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Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
IDEXX LABORATORIES, INC.
(AMENDED THROUGH DECEMBER 8, 1999)
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BY-LAWS
TABLE OF CONTENTS
ARTICLE I - Stockholders .................................................. 4
Section 1.1 Place of Meetings ................................... 4
Section 1.2 Annual Meeting ...................................... 4
Section 1.3 Special Meetings .................................... 4
Section 1.4 Notice of Meetings .................................. 4
Section 1.5 Voting List ......................................... 4
Section 1.6 Quorum .............................................. 4
Section 1.7 Adjournments ........................................ 5
Section 1.8 Voting and Proxies .................................. 5
Section 1.9 Action at Meeting ................................... 5
Section 1.10 Introduction of Business at Meeting ................. 5
Section 1.11 Action without Meeting .............................. 6
ARTICLE 2 - Directors ..................................................... 7
Section 2.1 General Powers ...................................... 7
Section 2.2 Number; Election and Qualification .................. 7
Section 2.3 Classes of Directors ................................ 7
Section 2.4 Terms in Office ..................................... 7
Section 2.5 Allocation of Directors Among Classes in the Event of
Increases or Decreases in the Number of Directors ... 7
Section 2.6 Tenure .............................................. 8
Section 2.7 Vacancies ........................................... 8
Section 2.8 Resignation ......................................... 8
Section 2.9 Regular Meetings .................................... 8
Section 2.10 Special Meetings .................................... 8
Section 2.11 Notice of Special Meetings .......................... 8
Section 2.12 Meetings by Telephone Conference Calls .............. 8
Section 2.13 Quorum .............................................. 9
Section 2.14 Action at Meeting ................................... 9
Section 2.15 Action by Consent ................................... 9
Section 2.16 Removal ............................................. 9
Section 2.17 Committees .......................................... 9
Section 2.18 Compensation of Directors ........................... 9
Section 2.19 Amendments to Article ............................... 10
ARTICLE 3 - Officers ...................................................... 10
Section 3.1 Enumeration ......................................... 10
Section 3.2 Election ............................................ 10
Section 3.3 Qualification ....................................... 10
Section 3.4 Tenure .............................................. 10
Section 3.5 Resignation and Removal ............................. 10
Section 3.6 Vacancies ........................................... 10
Section 3.7 Chairman of the Board and Vice Chairman of the Board 11
Section 3.8 President ........................................... 11
Section 3.9 Vice President ...................................... 11
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Section 3.10 Secretary and Assistant Secretaries ................. 11
Section 3.11 Treasurer and Assistant Treasurers .................. 11
Section 3.12 Salaries ............................................ 12
ARTICLE 4 - Capital Stock ................................................. 12
Section 4.1 Issuance of Stock ................................... 12
Section 4.2 Certificates of Stock ............................... 12
Section 4.3 Transfers ........................................... 12
Section 4.4 Lost, Stolen or Destroyed Certificates .............. 13
Section 4.5 Record Date ......................................... 13
ARTICLE 5 - General Provisions ............................................ 13
Section 5.1 Fiscal Year ......................................... 13
Section 5.2 Corporate Seal ...................................... 13
Section 5.3 Waiver of Notice .................................... 13
Section 5.4 Voting of Securities ................................ 14
Section 5.5 Evidence of Authority ............................... 14
Section 5.6 Certificate of Incorporation ........................ 14
Section 5.7 Transactions with Interested Parties ................ 14
Section 5.8 Severability ........................................ 15
Section 5.9 Pronouns ............................................ 15
ARTICLE 6 - Amendments .................................................... 15
Section 6.1 By the Board of Directors ........................... 15
Section 6.2 By the Stockholders ................................. 15
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BY-LAWS OF IDEXX LABORATORIES, INC.
ARTICLE 1 - STOCKHOLDERS
1.1 PLACE OF MEETINGS. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from
time to time by the Board of Directors or the President or, if not so
designated, at the registered office of the corporation.
1.2 ANNUAL MEETING. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on a date to be
fixed by the Board of Directors or the President (which date shall not
be a legal holiday in the place where the meeting is to be held) at the
time and place to be fixed by the Board of Directors or the President
and stated in the notice of the meeting. If no annual meeting is held
in accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as convenient. If
no annual meeting is held in accordance with the foregoing provisions,
a special meeting may be held in lieu of the annual meeting, and any
action taken at that special meeting shall have the same effect as if
it had been taken at the annual meeting, and in such case all
references in these By-Laws to the annual meeting of the stockholders
shall be deemed to refer to such special meeting.
1.3 SPECIAL MEETINGS. Special meetings of stockholders may be called at any
time by the Chairman of the Board or the President. Business transacted
at any special meeting of the stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
1.4 NOTICE OF MEETINGS. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, 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. The
notices of all meetings shall state the place, date and hour of the
meeting. The notice of a special meeting shall state, in addition, the
purpose or purposes for which the meeting is called. If mailed, notice
is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records
of the corporation.
1.5 VOTING LIST. The officer who has charge of the stock ledger of the
corporation shall prepare, at least 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 10 days prior to the meeting,
at a place within the city where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting
during the whole time of the meeting, and may be inspected by any
stockholder who is present.
1.6 QUORUM. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the holders of a majority of the shares
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of the capital stock of the corporation issued and outstanding and
entitled to vote at the meeting, present in person or represented by
proxy, shall constitute a quorum for the transaction of business.
1.7 ADJOURNMENTS. Any meeting of stockholders may be adjourned to any other
time and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or represented at
the meeting and entitled to vote, although less than a quorum, or, if
no stockholder is present, by any officer entitled to preside at or to
act as Secretary of such meeting. It shall not be necessary to notify
any stockholder of any adjournment of less than 30 days if the time and
place of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record date is
fixed for the adjourned meeting. At the adjourned meeting, the
corporation may transact any business, which might have been transacted
at the original meeting.
1.8 VOTING AND PROXIES. Each stockholder shall have one vote for each share
of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise
provided by law or in the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of stockholders, or
to express consent or dissent to corporate action in writing without a
meeting, may vote or express such consent or dissent in person or may
authorize another person or persons to vote or act for him by proxy
executed in writing (or in such other manner permitted by the General
Corporation Law of Delaware) by the stockholder or his authorized agent
and delivered to the Secretary (including by electronic transmission)
of the corporation. No such proxy shall be voted or acted upon after
three years from the date of its execution, unless the proxy expressly
provides for a longer period.
1.9 ACTION IN A MEETING. When a quorum is present at any meeting, the
holders of a majority of the stock present or represented and voting on
a matter (or if there are two or more classes of stock entitled to vote
as separate classes, then in the case of each such class, the holders
of a majority of the stock of that class present or represented and
voting on a matter) shall decide any matter to be voted upon by the
stockholders at such meeting, except when a different vote is required
by express provision of law, the Certificate of Incorporation or these
By-Laws. Any election by stockholders shall be determined by a
plurality of the votes cast by the stockholders entitled to vote at the
election.
1.10 INTRODUCTION OF BUSINESS AT MEETING. Except as otherwise provided by
law, at any annual or special meeting of stockholders only such
business shall be conducted as shall have been properly brought before
the meeting. In order to be properly brought before the meeting, such
business must have been either (A) specified in the written notice of
the meeting (or any supplement thereto) given to stockholders of record
on the record date for such meeting by or at the direction of the Board
of Directors, (B) brought before the meeting at the direction of the
Board of Directors or the chairman of the meeting or (C) specified in a
written notice given by or on behalf of a stockholder of record on the
record date for such meeting entitled to vote thereat or a duly
authorized proxy for such stockholder, in accordance with all of the
following requirements. A notice referred to in clause (C) hereof must
be delivered personally to or mailed to and received at the principal
executive office of the corporation, addressed to the attention of the
Secretary, not more than ten (10) days after the date of the initial
notice referred to in clause (A) hereof, in the case of business to be
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brought before a special meeting of stockholders, and not less than
thirty (30) days prior to the first anniversary date of the initial
notice referred to in clause (A) hereof to the previous year's annual
meeting, in the case of business to be brought before an annual meeting
of stockholders, provided, however, that such notice shall not be
required to be given more than sixty (60) days prior to an annual
meeting of stockholders. Such notice referred to in clause (C) hereof
shall set forth (i) a full description of each such item of business
proposed to be brought before the meeting, (ii) the name and address of
the person proposing to bring such business before the meeting, (iii)
the number and class of shares held of record, held beneficially and
represented by proxy by such person as of the record date for meeting
(if such date has been made publicly available) and as of the date of
such notice, (iv) if any item of such business involves nomination for
director, all information regarding each such nominee that would be
required to be set forth in a definitive proxy statement filed with the
Securities Exchange Commission pursuant to Section 14 of the Securities
Act of 1934, as amended, or any successor thereto, and the written
consent of each such nominee to serve if elected, and (v) all other
information that would be required to be filed with the Securities and
Exchanged Commission if, with respect to the business proposed to be
brought before the meeting, the person proposing such business was a
participant in a solicitation subject to Section 14 of the Securities
Exchange Act of 1934, as amended, or any successor thereto. No business
shall be brought before any meeting of stockholders of the corporation
otherwise than as provided in this paragraph.
Notwithstanding the foregoing provisions, the Board of Directors shall
be obligated to include information as to any nominee for director in
any proxy statement or other communication sent to stockholders.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that any proposed item of business was not
brought before the meeting in accordance with the foregoing procedure
and, if he should so determine, he shall so declare to the meeting and
the defective item of business shall be disregarded.
1.11 ACTION WITHOUT MEETING. Until the closing of a firm commitment,
underwritten public offering of the corporation's Common Stock (a
"Public Offering"), any action required or permitted to be taken at any
annual or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, is 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 on such action were
present and voted. Prompt notice of the taking of corporate action
without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing. Effective upon
the closing of a Public Offering, stockholders of the corporation may
not take any action by written consent in lieu of a meeting.
Notwithstanding any other provision of law, the Certificate of
Incorporation, as amended, or these By-Laws, and notwithstanding the
fact that a lesser percentage may be specified by law, the affirmative
vote of the holders of at least seventy-five percent (75%) of the votes
which all the stockholders would be entitled to cast at any annual
election of directors or class of directors shall be required to amend
or repeal, or to adopt any provision inconsistent with, this Section
1.11.
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ARTICLE 2 - DIRECTORS
2.1 GENERAL POWERS. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise
provided by law or the Certificate of Incorporation. In the event of a
vacancy in the Board of Directors, the remaining directors, except as
otherwise provided by law, may exercise the powers of the full Board
until the vacancy is filled.
2.2 NUMBER; ELECTION AND QUALIFICATION. The number of directors which shall
constitute the whole Board of Directors shall be determined by
resolution of the stockholders or the Board of Directors, but in no
event shall be less than three. The number of directors may be
decreased at any time and from time to time by a majority of the
directors then in office, but only to eliminate vacancies existing by
reason of the death, resignation, removal or expiration of the term of
one or more directors. The directors shall be elected at the annual
meeting of stockholders by such stockholders as have the right to vote
on such election. Directors need not be stockholders of the
corporation.
2.3 CLASSES OF DIRECTORS. The Board of Directors shall be and is divided
into three classes: Class I, Class II and Class III. No one class shall
have more than one director more than any other class. If a fraction is
contained in the quotient arrived at by dividing the authorized number
of directors by three, then if such fraction is one-third, the extra
director shall be a member of Class I and, if such fraction is two
thirds, one of the extra directors shall be a member of Class I and the
other extra director shall be a member of Class II, unless otherwise
provided for from time to time by resolution adopted by a majority of
the Board of Directors.
2.4 TERMS IN OFFICE. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which
such director was elected; provided, however, that each initial
director in Class I shall serve for a term ending on the date of the
annual meeting next following the end of the corporation's fiscal year
ending December 31, 1993; each initial director in Class II shall serve
for a term ending on the date of the annual meeting next following the
end of the corporation's fiscal year ending December 31, 1992; and each
initial director in Class III shall serve for a term ending on the date
of the annual meeting next following the end of the corporation's
fiscal year ending December 31, 1991.
2.5 ALLOCATION OF DIRECTORS AMONG CLASS IN THE EVENT OF INCREASES OR
DECREASES IN THE NUMBER OF DIRECTORS. In the event of any increase or
decrease in the authorized number of directors, (i) each director then
serving as such shall nevertheless continue as director of the class of
which he is a member until the expiration of his current term or his
prior death, retirement or resignation and (ii) the newly created or
eliminated directorships resulting from such increase or decrease shall
be apportioned by the Board of Directors among the three classes of
directors so as to ensure that no one class has more than one director
more than any other class. To the extent possible, consistent with the
foregoing rule, any newly created directorships shall be added to those
classes whose terms of office are to expire at the latest dates
following such allocation, and any newly eliminated directorships shall
be subtracted from those classes whose terms of office are to expire at
the earliest dates following such allocation, unless otherwise provided
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for from time to time by resolution adopted by a majority of the
directors then in office, although less than a quorum.
2.6 TENURE. Notwithstanding any provisions to the contrary contained
herein, each director shall hold office until his successor is elected
and qualified, or until his earlier death, resignation or removal.
2.7 VACANCIES. Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy
resulting from an enlargement of the Board, may be filled by vote of a
majority of the directors then in office, although less than a quorum,
or by a sole remaining director. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office,
and a director chosen to fill a position resulting from an increase in
the number of directors shall hold office until the next annual meeting
of stockholders and until his successor is elected and qualified, or
until his earlier death, resignation or removal.
2.8 RESIGNATION. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or
upon the happening of some other event.
2.9 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without
the State of Delaware, as shall be determined from time to time by the
Board of Directors; provided that any director who is absent when such
a determination is made shall be given notice of the determination. A
regular meeting of the Board of Directors may be held without notice
immediately after and at the same place as the annual meeting of
stockholders.
2.10 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
held at any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the Board, President, two or
more directors, or by one director in the event that there is only a
single director in the office.
2.11 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to
each director (i) by giving notice to such director in person or by
telephone at least 48 hours in advance of the meeting, (ii) by sending
a telegram or telex or delivering written notice by hand, to his last
known business or home address at least 48 hours in advance of the
meeting, or (iii) by mailing written notice to his last known business
or home address at least 72 hours in advance of the meeting. A notice
or waiver of notice of a meeting of the Board of Directors need not
specify the purposes of the meeting.
2.12 MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors or any members of any
committee designated by the directors may participate in a meeting of
the Board of Directors or 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
participation by such means shall constitute presence in person at such
meeting.
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2.13 QUORUM. A majority of the total number of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors. In
the event one or more of the directors shall be disqualified to vote at
any meeting, then the required quorum shall be reduced by one for each
such director so disqualified; provided, however, that in no case shall
less than one-third (1/3) of the number so fixed constitute a quorum.
In the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time without
further notice other than announcement at the meeting, until a quorum
shall be present.
2.14 ACTION AT MEETING. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by
law, the Certificate of Incorporation or these By-Laws.
2.15 ACTION BY CONSENT. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board
Directors may be taken without a meeting, if all members of the Board
or committee, as the case may be, consent to the action in writing, and
the written consents are filed with the minutes of proceedings of the
Board or committee.
2.16 REMOVAL. Any one or more or all of the directors may be removed, with
or without cause, by the holders of at least seventy-five percent (75%)
of the shares then entitled to vote at an election of directors.
2.17 COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the whole 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 of
the committee present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to
the extent provided in the resolution of the Board of Directors and
subject to the provisions of the General Corporation Law of the State
of Delaware, 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. Each such committee shall
keep minutes and make such reports as the Board of Directors may from
time to time request. Except as the Board of Directors may otherwise
determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such
rules, its business shall be conducted as nearly as possible in the
same manner as is provided in these By-Laws for the Board of Directors.
2.18 COMPENSATION OF DIRECTORS. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at
meetings as the Board of Directors may from time to time determine. No
such payment shall preclude any director from serving the corporation
or any of its parent or subsidiary corporations in any other capacity
and receiving compensation for such service.
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2.19 AMENDMENTS TO ARTICLE. Notwithstanding any other provisions of law, the
Certificate of Incorporation or these By-Laws, and notwithstanding the
fact that a lesser percentage may be specified by law, the affirmative
vote of the holders of at least seventy-five percent (75%) of the votes
which all the stockholders would be entitled to cast at any annual
election of directors or class of directors shall be required to amend
or repeal, or to adopt any provision inconsistent with, this Article 2.
ARTICLE 3 - OFFICERS
3.1 ENUMERATION. The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such
other titles as the Board of Directors shall determine, including a
Chairman of the Board, a Vice-Chairman of the Board, and one or more
Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The
Board of Directors may appoint such other officers, as it may deem
appropriate.
3.2 ELECTION. The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following the
annual meeting of stockholders. Other officers may be appointed by the
Board of Directors at such meeting or at any other meeting.
3.3 QUALIFICATION. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4 TENURE. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office until
his successor is elected and qualified, unless a different term is
specified in the vote choosing or appointing him, or until his earlier
death, resignation or removal.
3.5 RESIGNATION AND REMOVAL. Any officer may resign by delivering his
written resignation to the corporation at its principal office or to
the President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or
upon the happening of some other event.
Any officer may be removed at any time, with or without cause, by vote
of a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer
who resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal, or any
right to damages on account of such removal, whether his compensation
be by the month or by the year or otherwise, unless such compensation
is expressly provided in a duly authorized written agreement with the
corporation.
3.6 VACANCIES. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for
such period as it may determine any offices other than those of
President, Treasurer and Secretary. Each such successor shall hold
office for the unexpired term of his predecessor and until his
successor is elected and qualified, or until his earlier death,
resignation or removal.
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3.7 CHAIRMAN OF THE BOARD AND VICE-CHAIRMAN OF THE BOARD. The Board of
Directors may appoint a Chairman of the Board and may designate the
Chairman of the Board as Chief Executive Officer. If the Board of
Directors appoints a Chairman of the Board, he shall perform such
duties and possess such powers as are assigned to him by the Board of
Directors. If the Board of Directors appoints a Vice-Chairman of the
Board, he shall, in the absence or disability of the Chairman of the
Board, perform the duties and exercise the powers of the Chairman of
the Board, and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of
Directors.
3.8 PRESIDENT. The President shall, subject to the direction of the Board
of Directors, have general charge and supervision of the business of
the corporation. Unless otherwise provided by the Board of Directors,
he shall preside at all meetings of the stockholders, if he is a
director, at all meetings of the Board of Directors. Unless the Board
of Directors has designated the Chairman of the Board or another
officer as Chief Executive Officer, the President shall be the Chief
Executive Officer of the corporation. The President shall perform such
other duties and shall have such other powers as the Board of Directors
may from time to time prescribe.
3.9 VICE PRESIDENTS. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability or
refusal to act of the President, the Vice President (or if there shall
be more than one, the Vice Presidents in the order determined by the
Board of Directors) shall perform the duties of the President and when
so performing shall have all the powers of and be subject to all the
restrictions upon the President. The Board of Directors may assign to
any Vice President, the title of Executive Vice President, Senior Vice
President or any other title selected by the Board of Directors.
3.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the
President may from time to time prescribe. In addition, the Secretary
shall perform such duties and have such powers as are incident to the
office of the secretary, including without limitation the duty and
power to give notices of all meetings of stockholders and special
meetings of the Board of Directors, to attend all meetings of
stockholders and the Board of Directors and keep a record of the
proceedings, to maintain a stock ledger and prepare lists of
stockholders and their addresses as required, to be custodian of
corporate records and the corporate seal and to affix and attest to the
same on documents.
Any Assistant Secretary shall perform such duties and possess such
powers as the Board of Directors, the President or the Secretary may
from time to time prescribe. In the event of the absence, inability or
refusal to act of the Secretary, the Assistant Secretary (or if there
shall be more than one, the Assistant Secretaries in the order
determined by the Board of Directors), shall perform the duties and
exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any
meeting of stockholders or directors, the person presiding at the
meeting shall designate a temporary secretary to keep a record of the
meeting.
3.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall perform such
duties and shall have such powers as may from time to time be assigned
to him by the Board of Directors
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or the President. In addition, the Treasurer shall perform such duties
and have such powers as are incident to the office of treasurer,
including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit
funds of the corporation in depositories selected in accordance with
these By-Laws, to disburse such funds as ordered by the Board of
Directors, to make proper accounts of such funds, and to render as
required by the Board of Directors statements of all such transactions
and of the financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such
powers as the Board of Directors, the President or the Treasurer may
from time to time prescribe. In the event of the absence, inability or
refusal to act of the Treasurer, the Assistant Treasurer (or if there
shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors), shall perform the duties and
exercise the powers of the Treasurer.
3.12 SALARIES. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed
from time to time by the Board of Directors.
ARTICLE 4 - CAPITAL STOCK
4.1 ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the
whole or any part of any unissued balance of the authorized capital
stock of the corporation or the whole or any part of any unissued
balance of the authorized capital stock of the corporation held in its
treasury may be issued, sold, transferred or otherwise disposed of by
vote of the Board of Directors in such manner, for such consideration
and on such terms as the Board of Directors may determine.
4.2 CERTIFICATES OF STOCK. Every holder of stock of the corporation shall
be entitled to have a certificate, in such form as may be prescribed by
law and by the Board of Directors, certifying the number and class of
shares owned by him in the corporation. Each such certificate shall be
signed by, or in the name of the corporation by, the Chairman or
Vice-Chairman, if any, of the Board of Directors, or the President or a
Vice President, and the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the corporation. Any or all of
the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any
restriction on transfers pursuant to the Certificate of Incorporation,
the By-Laws, applicable securities laws or any agreement among any
number of shareholders or among such holders and the corporation shall
have conspicuously noted on the face or back of the certificate either
the full text of the restriction or a statement of the existence of
such restriction.
4.3 TRANSFERS. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law,
shares of stock may be transferred on the books of the corporation by
the surrender to the corporation or its transfer agent of the
certificate representing such shares properly endorsed or accompanied
by a written assignment or power of attorney properly executed, and
with such proof of authority or the authenticity of signature as the
corporation or its transfer agent may reasonably require. Except as may
be otherwise required by law, by the Certificate of Incorporation or by
these By-Laws, the corporation shall be entitled to treat the record
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holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to vote
with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the
books of the corporation in accordance with the requirements of these
By-Laws.
4.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may issue a new
certificate of stock in place of any previously issued certificate
alleged to have been lost, stolen, or destroyed, upon such terms and
conditions as the Board of Directors may prescribe, including the
presentation of reasonable evidence of such loss, theft or destruction
and the giving of such indemnity as the Board of Directors may require
for the protection of the corporation or any transfer agent or
registrar.
4.5 RECORD DATE. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to
notice of or to vote at any meeting of stockholders or to express
consent (or dissent) to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action. Such
record date shall not be more than 60 nor less than 10 days before the
date of such meeting, nor more than 60 days prior to any other action
to which such record date relates.
If no record date is fixed, 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 before the
day on which notice is given, or, if notice is waived, at the close of
business on the day before the day on which the meeting is held. The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by
the Board of Directors is necessary, shall be the day on which the
first written consent is expressed. The record date for determining
stockholders for any other purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating
to such purpose.
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.
ARTICLE 5 - GENERAL PROVISIONS
5.1 FISCAL YEAR. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on
the first day of January in each year and end on the last day of
December in each year.
5.2 CORPORATE SEAL. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 WAIVER OF NOTICE. Whenever any notice whatsoever is required to be
given by law, by the Certificate of Incorporation or by these By-Laws,
a waiver of such notice either in writing signed by the person entitled
to such notice or such person's duly authorized attorney, or by
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telegraph, cable or any other available method, whether before, at or
after the time stated in such waiver, or the appearance of such person
or persons at such meeting in person or by proxy, shall be deemed
equivalent to such notice.
5.4 VOTING OF SECURITIES. Except as the directors may otherwise designate,
the President or Treasurer may waive notice of, and act as, or appoint
any person or persons to act as, proxy or attorney-in-fact for this
corporation (with or without power of substitution) at, any meeting of
stockholders or shareholders of any other corporation or organization,
the securities of which may be held by this corporation.
5.5 EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative
of the corporation shall as to all persons who rely on the certificate
in good faith be conclusive evidence of such action.
5.6 CERTIFICATE OF INCORPORATION. All references in these By-Laws to the
Certificate of Incorporation shall be deemed to refer to the
Certificate of Incorporation of the corporation, as amended and in
effect from time to time.
5.7 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction
between the corporation and one or more of the directors or officers,
or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of the
directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the
meeting of the Board of Directors or a committee of the Board of
Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed
or are known to the Board of Directors or the
committee, and the Board or committee in good faith
authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be
less than a quorum;
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote
thereon, and the contract or transaction is
specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved
or ratified, by the Board of Directors, a committee
of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
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5.8 SEVERABILITY. Any determination that any provision of these By-Laws is
for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
5.9 PRONOUNS. All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE 6 - AMENDMENTS
6.1 BY THE BOARD OF DIRECTORS. Except as is otherwise set forth in these
By-Laws, these By-Laws may be altered, amended or repealed or new
by-laws may be adopted by the affirmative vote of a majority of the
directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
6.2 BY THE STOCKHOLDERS. Except as otherwise set forth in these By-Laws,
these By-Laws may be altered, amended or repealed or new by-laws may be
adopted by the affirmative vote of the holders of a majority of the
shares of the capital stock of the corporation issued and outstanding
and entitled to vote at any regular meeting of stockholders, or at any
special meeting of stockholders, provided notice of such alteration,
amendment, repeal or adoption of new by-laws shall have been stated in
the notice of such special meeting.
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