such corporate agent, if he or she acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation. However, in such a proceeding no indemnification
shall be provided in respect of any claim, issue or matter as to which such
corporate agent shall have been adjudged to be liable to the corporation, unless
and only to the extent that the Superior Court or the court in which such
proceeding was brought shall determine upon application that despite the
adjudication of liability, but in view of all circumstances of the case, such
corporate agent is fairly and reasonably entitled to indemnity for such expenses
as the Superior Court or such other court shall deem proper.
(c) The Corporation shall indemnify any director or officer
and may indemnify any other corporate agent against expenses to the extent that
such corporate agent has been successful on the merits or otherwise in any
proceeding referred to in subsections (a) and (b) or in defense of any claim,
issue or matter therein.
(d) Any indemnification under subsection (a) and, unless
ordered by a court, under subsection (b) may be made by the corporation only as
authorized in a specific case upon a determination that indemnification is
proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection (a) or subsection (b). Such
determination shall be made, in accordance with the procedures set forth in the
appendix to these by-laws,
(i) by the board of directors or a committee thereof,
acting by a majority vote of a quorum consisting of directors who were not
parties to or otherwise involved in the proceeding; or
(ii) if such a quorum is not obtainable, or, even if
obtainable and such quorum of the board of directors or committee by a majority
vote of the disinterested directors so directs, by independent legal counsel, in
a written opinion, such counsel to be designated by the board of directors; or
(iii) by the shareholders if the certificate of
incorporation or bylaws or a resolution of the board of directors or of the
shareholders so directs.
(e) Expenses incurred by a corporate agent in connection with
a proceeding may be paid by the corporation in advance of the final disposition
of the proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the corporate agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified as
provided in this section.
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(f) The indemnification and advancement of expenses provided
by or granted pursuant to the other subsections of this section shall not
exclude any other rights, including the right to be indemnified against
liabilities and expenses incurred in proceedings by or in the right of the
corporation, to which a corporate agent may be entitled under the Certificate of
Incorporation, any agreement, a vote of the shareholders, or otherwise; provided
that no indemnification shall be made to or on behalf of a corporate agent if a
judgment or other final adjudication adverse to the corporate agent establishes
that his acts or omissions (i) were in breach of his duty of loyalty to the
corporation or its shareholders, as defined in subsection (3) of Section 14A:2-7
of the New Jersey Act, (ii) were not in good faith or involved a knowing
violation of law or (c) resulted in receipt by the corporate agent of an
improper personal benefit.
(g) The Corporation may purchase and maintain insurance on
behalf of any corporate agent against any expenses incurred in any proceeding
and any liabilities asserted against him by reason of his being or having been a
corporate agent, whether or not the Corpora tion would have the obligation or
the authority to indemnify him or her against such expenses and liabilities
under the provisions of this section. The Corporation may purchase such
insurance from, or such insurance may be reinsured in whole or in part by, an
insurer owned by or otherwise affiliated with the Corporation, whether or not
such insurer does business with other insureds.
(h) The Corporation shall pay or reimburse expenses incurred
by any director or officer and may pay or reimburse expenses incurred by any
other corporate agent in connection with the corporate agent's appearance as a
witness in a proceeding at a time when the corporate agent has not been made a
party to the proceeding.
ARTICLE XI
AMENDMENT OF BY-LAWS
The Board of Directors is expressly authorized to make, alter, amend
and repeal the by-laws of the Corporation, in any manner not inconsistent with
the laws of the State of New Jersey or the Certificate of Incorporation, subject
to the power of the holders of the then outstanding capital stock of the
Corporation to alter or repeal the by-laws made by the Board of Directors;
provided, that any such amendment or repeal by shareholders shall require the
affirmative vote of the holders of at least 80 percent (80%) of the voting power
of such capital stock entitled to vote generally in the election of directors,
voting together as a single class.
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APPENDIX
PROCEDURES FOR SUBMISSION AND
DETERMINATION OF CLAIMS FOR INDEMNIFICATION
PURSUANT TO ARTICLE X OF THE BY-LAWS.
Section 1. PURPOSE. The Procedures for Submission and Determination
of Claims for Indemnification Pursuant to Article X of the by-laws (the
"Procedures") are to implement the provisions of Section 2 of Article X of the
by-laws of the Corporation (the "by-laws") in compliance with the requirement of
subsection (d) thereof.
Section 2. DEFINITIONS. For purposes of these Procedures:
(a) All terms that are defined in Section 1 of Article X of
the by-laws shall have the meanings ascribed to them therein when used in these
Procedures unless otherwise defined herein.
(b) "Change of Control" means:
(i) the acquisition in one or more transactions by any
"Person" (as the term person is used for purposes of Sections 13(d) or 14(d) of
the Exchange Act) of "Beneficial ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty-five percent (25%) or more of the
combined voting power of the Company's then outstanding voting securities (the
"Voting Securities"), provided that for purposes of this clause (i) Voting
Securities acquired directly from the Company by any Person shall be excluded
from the determination of such Person's Beneficial ownership of Voting
Securities (but such Voting Securities shall be included in the calculation of
the total number of Voting Securities then outstanding); or
(ii) approval by shareholders of the Company of:
(A) a merger, reorganization or consolidation
involving the Company if the shareholders of the Company immediately before such
merger, reorganization or consolidation do not or will not own directly or
indirectly immediately following such merger, reorganization or consolidation,
more than fifty percent (50%) of the combined voting power of the outstanding
voting securities of the company resulting from or surviving such merger,
reorganization or consolidation in substantially the same proportion as their
ownership of the Voting Securities outstanding immediately before such merger,
reorganization or consolidation; or
(B) a complete liquidation or dissolution of the
Company;
(C) an agreement for the sale or other disposition
of all or substantially all of the assets of the Company; or
(iii) acceptance by shareholders of the Company of
shares in a share exchange if the shareholders of the Company immediately before
such share exchange do not or will not own directly or indirectly immediately
following such share exchange more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the entity resulting from
or surviving such share exchange in substantially the same proportion as their
ownership of the Voting Securities outstanding immediately before such share
exchange.
Section 3. SUBMISSION AND DETERMINATION OF CLAIMS.
(a) To obtain indemnification or advancement of expenses under
Article X, Section 2 of the by-laws, a corporate agent shall submit to the
Secretary of the Corporation a written request therefor, including therein or
therewith such documentation and information as is reasonably available to the
corporate agent and is reasonably necessary to
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permit a determination as to whether and what extent the Corporate agent is
entitled to indemnification or advancement of expenses, as the case may be. The
Secretary shall, promptly upon receipt of a request for indemnification, advise
the Board of Directors thereof in writing if a determination in accordance with
Article X, Section 2(d) of the by-laws is required.
(b) Upon written request by an corporate agent for
indemnification pursuant to Section 3(a) hereof, a determination with respect to
the corporate agent's entitlement thereto in the specific case, if required by
the by-laws, shall be made in accordance with Article X, Section 2(d) of the
by-laws, and, if it is so determined that the corporate agent is entitled to
indemnification, payment to the corporate agent shall be made within ten days
after such determination. The corporate agent shall cooperate with the person,
persons or entity making such determination, with respect to the corporate
agent's entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to the corporate agent and reasonably necessary to
such determination.
(c) If entitlement to indemnification is to be made by
independent legal counsel pursuant to Article X, Section 2(d)(ii) of the
by-laws, such counsel shall be selected as provided in this Section 3(c). If a
change of control shall not have occurred, the independent legal counsel shall
be selected by the Board of Directors, and the Corporation shall give written
notice to the corporate agent advising the corporate agent of the identity of
the independent legal counsel so selected. If a change of control shall have
occurred, the independent legal counsel shall be selected by the corporate agent
(unless the corporate agent shall request that such selection be made by the
Board of Directors, in which event the immediately preceding sentence shall
apply), and the corporate agent shall give written notice to the Corporation
advising it of the identity of the independent legal counsel so selected. In
either event, the corporate agent or the Corporation, as the case may be, may,
within seven days after such written notice of selection shall have been given,
deliver to the Corporation or to the corporate agent, as the case may be, a
written objection to such selection. Such objection may be asserted only on the
ground that the independent legal counsel so selected does not meet the
requirements of "independent legal counsel" as defined in Article X, Section 1
of the by-laws, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is made, the independent
legal counsel so selected may not serve as independent legal counsel unless and
until a court has determined that such objection is without merit. If, within
twenty days after the next regularly scheduled Board of Directors meeting
following submission by the corporate agent of a written request for
indemnification pursuant to Section 3(a) hereof, no independent legal counsel
shall have been selected and not objected to, either the Corporation or the
corporate agent may petition the Superior Court of the State of New Jersey or
other court of competent jurisdiction for resolution of any objection which
shall have been made by the Corporation or the corporate agent to the other's
selection of independent legal counsel and/or for the appointment as independent
legal counsel of a person selected by the Court or by such other person as the
Court shall designate, and the person with respect to whom an objection is
favorably resolved or the person
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so appointed shall act as independent legal counsel under Article X, Section
2(d)(ii) of the by-laws. The Corporation shall pay any and all reasonable fees
and expenses (including without limitation any advance retainers reasonably
required by counsel) of independent legal counsel incurred by such independent
legal counsel in connection with acting pursuant to Article X, Section 2(d)(ii)
of the by-laws, and the Corporation shall pay all reasonable fees and expenses
(including without limitation any advance retainers reasonably required by
counsel) incident to the procedures of Article X, Section 2(d)(ii) of the
by-laws and this Section 3(c), regardless of the manner in which independent
legal counsel was selected or appointed. Upon the delivery of its opinion
pursuant to Article X, Section 2(d)(ii) of the by-laws or, if earlier, the due
commencement of any judicial proceeding or arbitration pursuant to Section
4(a)(3) of these Procedures, independent legal counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
(d) If a change of control shall have occurred, in making a
determination with respect to entitlement to indemnification under the by-laws,
the person, persons or entity making such determination shall presume that an
corporate agent is entitled to indemnification under the by-laws if the
corporate agent has submitted a request for indemnification in accordance with
Section 3(a) hereof, and the Corporation shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.
Section 4. REVIEW AND ENFORCEMENT OF DETERMINATION.
(a) In the event that (1) advancement of expenses is not
timely made pursuant to Article X, Section 2(b) or (c) of the by-laws, (2)
payment of indemnification is not made pursuant to Article X, Section 2(a) or
(b) of the by-laws within ten days after receipt by the Corporation of written
request therefor, (3) a determination is made pursuant to Article X, Section
2(d) of the by-laws that a corporate agent is not entitled to indemnification
under the by-laws, (4) the determination of entitlement to indemnification is to
be made by independent legal counsel pursuant to Article X, Section 2(d)(ii) of
the by-laws and such determination shall not have been made and delivered in a
written opinion within ninety days after receipt by the Corporation of the
written request for indemnification, or (5) payment of indemnification is not
made within ten days after a determination has been made pursuant to Article X,
Section 2(d) of the by-laws that a corporate agent is entitled to
indemnification, the corporate agent shall be entitled to an adjudication in an
appropriate court of the State of New Jersey, or in any other court of competent
jurisdiction, of the corporate agent's entitlement to such indemnification or
advancement of Expenses. Alternatively, the corporate agent, at his or her
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. The corporate
agent shall commence such proceeding seeking an adjudication or an award in
arbitration within one year following the date on which the corporate agent
first has the right to commence such proceeding pursuant to this Section 4(a).
The
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Corporation shall not oppose the corporate agent's right to seek any such
adjudication or award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Article X, Section 2(d) of the by-laws that a corporate agent is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 4 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and the corporate agent shall not be
prejudiced by reason of that adverse determination. If a change of control shall
have occurred, the Corporation shall have the burden of proving in any judicial
proceeding or arbitration commenced pursuant to this Section 4 that the
corporate agent is not entitled to indemnification or advancement of expenses,
as the case may be.
(c) If a determination shall have been made or deemed to have
been made pursuant to Article X, Section 2(d) or of the by-laws that a corporate
agent is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 4, absent (1) a misstatement or omission of a material fact in
connection with the corporate agent's request for indemnification, or (2) a
prohibition of such indemnification under applicable law.
(d) The Corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 4 that the
procedures and presumptions of these Procedures are not valid, binding and
enforceable, and shall stipulate in any such judicial proceeding or arbitration
that the Corporation is bound by all the provisions of these Procedures.
(e) In the event that a corporate agent, pursuant to this
Section 4, seeks to enforce the corporate agent's rights under, or to recover
damages for breach of, Article X of the by-laws or these Procedures in a
judicial proceeding or arbitration, the Corporate agent shall be entitled to
recover from the Corporation, and shall be indemnified by the Corporation
against, any and all expenses (of the types described in the definition of
Expenses in Section 2 of these Procedures) actually and reasonably incurred in
such judicial proceeding or arbitration, but only if the corporate agent
prevails therein. If it shall be determined in such judicial proceeding or
arbitration that the corporate agent is entitled to receive part but not all of
the indemnification or advancement of expenses sought, the expenses incurred by
the corporate agent in connection with such judicial proceeding or arbitration
shall be appropriately prorated.
Section 5. AMENDMENTS. These Procedures may be amended at any time
and from time to time in the same manner as any by-law of the Corporation in
accordance with the Certificate of Incorporation and by-laws; provided, however,
that notwithstanding any amendment, alteration or repeal of these Procedures or
any provision hereof, any corporate agent shall be entitled to utilize these
Procedures with respect to any claim for indemnification arising out of any
action taken or omitted prior to such amendment, alteration or repeal except to
the extent otherwise required by law.
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