EXHIBIT 3.2
BY-LAWS
OF
ARROW INTERNATIONAL, INC.
A PENNSYLVANIA CORPORATION
(AS AMENDED THROUGH OCTOBER 27, 2004)
BY-LAWS OF
ARROW INTERNATIONAL, INC.
(As Amended Through October 27, 2004)
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.
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 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, shall call to order and act as the presiding
officer of the meeting. The Secretary or, in his absence or inability to act,
the person whom the presiding officer 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, the procedure and rules of conduct at all meetings of the
shareholders shall be as determined by the presiding officer 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 or authenticated by the shareholder, or by his
duly authorized attorney-in-fact, and filed with or transmitted to the Secretary
of the corporation or his designated agent. A shareholder or his duly authorized
attorney-in-fact may execute or authenticate a writing or transmit an electronic
message authorizing another person to act for him by proxy. A proxy which is a
telegram, telex, cablegram, datagram, email, Internet communication or other
means of electronic 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 or
authenticated for purposes of this Section 3.8 and shall be so treated if such
proxy sets forth or utilizes 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 or its designated
agent in writing or by electronic transmission. An unrevoked proxy shall not be
valid after three years from the date of its execution, authentification or
transmission 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 counted or the authority is exercised, written notice of such death or
incapacity is given to the Secretary of the corporation or its designated agent.
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 presiding officer 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 presiding officer 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 presiding officer 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 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 or any adjournment
thereof or, in lieu of such a list the corporation may make the information
therein available at the shareholders' meeting by any other means. Such list
shall be arranged in alphabetical order, with the address of and the number of
shares held by each, 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. 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 the proposal containing all material information relating thereto and 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 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 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 the Board
of Directors following the election of each newly-elected class 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.
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 CONSENT. Any action required or permitted to be taken
at a meeting of the directors may be taken without a meeting if a consent or
consents thereto by all of the directors in office, setting forth the action so
taken, are filed with the Secretary of the corporation prior or subsequent to
the action.
4.9. COMPENSATION. Each director shall receive such fees and other
compensation, along with reimbursement of expenses incurred on 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 exclusively 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 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 and each member of a committee 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 of 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 other electronic technology 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.
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 corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the corporation to determine his eligibility to serve as a
director of the corporation. No person may nominate himself for election as a
director. The presiding officer at the 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 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 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. 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 PRESIDENT AND VICE PRESIDENTS. The President and 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 or the
Chairman of the Board or the Chief Executive Officer.
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 this regard, the duties of the Secretary to attend all
meetings of the Board of Directors and to keep records of such meetings and
transcribe the proceedings thereof into the minute book of the corporation over
his signature shall, at the directive of the Board of Directors, be delegated to
a recording secretary of the Board of Directors selected by the Board of
Directors. 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, 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, their respective addresses and
the number and classes of shares held by each. All books, minutes, directors'
consents and other corporate records shall be in a reasonably legible written
form or in a form which allows the corporation to maintain them on or in punch
cards, magnetic storage media, photographs, microphotographs or any other
information storage device which can be converted into reasonably legible
written form within a reasonable time.
6.2. INSPECTION. Every shareholder shall, upon written verified
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 verified power of attorney or such other
writing which authorizes the attorney or other agent to so act on behalf of the
shareholder. The demand 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 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 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 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. Any notice required to be given to any person
shall be given to such person: (i) personally, (ii) by sending a copy thereof by
first class or express mail, postage prepaid, or courier service, charges
prepaid, to his postal address appearing on the books of the corporation or, in
the case of directors, supplied by him to the corporation for the purpose of
notice, in which case such notice shall be deemed to have been given to the
person entitled thereto when deposited in the United States mail or with a
courier service for delivery to that person, or (iii) by facsimile transmission,
email or other electronic communication to his facsimile number or address for
email or other electronic communications supplied by him to the corporation for
the purpose of notice, in which case such notice shall be deemed to have been
given to the person entitled thereto when sent. 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 of Directors 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 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 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 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 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. Each director, officer and employee seeking indemnification
shall provide the Corporation with such information and documentation as is
reasonably available to him or reasonably necessary to determine whether and to
what extent he is entitled to indemnification.
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 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. Advancement of expenses shall be deemed authorized by the Board
of Directors upon receipt of such undertaking unless the Board of Directors
expressly acts to deny advancement of expenses in any particular circumstance or
case.
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 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 the corporation or is or was 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 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.
CERTIFICATION
-------------
I, John C. Long, 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 October 27, 2004, and there have
been no changes, modifications or amendments to or affecting said By-Laws after
October 27, 2004 through and including this Certification.
WITNESS my hand and the seal of the Corporation this _______ day of
__________, 200__.
(CORPORATE SEAL) /s/ John C. Long
Name: John C. Long ------------------------------
Title: Secretary