EXHIBIT 3.2
BY-LAWS
OF
ARROW INTERNATIONAL, INC.
A PENNSYLVANIA CORPORATION
(AS AMENDED THROUGH JULY 13, 2000)
BY-LAWS OF
ARROW INTERNATIONAL, INC.
(As Amended Through July 13, 2000)
ARTICLE I - OFFICES
1.1. REGISTERED OFFICE. The registered office of the corporation shall be
at 3000 Bernville Road, Reading, Pennsylvania 19612.
1.2. OTHER OFFICES. The corporation may also have offices at such other
places as the Board of Directors may from time to time appoint or the business
of the corporation may require.
ARTICLE II - SEAL
2.1. SEAL. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Pennsylvania."
ARTICLE III - SHAREHOLDERS' MEETINGS
3.1. PLACE OF MEETINGS. Meetings of the shareholders shall be held at the
office of the corporation at 3000 Bernville Road, Reading, Pennsylvania 19612,
or at such other place or places, either within or without the Commonwealth of
Pennsylvania, as the Board of Directors may designate from time to time.
3.2. ANNUAL MEETINGS. The annual meeting of the shareholders shall be
held each year on such day and at such time as the Board of Directors may
designate, or, if not so designated, on the first Monday of February in each
year if not a legal holiday, and if a legal holiday, then on the first following
business day which is not a legal holiday, at 10:00 A.M. At such annual meeting,
the shareholders shall elect a Board of Directors and transact such other
business as may properly be brought before the meeting. If the annual meeting
shall not be called and held within six months after the designated time, any
shareholder may call such meeting at any time thereafter.
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3.3. SPECIAL MEETINGS. Special meetings of the shareholders may be called
at any time by the Chairman of the Board or the Board of Directors. The
shareholders shall not be entitled to call a special meeting of the
shareholders, except when such right is expressly granted by statute and not
permitted to be modified by the Articles of Incorporation and these By-laws. At
any time, upon written request of any person or persons who have duly called a
special meeting, it shall be the duty of the Secretary to fix the date and time
of the meeting which, if the meeting is called pursuant to a statutory right,
shall be held not more than sixty days after the receipt of the request, and to
give due notice thereof. If the Secretary shall neglect or refuse to fix the
date of the meeting and give notice thereof, the person or persons calling the
meeting may do so. Business transacted at all special meetings shall be confined
to the objects stated in the call and matters germane thereto, unless all
shareholders entitled to vote are present and consent.
3.4. NOTICE. Written notice of any annual or special meeting of
shareholders, stating the time and place, and in the case of a special meeting
the general nature of the business to be transacted, shall be given to each
shareholder entitled to vote thereat at least ten days prior to the meeting,
unless a greater period of notice is required by statute in a particular case.
3.5. QUORUM. The presence, in person or by proxy, of shareholders
entitled to cast at least a majority of the votes which all shareholders are
entitled to cast on the particular matter shall constitute a quorum for the
purpose of considering and acting upon such matter. The shareholders present at
a duly organized meeting can continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. Adjournment or adjournments of any annual or special meeting may be
taken, but any meeting at which directors are to be elected shall be adjourned
only from day to day, or for such longer periods not exceeding fifteen days each
as may be directed by shareholders who are present in
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person or by proxy and who are entitled to cast at least a majority of the votes
which all such shareholders would be entitled to cast at an election of
directors, until such directors have been elected; provided, however, that if
the corporation is a "registered corporation" as defined in ss.2502 of the
Pennsylvania Business Corporation Law, any annual or special meeting of the
shareholders, including one at which directors are to be elected, may be
adjourned for such period as the shareholders present and entitled to vote shall
direct. If a meeting cannot be organized because a quorum has not attended,
those present may, except as otherwise provided by statute, adjourn the meeting
to such time and place as they may determine, but in the case of any meeting
called for the election of directors, those who attend the second of such
adjourned meetings, although less than a quorum, shall nevertheless constitute a
quorum for the purpose of electing directors.
3.6 VOTING. Except as otherwise provided herein with respect to the
election of directors, or as otherwise provided by statute, whenever any
corporate action is to be taken by vote of the shareholders of the corporation,
it shall be authorized upon receiving the affirmative vote of a majority of the
votes cast by all shareholders entitled to vote thereon and if any shareholders
are entitled to vote thereon as a class, upon receiving the affirmative vote of
a majority of the votes cast by the shareholders entitled to vote as a class. In
elections for directors, voting need not be by ballot unless required by vote of
the shareholders before the voting for election of directors begins, and the
candidates for director receiving the highest number of votes from each class or
group of classes, if any, entitled to elect directors separately up to the
number of directors to be elected by the class or group of classes shall be
elected.
3.7 PROCEDURES. At each meeting of shareholders, the Chairman of the
Board, or in his absence or inability to act, such other person as the Board of
Directors may have designated,
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shall call to order and act as chairman of the meeting. The Secretary or, in his
absence or inability to act, the person whom the chairman of the meeting shall
appoint secretary of the meeting shall act as secretary of the meeting and keep
the minutes thereof.. The order of business and the procedure at all meetings of
the shareholders shall be as determined by the chairman of the meeting, unless
otherwise prescribed by these By-laws or by law or regulation. No share shall be
voted at the meeting upon which any installment is due and unpaid. Shareholders
shall not be permitted to participate in any meeting of the shareholders by
means of conference telephone or similar communicating equipment by means of
which all persons participating in the meeting can hear each other.
3.8. PROXIES. Every shareholder entitled to vote at a meeting of
shareholders may authorize another person or persons to act for him by proxy.
Every proxy shall be executed in writing by the shareholder, or by his duly
authorized attorney-in-fact, and filed with the Secretary of the corporation. A
proxy which is a telegram, telex, cablegram, datagram or similar transmission
from a shareholder or attorney-in-fact, or a photographic, facsimile or similar
reproduction of a writing executed by a shareholder or attorney-in-fact may be
treated as properly executed for purposes of this Section 3.8 and shall be so
treated if such proxy sets forth a confidential and unique identification number
or other mark furnished by the corporation to the shareholder for the purposes
of a particular meeting or transaction. A proxy, unless coupled with an
interest, shall be revocable at will, notwithstanding any other agreement or any
provision in the proxy to the contrary, but the revocation of a proxy shall not
be effective until notice thereof has been given to the Secretary of the
corporation. An unrevoked proxy shall not be valid after three years from the
date of its execution, unless a longer time is expressly provided therein. A
proxy shall not be revoked by the death or incapacity of the maker unless,
before the vote is
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counted or the authority is exercised, written notice of such death or
incapacity is given to the Secretary of the corporation. A shareholder shall not
sell his vote or execute a proxy to any person for any sum of money or anything
of value. A proxy coupled with an interest shall include an unrevoked proxy in
favor of a creditor of a shareholder and such proxy shall be valid so long as
the debt owed by him to the creditor remains unpaid.
3.9. JUDGES OF ELECTION. In advance of any meeting of shareholders, the
Board of Directors may appoint judges of election, who need not be shareholders,
to act at such meeting or any adjournment thereof. If judges of election are not
so appointed, the chairman of any such meeting may, and on the request of any
shareholder or his proxy shall, make such appointment at the meeting. The number
of judges shall be one or three. If appointed at a meeting on the request of one
or more shareholders or proxies, the majority of shares present and entitled to
vote shall determine whether one or three judges are to be appointed. In case
any person appointed as a judge fails to appear or fails or refuses to act, the
vacancy may be filled by appointment made by the Board of Directors in advance
of the convening of the meeting or at the meeting by the chairman of such
meeting. The judges of election shall determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum and the authenticity, validity and effect of proxies,
receive votes or ballots, hear and determine all challenges and questions in any
way arising in connection with the right to vote, count and tabulate all votes,
determine the result and do such acts as may be proper to conduct the election
or vote with fairness to all shareholders. If there are three judges of
election, the decision, act or certificate of a majority shall be effective in
all respects as the decision, act or certificate of all. On request of the
chairman of the meeting, or of any shareholder or his proxy, the judges shall
make a report in writing of any challenge or question or matter determined by
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them, and execute a certificate of any fact found by them. No person who is a
candidate for office shall act as a judge.
3.10. VOTING LISTS. The officer or agent having charge of the transfer
books for shares of the corporation shall make a complete list of the
shareholders entitled to vote at any meeting of shareholders, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list shall be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting for the purposes thereof except that, if the corporation has
5,000 or more shareholders, in lieu of the making of the list the corporation
may make the information thereon available at the meeting by any other means.
Failure to comply with the requirements of this Section 3.10 shall not affect
the validity of any action taken at a meeting prior to a demand at the meeting
by any shareholder entitled to vote thereat to examine the list. The original
share register or transfer book, or a duplicate thereof kept in the Commonwealth
of Pennsylvania, shall be prima facie evidence as to who are the shareholders
entitled to examine such list or share register or transfer book, or to vote, in
person or by proxy, at any meeting of shareholders.
3.11. SHAREHOLDER PROPOSALS. The shareholders shall not be entitled to
propose any amendment to the Articles of Incorporation. No proposal for a
shareholder vote on any other matter shall be submitted by a shareholder to the
corporation's shareholders unless the shareholder submitting such proposal has
filed a written notice setting forth with particularity (i) the name and
business address of the shareholder submitting such proposal and all persons
acting in concert with such shareholder; (ii) the name and address of the
persons identified in clause (i), as they appear on the corporation's books (if
they so appear); (iii) the class and number of shares of the corporation
beneficially owned by the persons identified in clause (i); (iv) a description
of
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the proposal containing all material information relating thereto; and (v) such
other information as the Board of Directors reasonably determines is necessary
or appropriate to enable the Board of Directors and shareholders of the
corporation to consider such proposal. The written notice of a shareholder
proposal shall be delivered to the Secretary of the corporation, at the
registered office of the corporation, not later than (i) with respect to a
shareholder proposal to be submitted at an annual meeting of shareholders, sixty
days prior to the date one year from the date of the immediately preceding
annual meeting of shareholders, and (ii) with respect to a shareholder proposal
to be submitted at a special meeting of shareholders, the close of business on
the tenth day following the date on which notice of such meeting is first given
to shareholders. The presiding officer at any shareholders meeting may determine
that any shareholder proposal was not permissible under or was not made in
accordance with the procedures prescribed in this Section 3.11 or is otherwise
not in accordance with law, and if he should so determine, he shall so declare
at the meeting and the shareholder proposal shall be disregarded.
ARTICLE IV - DIRECTORS
4.1 BOARD OF DIRECTORS. The business and affairs of the corporation
shall be managed by a Board of Directors comprised as follows:
(1) The Board of Directors shall consist of not less than four nor more
than twelve persons, the exact number to be fixed from time to time
by the Board of Directors pursuant to a resolution adopted by a
majority vote of the directors then in office;
(2) Directors shall, from and after the annual meeting of shareholders
next held after April 1, 1992, continue to be classified with
respect to the time for which they shall severally hold office by
dividing them into four classes, as nearly equal in number as
possible. At such meeting and at each succeeding annual meeting of
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shareholders, the class of directors then being elected shall be
elected to hold office for a term of four years. Each director shall
hold office for the term for which elected and until his or her
successor shall have been elected and qualified;
(3) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any director, any class of directors, or the
entire Board of Directors, may be removed from office by vote of the
shareholders entitled to vote thereon only for cause; provided,
however, that the entire Board of Directors may be removed at any
time with or without cause by the unanimous vote of shareholders
entitled to vote thereon. For purposes of this paragraph, "cause"
shall mean any one of the following: (i) a director is judicially
declared to be of unsound mind; (ii) a director is convicted of an
offense punishable by imprisonment for a term of more than one year;
(iii) a director breaches or fails to perform the statutory duties
of that director's office and the breach or failure constitutes
self-dealing, willful misconduct or recklessness; or (iv) within 60
days after notice of his or her election, a director does not accept
the office either in writing or by attending a meeting of the Board
of Directors and fulfilling any other requirements of qualification
that these By-laws or the Articles of Incorporation may provide.
(4) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, vacancies in the Board of Directors,
including vacancies resulting from an increase in the number of
directors, shall be filled only by a majority vote of the remaining
directors then in office, though less than a quorum. A director
elected to fill a vacancy shall hold office until the next election
of the class for which such director has been chosen, and until his
or her successor shall have
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been elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
4.2. QUALIFICATIONS AND POWERS. The directors need not be residents of
the Commonwealth of Pennsylvania or shareholders in the corporation. In addition
to the powers and authority by these By-laws expressly conferred upon them, the
Board of Directors may exercise all such powers of the corporation and do all
such lawful acts and things as are not by statute or by the Restated Articles of
Incorporation or by these By-laws directed or required to be exercised or done
by the shareholders.
4.3. PLACE OF MEETINGS. The meetings of the Board of Directors may be
held at such place within the Commonwealth of Pennsylvania, or elsewhere, as a
majority of the directors may from time to time appoint, or as may be designated
in the notice calling the meeting.
4.4. ORGANIZATIONAL MEETING. The first regular meeting of each newly
elected Board of Directors shall be held immediately following the annual
meeting of the shareholders, and no notice of such meeting shall be necessary in
order legally to constitute the meeting, provided that a quorum of the Board of
Directors shall be present. At such meeting the Board of Directors shall
organize itself and may elect officers, appoint members of standing committees
and transact any other business.
4.5. REGULAR MEETINGS. Regular meetings of the Board of Directors shall
be held on such date and at such time and place as shall be determined by the
Board. Notice of such regular meetings of the Board of Directors shall not be
required to be given, except as otherwise expressly required in these by-laws or
by law; however, whenever the time or place of regular meetings shall be
initially fixed or changed, notice of such action shall be given to each
director not participating in such action. Any business may be transacted at any
regular meeting.
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4.6. SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by the Chairman of the Board and shall be called by the Chairman of the
Board or Secretary on the written request of a majority of the directors in
office. Notice of every meeting of the Board of Directors stating the place, day
and hour thereof shall be given by the Secretary to each director, at the
address supplied by him to the corporation for the purpose of notice, by first
class mail at least five days before the meeting, or by express mail or courier
service at least two days before the meeting, or sent by teletex, telegram,
facsimile transmission or similar transmission or given personally or by
telephone at least 24 hours before the time at which the meeting is to be held.
Any business may be transacted at any special meeting.
4.7. QUORUM. A majority of the directors in office shall be necessary to
constitute a quorum for the transaction of business, and the acts of a majority
of the directors present and voting (excluding abstentions) at a meeting at
which a quorum is present shall be the acts of the Board of Directors. In the
absence of a quorum at any meeting of the Board of Directors, a majority of the
directors present thereat may adjourn such meeting to another time and place.
Notice of the time and place of any such adjourned meeting shall be given to all
of the directors unless such time and place were announced at the meeting at
which the adjournment was taken, in which case such notice shall only be given
to the directors who were not present thereat. At any adjourned meeting at which
a quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called. Notwithstanding the withdrawal
of enough directors to leave less than a majority, the directors who continue to
be present at a duly organized meeting shall constitute a quorum in order to
continue to do business.
4.8. ACTION BY WRITTEN CONSENT. Any action which may be taken at a
meeting of the directors may be taken without a meeting if a consent or consents
in writing, setting forth the
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action so taken, shall be signed prior or subsequent to action by all of the
directors and shall be filed with the Secretary of the corporation.
4.9. COMPENSATION. Each director shall receive such fees and other
compensation, along with reimbursement of expenses incurred or behalf of the
corporation or in connection with attendance at meetings, as the board of
directors may from time to time determine. No such payment of fees or other
compensation shall preclude any director from serving the corporation in any
other capacity and receiving fees or other compensation for such services.
4.10. COMMITTEES OF THE BOARD OF DIRECTORS. The Board of Directors may, by
resolution adopted by a majority of the directors in office, establish one or
more committees to consist of one or more directors of the corporation. Any
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all of the powers and authority of the Board of
Directors except that a committee shall not have any power or authority as to
the following:
(i) The submission to shareholders of any action requiring
approval of shareholders under Subpart B. of Part II of the Pennsylvania
Business Corporation Law.
(ii) The creation or filling of vacancies in the Board of
Directors.
(iii) The adoption, amendment or repeal of these By-laws.
(iv) The amendment or repeal of any resolution of the Board that
by its terms is amendable or repealable only by the Board.
(v) Action on matters committed by these By-laws or by resolution
of the Board of Directors to another committee of the Board.
The board may designate one or more directors as alternate members of any
committee who may replace any absent or disqualified member at any meeting of
the committee or for the
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purposes of any written action by the committee. In the absence or
disqualification of a member and alternate member or members of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another director to act at the meeting in place of the absent or disqualified
member.
Each committee of the Board shall serve at the pleasure of the Board. The
term "Board of Directors" or "Board," when used in any provision of these
By-laws relating to the organization or procedures of or the manner of taking
action by the Board of Directors, shall be construed to include and refer to any
executive or other committee of the Board. Any provision of these By-laws
relating or referring to action to be taken by the Board of Directors or the
procedure required therefor shall be satisfied by the taking or corresponding
action by a committee of the Board of Directors to the extent authority to take
the action has been delegated to the committee pursuant to this Section 4.10.
4.11. RESIGNATION. Any director of the corporation may resign at any time
by giving written notice of his resignation to the corporation. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon its
tender. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
4.12. PARTICIPATION BY CONFERENCE TELEPHONE. Any one or more members of
the Board of Directors or any committee of the Board of Directors may
participate in a meeting of the Board of Directors or such committee by means of
a conference telephone or similar communicating equipment by means of which all
persons participating in the meeting can hear each other. Participation by such
means shall constitute presence in person at a meeting.
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4.13. NOMINATION OF DIRECTORS. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, nominations for the election of
directors may be made by the Board of Directors, or a committee appointed by the
Board of Directors, or by any shareholder entitled to vote in the election of
directors generally. However, any shareholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such shareholder's intent to
make such nomination or nominations has been delivered to the Secretary of the
corporation, at the registered office of the corporation, not later than (i)
with respect to an election to be held at an annual meeting of shareholders,
sixty days prior to the date one year from the date of the immediately preceding
annual meeting of shareholders, and (ii) with respect to an election to be held
at a special meeting of shareholders for the election of directors, the close of
business on the tenth day following the date on which notice of such meeting is
first given to shareholders. Each such notice shall set forth: (a) the name and
address of the shareholder who intends to make the nomination and of the person
or persons to be nominated; (b) a representation that the shareholder is a
holder of record of stock of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (c) a description of all arrangements
or understandings between the shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (d) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or intended
to be nominated, by the Board of Directors; and (e) the consent of each nominee
to serve as a director of the corporation if so elected. The presiding officer
at the
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meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
ARTICLE V - OFFICERS
5.1. ELECTION. The executive officers of the corporation shall be elected
by the directors and SHALL be a Chairman of the Board, a Chief Executive
Officer, President, Secretary and Treasurer. The Board of Directors may also
elect a Vice Chairman of the Board and one or more Vice Presidents (who, in the
discretion of the Board of Directors, may be designated as having various
modified titles such as, for example, Executive Vice President, Senior Vice
President and the like) and such other officers and agents as it shall deem
necessary, who shall hold their offices for such terms and shall have such
authority and shall perform such duties as from time to time shall be prescribed
by the Board. Any number of offices may be held by the same person. It shall not
be necessary for the officers to be directors. The officers of the corporation
shall hold office for one year and until their successors are elected and have
qualified, unless his resignation or removal shall expressly be effective
earlier. Any officer or agent elected or appointed by the Board of Directors may
be removed by the Board of Directors whenever in its judgment the best interests
of the corporation will be served thereby without prejudice to any contractual
rights of such officer or agent.
5.2. CHAIRMAN OF THE BOARD; CHIEF EXECUTIVE OFFICER; PRESIDENT. The
Chairman of the Board shall preside at all meetings of the shareholders and
directors. Except as may otherwise be determined by the Board as hereinafter
provided, the Chief Executive Officer shall be responsible for the general
management of the business of the corporation and the President shall be
responsible for the day-to-day operations of the corporation. Either the
Chairman of the Board or the President shall be the Chief Executive Officer, as
from time to time designated by the Board.
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The Board may also delegate specific powers, duties, and responsibilities to the
Chairman of the Board, the Chief Executive Officer or the President or any other
officer or officers of the corporation as the Board may, from time to time,
determine, except for those powers, duties, and/or responsibilities as may be
exclusively conferred by statute on the Chairman of the Board, the President, or
any other officer of the corporation.
5.3 VICE PRESIDENTS. Each Vice President shall perform all duties
incident to his office and such other duties as from time to time may be
assigned to him by the Board of Directors, Chairman of the Board or the
President.
5.4. SECRETARY. The Secretary shall attend all meetings of the
shareholders and of the Board of Directors and shall keep careful records of all
such meetings, the proceedings of which shall be transcribed into the minute
book of the corporation over his signature. He shall have custody of the
corporate seal and of all books, documents, and papers of the corporation
committed to his charge. He shall cause all notices to be given to shareholders
and to directors of the corporation as may be required by law or these By-laws.
He shall make such reports, have such other powers and perform such other duties
as are authorized or required by law or the Board of Directors may specify. The
Secretary may delegate any of his powers and duties to one or more Assistant
Secretaries and, if authorized by the Board of Directors, any officer or agent
of the corporation. In the absence of the Secretary or during his inability to
act, his powers and duties shall be performed by one or more Assistant
Secretaries.
5.5. TREASURER. The Treasurer shall have the custody and care of, and
shall manage and invest, all the money, securities, and funds of the
corporation. To the extent not invested in stocks, bonds or other securities,
the Treasurer shall deposit the money and funds of the corporation in such bank
or banks or depositories as the Board of Directors may designate,
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provided that the Board of Directors may delegate to the Treasurer, subject to
such limitations as it may from time to time prescribe, the power to designate
such bank or banks or depositories. Under the direction of the Board of
Directors, the Treasurer shall pay out and dispose of all drafts, notes, checks,
warrants, and orders for the payment of money; render such statements to the
Board of Directors as it shall require; and have such other powers and perform
such other duties as the Board of Directors may specify or which are authorized
or required of the Treasurer by law. The Treasurer may delegate any of his
powers and duties to one or more Assistant Treasurers and, if authorized by the
Board of Directors, any officer or agent of the corporation. If required by the
Board of Directors, the Treasurer and any Assistant Treasurer shall give bond
for the faithful discharge of his duties in such amount as may be fixed by the
Board of Directors and with such surety as may be approved by the Board of
Directors. In the absence of the Treasurer or during his inability to act, his
powers and duties shall be performed by one or more Assistant Treasurers.
5.6. VACANCIES. If the office of any officer or agent, one or more,
becomes vacant for any reason, the Board of Directors may choose a successor or
successors, who shall hold office for the unexpired term in respect of which
such vacancy occurred.
ARTICLE VI - CORPORATE RECORDS
6.1. MAINTENANCE OF RECORDS. There shall be kept at the registered office
or principal place of business of the corporation an original or duplicate
record of the proceedings of the shareholders and of the directors, and the
original or a copy of its By-laws, including all amendments or alterations
thereto to date, certified by the Secretary of the corporation. An original or
duplicate share register shall also be kept at the registered office or
principal place of business or at the office of a transfer agent or registrar,
giving the names of the shareholders,
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their respective addresses and the number and classes of shares held by each.
Any books, minutes or other records may be in written form or any other form
capable of being converted into written form within a reasonable time.
6.2. INSPECTION. Every shareholder shall, upon written demand under oath
stating the purpose thereof, have a right to examine, in person or by agent or
attorney, during the usual hours for business for any proper purpose, the share
register, books or records of account, and records of the proceedings of the
shareholders and directors, and to make copies or extracts therefrom. A proper
purpose shall mean a purpose reasonably related to such person's interest as a
shareholder. In every instance where an attorney or other agent shall be the
person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which authorizes the
attorney or other agent to so act on behalf of the shareholder. The demand under
oath shall be directed to the corporation at its registered office in the
Commonwealth of Pennsylvania or at its principal place of business.
ARTICLE VII - SHARE CERTIFICATES, DIVIDENDS, ETC.
7.1. SHARE CERTIFICATES. Every shareholder shall be entitled to a share
certificate representing shares owned by him which certificate shall (a) be in
such from as the Board of Directors may from time to time prescribe, (b) state
that the corporation is incorporated under the laws of the Commonwealth of
Pennsylvania, the name of the person to whom issued, and the number and class of
shares and the designation of the series, if any, that the certificate
represents, and (c) be signed, by facsimile or otherwise, by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President and the
Secretary or Treasurer and shall bear an original or facsimile of the corporate
seal, If the corporation is authorized to issue shares of more than one class or
series, every certificate shall set forth upon the face or back of the
certificate (or
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shall state on the face or back of the certificate that the corporation will
furnish to any shareholder upon request and without charge) a full or summary
statement of the designations, voting rights, preferences, limitations and
special rights of the shares of each class or series authorized to be issued so
far as they have been fixed and determined and the authority of the Board of
Directors to fix and determine the designations, voting rights, preferences,
limitations and special rights of the classes and series of shares of the
corporation. The share certificates of the corporation shall be numbered and
registered in the share register and transfer books of the corporation, as they
are issued. 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 he were
such officer, transfer agent or registrar at the date of issuance.
7.2. TRANSFER OF SHARES. Transfers of shares shall be made on the books
of the corporation only upon surrender to the corporation or its transfer agent
and/or registrar of stock of the certificate or certificates therefor for
cancellation, properly endorsed by the person named in the certificate or by his
assignee, agent or legal representative, who shall furnish proper evidence of
assignment, authority or legal succession, or by the agent of one of the
foregoing thereunto duly authorized by an instrument duly executed and filed
with the corporation or its transfer agent and/or registrar of stock. No
transfer shall be made which is inconsistent with law. The Board of Directors
may appoint, or authorize any officer or officers to appoint, one or more
transfer agents or registrars of stock, as it may deem advisable and may define
their powers and duties.
7.3. HOLDERS OF RECORD. The corporation shall be entitled to treat the
holder of record of any share or shares of stock of the corporation as the
holder and owner in fact thereof for all
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purposes and shall not be bound to recognize any equitable or other claim to or
interest in any share on the part of any person other than the Registered holder
thereof, whether or not it shall have express or other notice thereof, except as
expressly provided by law. The Board of Directors may fix a date, within any
applicable limits imposed by law or the Articles of Incorporation, prior to the
date of any meeting of shareholders, or the date with respect to any action of
the shareholders by consent in writing, or the date fixed for the payment of any
dividend or distribution, or the date for the allotment of rights, or the date
when any change or conversion or exchange of shares will be made or go into
effect, as a record date for the determination of the shareholders entitled to
notice of, or to vote at, any such meeting, or entitled to take action by
consent in writing, or entitled to receive payment of any such dividend or
distribution, or to receive any such allotment of rights, or to exercise the
rights in respect to any such change, conversion, or exchange of shares. In such
case, only such shareholders as shall be shareholders of record on the date so
fixed shall be entitled to notice of, or to vote at, such meeting or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any transfer of any shares on
the books of the corporation after any record date fixed as aforesaid. When a
determination of shareholders of record has been made for purposes of a meeting,
the determination shall apply to any adjournment thereof unless the Board fixes
a new record date for the adjourned meeting.
7.4. LOST CERTIFICATES. In the event that a share certificate shall be
lost, destroyed or mutilated, a new certificate may be issued therefor upon such
terms and indemnity to the corporation as the Board of Directors may prescribe.
7.5. DIVIDENDS. The Board of Directors may declare and pay dividends upon
the outstanding shares of the corporation, from time to time and to such extent
as they deem
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advisable, in the manner and upon the terms and conditions provided by statute
and the Articles of Incorporation. Before payment of any dividend there may be
set aside out of the net profits of the corporation such sum or sums as the
directors, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interests of the
corporation, and the directors may abolish any such reserve in the manner in
which it was created.
ARTICLE VIII - MISCELLANEOUS PROVISIONS
8.1. AUTHORITY TO SIGN CORPORATE CHECKS. All checks or demands for money
and notes of the corporation shall be signed, endorsed or accepted in the name
of the corporation by such officer, officers, person or persons as from time to
time may be designated by the Board of Directors or by an officer or officers
authorized by the Board of Directors to make such designation.
8.2. FISCAL YEAR. The fiscal year of the corporation shall begin on the
first day of September each year.
8.3. MANNER OF NOTICE. Whenever written notice is required to be given to
any person, it may be given to such person, either personally or by sending a
copy thereof by first class or express mail, postage prepaid, or by telegram
(with messenger service specified), telex, or TWX (with answerback received) or
courier service, charges prepaid, or by facsimile transmission, to his address
(or to his telex, TWX or facsimile number) appearing on the books of the
corporation or, in the case of directors, supplied by him to the corporation for
the purpose of notice. If the notice is sent by mail, telegraph or courier
service, it shall be deemed to have been given to the person entitled thereto
when deposited in the United States mail or with a telegraph office or
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courier service for delivery to such person, or in the case of telex or TWX when
dispatched, or in the case of facsimile transmission when transmitted. Such
notice shall specify the place, day and hour of the meeting and, in the case of
a special meeting of shareholders, the general nature of the business to be
transacted.
8.4. WAIVER OF NOTICE. Whenever any written notice is required by
statute, or by the Articles of Incorporation or By-laws of this corporation, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at, nor the purpose of, the meeting need be specified in the waiver of notice of
such meeting. Attendance of a person, either in person or by proxy, at any
meeting shall constitute a waiver of notice of such meeting, except where a
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting was not
lawfully called or convened.
8.5. GENDER. In these By-laws, words used in the masculine gender shall
include the feminine.
ARTICLE IX - STANDARD OF CARE AND LIABILITY
OF DIRECTORS AND OFFICERS
9.1. STANDARD OF CARE AND JUSTIFIABLE RELIANCE. A director or officer of
the corporation shall stand in a fiduciary relation to the corporation and shall
perform his duties as a director or officer, including his duties as a member of
any committee of the board upon which he may serve, in good faith, in a manner
he reasonably believes to be in the best interests of the corporation, and with
such care, including reasonable inquiry, skill and diligence, as a person of
ordinary prudence would use under similar circumstances. In performing his
duties, a director or
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officer shall be entitled to rely 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 the
director or officer reasonably believes to be reliable and competent with
respect to the matters presented;
(b) counsel, public accountants or other persons as to matters
that the director or officer reasonably believes to be within the
professional or expert competence of such person; or
(c) a committee of the Board of Directors upon which the director
or officer does not serve, duly designated in accordance with law, as to
matters within its designated authority, which committee the director or
officer reasonably believes to merit confidence. A director or officer
shall not be considered to be acting in good faith if he has knowledge
concerning the matter in question that would cause his reliance to be
unwarranted. Absent breach of fiduciary duty, lack of good faith or
self-dealing, actions taken as a director or officer of the corporation or
any failure to take any action shall be presumed to be in the best
interests of the corporation.
9.2. PERSONAL LIABILITY OF DIRECTORS. A director of the corporation shall
not be personally liable as such, for monetary damages (including without
limitation, any judgment, amount paid in settlement, penalty, punitive damages
or expense of any nature, including without limitation attorneys' fees and
disbursements) for any action taken, or any failure to take action unless (a)
the director has breached or failed to perform the duties of his office under
Section 9.1 above; and (b) the breach or failure to perform constitutes
self-dealing, willful misconduct or
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recklessness. Notwithstanding the foregoing provisions of this Section 9.2, in
no event shall the responsibility or liability of a director pursuant to any
criminal statute or the liability of a director for the payment of taxes
pursuant to local, State or Federal law be governed or otherwise affected by
these By-laws as amended.
9.3. PERSONAL LIABILITY OF OFFICERS. To the extent permitted by
applicable law, an officer of the corporation shall not be personally liable, as
such, to the corporation or its shareholders for monetary damages (including
without limitation, any judgment, amount paid in settlement, penalty, punitive
damages or expense of any nature, including without limitation attorneys' fees
and disbursements) for any action taken, or any failure to take any action,
unless (a) the officer has breached or failed to perform the duties of his
office under Section 9.1 above; and (b) the breach or failure to perform
constitutes self-dealing, willful misconduct or recklessness.
Notwithstanding the foregoing provisions of this Section 9.3, in no event
shall the responsibility or liability of an officer pursuant to any criminal
statute or the liability of an officer for the payment of taxes pursuant to
local, State or Federal law be governed or otherwise affected by these By-laws
as amended.
9.4. NO LIMITATION ON LIABILITY. Any repeal or modification of this
Article IX or adoption of any provision inconsistent with this Article IX shall
not adversely affect any limitation on the personal liability of a director or
officer of the corporation existing at the time of such repeal or modification
or the adoption of such inconsistent provision, as the case may be.
ARTICLE X - INDEMNIFICATION
10.1. THIRD PARTY ACTIONS. The corporation shall indemnify any person who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action or
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proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation), by reason of the fact that he
is or was a director, officer or employee of the corporation, or is or was
serving at the request of the corporation as a director, officer or employee of
another domestic or foreign corporation for profit or not-for-profit,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
(with or without court approval) actually and reasonably incurred by him in
connection with such action or proceeding if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, or 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 person did not act in good faith and in a manner that he reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
10.2. DERIVATIVE ACTIONS. The corporation shall indemnify any person who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer or employee of the corporation, or is or was serving at the request of
the corporation as a director, officer or employee of another domestic or
foreign corporation for profit or not-for-profit, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
such action if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the corporation, provided that
no indemnification
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shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the court of common pleas of the judicial district embracing the
county in which the registered office of the corporation is located or the court
in which such action was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the court of common pleas or such other court shall deem proper.
10.3. MANDATORY INDEMNIFICATION. To the extent that a director, officer or
employee of the corporation has been successful on the merits or otherwise in
defense of any action or proceeding referred to in Sections 10.1 and 10.2 of
this Article X, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
10.4. PROCEDURE FOR INDEMNIFICATION. Any indemnification under Sections
10.1 and 10.2 of this Article X (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer or employee is proper in the
circumstances because he has met the applicable standard of conduct set forth in
such Sections 10.1 and 10.2. Such determination shall be made (a) by the Board
of Directors by a majority vote of a quorum consisting of directors who were not
parties to such action or proceeding, or (b) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (c) by the shareholders.
10.5. ADVANCING EXPENSES. Expenses (including attorneys' fees) incurred in
defending any action or proceeding referred to in this Article X may be paid by
the corporation in advance
26
of the final disposition of such action or proceeding upon receipt of an
undertaking by or on behalf of the director, officer or employee to repay such
amount if it shall be ultimately determined that he is not entitled to be
indemnified by the corporation as authorized in this Article X.
10.6. SUPPLEMENTARY COVERAGE.
(a) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this Article X shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any law,
provision of the corporation's Articles of Incorporation, by-law,
agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. The corporation may create a fund of
any nature, which may, but need not be under the control of a trustee, or
otherwise secure or insure in any manner its indemnification obligations,
whether arising under or pursuant to this Section 10.6 or otherwise.
(b) Indemnification pursuant to subsection (a) of this Section
10.6 shall not be made in any case where the act or failure to act giving
rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
(c) Indemnification pursuant to subsection (a) of this Section
10.6 may be granted for any action taken or any failure to take any action
and may be made whether or not the corporation would have the power to
indemnify the person under any provision of law other than Section 1746 of
the Pennsylvania Business
27
Corporation Law except as provided in this Section 10.6 and in Section 1746
of the Pennsylvania Business Corporation Law and whether or not the
indemnified liability arises or arose from any threatened, pending or
completed action by or in the right of the corporation.
10.7. INSURANCE. The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer or employee
of thereof the corporation as a director, officer or employee of another
domestic or foreign corporation for profit or not-for-profit, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Article X.
10.8. APPLICATION TO SURVIVING CORPORATIONS AND EMPLOYEE PLANS. For
purposes of this Article X, references to "the corporation" include all
constituent corporations absorbed in a consolidation, merger or division, as
well as the surviving or new corporations surviving or resulting therefrom, so
that any person who is or was a director, officer or employee of such,
constituent, surviving or new corporation, or is or was serving at the request
of such constituent, surviving or new corporation as a director, officer or
employee of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Article X with respect
to the surviving or new corporation as he would if he had served the surviving
or new corporation in the same capacity; references to "other enterprises" shall
include employee benefit plans; references to "serving at the request of the
corporation" shall include any service as a director, officer or employee of the
corporation which imposes duties on, or involves services by, such director,
officer or employee with respect to an employee benefit plan, its participants
or beneficiaries; excise taxes assessed on a person with respect to any employee
benefit plan pursuant to
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applicable law shall be deemed "fines"; and action with respect to an employee
benefit plan taken or omitted in good faith by a director, officer or employee
of the corporation in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of the plan shall be deemed to be action in a
manner that is not opposed to the best interests of the corporation.
10.9. DURATION OF COVERAGE. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article X shall continue as
to a person who has ceased to be a director, officer or employee and shall inure
to the benefit of the heirs and personal representatives of that person. Any
repeal or modification of this Article X or adoption of any provision
inconsistent with this Article X shall not adversely affect any indemnification
right of a director, officer or employee of the corporation existing at the time
of such repeal or modification or the adoption of such inconsistent provision,
as the case may be.
ARTICLE XI - AMENDMENTS
11.1. AMENDMENTS. Except as otherwise provided by law, these By-laws may
be amended or repealed by a majority vote of the members of the Board of
Directors, at any regular or special meeting of the Board of Directors duly
convened after notice to the directors of that purpose, subject to the power of
the shareholders to change such action.
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CERTIFICATION
-------------
I, T. Jerome Holleran, the undersigned secretary of Arrow International,
Inc. (the "Corporation") do hereby certify that the foregoing copy of the
By-Laws of the Corporation is a true and correct copy of the By-Laws of the
Corporation, including all duly adopted amendments through July 13, 2000, and
there have been no changes, modifications or amendments to or affecting said
By-Laws after July 13, 2000 through and including this Certification.
WITNESS my hand and the seal of the Corporation this 13th day of July,
2000.
By: /s/ T. Jerome Holleran
--------------------------------------
(Corporate Seal) T. Jerome Holleran
Secretary of Arrow International, Inc.
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