EXHIBIT 3.2
BYLAWS OF
TRANSGENOMIC, INC.
TABLE OF CONTENTS
PAGE
ARTICLE I
STOCKHOLDERS
Section 1. Time and Place of Meetings..................................................................1
Section 2. Annual Meetings.............................................................................1
Section 3. Special Meetings............................................................................1
Section 4. Notice of Meetings..........................................................................1
Section 5. Quorum and Adjournment......................................................................2
Section 6. Voting......................................................................................2
Section 7. Stockholder Proposals and Nominations of Directors..........................................2
Section 8. Inspectors of Elections.....................................................................3
Section 9. Opening and Closing of Polls................................................................4
Section 10. Participation in Meetings by Conference Telephone...........................................4
ARTICLE II
DIRECTORS
Section 1. General Powers..............................................................................4
Section 2. Number of Directors; Removal; Qualifications................................................4
Section 3. Vacancies...................................................................................5
Section 4. Regular Meetings............................................................................5
Section 5. Special Meetings............................................................................5
Section 6. Quorum......................................................................................5
Section 7. Written Action..............................................................................6
Section 8. Participation in Meetings by Conference Telephone...........................................6
Section 9. Committees..................................................................................6
Section 10. Compensation................................................................................7
Section 11. Regulations; Manner of Acting...............................................................7
ARTICLE III
NOTICES
Section 1. Generally...................................................................................7
Section 2. Waivers.....................................................................................7
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ARTICLE IV
OFFICERS
Section 1. Generally...................................................................................8
Section 2. Compensation................................................................................8
Section 3. Election....................................................................................8
Section 4. Authority and Duties........................................................................8
Section 5. Removal and Resignation; Vacancies..........................................................8
Section 6. Chairman....................................................................................8
Section 7. President/Chief Executive Officer...........................................................9
Section 7A. Chief Operating Officer.....................................................................9
Section 8. Execution of Documents and Action With Respect to Securities of Other Corporations..........9
Section 9. Vice President..............................................................................9
Section 10. Secretary and Assistant Secretaries.........................................................9
Section 11. Treasurer and Assistant Treasurers.........................................................10
ARTICLE V
INDEMNIFICATION
Section 1. Right to Indemnification...................................................................10
Section 2. Right of Indemnitee To Bring Suit..........................................................11
Section 3. Nonexclusivity of Rights...................................................................12
Section 4. Insurance..................................................................................12
Section 5. Indemnification of Agents of the Corporation...............................................12
Section 6. Indemnification Contracts..................................................................12
Section 7. Effect of Amendment........................................................................12
ARTICLE VI
STOCK
Section 1. Certificates...............................................................................12
Section 2. Transfer...................................................................................13
Section 3. Lost, Stolen or Destroyed Certificates.....................................................13
Section 4. Record Date................................................................................13
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Fiscal Year................................................................................14
Section 2. Corporate Seal.............................................................................14
Section 3. Reliance Upon Books, Reports and Records...................................................14
Section 4. Time Periods...............................................................................14
Section 5. Dividends..................................................................................14
ARTICLE VIII
AMENDMENT OF BYLAWS 14
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BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1. TIME AND PLACE OF MEETINGS. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as may be designated by
the Board of Directors, or by the Chairman of the Board, the Chief Executive
Officer, the President or the Secretary in the absence of a designation by the
Board of Directors, and stated in the notice of the meeting or in a duly
executed waiver of notice thereof. [Sections 211(a), (b).](1)
Section 2. ANNUAL MEETINGS. An annual meeting of the stockholders shall
be held on such date and at such time as shall be designated by the Board of
Directors, at which meeting the stockholders shall elect by a plurality vote the
directors to succeed those whose terms expire at that meeting and shall transact
such other business as may properly be brought before the meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may only be called (i) by the Chairman of the
Board, (ii) by the Board of Directors pursuant to a resolution adopted by a
majority of the entire Board of Directors or (iii) by the Chief Executive
Officer, if one is appointed, otherwise the President. [Section 211(d).]
Section 4. NOTICE OF MEETINGS. Written notice of every meeting of the
stockholders, stating the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting, except as
otherwise provided herein or by law. When a meeting is adjourned to another
place, date or time, written notice need not be given of the adjourned meeting
if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, written notice of the place, date and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting. [Section 222.]
Section 5. QUORUM AND ADJOURNMENT. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by law
or by the Certificate of Incorporation. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from
- --------------------------
(1) Citations are to the General Corporation Law of the State of Delaware as in
effect on January 1, 1997 and are inserted for reference only, and do not
constitute a part of the Bylaws.
1
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented; provided, however, that if the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting,
conforming to the requirements of Section 4 of Article I hereof, shall be given
to each stockholder of record entitled to vote at such meeting. At any adjourned
meeting at which a quorum is present, any business may be transacted that might
have been transacted on the original date of the meeting. [Sections 216,
222(c).]
Section 6. VOTING. Except as otherwise provided by law or by the
Certificate of Incorporation, each stockholder shall be entitled at every
meeting of the stockholders to one vote for each share of stock having voting
power standing in the name of such stockholder on the books of the Corporation
on the record date for the meeting, and such votes may be cast either in person
or by written proxy. Every proxy must be duly executed and filed with the
Secretary of the Corporation. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the Corporation. No vote of the stockholders
need be taken by written ballot unless otherwise required by law. Any vote which
need not be taken by ballot may be conducted in any manner approved by the
meeting. Every vote taken by written ballot shall be counted by one or more
inspectors of election appointed by the Board of Directors. When a quorum is
present at any meeting, the vote of the holders of a majority of the stock which
has voting power present in person or represented by proxy shall decide any
question properly brought before such meeting, unless the question is one upon
which by express provision of law, the Certificate of Incorporation or these
Bylaws, a different vote is required, in which case such express provision shall
govern and control the decision of such question. [Sections 212, 216.]
Section 7. STOCKHOLDER PROPOSALS AND NOMINATIONS OF DIRECTORS.
Nominations for election to the Board of Directors of the Corporation at a
meeting of the stockholders may be made by the Board of Directors, or on behalf
of the Board of Directors by a Nominating Committee appointed by the Board of
Directors, or by any stockholder of the Corporation entitled to vote for the
election of directors at such meeting. Any nominations, other than those made by
or on behalf of the Board of Directors, and any proposal by any stockholder to
transact any corporate business at an annual or special stockholders meeting,
shall be made by notice in writing and mailed by certified mail to the Secretary
of the Corporation and (i) in the case of an annual meeting, received no later
than 35 days prior to the date of the annual meeting; provided, however, that if
less than 35 days' notice of a meeting of stockholders is given to the
stockholders, such notice of proposed business or nomination by such stockholder
shall have been made or delivered to the Secretary of the Corporation not later
than the close of business on the seventh day following the day on which the
notice of a meeting was mailed, and (ii) in the case of a special meeting of
stockholders, received not later than the close of business on the tenth day
following the day on which notice of the date of the meeting was mailed. A
notice of nominations by stockholders shall set forth as to each proposed
nominee who is not an incumbent director (i) the name, age, address and
principal occupation of each nominee proposed in such notice, (ii) the number of
shares of stock of the Corporation which are beneficially owned by each such
nominee and the nominating stockholder and (iii) any other information
concerning the nominee that must be disclosed regarding nominees in proxy
solicitations
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pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended,
and the rules under such section.
The Chairman of the Board, or in his absence the Chief Executive
Officer, if one is appointed, otherwise the President or the Secretary, may, if
the facts warrant, determine and declare to the meeting of stockholders that a
nomination was not made in accordance with the foregoing procedure and that the
defective nomination shall be disregarded.
Section 8. INSPECTORS OF ELECTIONS. Preceding any meeting of the
stockholders, the Board of Directors may appoint one or more persons to act as
Inspectors of Elections and may designate one or more alternate inspectors. In
the event either no inspector or alternate is appointed or no inspector or
alternate is able to act, the Secretary shall serve as the inspector or 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 the duties of
an inspector, 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 inspector shall:
(a) ascertain the number of shares outstanding and the voting
power of each;
(b) determine the shares represented at a meeting and the
validity of proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period a record of
the disposition of any challenges made to any determination by the
inspectors; and
(e) certify his or her determination of the number of shares
represented at the meeting and his or her count of all votes and
ballots.
The inspector may appoint or retain other persons or entities to assist
in the performance of the duties of inspector.
When determining the shares represented and the validity of proxies and
ballots, the inspector shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, ballots and the regular books and
records of the Corporation. The inspector may consider reliable information for
the limited purpose of reconciling proxies and ballots submitted by or on behalf
of banks, brokers or their nominees or a similar person which represent more
votes than the holders of a proxy is authorized by the record owner to cast or
more votes than the stockholder holds of record. If the inspector considers
other reliable information as outlined in this Section, the inspector, at the
time of his or her certification pursuant to (e) of this Section, shall specify
the precise information considered, the person or persons from whom the
information was obtained, when this information was obtained, the means by which
the information was obtained, and the basis for the inspector's belief that such
information is accurate and reliable. [Sections 231(a), (b), (d).]
Section 9. OPENING AND CLOSING OF POLLS. The date and time for the
opening and the closing of the polls for each matter to be voted upon at a
meeting of stockholders shall be
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announced at the meeting. The inspector of the election shall be prohibited from
accepting any ballots, proxies or votes nor any revocations thereof or changes
thereto after the closing of the polls, unless the Court of Chancery upon
application by a stockholder shall determine otherwise. [Section 231(c).]
Section 10. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. So long
as the Corporation has 35 or fewer stockholders, any stockholder may participate
in any meeting of stockholders by conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at the
meeting.
ARTICLE II
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of Incorporation directed or
required to be exercised or done by the stockholders. [Section 141(a).]
Section 2. NUMBER OF DIRECTORS; REMOVAL; QUALIFICATIONS. (a) The number
of directors constituting the initial Board of Directors shall be five and,
thereafter, the number of directors shall be fixed from time to time by
resolution of the Board of Directors; provided that the number shall at no time
be less than three or more than fifteen. In case of any increase in the number
of directors in advance of an annual meeting of stockholders, each additional
director shall be elected by the directors then in office, although less than a
quorum, to hold office until the next annual meeting of shareholders or until
his successor is elected. No decrease in the number of directors shall shorten
the term of any incumbent director.
(b) The Board of Directors shall be divided into three classes,
designated Classes I, II and III, which shall be as nearly equal in number as
possible. Directors of Class I shall be elected to hold office for a term
expiring at the annual meeting of stockholders to be held in 1998; directors of
Class II shall be elected to hold office for a term expiring at the annual
meeting of stockholders to be held in 1999; and directors of Class III shall be
elected to hold office for a term expiring at the annual meeting of stockholders
to be held in 2000. At each succeeding annual meeting of stockholders following
such initial classification and election, the respective successors of each
class shall be elected for three-year terms.
(c) After the election or appointment of a director, the holders of a
majority of the shares then entitled to vote generally for the election of
directors may remove such director or the entire Board of Directors, but only
for cause.
(d) At any time securities of the Corporation are registered under
Section 12 of the Securities Exchange Act of 1934, as amended, no less than two
directors shall be persons other than (i) officers or employees of the
Corporation or it subsidiaries or (ii) individuals having a relationship which,
in the opinion of the Board of Directors, would interfere with the exercise of
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independent judgment in carrying out the responsibilities of a director.
Directors need not be shareholders of the Corporation. [Sections 141(b), (k).]
Section 3. VACANCIES. Vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification, removal from office or
other cause, and newly created directorships resulting from any increase in the
authorized number of directors, may be filled only by the affirmative vote of a
majority of the remaining directors, though less than a quorum of the Board of
Directors, and directors so chosen shall hold office until the next annual
meeting of shareholders or until their successors shall have been duly elected
and qualified. [Section 223.]
Section 4. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice immediately after the annual meeting of the
stockholders and at such other times and places as shall from time to time be
determined by the Board of Directors. [Section 141(g).]
Section 5. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the Chief Executive Officer, if
one is appointed, otherwise the President or the Secretary on five days' written
notice to each director by whom such notice is not waived, given either
personally or by courier, mail, facsimile transmission or telegram, and shall be
called by the Chief Executive Officer, President or the Secretary in like manner
and on like notice on the written request of any two directors. [Section
141(g).]
Section 6. QUORUM. At all meetings of the Board of Directors, a
majority of the total number of directors then in office shall constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the Directors present thereat may adjourn the meeting from
time to time to another place, time or date, without notice other than
announcement at the meeting, until a quorum shall be present. [Section 141(b).]
Section 7. WRITTEN ACTION. Any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board or such committee, as the
case may be, consent thereto in writing and the writing or writings are filed
with the minutes or proceedings of the Board or such committee. [Section
141(f).]
Section 8. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members
of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any such
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the
meeting. [Section 141(i).]
Section 9. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the entire Board, designate one or more committees, each
committee to consist of two or more of the directors of the Corporation and each
to have such lawfully delegable powers and duties as the Board may confer. Each
such committee shall serve at the pleasure of the Board of
5
Directors. 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. Except as otherwise provided by law, any such committee, to
the extent provided in the resolution of the Board of Directors, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize the
seal of the Corporation to be affixed to all papers which may require it. Any
committee or committees so designated by the Board shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors. Unless otherwise prescribed by the Board of Directors, a majority of
the members of the committee shall constitute a quorum for the transaction of
business, and the act of a majority of the members present at a meeting at which
there is a quorum shall be the act of such committee. Each Committee shall act
at meetings held pursuant to duly issued notice as set out in Section 5 of this
Article, waivers of notice or unanimous written consent. Each committee shall
prescribe its own rules for calling and holding meetings and its method of
procedure, subject to any rules prescribed by the Board of Directors, and shall
keep a written record of all actions taken by it. No such committee shall have
the power or authority:
(a) to amend the Certificate of Incorporation or provide for
the issuance of shares of stock or fix the designations and any of the
preferences or rights of shares or the conversion into, or the exchange
of shares for, shares of any class or classes or any other series of
the same of the Corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any
series;
(b) to adopt an agreement of merger or consolidation under
Section 251 or Section 252 of the General Corporation Law of the State
of Delaware;
(c) to recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and
assets;
(d) to recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution;
(e) to amend the Bylaws of the Corporation; or
(f) to declare a dividend.
Section 10. COMPENSATION. The Board of Directors may establish such
compensation for, and reimbursement of the expenses of, directors for attendance
at meetings of the Board of Directors or committees, or for other services by
directors to the Corporation, as the Board of Directors may reasonably
determine. [Section 141(h).]
Section 11. REGULATIONS; MANNER OF ACTING. To the extent consistent
with applicable law, the Certificate of Incorporation and these Bylaws, the
Board of Directors may adopt such special rules and regulations for the conduct
of their meetings and for the management of the property, affairs and business
of the Corporation as the Board of Directors may deem appropriate. The directors
shall act only as a Board, and the individual directors shall have no power as
such.
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ARTICLE III
NOTICES
Section 1. GENERALLY. Whenever by law or under the provisions of the
Certificate of Incorporation or these Bylaws notice is required to be given to
any director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail or national courier service,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail or with such courier service. Notice to directors may also be given
by facsimile transmission, telegram or telephone. [Section 222(b).]
Section 2. WAIVERS. Whenever any notice is required to be given by law
or under the provisions of the Certificate of Incorporation or these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time of the event for which notice is to be
given, shall be deemed equivalent to such notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
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 is not
lawfully called or convened. [Section 229.]
ARTICLE IV
OFFICERS
Section 1. GENERALLY. The officers of the Corporation shall be elected
by the Board of Directors and shall consist of a Chief Executive Officer, a
President, a Chief Operating Officer, a Secretary and a Treasurer. The Board of
Directors may also choose any or all of the following: a Chairman of the Board
of Directors, one or more Vice Presidents, and one or more Assistant Secretaries
and Assistant Treasurers or any other officers deemed necessary by the Board of
Directors. Any number of offices may be held by the same person. [Section
142(a).]
Section 2. COMPENSATION. The compensation of the Chief Executive
Officer, the President and all officers and agents of the Corporation who are
also directors of the Corporation shall be fixed by the Board of Directors. The
Board of Directors may delegate the power to fix the compensation of other
officers and agents of the Corporation to an officer of the Corporation and, in
the absence of any express designation, the Chief Executive Officer, if one is
appointed, otherwise the President, shall have the power to fix such amounts.
Section 3. ELECTION. The officers of the Corporation shall hold office
until their successors are elected and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the directors. Any vacancy occurring in any
office of the Corporation may be filled by the Board of Directors. [Section
142(b).]
Section 4. AUTHORITY AND DUTIES. Each of the officers of the
Corporation shall have such authority and shall perform such duties as are
customarily incident to their respective offices or
7
as may be specified from time to time by the Board of Directors in a resolution
which is not inconsistent with these Bylaws. [Section 142(a).]
Section 5. REMOVAL AND RESIGNATION; VACANCIES. Any officer may be
removed for or without cause at any time by the Board of Directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the Board of Directors or the President. Unless otherwise
specified therein, such resignation shall take effect upon delivery. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise shall be filled by the Board of Directors. [Sections 142(b), (e).]
Section 6. CHAIRMAN. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and of the Board of Directors and
shall have such other duties and responsibilities as may be assigned to him or
her by the Board of Directors. The Chairman may delegate to any qualified person
authority to chair any meeting of the stockholders, either on a temporary or a
permanent basis. [Section 142(a).]
Section 7. PRESIDENT/CHIEF EXECUTIVE OFFICER. The President shall be
the principal executive officer of the Company unless a separate Chief Executive
Officer is appointed by the Board of Directors. The Chief Executive Officer, if
one is appointed, otherwise the President, shall carry out and direct the
operations of the Company under the direction of the Board of Directors, subject
to the specific delegation of any duties to a separate Chief Executive Officer.
The President or the Chief Executive Officer, if one is appointed, shall preside
at all meetings of the shareholders. The President and the Chief Executive
Officer, if one is appointed, shall have general power to execute contracts,
notes, bonds and other instruments on behalf of the Company and shall have such
other duties and responsibilities as may be prescribed by the Board of Directors
from time to time. In the absence of a Secretary, the President shall perform
the duties thereof. [Section 142(a).]
Section 7A. CHIEF OPERATING OFFICER. The Chief Operating Officer shall
carry out and direct the operations of the Company under the direction of the
Chief Executive Officer.
Section 8. EXECUTION OF DOCUMENTS AND ACTION WITH RESPECT TO SECURITIES
OF OTHER CORPORATIONS. The Chief Executive Officer, the President, the Chief
Operating Officer and the Executive Vice President shall have and are hereby
given full power and authority, except as otherwise required by law or directed
by the Board of Directors, (a) to execute, on behalf of the Corporation, all
duly authorized contracts, agreements, deeds, conveyances or other obligations
of the Corporation, applications, consents, proxies and other powers of attorney
and other documents and instruments and (b) to vote and otherwise act on behalf
of the Corporation, in person or by proxy, at any meeting of stockholders (or
with respect to any action of such stockholders) of any other corporation in
which the Corporation may hold securities and otherwise to exercise any and all
rights and powers which the Corporation may possess by reason of its ownership
of securities of such other corporation. In addition, the Chief Executive
Officer, if one is appointed, otherwise the President, may delegate to the
Secretary or to other officers, employees and agents of the Corporation the
power and authority to take any action which the Chief Executive Officer, if one
is appointed, otherwise the President, is authorized to take under this Section
8 of this Article IV, with such limitations as the Chief Executive Officer, if
one is appointed, otherwise the President, may specify; such authority so
delegated by the
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Chief Executive Officer, if one is appointed, otherwise the President, shall not
be redelegated by the person to whom such execution authority has been
delegated. [Section 142(a).]
Section 9. VICE PRESIDENT. Each Vice President, however titled, shall
perform such duties and services and shall have such authority and
responsibilities as shall be assigned to or required from time to time by the
Board of Directors or the President. [Section 142(a).]
Section 10. SECRETARY AND ASSISTANT SECRETARIES. (a) The Secretary
shall attend all meetings of the stockholders and all meetings of the Board of
Directors and record all proceedings of the meetings of the stockholders and of
the Board of Directors and shall perform like duties for the standing committees
when requested by the Board of Directors, the President or the Chairman. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and meetings of the Board of Directors. The Secretary shall perform
such duties as may be prescribed by the Board of Directors or its Chairman or
the Chief Executive Officer, if one is appointed, otherwise the President. The
Secretary shall have charge of the seal of the Corporation and authority to
affix the seal to any instrument. The Secretary or any Assistant Secretary may
attest to the corporate seal by handwritten or facsimile signature. The
Secretary shall keep and account for all books, documents, papers and records of
the Corporation except those for which some other officer or agent has been
designated or is otherwise properly accountable. The Secretary shall have
authority to sign stock certificates.
(b) Assistant Secretaries, in the order of their seniority, shall
assist the Secretary and, if the Secretary is unavailable or fails to act,
perform the duties and exercise the authorities of the Secretary.
[Section 142(a).]
Section 11. TREASURER AND ASSISTANT TREASURERS. (a) The Treasurer, if
so designated, shall be the Chief Financial Officer of the Corporation and may
be known as such. The Treasurer shall have the custody of the funds and
securities belonging to the Corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Treasurer or the President. The
Treasurer shall disburse the funds and pledge the credit of the Corporation and
shall render to the Board of Directors and the President, as and when required
by them, or any of them, an account of all transactions by the Treasurer.
(b) Assistant Treasurers, in the order of their seniority, shall assist
the Treasurer and, if the Treasurer is unable or fails to act, perform the
duties and exercise the powers of the Treasurer. [Section 142(a).]
ARTICLE V
INDEMNIFICATION
Section 1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer or employee of another
corporation or of a
9
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
Section 2 of this Article V with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section 1 of
this Article V shall be a contract right and shall include the right to be paid
by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of expenses"); and
provided, further, that, if the General Corporation Law of the State of Delaware
requires it, an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such indemnitee is
not entitled to be indemnified for such expenses under this Article V or
otherwise (hereinafter an "undertaking").
Section 2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
1 of this Article V is not paid in full by the Corporation within 60 days after
a written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be 20 days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
part in any such suit or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses), it shall be a defense that the
indemnitee has not met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware. Likewise, in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that the indemnitee has not met such standards. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the General Corporation Law of the State of
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Delaware, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right hereunder, or by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified or to
such advancement of expenses under this Article V or otherwise shall be on the
Corporation.
Section 3. NONEXCLUSIVITY OF RIGHTS. The rights of indemnification and
to the advancement of expenses conferred in this Article V shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, bylaw,
contract, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 4. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any indemnitee against any expense, liability or
loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General Corporation Law
of the State of Delaware.
Section 5. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article V or as otherwise permitted under the General Corporation Law of
the State of Delaware with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
Section 6. INDEMNIFICATION CONTRACTS. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article V.
Section 7. EFFECT OF AMENDMENT. Any amendment, repeal or modification
of any provision of this Article V by the stockholders or the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification. [Section 145.]
ARTICLE VI
STOCK
Section 1. CERTIFICATES. Certificates representing shares of stock of
the Corporation shall be in such form as shall be determined by the Board of
Directors, subject to applicable legal requirements. Such certificates shall be
numbered and their issuance recorded in the books of the Corporation, and such
certificates shall exhibit the holder's name and the number of shares
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and shall be signed by, or in the name of the Corporation by, the Chief
Executive Officer, if one is appointed, otherwise the President and the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
of the Corporation. Any or all of the signatures and the seal of the
Corporation, if any, upon such certificates may be facsimiles, engraved or
printed. [Section 158.]
Section 2. TRANSFER. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue, or to cause its
transfer agent to issue, a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
[Section 151.]
Section 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Secretary may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed upon the making of an affidavit of that
fact, satisfactory to the Secretary, by the person claiming the certificate of
stock to be lost, stolen or destroyed. As a condition precedent to the issuance
of a new certificate or certificates, the Secretary may require the owner of
such lost, stolen or destroyed certificate or certificates to give the
Corporation a bond in such sum and with such surety or sureties as the Secretary
may direct as indemnity against any claims that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed or the issuance of the new certificate. [Section 167.]
Section 4. RECORD DATE. (a) In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than 60 nor less than 10 days before the date of such meeting. If no
record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. [Section 213.]
ARTICLE VII
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GENERAL PROVISIONS
Section 1. FISCAL YEAR. The fiscal year of the Corporation shall be the
calendar year or such other annual period as shall be fixed from time to time by
the Board of Directors.
Section 2. CORPORATE SEAL. The Board of Directors may adopt a corporate
seal and use the same by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 3. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director,
each member of a committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the records of the Corporation and
upon such information, opinions, reports or statements presented to the
Corporation by any of the Corporation's officers or employees, or committees of
the Board of Directors, or by any other person as to matters the director,
committee member or officer believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation. [Section 141(e)]
Section 4. TIME PERIODS. In applying any provision of these Bylaws
which requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded and the day of the event shall be included.
Section 5. DIVIDENDS. The Board of Directors may from time to time
declare and the Corporation may pay dividends upon its outstanding shares of
capital stock, in the manner and upon the terms and conditions provided by law
and the Certificate of Incorporation. [Section 173.]
ARTICLE VIII
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred upon it by
law, the Board of Directors is expressly authorized to adopt, repeal, alter or
amend the Bylaws of the Corporation by the affirmative vote of a majority or
more of the entire Board of Directors. In addition to any requirements of law
and any provision of the Certificate of Incorporation, the stockholders of the
Corporation may adopt, repeal, alter or amend any provision of the Bylaws upon
the affirmative vote of the holders of a majority or more of the combined voting
power of the then outstanding stock of the Corporation entitled to vote
generally in the election of directors. [Section 109(a).]
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CERTIFICATE OF SECRETARY
OF
TRANSGENOMIC, INC.
(A DELAWARE CORPORATION)
I hereby certify that I am the duly elected and acting Secretary of
said Corporation and that the foregoing Bylaws of said Corporation, comprising
15 pages, constitute the Bylaws of said Corporation as duly adopted by the Board
of Directors thereof by action taken at a special meeting thereof.
Date: June 27, 1997 /s/ P. Thomas Pogge
------------------------------------
Secretary
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