WILSHIRE ENTERPRISES, INC.

 

 

                                     BY-LAWS

 

 

                             AS AMENDED AND RESTATED

                                     THROUGH

                                 AUGUST 7, 2009

 

 

                                   ARTICLE I

 

                                  STOCKHOLDERS

 

            Section 1. The Annual Meeting of the Stockholders of the Corporation

shall be held each year, on such date, at such time and at such place, either

within or without the State of Delaware, as may be designated by the Board of

Directors, from time to time, and stated in the Notice of the Meeting, for the

purpose of electing Directors and transacting such other business as may

properly be brought before the meeting.

 

            Section 2. Special meetings of the stockholders may be held upon

call of the Board of Directors or the Executive Committee, if any, or the

Chairman of the Board, if any, or the President, at such time and at such place

within or without the State of Delaware as may be stated in the call and notice.

 

            Section 3. Except as otherwise herein provided, notice of the time

and place of every meeting of the stockholders shall be delivered personally or

mailed at least ten days previous thereto to each stockholder of record entitled

to vote at the meeting, at the address furnished by him to the Corporation or

its Transfer Agent. Such further notice shall be given as may be required by

law. Any meeting may be held without notice if notice thereof is waived, whether

before or after such meeting, by all of the stockholders entitled to vote

thereat.

 

            Section 4. At every meeting of the stockholders the holders of

record of a majority of the outstanding shares of stock of the Corporation,

entitled to vote at the meeting, whether present in person or represented by

proxy, shall, except as otherwise provided by law, or by the Certificate of

Incorporation, constitute a quorum. If at any meeting there shall be no quorum,

the holders of record, entitled to vote, of a majority of such shares of stock

so present or represented may adjourn the meeting from time to time, without

notice other than announcement at the meeting, until a quorum shall have been

obtained, when any business may be transacted which might have been transacted

at the meeting as first convened had there been a quorum.

 

            Section 5. Unless otherwise provided in the Certificate of

Incorporation of the Corporation, meetings of the stockholders shall be presided

over by the Chairman of the Board, if any, or the President or, if neither is

present, by a person selected by the Board of Directors, or if no selection is

made, by a Chairman to be chosen at the meeting. The Secretary of the

Corporation or, if he is not present, an Assistant Secretary of the Corporation,

if present, shall act as Secretary of the meeting, but if no such officer is

present a Secretary shall be chosen at the meeting.

 

            The order of business at each such meeting shall be as determined by

the chairman of the meeting. The chairman of the meeting shall have the right

and authority to prescribe such rules, regulations and procedures and to do all

such acts and things as are necessary or desirable for the proper conduct of the

meeting, including, without limitation, the establishment of procedures for the

maintenance of order and safety, limitations on the time allocated to questions

or comments on the affairs of the Corporation, restrictions on entry to such

meeting after the time prescribed for the commencement thereof and the opening

and closing of the voting polls.

 

            Section 6. Each stockholder entitled to vote at any meeting shall

have one vote in person or by proxy for each share of stock held by him which

has voting power upon the matter in question at the time, but no proxy shall be

voted on after three years from its date, unless such proxy provides for a

longer period, and, except when the stock transfer books of the Corporation

shall have been closed or a date shall have been fixed in advance as a record

date for the determination of stockholders entitled to vote, as hereinafter

provided, no share of stock shall be voted on at any election for directors

which shall have been transferred on the books of the Corporation within twenty

days next preceding such election of directors.

 

            Section 7. The Board of Directors shall have power to close the

stock transfer books of the Corporation for a period not exceeding sixty days

preceding the date of any meeting of stockholders or the date for payment of any

dividend or the date for the allotment of rights or the date when any change or

conversion or exchange of stock shall go into effect or for a period of not

exceeding sixty days in connection with obtaining the consent of stockholders

for any purpose; provided, however, that in lieu of closing the stock transfer

books as aforesaid, the Board of Directors may fix in advance a date, not

exceeding sixty days preceding the date of any meeting of stockholders, or the

date for the payment of any dividend, or the date for the allotment of rights,

or the date when any change or conversion or exchange of stock shall go into

effect, or a date in connection with obtaining such consent, as a record date

for the determination of the stockholders entitled to notice of, and to vote at,

any such meeting and any adjournment thereof, or entitled to receive payment of

any such dividend, or to any such allotment of rights, or to exercise the rights

in respect of any such change, conversion or exchange of stock, or to give such

consent, and in such case such stockholders and only such stockholders as shall

be stockholders of record on the date so fixed shall be entitled to such notice

of, and to vote at, such meeting and any adjournment thereof, or to receive

payment of such dividend, or to receive such allotment of rights, or to exercise

such rights, or to give such consent, as the case may be, notwithstanding any

transfer of any stock on the books of the Corporation after any such record date

fixed as aforesaid.

 

            Section 8. The provisions of this Article I, and of these By-Laws,

are subject to the provisions of the Certificate of Incorporation of the

Corporation, as from time to time amended, and in the case of any inconsistency

between the provisions of these By-Laws and of the Certificate of Incorporation

the Certificate of Incorporation shall govern and such inconsistency shall be

resolved so as to carry into effect the intent and purposes of the provisions of

the Certificate of Incorporation.

 

            Section 9. Advance Notice of Stockholder Proposals. At any annual or

special meeting of stockholders, proposals by stockholders and persons nominated

for election as directors by stockholders shall be considered only if advance

notice thereof has been timely given as provided herein and such proposals or

nominations are otherwise proper for consideration under applicable law and the

certificate of incorporation and by-laws of the Corporation. Notice of any

proposal to be presented by any stockholder or of the name of any person to be

nominated by any stockholder for election as a director of the Corporation at

any meeting of stockholders shall be delivered to the Secretary of the

Corporation at its principal executive office not later than the close of

business on the ninetieth (90th) day nor earlier than the close of business on

the one hundred twentieth (120th) day prior to the first anniversary of the

preceding year's annual meeting; provided, however, that if the date of the

annual meeting is more than thirty (30) days before or more than sixty (60) days

after such anniversary date, notice to be timely must be so delivered not

earlier than the close of business on the one hundred twentieth (120th) day

prior to such annual meeting and not later than the close of business on the

later of the ninetieth (90th) day prior to such annual meeting or the close of

business on the tenth (10th) day following the day on which public announcement

of the date of such meeting is first made by the Corporation. In no event shall

the public announcement of an adjournment or postponement of a meeting commence

a new time period (or extend any time period) for the giving of a notice as

described above. Any stockholder who gives notice of any such proposal shall

deliver therewith the text of the proposal to be presented, a brief written

statement of the reasons why such stockholder favors the proposal, such

stockholder's name and address, the number and class of all shares of each class

of stock of the Corporation beneficially owned by such stockholder, any material

interest of such stockholder in the proposal (other than as a stockholder) and

any other information required by applicable law. Any stockholder who gives

notice of any person or persons to be nominated for election as a director shall

set forth as to each person whom the proponent proposes to nominate (a) all

information relating to such person that is required to be disclosed in

solicitations of proxies for election of directors in an election contest, or is

otherwise required, in each case pursuant to Regulation 14A under the Securities

Exchange Act of 1934, as amended (including such person's written consent to

being named in the proxy statement as a nominee and to serving as a director if

elected), and (b) all information requested by the Nominating Committee of the

Corporation's Board of Directors. The person presiding at the meeting, in

addition to making any other determinations that may be appropriate to the

conduct of the meeting, shall determine whether such notice has been duly given

and shall direct that proposals and nominees not be considered if such notice

has not been given.

 

            Section 10. Inspectors. Prior to any meeting of stockholders, the

Board of Directors or the Chief Executive Officer shall appoint one or more

inspectors to act at such meeting and make a written report thereof and may

designate one or more persons as alternate inspectors to replace any inspector

who fails to act. If no inspector or alternate is able to act at the meeting of

stockholders, the person presiding at the meeting shall appoint one or more

inspectors to act at the meeting. Each inspector, before entering upon the

discharge of his or her duties, shall take and sign an oath faithfully to

execute the duties of inspector with strict impartiality and according to the

best of his or her ability. The inspectors shall ascertain the number of shares

outstanding and the voting power of each, determine the shares represented at

the meeting and the validity of proxies and ballots, count all votes and

ballots, determine and retain for a reasonable period a record of the

disposition of any challenges made to any determination by the inspectors and

certify their determination of the number of shares represented at the meeting

and their count of all votes and ballots. The inspectors may appoint or retain

other persons to assist them in the performance of their duties. The date and

time of the opening and closing of the polls for each matter upon which the

stockholders will vote at a meeting shall be announced at the meeting. No

ballot, proxy or vote, nor any revocation thereof or change thereto, shall be

accepted by the inspectors after the closing of the polls. In determining the

validity and counting of proxies and ballots, the inspectors shall be limited to

an examination of the proxies, any envelopes submitted therewith, any

information provided by a stockholder who submits a proxy by telegram, cablegram

or other electronic transmission from which it can be determined that the proxy

was authorized by the stockholder, ballots and the regular books and records of

the corporation, and they may also consider other reliable information for the

limited purpose of reconciling proxies and ballots submitted by or on behalf of

banks, brokers, their nominees or similar persons which represent more votes

than the holder of a proxy is authorized by the record holder owner to cast or

more votes than the stockholder holds of record. If the inspectors consider

other reliable information for such purpose, they shall, at the time they make

their certification, specify the precise information considered by them,

including the person or persons from whom they obtained the information, when

the information was obtained, the means by which the information was obtained

and the basis for the inspectors' belief that such information is accurate and

reliable.

 

                                   ARTICLE II

 

                               BOARD OF DIRECTORS

 

            Section 1. The Board of Directors of the Corporation shall consist

of seven persons. Directors shall hold office until the third Annual Meeting of

Stockholders next succeeding their election, or until their successors shall

have been elected and shall have qualified. A majority of the Directors then in

office shall constitute a quorum present. The Directors present may adjourn the

meeting from time to time, without notice other than announcement at the

meeting, until a quorum shall have been obtained, at which time any business may

be transacted which might have been transacted at the meeting as first convened

had there been a quorum.

 

 

            Whenever any vacancy shall have occurred in the Board of Directors

by death, resignation or otherwise, or the number of Directors shall be

increased by amendment of this Section, such vacancy may be filled, or the

additional directors may be elected, by the vote of a majority of the directors

then in office.

 

            Section 2. Meetings of the Board of Directors shall be held at such

place within or without the State of Delaware as may from time to time be fixed

by resolution of the Board or as may be specified in the call of any meeting.

Regular meetings of the Board shall be held at such time as may from time to

time be fixed by resolution of the Board, and notice of such meetings need not

be given. Special meetings of the Board may be held at any time upon call of the

Chairman of the Board, if any, or the President, by oral, telegraphic or written

notice, duly served on or given, sent or mailed to each director not less than

two days before any such meeting. A meeting of the Board may be held without

notice immediately after the annual meeting of the stockholders at the same

place at which such meeting is held. Meetings may be held at any time without

notice if all the directors are present or if those not present waive notice of

the meeting in writing or by telegram, before or after any such meeting.

 

 

            Directors and members of committees shall be reimbursed for their

necessary traveling expenses incurred in attending meetings of the Board or such

committees and shall be paid such reasonable fees for their attendance as the

Board of Directors may fix.

 

                                  ARTICLE III

 

                                    OFFICERS

 

            Section 1. The Board of Directors, as soon as may be after the

election of directors held in each year, shall elect from their number a

Chairman of the Corporation, and shall also elect one or more Senior

Vice-Presidents, Vice-Presidents, a Secretary and Treasurer, and from time to

time may appoint such Assistant Vice-Presidents, Assistant Secretaries,

Assistant Treasurers and other officers, agents and employees as it may deem

proper. The Board of Directors may also elect a President of the Company. Any

two offices may be held by the same person; and more than two offices, other

than the offices of President and Secretary, may be held by the same person.

 

            Section 2. The term of office of all officers shall be one year, or

until their respective successors are chosen and qualified; but any officer may

be removed from office at any time by the affirmative vote of a majority of the

members of the whole Board.

 

            Section 3. Subject to such limitations as the Board of Directors may

from time to time prescribe, the officers of the Corporation shall each have

such powers and duties as from time to time may be conferred by the Board of

Directors. The Board of Directors may require the Treasurer, the Assistant

Treasurers and any other officers, agents or employees of the Corporation to

give bond for the faithful discharge of their duties, in such sum and of such

character as the Board may from time to time prescribe.

 

            Section 4. The Chairman of the Board, if any, or in his absence or

inability to act, the President, shall have the power to vote or give a proxy

for the voting of all shares of stock of any corporation owned by the

Corporation at any meeting of the stockholders of any such corporation.

 

                                   ARTICLE IV

 

                                      STOCK

 

            Section 1. The shares of stock of the Corporation shall be

represented by a certificate, unless and until the Board of Directors adopts a

resolution permitting shares to be uncertificated. Any such resolution shall not

apply to shares represented by a certificate until such certificate is

surrendered to the Corporation. Notwithstanding the adoption of such a

resolution by the Board of Directors, every holder of stock represented by

certificates and, upon request, every holder of uncertificated shares, shall be

entitled to a certificate signed by the President or a Vice-President and by the

Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer,

and shall be countersigned and registered in such manner, if any, as the Board

may by resolution prescribe; provided, however, that, in case such certificates

are required by such resolution to be signed by a transfer agent or an assistant

transfer agent or by a transfer clerk acting on behalf of the Corporation and by

a registrar, the signatures of any such President, Vice-President, Treasurer,

Assistant Treasurer, Secretary or Assistant Secretary may be facsimile.

 

            Section 2. Stock of the Corporation shall be transferable in the

manner prescribed by applicable law and in these By-Laws. Transfers of stock

shall be made on the books of the Corporation, and in the case of certificated

shares of stock, only by the person named in the certificate or by such person's

attorney lawfully constituted in writing and upon the surrender of the

certificate therefor, properly endorsed for transfer and payment of all

necessary transfer taxes; or, in the case of uncertificated shares of stock,

upon receipt of proper transfer instructions from the registered holder of the

shares or by such person's attorney lawfully constituted in writing, and upon

payment of all necessary transfer taxes and compliance with appropriate

procedures for transferring shares in uncertificated form; provided, however,

that such surrender and endorsement, compliance or payment of taxes shall not be

required in any case in which the officers of the Corporation shall determine to

waive such requirement. With respect to certificated shares of stock, every

certificate exchanged, returned or surrendered to the Corporation shall be

marked "Cancelled," with the date of cancellation, by the Secretary or Assistant

Secretary of the Corporation or the transfer agent thereof. No transfer of stock

shall be valid as against the Corporation for any purpose until it shall have

been entered in the stock records of the Corporation by an entry showing from

and to whom transferred.

 

            Section 3. No certificate for shares of stock of the Corporation

shall be issued in place of any certificate alleged to have been lost, stolen or

destroyed, except upon production of such evidence of the loss, theft or

destruction and upon indemnification of the Corporation and its agents to such

extent and in such manner as the Board of Directors may from time to time

prescribe.

 

                                    ARTICLE V

 

                               CHECKS, NOTES, ETC.

 

            All checks and drafts on the Corporation's bank accounts and all

bills of exchange and promissory notes, and all acceptances, obligations and

other instruments for the payment of money, shall be signed by such officer or

officers or agent or agents as shall be thereunto authorized from time to time

by the Board of Directors.

 

                                   ARTICLE VI

 

                                   FISCAL YEAR

 

            The fiscal year of the Corporation shall be as determined by

resolution of the Board of Directors.

 

                                   ARTICLE VII

 

                                 CORPORATE SEAL

 

            The corporate seal shall have inscribed thereon the name of the

Corporation and the year of its incorporation, and shall be in such form as may

be approved by the Board of Directors, which shall have power to alter the same

at pleasure.

 

                                  ARTICLE VIII

 

                                     OFFICES

 

            The Corporation and the stockholders and the directors may have

offices outside of the State of Delaware, at such places as shall be determined

from time to time by the Board of Directors.

 

                                   ARTICLE IX

 

                                   AMENDMENTS

 

            The By-Laws of the Corporation may be altered, amended, added to or

repealed at any meeting of the Board of Directors, by the affirmative vote of a

majority of the total number of directors, if notice of the proposed change is

given in the notice of the meeting or if all of the directors are present at the

meeting, or if all directors not present at the meeting assent in writing to

such change; PROVIDED, however, that no change of the time or place for the

annual meeting of the stockholders for the election of directors shall be made

except in accordance with the laws of the State of Delaware. By-Laws made by the

directors may be altered or repealed by the stockholders having voting power, or

by the directors.

[End]