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EXHIBIT 3.2
BYLAWS
OF
HESKA CORPORATION
(A DELAWARE CORPORATION)
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TABLE OF CONTENTS
Page
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ARTICLE 1.......................................................................................................1
1.1 Principal Office.....................................................................................1
1.2 Additional Offices...................................................................................1
ARTICLE 2.......................................................................................................1
2.1 Place of Meeting.....................................................................................1
2.2 Annual Meeting.......................................................................................1
2.3 Special Meetings.....................................................................................2
2.4 Action Without a Meeting.............................................................................2
2.5 Notice of Meetings...................................................................................2
2.6 Business Matter of a Special Meeting.................................................................3
2.7 List of Stockholders.................................................................................3
2.8 Organization and Conduct of Business.................................................................3
2.9 Quorum and Adjournments..............................................................................3
2.10 Voting Rights........................................................................................4
2.11 Majority Vote........................................................................................4
2.12 Record Date for Stockholder Notice and Voting........................................................4
2.13 Proxies..............................................................................................5
2.14 Inspectors of Election...............................................................................5
ARTICLE 3.......................................................................................................5
3.1 Number, Election, Tenure and Qualifications..........................................................5
3.2 Vacancies............................................................................................6
3.3 Resignation and Removal..............................................................................7
3.4 Powers...............................................................................................7
3.5 Place of Meetings....................................................................................7
3.6 Annual Meetings......................................................................................7
3.7 Regular Meetings.....................................................................................7
3.8 Special Meetings.....................................................................................7
3.9 Quorum and Adjournments..............................................................................7
3.10 Action Without Meeting...............................................................................8
3.11 Telephone Meetings...................................................................................8
3.12 Waiver of Notice.....................................................................................8
3.13 Fees and Compensation of Directors...................................................................8
3.14 Rights of Inspection.................................................................................8
ARTICLE 4.......................................................................................................8
4.1 Selection............................................................................................8
4.2 Power................................................................................................8
4.3 Committee Minutes....................................................................................9
ARTICLE 5.......................................................................................................9
5.1 Officers Designated..................................................................................9
5.2 Appointment of Officers..............................................................................9
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5.3 Subordinate Officers.................................................................................9
5.4 Removal and Resignation of Officers..................................................................9
5.5 Vacancies in Offices................................................................................10
5.6 Compensation........................................................................................10
5.7 The Chairman of the Board...........................................................................10
5.8 The President.......................................................................................10
5.9 The Vice President..................................................................................10
5.10 The Secretary.......................................................................................10
5.11 The Assistant Secretary.............................................................................11
5.12 The Chief Financial Officer.........................................................................11
ARTICLE 6......................................................................................................11
6.1 Certificates for Shares.............................................................................11
6.2 Signatures on Certificates..........................................................................12
6.3 Transfer of Stock...................................................................................12
6.4 Registered Stockholders.............................................................................12
6.5 Lost, Stolen or Destroyed Certificates..............................................................12
ARTICLE 7......................................................................................................12
7.1 Dividends...........................................................................................12
7.2 Dividend Reserve....................................................................................12
7.3 Checks..............................................................................................13
7.4 Corporate Seal......................................................................................13
7.5 Execution of Corporate Contracts and Instruments....................................................13
7.6 Representation of Shares of Other Corporations......................................................13
ARTICLE 8......................................................................................................13
8.1 Stock Options.......................................................................................13
8.2 Amendments..........................................................................................14
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ARTICLE I
Offices
1.1 Principal Office. The initial registered office of the corporation
shall be 1209 Orange Street, Wilmington, Delaware, and the name of the initial
registered agent in charge thereof is The Corporation Trust Company.
1.2 Additional Offices. The corporation may also have offices at such
other places, either within or without the State of Delaware, as the Board of
Directors (the "Board") may from time to time designate or the business of the
corporation may require.
ARTICLE 2
Meeting of Stockholders
2.1 Place of Meeting. Meetings of stockholders may be held at such
place, either within or without of the State of Delaware, as may be designated
by or in the manner provided in these Bylaws, or, if not so designated, at the
registered office of the corporation or the principal executive offices of the
corporation.
2.2 Annual Meeting. Annual meetings of stockholders shall be held each
year at such date and time as shall be designated from time to time by the Board
and stated in the notice of the meeting. At such annual meetings, the
stockholders shall elect by a plurality vote the number of directors equal to
the number of directors of the class whose term expires at such meetings (or, if
fewer, the number of directors properly nominated and qualified for election) to
hold office until the third succeeding annual meeting of stockholders after
their election. The stockholders shall also transact such other business as may
properly be brought before the meetings.
To be properly brought before the annual meeting, business must be
either (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors or the President, (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors or the President, or (c) otherwise properly brought before the meeting
by a stockholder of record. In addition to any other applicable requirements,
for business to be properly brought before the annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation. To be timely, a stockholder's notice must be
delivered personally or deposited in the United States mail, or delivered to a
common carrier for transmission to the recipient or actually transmitted by the
person giving the notice by electronic means to the recipient or sent by other
means of written communication, postage or delivery charges prepaid in all such
cases, and received at the principal executive offices of the corporation,
addressed to the attention of the Secretary of the corporation, not less than 60
days nor more than 90 days prior to the scheduled date of the meeting
(regardless of any postponements, deferrals or adjournments of that meeting to a
later date); provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the scheduled meeting is given or made
to stockholders, notice by the stockholder to be timely must be so received not
later than the earlier of (a) the close of business on the 10th day following
the day on which such notice of the date of the
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scheduled annual meeting was mailed or such public disclosure was made,
whichever first occurs, and (b) two days prior to the date of the scheduled
meeting. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and record address of the stockholder proposing such business, (iii) the class,
series and number of shares of the corporation that are owned beneficially by
the stockholder, and (iv) any material interest of the stockholder in such
business. Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section; provided, however, that nothing in this
Section shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting.
The Chairman of the Board of the corporation (or such other person
presiding at the meeting in accordance with these Bylaws) shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section,
and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
2.3 Special Meetings. Special meetings of the stockholders may be
called for any purpose or purposes, unless otherwise prescribed by the statute
or by the Restated Certificate of Incorporation, only at the request of the
Chairman of the Board of Directors, by the President of the corporation or by a
resolution duly adopted by the affirmative vote of a majority of the Board of
Directors. Such request shall state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
2.4 Action Without a Meeting. Any action which may be taken at any
annual or special meeting of the stockholders of this corporation may be taken
without a meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action or actions so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Such consent or consents shall be delivered to the corporation by hand or
certified mail, return receipt requested, to its principal executive office, or
to an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded.
2.5 Notice of Meetings. Written notice of stockholders' meetings,
stating the place, date and time of the meeting and, in the case of a special
meeting, the purpose or purposes for which such special meeting is called, shall
be given to each stockholder entitled to vote at such meeting not less than ten
(10) nor more than sixty (60) days prior to the meeting.
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 date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date and time of the adjourned
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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.
Whenever, under the provisions of Delaware law or of the Restated
Certificate of Incorporation or of these Bylaws, notice is required to be given
to any stockholder it shall not be construed to mean personal notice, but such
notice may be given in writing, by mail, addressed to such director or
stockholder, at his or her 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.
Whenever any notice is required to be given under the provisions of
Delaware law or of the Restated Certificate of Incorporation or of these Bylaws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
2.6 Business Matter of a Special Meeting. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice, except to the extent such notice is waived or is not required.
2.7 List of Stockholders. The officer in charge of the stock ledger of
the corporation or the transfer agent shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, at a place within the
city where the meeting is to be held, which place, if other than the place of
the meeting, shall be specified in the notice of the meeting. The list shall
also be produced and kept at the place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present in person
thereat.
2.8 Organization and Conduct of Business. The Chairman of the Board or,
in his or her absence, the President of the corporation or, in their absence,
such person as the Board may have designated or, in the absence of such a
person, such person as may be chosen by the holders of a majority of the shares
entitled to vote who are present, in person or by proxy, shall call to order any
meeting of the stockholders and act as Chairman of the meeting. In the absence
of the Secretary of the corporation, the Secretary of the meeting shall be such
person as the Chairman appoints.
The Chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seems to him or her in order.
2.9 Quorum and Adjournments. Except where otherwise provided by law or
the Restated Certificate of Incorporation or these Bylaws, the holders of a
majority of the stock issued and outstanding and entitled to vote, present in
person or represented in proxy, shall constitute a quorum at all meetings of the
stockholders. The stockholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment,
notwithstanding the
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withdrawal of enough stockholders to have less than a quorum if any action taken
(other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum. At such adjourned meeting at which a quorum is
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If, however, a quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat who are present in person or represented
by proxy shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented.
2.10 Voting Rights. Unless otherwise provided in the Restated
Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder.
2.11 Majority Vote. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the Restated Certificate of Incorporation or of these Bylaws, a different vote
is required in which case such express provision shall govern and control the
decision of such question.
2.12 Record Date for Stockholder Notice and Voting.
(i) For purposes of determining the stockholders entitled to notice of
any meeting or to vote, or entitled to receive payment of any dividend
or other distribution, or entitled to exercise any right in respect of
any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10)
days before the date of any such meeting nor more than sixty (60) days
before any other action. If the Board does not so fix a record date,
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 business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held.
(ii) For purposes of determining the stockholders entitled to consent
to corporate action in writing without a meeting, 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 date shall not be more than ten (10)
days after the date upon which the resolution fixing such record date
is adopted by the board of directors. If no record date has been fixed
by the board of directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting,
when no prior action by the board of directors is required under
Delaware law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to
the corporation by hand or certified mail, return receipt requested, to
its principal executive office, or to an officer or agent of the
corporation having custody of the
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book in which proceedings of meetings of stockholders are recorded. If
no record date has been fixed by the board of directors and prior
action by the board of directors is required under Delaware law, the
record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be the close of
business on the day on which the board of directors adopts the
resolution taking such prior action.
2.13 Proxies. Every person entitled to vote for directors or on any
other matter shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and filed with the
Secretary of the corporation. A proxy shall be deemed signed if the
stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the stockholder or the
stockholder's attorney-in-fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (i)
revoked by the person executing it, before the vote pursuant to that proxy, by a
writing delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the person executing the proxy; or (ii) written notice of the death or
incapacity of the maker of that proxy is received by the corporation before the
vote pursuant to that proxy is counted; provided, however, that no proxy shall
be valid after the expiration of three years from the date of the proxy, unless
otherwise provided in the proxy.
2.14 Inspectors of Election. The corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors of election to act at
the meeting and make a written report thereof. The corporation may designate one
or more persons to act as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is able to act at a 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.
ARTICLE 3
Directors
3.1 Number, Election, Tenure and Qualifications. The Board of Directors
of the corporation shall consist of not less than five (5) members nor more than
nine (9) members and shall be divided into three classes, designated as Class I,
Class II and Class III, as nearly equal in number as possible. The initial Board
of Directors shall consist of seven (7) members, with Class I consisting of two
(2) directors, Class II consisting of two (2) directors and Class III consisting
of three (3) directors, and the exact number of members of any future Board of
Directors, and the exact number of directors in each Class, shall be determined
from time to time by resolution of the Board of Directors. Notwithstanding the
foregoing, additional directorships resulting from an increase in the number of
directors shall be apportioned among the classes as equally as possible.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors. Nominations of persons
for election to the Board of Directors at the annual meeting, by or at the
direction of the Board of Directors, may be made by any
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nominating committee or person appointed by the Board of Directors; nominations
may also be made by any stockholder of record of the corporation entitled to
vote for the election of directors at the meeting who complies with the notice
procedures set forth in this Section. Such nominations, other than those made by
or at the direction of the Board of Directors, shall be made pursuant to timely
notice in writing to the Secretary of the corporation. To be timely, a
stockholder's notice shall be delivered personally or deposited in the United
States mail, or delivered to a common carrier for transmission to the recipient
or actually transmitted by the person giving the notice by electronic means to
the recipient or sent by other means of written communication, postage or
delivery charges prepaid in all such cases, and received at the principal
executive offices of the corporation addressed to the attention of the Secretary
of the corporation not less than 60 days nor more than 90 days prior to the
scheduled date of the meeting (regardless of any postponements, deferrals or
adjournments of that meeting to a later date); provided, however, that, in the
case of an annual meeting and in the event that less than 70 days' notice or
prior public disclosure of the date of the scheduled meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the earlier of (a) the close of business on the 10th day following
the day on which such notice of the date of the scheduled meeting was mailed or
such public disclosure was made, whichever first occurs, or (b) two days prior
to the date of the scheduled meeting. Such stockholder's notice to the Secretary
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection as a director, (i) the name, age, business address
and residence address of the person, (ii) the principal occupation or employment
of the person, (iii) the class, series and number of shares of capital stock of
the corporation that are owned beneficially by the person, (iv) a statement as
to the person's citizenship, and (v) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder; and (b)
as to the stockholder giving the notice, (i) the name and record address of the
stockholder and (ii) the class, series and number of shares of capital stock of
the corporation that are owned beneficially by the stockholder. The corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such
proposed nominee to serve as director of the corporation. No person shall be
eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
In connection with any annual meeting, the Chairman of the Board of
Directors (or such other person presiding at such meeting in accordance with
these Bylaws) shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the foregoing procedure, and
if he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Directors shall serve as provided in the Restated Certificate of
Incorporation of the corporation. Directors need not be stockholders.
3.2 Vacancies. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election at which the term of the class to which they have been elected
expires and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no
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directors in office, then an election of directors may be held in the manner
provided by statute. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law or these bylaws, may
exercise the powers of the full board until the vacancy is filled.
3.3 Resignation and Removal. Any director may resign at any time upon
written notice to the corporation at its principal place of business or to the
President or the Secretary. Such resignation shall be effective upon receipt of
such notice unless the notice specifies such resignation to be effective at some
other time or upon the happening of some other event. Any director or the entire
Board of Directors may be removed, but only for cause, by the holders of a
majority of the shares then entitled to vote at an election of directors, unless
otherwise specified by law or the Restated Certificate of Incorporation.
3.4 Powers. The business of the corporation shall be managed by or
under the direction of the Board which may exercise all such powers of the
corporation and do all such lawful acts and things which are not by statute or
by the Restated Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
3.5 Place of Meetings. The Board may hold meetings, both regular and
special, either within or without the State of Delaware.
3.6 Annual Meetings. The annual meetings of the Board shall be held
immediately following the annual meeting of stockholders, and no notice of such
meeting shall be necessary to the Board, provided a quorum shall be present. The
annual meetings shall be for the purposes of organization, and an election of
officers and the transaction of other business.
3.7 Regular Meetings. Regular meetings of the Board may be held without
notice at such time and place as may be determined from time to time by the
Board.
3.8 Special Meetings. Special meetings of the Board may be called by
the Chairman of the Board, the President or by a majority of the Board upon one
(1) day's notice to each director and can be delivered either personally, or by
telephone, express delivery service (so that the scheduled delivery date of the
notice is at least one (1) day in advance of the meeting), telegram or facsimile
transmission, and on five (5) day's notice, by mail. The notice need not
describe the purpose of the special meeting.
3.9 Quorum and Adjournments. At all meetings of the Board, a majority
of the 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, except as may otherwise
be specifically provided by law or the Restated Certificate of Incorporation. If
a quorum is not present at any meeting of the Board, the directors present may
adjourn the meeting from time to time, without notice other than announcement at
the meeting at which the adjournment is taken, until a quorum shall be present.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved of by at least a majority of the required quorum for that meeting.
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3.10 Action Without Meeting. Unless otherwise restricted by the
Restated Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
3.11 Telephone Meetings. Unless otherwise restricted by the Restated
Certificate of Incorporation or these Bylaws, any member of the Board or any
committee may participate in a meeting 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.
3.12 Waiver of Notice. Notice of a meeting need not be given to any
director who signs a waiver of notice or a consent to holding the meeting or an
approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
3.13 Fees and Compensation of Directors. Unless otherwise restricted by
the Restated Certificate of Incorporation or these Bylaws, the Board shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board and may be
paid a fixed sum for attendance at each meeting of the Board or a stated salary
as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
3.14 Rights of Inspection. Any director shall have the right to examine
the corporation's stock ledger, a list of its stockholders and its other books
and records for a purpose reasonably related to his or her position as a
director.
ARTICLE 4
Committees of Directors
4.1 Selection. The Board may, by resolution passed by a majority of the
entire Board, designate one or more committees, each committee to consist of one
or more of the directors of the corporation. 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.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member.
4.2 Power. Any such committee, to the extent provided in the resolution
of the Board, shall have and may exercise all the powers and authority of the
Board in the management of the business
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and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to amending the Restated Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board as provided in Section 151(a) of the General Corporation Law of
Delaware, fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the corporation), adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of
dissolution, removing or indemnifying directors or amending the Bylaws of the
corporation; and, unless the resolution or the Restated Certificate of
Incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board.
4.3 Committee Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the Board when required.
ARTICLE 5
Officers
5.1 Officers Designated. The officers of the corporation shall be
chosen by the Board and shall be a President, a Secretary and a Chief Financial
Officer. The Board may also choose a Chairman of the Board, one or more Vice
Presidents, and one or more assistant Secretaries. Any number of offices may be
held by the same person, unless the Restated Certificate of Incorporation or
these Bylaws otherwise provide.
5.2 Appointment of Officers. The officers of the corporation, except
such officers as may be appointed in accordance with the provisions of Section
5.3 or 5.5 of this Article 5, shall be chosen in such manner and shall hold
their offices for such terms as are prescribed by these Bylaws or determined by
the board of directors. Each officer shall hold his or her office until his or
her successor is elected and qualified or until his or her earlier resignation
or removal. This section does not create any rights of employment or continued
employment. The corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5.3 Subordinate Officers. The Board may appoint, and may empower the
President to appoint, such other officers and agents as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in the Bylaws or as the
Board may from time to time determine.
5.4 Removal and Resignation of Officers. Subject to the rights, if any,
of an officer under any contract of employment, any officer may be removed,
either with or without cause, by an affirmative vote of the majority of the
Board, at any regular or special meeting of the Board, or,
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except in case of an officer chosen by the Board, by any officer upon whom such
power of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 Vacancies in Offices. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular appointment to that office.
5.6 Compensation. The salaries of all officers of the corporation shall
be fixed from time to time by the Board and no officer shall be prevented from
receiving a salary because he is also a director of the corporation.
5.7 The Chairman of the Board. The Chairman of the Board, if such an
officer be elected, shall, if present, perform such other powers and duties as
may be assigned to him from time to time by the Board. If there is no President,
the Chairman of the Board shall also be the Chief Executive Officer of the
Corporation and shall have the powers and duties prescribed in Section 5.8 of
this Article 5.
5.8 The President. Subject to such supervisory powers, if any, as may
be given by the Board to the Chairman of the Board, if there be such an officer,
the President shall be the Chief Executive Officer of the Corporation, shall
preside at all meetings of the stockholders and in the absence of the Chairman
of the Board, or if there be none, at all meetings of the Board, shall have
general and active management of the business of the Corporation and shall see
that all orders and resolutions of the Board are carried into effect. He or she
shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board to some other officer or agent of the
Corporation.
5.9 The Vice President. The Vice President (or in the event there be
more than one, the Vice Presidents in the order designated by the directors, or
in the absence of any designation, in the order of their election), shall, in
the absence of the President or in the event of his or her disability or refusal
to act, perform the duties of the President, and when so acting, shall have the
powers of and subject to all the restrictions upon the President. The Vice
President(s) shall perform such other duties and have such other powers as may
from time to time be prescribed for them by the Board, President, the Chairman
of the Board or these Bylaws.
5.10 The Secretary. The Secretary shall attend all meetings of the
Board and the stockholders and record all votes and the proceedings of the
meetings in a book to be kept for that purpose and shall perform like duties for
the standing committees, when required. The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and special meetings of the Board,
and shall perform such other duties as may from time to time be prescribed by
the Board, the
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Chairman of the Board or the President, under whose supervision he or she shall
act. The Secretary shall have custody of the seal of the corporation, and the
Secretary, or an Assistant Secretary, shall have authority to affix the same to
any instrument requiring it, and, when so affixed, the seal may be attested by
his or her signature or by the signature of such Assistant Secretary. The Board
may give general authority to any other officer to affix the seal of the
corporation and to attest the affixing thereof by his or her signature. The
Secretary shall keep, or cause to be kept, at the principal executive office or
at the office of the corporation's transfer agent or registrar, as determined by
resolution of the Board, a share register, or a duplicate share register,
showing the names of all stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same and the number and date of cancellation of every certificate
surrendered for cancellation.
5.11 The Assistant Secretary. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order designated by the Board
(or in the absence of any designation, in the order of their election) shall, in
the absence of the Secretary or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as may from time to time be
prescribed by the Board.
5.12 The Chief Financial Officer. The Chief Financial Officer shall
have the custody of the Corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books 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 Board. The Chief Financial Officer shall disburse the funds of the
corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and the Board, at its regular
meetings, or when the Board so requires, an account of all his or her
transactions as Chief Financial Officer and of the financial condition of the
corporation.
ARTICLE 6
Stock Certificates
6.1 Certificates for Shares. The shares of the corporation shall be
represented by certificates or shall be uncertificated. Certificates shall be
signed by, or in the name of the corporation by, the Chairman of the Board, the
President or a Vice President and by the Chief Financial Officer, the Secretary
or an Assistant Secretary of the corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required by the General Corporation
Law of the State of Delaware or a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
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6.2 Signatures on Certificates. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
6.3 Transfer of Stock. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate of shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of proper transfer instructions from
the registered owner of uncertificated share, such uncertificated shares shall
be canceled and issuance of new equivalent uncertificated shares or certificated
shares shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the corporation.
6.4 Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a percent registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
6.5 Lost, Stolen or Destroyed Certificates. The Board may direct that a
new certificate or certificates be issued to replace 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 by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing the issue of a new certificate or certificates, the Board may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of the lost, stolen or destroyed certificate or certificates, or his or
her legal representative, to advertise the same in such manner as it shall
require, and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
ARTICLE 7
General Provisions
7.1 Dividends. Dividends upon the capital stock of the corporation,
subject to any restrictions contained in the General Corporation Law of the
State of Delaware or the provisions of the Restated Certificate of
Incorporation, if any, may be declared by the Board at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of the capital
stock, subject to the provisions of the Restated Certificate of Incorporation.
7.2 Dividend Reserve. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to
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time, in their absolute discretion, think proper as a reserve or reserves 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 interest of the corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
7.3 Checks. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board may from time to time designate.
7.4 Corporate Seal. The Board may provide a suitable seal, containing
the name of the corporation, which seal shall be in charge of the Secretary. If
and when so directed by the Board or a committee thereof, duplicates of the seal
may be kept and used by the Chief Financial Officer or by any Assistant
Secretary.
7.5 Execution of Corporate Contracts and Instruments. The Board, except
as otherwise provided in these Bylaws, may authorize any officer or officers, or
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the corporation; such authority may be general or
confined to specific instances. Unless so authorized or ratified by the Board or
within the agency power of an officer, no officer, agent or employee shall have
any power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or for any amount.
7.6 Representation of Shares of Other Corporations. The President or
any Vice President or the Secretary or any Assistant Secretary of this
corporation is authorized to vote, represent and exercise on behalf of this
corporation all rights incident to any and all shares of any corporation or
corporations standing in the name of this corporation. The authority herein
granted to said officers to vote or represent on behalf of this corporation any
and all shares held by this corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said officers
ARTICLE 8
Miscellaneous
8.1 Stock Options. Without the affirmative vote of the holders of more
than fifty percent (50%) of the voting power of all of the then outstanding
shares of the stock of the corporation entitled to vote generally in the
election of directors, voting together as a single class, the corporation shall
not grant to any officer of the corporation any stock options at less than the
closing market price on the date of grant or reduce the price of any options
which either (i) were granted as a non-qualified stock option grant to an
incoming employee or vendor or (ii) were granted under any of the corporation's
existing or future stock option plans, provided, however, that the foregoing
shall not preclude the corporation from issuing new, lower priced options issued
from a stock option plan to persons holding higher priced options from such
plan, provided further, however, that if such new lower priced options are
granted in exchange for such higher priced options, the shares covered by such
higher priced options shall be canceled or surrendered and not available for
re-grant under such stock option plan.
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8.2 Amendments. The Board of Directors is expressly empowered to adopt,
amend or repeal these Bylaws, provided, however, that any adoption, amendment or
repeal of these Bylaws by the Board of Directors shall require the approval of
at least sixty-six and two-thirds percent (66-2/3%) of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any resolution providing for adoption,
amendment or repeal is presented to the board). The stockholders shall also have
power to adopt, amend or repeal these Bylaws, provided, however, that in
addition to any vote of the holders of any class or series of stock of this
corporation required by law or by the Restated Certificate of Incorporation of
this corporation, the affirmative vote of the holders of more than fifty percent
(50%) of the voting power of all of the then outstanding shares of the stock of
the corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for such adoption, amendment or
repeal by the stockholders of any provisions of these Bylaws. Notwithstanding
the foregoing sentence, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the voting power of all of the
then outstanding shares of the stock of the corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required for the amendment or repeal of Article 3.1 of these Bylaws.
Notwithstanding the foregoing paragraph or any provision of the
Restated Certificate of Incorporation, Section 8.1 of these Bylaws may only be
amended by the affirmative vote of the holders of more than fifty percent (50%)
of the voting power of all of the then outstanding shares of the stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class.
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