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EXHIBIT 3.2
BIOLASE TECHNOLOGY, INC.
(a Delaware corporation)
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
Section 1.1. Registered Office.
The registered office of BioLase Technology, Inc. (the
"Corporation") in the State of Delaware shall be located at the principal place
of business in that state of the corporation or individual acting as the
Corporation's registered agent in the State of Delaware.
Section 1.2. Principal Executive Office.
The principal executive office of the Corporation for the
transaction of the business of the Corporation shall be at such place as may be
established by the Board of Directors (the "Board"). The Board is granted full
power and authority to change said principal executive office from one location
to another.
Section 1.3. Other Offices.
The Corporation may have other offices, either within or without
the State of Delaware, at such place or places as the Board from time to time
may designate or the business of the Corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 2.1. Date, Time and Place.
Meetings of stockholders of the Corporation shall be held on such
date and at such time and place, either within or without the State of Delaware,
as shall be designated by the Board and stated in the written notice of the
meeting or in a duly executed written waiver of notice of the meeting.
Section 2.2. Annual Meetings.
Annual meetings of stockholders for the election of directors to
the Board and for the transaction of such other business as may be stated in the
written notice of the meeting or as may properly come before the meeting shall
be held on such date and at such time and place, either within or without the
State of Delaware, as shall be designated by the Board and stated in the written
notice of the meeting or in a duly executed written waiver of notice of the
meeting.
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Section 2.3. Special Meetings.
Special meetings of stockholders for any purpose or purposes,
unless otherwise prescribed by the General Corporation Law of the State of
Delaware, the Certificate of Incorporation or these Bylaws, may be called by the
Board, the Chairman, the Chief Executive Officer ("CEO") or the President.
Special meetings of stockholders shall be called by the Board or the Secretary
at the written request of stockholders holding a majority of the aggregate
number of shares of the capital stock of the Corporation issued and outstanding
and entitled to vote at such meeting. Such written request shall state the
purpose or purposes for which the special meeting is called. The place, date and
time of a special meeting shall be fixed by the Board or the officer calling the
meeting and shall be stated in the written notice of such meeting, which notice
shall state the purpose or purposes for which the meeting is called. Business
transacted at a special meeting shall be confined to the purpose or purposes
stated in the written notice of meeting and matters germane thereto.
Section 2.4. Notice of Meetings.
Written notice of the place, date and time of, and the general
nature of the business to be transacted at a meeting of stockholders shall be
given to each stockholder of record entitled to vote at such meeting, in the
manner prescribed by Section 6.1 of these Bylaws, not less than ten (10) nor
more than sixty (60) days prior to the date of the meeting.
Section 2.5. Stockholder List.
The Secretary or other officer in charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) days prior to a
meeting of stockholders, a complete list of stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares of stock of the Corporation registered in
the name of each stockholder. Such list shall be open to examination by 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, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list also shall be produced and kept at the
place and time of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 2.6. Voting Rights.
In order that the Corporation may determine the stockholders
entitled to notice of, and to vote at, a meeting of stockholders or at any
adjournment(s) thereof or to express consent or dissent to corporate action in
writing without a meeting, the Board may fix a record date in the manner
prescribed by Section 9.1 of these Bylaws. Each stockholder entitled to vote at
a meeting of stockholders or to express consent or dissent to corporate action
in writing without a meeting may authorize another person or persons to act for
such stockholder by proxy in the manner prescribed by Section 2.7 of these
Bylaws. Except as specifically provided otherwise by the General Corporation Law
of the State of Delaware, the Certificate of Incorporation, or these Bylaws,
each holder of capital stock entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting
shall be entitled to one vote for each share of such stock registered in such
stockholder's name on the books and records of the Corporation as of the record
date.
Section 2.7. Proxies.
Each proxy shall be in writing and shall be executed by the
stockholder giving the proxy or by such stockholder's duly authorized attorney.
No proxy shall be voted or acted upon after three (3) years from its date,
unless the proxy expressly provides for a longer period.
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Unless and until voted, every proxy shall be revocable at the pleasure of the
person who executed it or of his or her legal representative or assigns, except
in those cases where an irrevocable proxy permitted by the General Corporation
Law of the State of Delaware shall have been given.
Section 2.8. Quorum and Adjournment(s) of Meetings.
Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, or
these Bylaws, a majority of the aggregate number of shares of each class of
capital stock issued and outstanding and entitled to vote, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at a meeting of stockholders. If such majority shall not be present in person or
represented by proxy at a meeting of stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time until holders of the requisite number of
shares of stock entitled to vote at the meeting shall be present in person or
represented by proxy. When a meeting of stockholders is adjourned to another
place, date or time, notice need not be given of the adjourned meeting if the
place, date, and time of such adjourned meeting are announced at the meeting at
which the adjournment is taken. At any such adjourned meeting at which a quorum
shall be present in person or represented by proxy, stockholders may transact
any business that might have been transacted at the meeting as originally
noticed, but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment(s) thereof. If
the adjournment is for more than thirty (30) days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 2.9. Required Vote.
Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, or
these Bylaws, the affirmative vote of a majority of the shares of each class of
capital stock present in person or represented by proxy at a meeting of
stockholders at which a quorum is present and entitled to vote on the subject
matter (including, but not limited to, the election of directors to the Board)
shall be the act of the stockholders with respect to the matter voted upon.
Section 2.10. Action Without Meeting.
Notwithstanding contrary provisions of these Bylaws covering
notices and meetings, any action required or permitted to be taken at an annual
or special meeting of stockholders may be taken by stockholders without a
meeting, without prior notice, and without a vote if a consent in writing,
setting forth the action so taken, shall be signed by the holders of shares of
capital stock issued and outstanding and entitled to vote on the subject matter
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting of stockholders at which all such
shares of stock entitled to vote thereon were present and voted. Prompt notice
of the taking of corporate or other action by stockholders without a meeting by
less than unanimous written consent of stockholders shall be given to those
stockholders who have not consented in writing.
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ARTICLE III
DIRECTORS
Section 3.1. Board of Directors.
The business and affairs of the Corporation shall be managed by,
or under the direction of, a Board of Directors. The Board may exercise all such
powers of the Corporation and do all such lawful acts and things on its behalf
as are not by the General Corporate Law of the State of Delaware, the
Certificate of Incorporation or these Bylaws directed or required to be
exercised or done by stockholders.
Section 3.2. Number.
The number of directors which shall constitute the whole Board
shall be fixed from time to time by the resolution of the Board. In no event
shall the total number of directors which shall constitute the whole Board be
fixed by the Board at less than three (3) or more than five (5). With the
exception of the initial Board which shall be elected by the incorporator of the
Corporation, and except as provided otherwise in these Bylaws, directors shall
be elected at the annual meeting of stockholders. Each director shall hold
office until the annual meeting of stockholders next succeeding his or her
election or appointment and until his or her successor is elected and qualified
or until his or her earlier resignation or removal.
Section 3.3. Resignation and Removal.
Any director or member of a committee of the Board may resign at
any time upon written notice to the Board, the Chairman of the Board, the CEO or
the President. Unless specified otherwise in the notice, such resignation shall
take effect upon receipt of the notice by the Board, the Chairman of the Board,
the CEO or the President. The acceptance of a resignation shall not be necessary
to make it effective. Any director may be removed, either with or without cause,
as provided by the General Corporation Law of the State of Delaware.
Section 3.4. Vacancies and Newly Created Directorships.
Vacancies occurring for any reason and newly-created
directorships resulting from an increase in the authorized number of directors
which shall constitute the whole Board, as fixed pursuant to Section 3.2 of
these Bylaws, shall be filled by the election of a new director or directors by
a majority of the remaining members of the Board of Directors, although such
majority is less than a quorum, or by a plurality of votes cast at a special
meeting of stockholders called for such purpose, Any director so chosen shall
hold office until the annual meeting of stockholders next succeeding his or her
election or appointment and until his or her successor shall be elected and
qualified, or until his or her earlier resignation or removal.
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
Section 4.1. Date, Time and Place.
Meetings of the Board shall be held on such date and at such time
and place, either within or without the State of Delaware, as shall be
determined by the Board pursuant to these Bylaws.
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Section 4.2. Annual Meetings.
After the annual meeting of stockholders, the newly-elected Board
may hold a meeting, on such date and at such time and place as shall be
determined by the Board, for the purpose of organization, election of officers
and such other business that may properly come before the meeting. Such meeting
may be held without notice.
Section 4.3. Regular Meetings.
Regular meetings of the Board may be held without notice on such
date and at such time and place as shall be determined from time to time by the
Board.
Section 4.4. Special Meetings.
Special meetings of the Board may be held at any time upon the
call of the Chairman of the Board, the CEO, the President or the Secretary by
means of oral, telephonic, written, facsimile or other similar notice, duly
given, delivered, sent or mailed to each director at least 48 hours prior to the
special meeting, in the manner prescribed by Section 6.1 of these Bylaws.
Special meetings of the Board may be held at any time without notice if all of
the directors are present or if those directors not present waive notice of the
meeting in writing either before or after the date of the meeting.
Section 4.5. Quorum.
A majority of the whole Board as fixed pursuant to Section 3.2 of
these Bylaws shall constitute a quorum for the transaction of business at a
meeting of the Board. If a quorum shall not be present at a meeting of the
Board, the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present.
Section 4.6. Required Vote.
Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware or the Certificate of Incorporation,
the affirmative vote of a majority of the directors present at a meeting of the
Board at which a quorum is present shall be the act of the Board with respect to
the matter voted upon.
Section 4.7. Action Without Meeting.
Any action required or permitted to be taken at a meeting of the
Board, or committee thereof, may be taken by directors without a meeting if all
of the members of the Board, or committee thereof, consent thereto in writing
and such writing is filed with the minutes of proceedings of the Board, or
committee thereof.
Section 4.8. Telephone Meetings.
Members of the Board, or any committee thereof, may participate
in a meeting of the Board, or committee thereof, by means of conference
telephone or similar communications equipment by means of which all of the
members participating in the meeting can hear each other. Participation by
members of the Board, or committee thereof, by such means shall constitute
presence in person of such members at such meeting.
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ARTICLE V
COMMITTEES OF THE BOARD OF DIRECTORS
Section 5.1. Designation and Powers.
The Board may designate one or more committees from time to time
in its discretion, by resolution passed by the affirmative vote of a majority of
the whole Board as fixed pursuant to Section 3.2 of these Bylaws. Each committee
shall consist of one or more of the directors on the Board. The Board may
designate one or more directors as alternate members of any committee who may
replace any absent or disqualified member at any meeting of the committee. 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 such member or members 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. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all of the powers and
authority of the Board in the management of the business and affairs of the
Corporation and may authorize the corporate seal of the Corporation affixed to
all papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation or these
Bylaws, adopting an agreement of merger or consolidation, recommending to
stockholders the sale, lease, or exchange of all or substantially all of the
Corporation's assets, or recommending to stockholders a dissolution of the
Corporation or a revocation of a dissolution; and, unless the resolution of the
Board expressly so provides, no such committee shall have the power or authority
to declare a dividend or to authorize the issuance of stock of the Corporation
or any class or series of stock. Each committee shall keep regular minutes of
its meetings and shall report the same to the Board when requested to do so.
ARTICLE VI
NOTICES
Section 6.1. Delivery of Notice.
Notices to stockholders and, except as permitted below, to
directors on the Board shall be in writing and may be delivered by mail or by
messenger. Notice by mail shall be deemed to be given at the time when such
notice is deposited in a United States post office or letter box, enclosed in a
postage-paid sealed wrapper, and addressed to a stockholder or director at his
respective address appearing on the books and records of the Corporation, unless
such stockholder or director shall have filed with the Secretary a written
request that notices intended for such stockholder or director be mailed or
delivered to some other address, in which case the notice shall be mailed to or
delivered at the address designated in such request. Notice by messenger shall
be deemed to be given when such notice is delivered to the address of a
stockholder or director as specified above. Notices to directors also may be
given orally in person or by telephone (promptly confirmed in writing), or by
telex, overnight courier or facsimile transmission or other similar means, or by
leaving the notice at the residence or usual place of business of a director.
Notice by oral communication (promptly confirmed in writing), telex, overnight
courier or facsimile transmission or other similar means shall be deemed to be
given upon dispatch of such notice. Notice by messenger shall be deemed to be
given when such notice is delivered to a director's residence or usual place of
business. Notices, requests, and other communications required or permitted to
be given or communicated to the Corporation by the Certificate of Incorporation,
these Bylaws, or any other agreement shall be in writing and may be delivered by
messenger, United States mail, telex, overnight courier or facsimile
transmission or other similar means. Notice to the Corporation shall be deemed
to be given upon actual receipt of such notice by the Corporation.
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Section 6.2. Waiver of Notice.
Whenever notice is required to be given by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, or
these Bylaws, a written waiver of notice signed by the person entitled thereto,
whether before or after the time stated in the notice, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of stockholders, Board, or committee of the Board
need be specified in any written waiver of notice.
ARTICLE VII
OFFICERS
Section 7.1. Officers.
At its annual meeting, or at such other meeting as it may
determine, or by unanimous written consent of the directors without meeting, the
Board shall elect such officers as the Board from time to time may designate or
the business of the Corporation may require. The Chairman of the Board shall be
selected from among the directors on the Board, but no other executive officer
need be a member of the Board. Any number of offices may be held by the same
person.
Section 7.2. Other Officers and Agents.
The Board also may elect such other officers and agents as the
Board from time to time may determine to be advisable. Such officers and agents
shall serve for such terms, exercise such powers, and perform such duties as
shall be specified from time to time by the Board.
Section 7.3. Tenure, Resignation, Removal and Vacancies.
Each officer of the Corporation shall hold his or her office
until his or her successor is elected and qualified, or until his or her earlier
resignation or removal; provided, that if the term of office of any officer
elected pursuant to Section 7.2 of these Bylaws shall have been fixed by the
Bylaws or determined by the Board or other governing body, such person shall
cease to hold office no later than the date of expiration of such term,
regardless of whether any other person shall have been elected or appointed to
succeed such person. 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. Any officer elected by the Board may be removed at any time, with or
without cause, by the Board; provided, that any such removal shall be without
prejudice to the rights, if any, of the officer so employed under any employment
contract or other agreement with the Corporation. Any officer may resign at any
time upon written notice to the Board, the Chairman of the Board, the CEO or the
President. Unless specified otherwise in the notice, such resignation shall take
effect upon receipt of the notice by the Board, the Chairman of the Board, the
CEO or the President. The acceptance of the resignation shall not be necessary
to make it effective. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise shall be filled by the Board and such
successor or successors shall hold office for such term as may be specified by
the Board.
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Section 7.4. Authority and Duties.
All officers and agents, as between themselves and the
Corporation, shall have such authority and perform such duties in the management
of the Corporation as may be provided in these Bylaws and as generally pertain
or are necessarily incidental to the particular office or agency. In addition to
the powers and duties hereinafter specifically prescribed for certain officers
of the Corporation, the Board from time to time may impose or confer upon any of
the officers such additional duties and powers as the Board may see fit, and the
Board from time to time may impose or confer any or all of the duties and powers
hereinafter specifically prescribed for any officer upon any other officer or
officers. The Board may give general authority to any officer to affix the
corporate seal of the Corporation and to attest the affixing by his or her
signature.
Section 7.5. The Chairman of the Board.
The Chairman of the Board shall act as chairman at all meetings
of the stockholders at which he or she is present and shall preside at all
meetings of the Board of Directors at which he or she is present. In the event
of disability or absence of the Chairman of the Board, these duties shall be
performed by the Vice Chairman or a director selected by the Board. The Chairman
of the Board shall provide general leadership in matters of policy and long-term
programs, and shall have the right to delegate authority to the other officers
of the Corporation. Except when by law the signature of the CEO or President is
required, the Chairman of the Board shall possess the same power as the CEO and
the President to sign all certificates, contracts and other instruments of the
Corporation which may be authorized by the Board of Directors.
Section 7.6. The Chief Executive Officer.
The Chief Executive Officer ("CEO"), subject to the control of
the Board of Directors, shall have general and active supervision of the
business and affairs of the Corporation, shall sign certificates, contracts and
other instruments of the Corporation as authorized, and shall perform all such
other duties as are properly required of him or her by the Board of Directors or
by the Chairman of the Board. The CEO shall have the right to delegate authority
to the other officers of the Corporation.
Section 7.7. The President.
The President, subject to the control of the Board of Directors
and the CEO, shall perform such duties as are properly required of him or her by
the Board of Directors, and shall sign such certificates, contracts and other
instruments of the Corporation as are authorized specifically or generally by
the Board of Directors or the CEO. The President shall have the right to
delegate authority to the other officers of the Corporation.
Section 7.8. The Vice President(s).
The several Vice Presidents shall perform the
duties and have the powers as may, from time to time, be assigned to them by the
Board of Directors, the Chairman of the Board, the CEO or the President.
Section 7.9. The Treasurer.
The Treasurer shall have the care and custody of all the funds of
the Corporation and shall deposit the same in such banks or other depositories
as the Board of Directors, or any officer or officers thereunder duly authorized
by the Board of Directors, shall, from time to time,
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direct or approve. He or she shall keep a full and accurate account of all
monies received and paid on account of the Corporation, and shall render a
statement of his accounts whenever the Board of Directors shall require. He or
she shall perform all other necessary acts and duties in connection with the
administration of the financial affairs of the Corporation, and shall generally
perform all the duties usually appertaining to the affairs of the treasurer of a
corporation. When required by the Board of Directors, he or she shall give bonds
for the faithful discharge of his or her duties in such sums and with such
sureties as the Board of Directors shall approve. In the absence or disability
of the Treasurer, the person designated by the CEO or the President shall
perform his or her duties.
Section 7.10. The Secretary.
The Secretary shall attend to the giving of notice of all
meetings of stockholders and of the Board of Directors and committees thereof,
and shall keep minutes of all proceedings at meetings of the stockholders, of
the Board of Directors and of all meetings of such other committees of the Board
of Directors as shall designate him or her to so serve. The Secretary shall have
charge of the corporate seal and shall have authority to attest any and all
instruments or writings to which the same may be affixed. He or she shall keep
and account for all books, documents, papers and records of the Corporation,
except those for which some other officer or agent is properly accountable. He
or she shall generally perform all the duties usually appertaining to the office
of secretary of a corporation. In the absence or disability of the Secretary,
the person designated by the CEO or the President shall perform his or her
duties.
Section 7.11. The Assistant Secretary(ies).
The Assistant Secretary, if any be so appointed by the Board, or
if there be more than one, the Assistant Secretaries, shall perform such duties
as may be specifically assigned to them from time to time by the Board, the CEO
or the President. In case of the absence or disability of the Secretary, and if
the Board, the CEO or the President has so authorized, the Assistant Secretary,
or if there be more than one Assistant Secretary, such Assistant Secretary as
the Board, the CEO or the President shall designate, shall perform the duties of
the office of the Secretary.
ARTICLE VIII
CERTIFICATES OF STOCK
Section 8.1. Form and Signature.
The stock certificates representing the stock of the Corporation
shall be in such form or forms not inconsistent with the General Corporation Law
of the State of Delaware, the Certificate of Incorporation and these Bylaws as
the Board shall approve from time to time. Stock certificates shall be numbered,
the certificates for the shares of stock to be numbered consecutively, and shall
be entered in the books and records of the Corporation as such certificates are
issued. No certificate shall be issued for any share until the consideration
therefor has been fully paid. Stock certificates shall exhibit the holder's
name, certify the class and series of stock and the number of shares in such
class and series of stock owned by the holder, and shall be signed (a) by the
Chairman of the Board, or any Vice Chairman of the Board, or the CEO, or the
President, or a Vice President, and (b) by the Treasurer, or any Assistant
Treasurer, or the Secretary, or any Assistant Secretary. Any or all of the
signatures on a stock certificate may be facsimiles. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed on a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, such certificate may be
issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or
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registrar on the date of issuance.
Section 8.2. Lost, Stolen or Destroyed Certificates.
The Board may direct that a new stock certificate be issued in
place of any certificate theretofore issued by the Corporation which is alleged
to have been lost, stolen, or destroyed, upon the making of an affidavit of that
fact by the person, or his or her legal representative, claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issuance of a
new certificate, the Board, in its discretion and as a condition precedent to
the issuance thereof, may require the owner of the lost, stolen or destroyed
certificate, or his or her legal representative, to advertise the same in such
manner as the Board shall require and/or to give the Corporation a bond in such
sum as the Board shall direct as indemnity against any claim that may be made
against the Corporation, any transfer agent or any registrar on account of the
alleged loss, theft, or destruction of any such certificate or the issuance of
such new certificate.
Section 8.3. Registration of Transfer.
Shares of common stock of the Corporation shall be transferable
only upon the Corporation's books by the holders thereof in person or by their
duly authorized attorneys or legal representatives, and upon such transfer the
old certificates shall be surrendered to the Corporation by the delivery thereof
to the person in charge of the stock and transfer books and ledgers of the
Corporation, or to such other person as the Board may designate. Upon surrender
to the Corporation of a certificate for shares, duly endorsed or accompanied by
proper evidence of succession, assignment, or authority to transfer, the
Corporation shall issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction on its books and records.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1. Record Date.
In order that the Corporation may determine the stock holders
entitled to notice of, and to vote at, a meeting of stockholders, or to express
consent or dissent to corporate action in writing without meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion,
or exchange of stock, or for the purpose of any other lawful action, the Board
may fix, in advance, a record date which shall not be more than sixty (60) nor
less than ten (10) days prior to the date of such meeting nor more than sixty
(60) days prior to any other action. A determination of stockholders of record
entitled to notice of, and to vote at, a meeting of stockholders shall apply to
any adjournment(s) of such meeting; provided, however, that the Board may, in
its discretion, and shall if otherwise required by these Bylaws fix a new record
date for the adjourned meeting.
Section 9.2. Registered Stockholders.
Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the Corporation shall be entitled to
recognize the exclusive right of a person registered on its books and records as
the owner of shares of stock of the Corporation to receive dividends and to vote
as such owner, shall be entitled to hold such person liable for calls and
assessments, and shall not be bound to recognize any equitable or other claim
to, or interest in, such stock on the part of any other person, whether or not
the Corporation shall have
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express or other notice thereof.
Section 9.3. Dividends.
The Board shall declare and pay dividends ratably, share for
share, on the Corporation's capital stock in all sums so declared, out of funds
legally available therefor.
Section 9.4. Dividend Declarations.
Dividends on the capital stock of the Corporation may be declared
quarterly, semiannually or annually as the Board may from time to time, in its
discretion, determine.
Section 9.5. Checks and Notes.
All checks and drafts on the bank accounts of the Corporation,
all bills of exchange and promissory notes of the Corporation, and all
acceptances, obligations, and other instruments for the payment of money drawn,
signed, or accepted by the Corporation shall be signed or accepted, as the case
may be, by such officer or officers, agent or agents, and in such manner as
shall be thereunto authorized from time to time by the Board or by officers of
the Corporation designated by the Board to make such authorization.
Section 9.6. Fiscal Year.
The fiscal year of the Corporation shall commence on January 1
and end on December 31 of each year, unless otherwise fixed by resolution of the
Board.
Section 9.7. Corporate Seal.
The corporate seal shall be circular in form and shall have
inscribed thereon the name of the Corporation, the year of its organization, and
the words "Corporate Seal" and "Delaware." The seal may be used by causing it or
a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.8. Voting of Securities of Other Issuers.
In the event that the Corporation shall own and/or have power to
vote any securities (including, but not limited to, shares of stock) of any
other issuer, such securities shall be voted by the Chairman of the Board or by
such other person or persons, to such extent, and in such manner as may be
determined by the Board. If the Corporation shall be a general partner in any
partnership, the acts of the Corporation in such capacity may be approved by the
Board and taken by the officers as may be authorized or determined by the Board
from time to time.
Section 9.9. Transfer Agents.
The Board may make such rules and regulations as it may deem
expedient concerning the issuance, transfer and registration of securities
(including, but not limited to, stock) of the Corporation. The Board may appoint
one or more transfer agents and/or one or more registrars and may require all
stock certificates and other certificates evidencing securities of the
Corporation to bear the signature of either or both.
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Section 9.10. Books and Records.
Except as specifically provided otherwise by the General
Corporation Law of the State of Delaware, the books and records of the
Corporation may be kept at such place or places, either within or without the
State of Delaware, as may be designated by the Board.
ARTICLE X
INDEMNIFICATION
Section 10.1. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer,
employee or agent of the Corporation is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended, against all costs, charges,
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith as so
incurred or suffered and such indemnification shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators. The right to
indemnification conferred in this Section 10.1 shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section 10.1 or
otherwise.
(b) Right of Claimant to Bring Suit. If a claim under paragraph
(a) of this Section 10.1 is not paid in full by the Corporation within thirty
days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expenses of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the General Corporation Law of the State
of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is
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proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware, nor
an actual determination by the Corporation (including its Board, independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section 10.1 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
(e) Witness. To the extent that any director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise is by reason of such position a witness in any action,
suit or proceeding, he or she shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her on his or her behalf in
connection therewith.
ARTICLE XI
AMENDMENTS TO THESE BYLAWS
Section 11.1. By the Stockholders.
These Bylaws may be amended or repealed in whole or in part and
new Bylaws may be adopted by the affirmative vote of a majority of the aggregate
number of shares of each class of the capital stock issued and outstanding and
entitled to vote on the subject matter, present in person or represented by
proxy at a meeting of stockholders provided that notice thereof is stated in the
written notice of the meeting.
Section 11.2. By the Board of Directors.
These Bylaws may be amended or repealed in whole or in part and
new Bylaws may be adopted by a majority of the Board as provided by Section
109(a) of the General Corporation Law of the State of Delaware and the
Certificate of Incorporation.
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CERTIFICATE OF SECRETARY
OF
BIOLASE TECHNOLOGY, INC.
(a Delaware corporation)
I hereby certify that I am the duly elected and acting Secretary
of said corporation and that the foregoing Bylaws, comprising 13 pages,
constitute the Bylaws of said corporation as duly adopted by the unanimous
written consent of the Board of Directors, dated March 24, 1995.
/s/ Stephen R. Tartamella
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Stephen R. Tartamella, Secretary