BY-LAWS
OF
DIANON SYSTEMS, INC.
(A DELAWARE CORPORATION)
ARTICLE I
STOCKHOLDERS
Section 1.01 ANNUAL MEETING. The annual meeting of the stockholders,
for the purpose of electing directors and transacting such other business as may
come before it, shall be held on such date and at such time and place, either
within or without the State of Delaware, as may be specified by the Board of
Directors.
Section 1.02 SPECIAL MEETINGS. Special meetings of the stockholders may
be called only by the Chairman of the Board, the President or by the Board of
Directors. At a special meeting of the stockholders, no business shall be
transacted which is not related to the purpose or purposes stated in the notice
of meeting.
Any special meeting of the stockholders shall be held on such date and
at such time and place, either within or without the State of Delaware, as may
be specified by the person or persons calling the meeting in the notice of the
meeting.
Section 1.03 NOTICE OF MEETINGS. Written notice of each stockholders'
meeting, stating the place, date and hour of the meeting and, the purpose or
purposes thereof, shall be given to each stockholder entitled to vote at the
meeting not less than ten nor more than sixty days before the date of the
meeting. Any previously scheduled meeting of the stockholders may be canceled by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting.
Section 1.04 QUORUM; ADJOURNMENT. Except as otherwise provided in the
Restated Certificate of Incorporation or required by law, at any meeting of the
stockholders a majority of the shares entitled to vote, present in person or
represented by proxy, shall constitute a quorum.
The Chairman of the meeting or the vote of a majority of the shares so
represented may adjourn the meeting from time to time, whether or not there is
such a quorum. No notice of the time and place of adjourned meetings need be
given except as required by law.
Section 1.05 CONDUCT OF MEETINGS. The chief executive officer shall
preside at any meeting of the stockholders. In such person's absence, such other
person as shall have been designated by the chief executive officer or the Board
of Directors shall preside. The order of business at any meeting shall be as
determined by such Presiding Officer.
The presiding officer shall have the power to prescribe such rules,
regulations and procedures and to do all such things as in his judgment may be
necessary or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments, restrictions
on entry to the meeting after the time scheduled for the commencement thereof
and the opening and closing of the voting polls.
If present, the Secretary shall act as secretary of any meeting of the
stockholders. In the Secretary's absence, such other person as the presiding
officer shall designate shall act as secretary of the meeting.
It shall be the duty of the Secretary to prepare and make, at least ten
days before every meeting of the 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 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 shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 1.06 VOTING. Except as otherwise provided in Restated
Certificate of Incorporation or required by law, (i) every holder of capital
stock which is entitled to vote shall be entitled to one vote for each share of
such stock registered in the name of such stockholder, (ii) directors shall be
elected by a plurality of the votes validly cast at the meeting by the holders
of shares entitled to vote for the election of directors and (iii) any other
corporate action shall be authorized if, with respect to shares entitled to vote
on the action, the votes validly cast in favor of the action exceed the votes
validly cast in opposition to the action.
Section 1.07 RECORD DATE. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, 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 of Directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Section 1.08. NOMINATION OF DIRECTORS. Subject to the rights of holders
of any outstanding preferred stock, only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors of the
Corporation. Nominations for election of directors may be made at an annual
meeting of stockholders either by the Board of Directors or by any stockholder
who is a stockholder on the date of the giving of the notice provided for in
this Section 1.08 and on the record date for the determination of stockholders
entitled to vote at such annual meeting. An eligible stockholder may nominate
persons for election as directors at an annual meeting of stockholders only if
such stockholder has caused proper written notice with respect thereto to be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not more than 120 days nor less than 90 days prior to the date of
the annual meeting; provided, however, that in the event that less than 100
days' notice or prior public disclosure of the date of the meeting is given to
stockholders, such written notice will also be timely if so received by the
close of business on the 10th day following the first to occur of (y) the date
on which such notice of the date of the annual meeting was mailed or (z) the
date on which public disclosure of such date was made. For such notice by an
eligible stockholder to be proper, such notice shall set forth: (i) the name and
business and residential addresses of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (ii) the class or
series and number of shares of capital stock of the Corporation that are owned
beneficially or of record by such stockholder; (iii) a representation that such
stockholder intends to appear in person or by proxy as a holder of record at the
meeting to nominate the person or persons specified in the notice; (iv) a
description of all arrangements or understandings between such stockholder and
each nominee proposed by the stockholder and any other person or persons
(identifying such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (v) the principal occupation or
employment of, and the classes or series and number of shares of capital stock
of the Corporation that are owned beneficially or of record by, the person or
persons to be nominated and such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; and (vi) the consent of each nominee to serve as a director of the
Corporation if so elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 1.08. If the facts show that a nomination was not made in accordance
with the foregoing provisions, the Presiding Officer of the meeting shall so
determine and declare to the meeting, whereupon the defective nomination shall
be disregarded. Public disclosure of the date of a forthcoming meeting may be
made by the Corporation for purposes of this Section 1.08 not only by the giving
of the formal notice of the meeting but also (i) by notice to a national
securities exchange or to the National Association of Securities Dealers, Inc.
(if the Corporation's common stock is then listed on such exchange or quoted on
NASDAQ), (ii) by filing a report under Section 13 or 15(d) of the Exchange Act
(if the Corporation is then subject thereto), (iii) by a mailing to stockholders
or (iv) by general press release.
Section 1.09 BUSINESS AT ANNUAL MEETINGS. No business may be transacted
at an annual meeting of stockholders other than business that is (i) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (ii) otherwise properly brought before the
annual meeting by or at the direction of the Board of Directors or (iii)
otherwise properly brought before the annual meeting by a stockholder who (w) is
a stockholder of record on the date of the giving of the notice provided for in
this Section 1.09 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (x) complies with the notice
procedures set forth in this Section 1.09. An eligible stockholder may bring
business before an annual meeting only if such stockholder has caused proper
written notice with respect thereto to be delivered to, or mailed and received
at, the principal executive offices of the Corporation not more than 120 days
nor less than 90 days prior to the date of the annual meeting; provided,
however, that in the event that less than 100 days' notice or prior public
disclosure of the date of the meeting is given to stockholders, such written
notice will also be timely if so received by the close of business on the 10th
day following the first to occur of (y) the date on which such notice of the
date of the annual meeting was mailed or (z) the date on which public disclosure
of such date was made. For such notice by an eligible stockholder to be proper,
such notice must set forth as to each matter such stockholder proposes to bring
before the annual meeting: (1) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting; (2) the name and record address of the stockholder who intends to
propose such business; (3) the class or series and number of shares of capital
stock of the Corporation that are owned beneficially or of record by such
stockholder; (4) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of the stockholder in such business; and (5) a representation
that such stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 1.09, provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 1.09 shall be deemed to preclude
discussion by any stockholder of any such business. If the Presiding Officer of
an annual meeting determines that business was not properly brought before the
annual meeting in accordance with the foregoing procedures, the Presiding
Officer shall declare to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 1.09, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 1.09. Nothing in this Section 1.09 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01 NUMBER. Except as otherwise provided in Restated
Certificate of Incorporation, the number of directors shall be the number fixed
from time to time by the Board.
Section 2.02 ELECTION AND TERM. At each annual meeting of the
stockholders, directors shall be elected to hold office until their successors
are elected and qualified or until their earlier resignation or removal.
Section 2.03 MEETINGS OF THE BOARD. Regular meetings of the Board of
Directors shall be held at such times and places as the Board shall determine.
Special meetings of the Board shall be held whenever called by the Chairman of
the Board, the President or by a majority of the directors in office at the
time.
Section 2.04 NOTICE OF MEETINGS. No notice need be given of any regular
meeting of the Board of Directors or of any adjourned meeting of the Board. Nor
need notice be given to any director who signs a written waiver thereof or who
attends the meeting without protesting the lack of notice. Notices need not
state the purpose of the meeting.
Notice of each special meeting of the Board shall be given to each
director either by first class mail at least three days before the meeting or by
telegram, telex, cable or like transmission, telecopy, personal written delivery
or telephone at least one day before the meeting. Any notice given by telephone
shall be immediately confirmed by telegram, telex, cable or like transmission.
Notices are deemed to have been given: by mail, when deposited in the mail with
postage prepaid; by telegram, telex, cable or like transmission, at the time of
sending; and by personal delivery or telephone, at the time of delivery. Written
notices shall be sent to a director at the address designated by him for that
purpose, or, if none has been so designated, at his last known residence or
business address.
Section 2.05 QUORUM AND VOTE OF DIRECTORS. Except as otherwise provided
in the Restated Certificate of Incorporation or required by law, a majority of
the entire Board of Directors shall constitute a quorum for the transaction of
business or of any specified item of business and the vote of a majority of the
directors present at a meeting at the time of such vote, if a quorum is then
present, shall be the act of the Board.
Section 2.06 CONDUCT OF MEETINGS. The Chairman of the Board or the
President, if any, shall preside at any meeting of the Board of Directors. In
the absence of the Chairman of the Board or the President, a chairman of the
meeting shall be elected from the directors present. If present, the Secretary
shall act as secretary of any meeting of the Board. In the absence of the
Secretary, the chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 2.07 RESIGNATIONS OF DIRECTORS. Any director of the Corporation
may resign at any time by giving written notice to the Board of Directors or to
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein or, if such time is not specified therein, then upon receipt
thereof; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Section 2.08 REMOVAL OF
DIRECTORS. Any director or the entire Board of Directors may be removed, with or
without cause, at any time by the affirmative vote of the holders of a majority
of the shares then entitled to vote at an election of directors.
Section 2.09. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as
otherwise provided in the Restated Certificate of Incorporation or by law, newly
created directorships resulting from an increase in the number of directors and
vacancies occurring in the Board of Directors for any reason, including the
removal of directors with or without cause, may be filled by the affirmative
vote of a majority of the directors then in office, although less than a quorum
exists, or by a sole remaining director.
Section 2.10 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 thereof present at any meeting and not disqualified from
voting, whether or not constituting 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 but subject to the limitation of Section 141(c) of the Delaware General
Corporation Law, shall have and may exercise all the powers and authority of the
Board 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.
The provisions of Section 2.04 for notice of meetings of the Board
shall apply also to meetings of committees, unless different notice procedures
shall be prescribed by the Board.
Each such committee shall serve at the pleasure of the Board. It shall
keep minutes of its meetings and report the same to the Board and shall observe
such other procedures as are prescribed by the Board.
Section 2.11 COMPENSATION OF DIRECTORS. Each director shall be entitled
to receive as compensation for his services as director or committee member or
for attendance at meetings of the Board of Directors or committees, or both,
such amounts (if any) as shall be fixed from time to time by the Board. Each
director shall be entitled to reimbursement for reasonable traveling expenses
incurred by him in attending any such meeting. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 2.12 TELEPHONIC MEETINGS. Any one or more members of the Board
of Directors or any committee thereof may participate in a meeting of such Board
or 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 in a meeting by such means shall constitute
presence in person at such meeting.
Section 2.13 ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
the committee consent thereto in writing and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
Section 3.01 OFFICERS. The officers of the Corporation shall include a
Chairman of the Board, a President, a Treasurer and a Secretary and may also
include a Vice Chairman of the Board, one or more Vice Presidents (who may be
further classified by such descriptions as "executive," "senior" or "group" as
determined by the Board of Directors), a Controller, Assistant Vice Presidents,
Assistant Treasurers, Assistant Secretaries, Assistant Controllers and other
officers and agents, as the Board of Directors may deem necessary or desirable.
Each officer shall have such authority and perform such duties, in
addition to those specified in these By-Laws, as may be prescribed by the Board
from time to time. The Board may from time to time authorize any officer to
appoint and remove any other officer or agent and to prescribe such person's
authority and duties. Any person may hold at one time two or more offices.
Section 3.02. TERM OF OFFICE, RESIGNATION AND REMOVAL. Each officer
shall hold office for the term for which elected or appointed by the Board of
Directors, and until the person's successor has been elected or appointed and
qualified or until his earlier resignation or removal.
Any officer may resign at any time by giving written notice to the
Board or to the Secretary of the Corporation. Such resignation shall take effect
at the time specified therein or, if such time is not specified therein, then
upon receipt thereof; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Any officer may be removed by the Board, with or without cause. The
election or appointment of an officer shall not of itself create contract
rights.
Section 3.03 CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
a member of the Board of Directors. The Chairman of the Board shall preside at
all meetings of the stockholders and the Board of Directors and, if so
designated by the Board, shall be the chief executive officer of the
Corporation.
Section 3.04 PRESIDENT. Unless there shall be a Chairman of the Board
designated by the Board of Directors as the chief executive officer of the
Corporation, the President shall be the chief executive officer of the
Corporation. Subject to the control of the Board of Directors and the Chairman
of the Board (if designated chief executive officer), the President shall be
responsible for the day-to-day management of the business and affairs of the
Corporation and shall enjoy all other powers commonly incident to the office.
Section 3.05 VICE PRESIDENTS. Each of the Vice Presidents shall have
such authority and perform such duties as may be prescribed from time to time.
Section 3.06 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall
have the care and custody of all funds and securities of the Corporation, keep
accounts of receipts and disbursements and of deposit or custody of moneys and
other valuables and enjoy all powers commonly incident to the office.
In the case of the absence or inability to act of the Treasurer, any
Assistant Treasurer may act in the Treasurer's place.
Section 3.07 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall
keep the minutes of the meetings of the stockholders and the Board of Directors
and give notice of such meetings, have custody of the corporate seal and affix
and attest such seal to any instrument to be executed under seal and enjoy all
powers commonly incident to the office.
In the case of the absence or inability to act of the Secretary, any
Assistant Secretary may act in the Secretary's place.
Section 3.08 CONTROLLER AND ASSISTANT CONTROLLERS. The Controller shall
have control of all books of account of the Corporation (other than those to be
kept by the Treasurer), render accounts of the financial condition of the
Corporation and enjoy all powers commonly incident to the office.
In the absence or inability to act of the Controller, any Assistant
Controller may act in the Controller's place.
Section 3.09 COMPENSATION. Compensation of officers, agents and
employees of the Corporation shall be fixed from time to time by, or under the
authority of, the Board of Directors.
ARTICLE IV
CAPITAL STOCK
Section 4.01 FORM OF CERTIFICATES. Unless otherwise provided by
resolution of the Board of Directors, the shares of stock of the Corporation
shall be represented by certificates which shall be in such form as is
prescribed by law and approved by the Board.
Section 4.02 TRANSFER OF SHARES. Transfers of shares of stock of the
Corporation shall be registered on its records maintained for such purpose (i)
upon surrender to the Corporation or a transfer agent of a certificate or
certificates representing the shares requested to be transferred, with proper
endorsement on the certificate or certificates or on a separate accompanying
document, together with such evidence of the payment of transfer taxes and
compliance with other provisions of law as the Corporation or its transfer agent
may require or (ii) if shares are not represented by certificates, upon
compliance with such transfer procedures as may be approved by the Board or
prescribed by applicable law.
The Corporation shall be entitled to treat the holder of record of any
share as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person whether or not it shall have express or other notice
thereof, except as expressly provided by law.
Section 4.03 REGULATIONS. The Board of Directors shall have authority
to make such rules and regulations as it may deem expedient concerning the
issue, transfer and registration of shares of stock of the Corporation,
including without limitation such rules and regulations as may be deemed
expedient concerning the issue of certificates in lieu of certificates claimed
to have been lost, destroyed, stolen or mutilated.
ARTICLE V
GENERAL PROVISIONS
Section 5.01 CORPORATE SEAL. The Board of Directors may adopt a
corporate seal, alter such seal at its pleasure, and authorize it to be used by
causing it or a facsimile to be affixed or impressed or reproduced in any other
manner.
Section 5.02 VOTING UPON STOCKS. Unless otherwise ordered by the Board
of Directors, the chief executive officer of the Corporation, or any other
officer of the Corporation designated by the chief executive officer of the
Corporation, shall have full power and authority on behalf of the Corporation to
attend and to act and to vote in person or by proxy at any meeting of the
holders of securities of any corporation in which the Corporation may own or
hold stock or other securities, and at any such meeting shall possess and may
exercise in person or by proxy any and all rights, powers and privileges
incident to the ownership of such stock or other securities which the
Corporation, as the owner or holder thereof, might have possessed and exercised
if present. The chief executive officer of the Corporation, or any other officer
of the Corporation designated by the chief executive officer of the Corporation,
may also execute and deliver on behalf of the Corporation powers of attorney,
consents, proxies, waivers of notice and other instruments relating to the
stocks or securities owned or held by the Corporation. The Board of Directors
may, from time to time, by resolution confer like powers upon any other person
or persons.
Section 5.03 AMENDMENTS. These By-Laws and any amendments hereof may be
altered, amended, or repealed, and new By-Laws may be adopted, as provided in
the Restated Certificate of Incorporation.