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EXHIBIT 3.3
CIDRA CORPORATION
(A Delaware Corporation)
BY-LAWS
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ARTICLE I
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STOCKHOLDERS
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1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice-Chairman of the Board of Directors,
if any, or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation certifying the number of shares owned by the holder in the
corporation. Any and all signatures on any such certificate may be facsimiles.
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen, or
destroyed, and the Board of Directors may require the owner of any lost, stolen,
or destroyed certificate, or such owner's legal representative, to give the
corporation a bond sufficient to indemnify the corporation against any claim
that may be made against it on account of the alleged loss, theft, or
destruction of any such certificate or the issuance of any such new certificate.
2. STOCK TRANSFERS. Upon compliance with the provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
3. RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or the 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 days nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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 next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; the record date for determining stockholders entitled
to express consent to corporate action in writing
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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; and 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 thereto. A determination of stockholders of record entitled to notice
of or to vote at any 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.
4. STOCKHOLDER MEETINGS.
a. TIME. The annual meeting shall be held on the date and at the time
fixed, from time to time, by the directors, provided, that the first annual
meeting shall be held on a date within thirteen months after the organization of
the corporation, and each successive annual meeting shall be held on a date
within thirteen months after the date of the preceding annual meeting. A
special meeting shall be held on the date and at the time fixed by the
directors.
b. PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of Delaware, as the Board of Directors may,
from time to time, fix.
c. CALL. Annual meetings and special meetings may be called by the Board
of Directors or by any officer instructed by the Board of Director to call the
meeting.
d. NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date, and hour of the meeting and stating the place at
which the list of stockholders of the corporation may be examined. The notice
of an annual meeting shall state that the meeting is called for the election of
directors and for the transaction of other business which may properly come
before the meeting, and shall, (if any other action which could be taken at a
special meeting is to be taken at such annual meeting) state the purpose or
purposes. The notice of a special meeting shall in all instances state the
purpose or purposes for which the meeting is called. Except as otherwise
provided by the Delaware General Corporation Law, a copy of the notice of any
meeting shall be given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed to each
stockholder at his record address or at such other address which he may have
furnished by request in writing to the Secretary of the Corporation. Notice by
mail shall be deemed to be given when deposited, with postage thereon prepaid,
in the United States mail. If a meeting is adjourned to another time, not more
than thirty days hence, and/or to another place, and if an announcement of the
adjourned time and/or place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the directors, after adjournment,
fix a new record date for the adjourned meeting. Attendance of a stockholder at
a meeting of stockholders shall constitute a waiver of notice of Such meeting,
except when the stockholder 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.
e. STOCKHOLDER LIST. The list of stockholders shall be open to the
examination of any stockholder during ordinary business hours, for a period of
at least ten days
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prior to any meeting of stockholders, either at the principal office of the
corporation or at the place where the meeting is to be held, for any purpose
germane to such meeting. The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list required by
this section or the books of the corporation, or to vote at any meeting of
stockholders.
f. CONDUCT OF MEETING. Meetings of the stockholders shall be presided
over by one of the following officers in the order of seniority and if present
and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, a Vice-President, or, if none of the foregoing is in
office and present and acting, by a chairman to be chosen by the stockholders.
The Secretary of the corporation, or in his absence, an Assistant Secretary,
shall act as secretary of every meeting, but if neither the Secretary nor an
Assistant Secretary is present the presiding officer or chairman of the meeting
shall appoint a secretary of the meeting.
g. QUORUM. The holders of a majority of the outstanding shares of stock
shall constitute a quorum at a meeting of stockholders for the transaction of
any business. The stockholders present may adjourn the meeting despite the
absence of a quorum.
h. VOTING. Each share of stock shall entitle the holder thereof to one
vote. Action shall be authorized by a majority of the votes cast except where
the Delaware General Corporation Law prescribes a different percentage of votes
and/or a different exercise of voting power, and except as may be otherwise
prescribed by the provisions of the certificate of incorporation and these By-
Laws. In the election of directors, and for any other action, voting need not
be by ballot.
5. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the
Delaware General Corporation Law to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or special meeting
of stockholders, may be taken without a meeting, without a prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE II
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DIRECTORS
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1. FUNCTIONS AND DEFINITION. The business and affairs of the corporation
shall be managed by or under the direction of the Board of Directors of the
corporation. The Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase "whole board" herein
refers to the total number of directors which the corporation would have if
there were no vacancies.
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2. NUMBER. The initial Board of Directors shall consist of one (1)
person. Thereafter, such number may be fixed from time to time by action of the
stockholders or of the directors, or, if the number is not fixed, the number
shall be one (1). The number of directors may be increased or decreased by
action of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors shall be elected by
the incorporator and shall hold office until the first annual meeting of
stockholders and until their successors are elected and qualified or until their
earlier resignation or removal. Any director may resign at any time upon
written notice to the corporation. Thereafter, directors who are elected at an
annual meeting of stockholders, and directors who are elected in the interim to
fill vacancies and newly created directorships, shall hold office until the next
annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. In the interim
between annual meetings of stockholders or of special meetings of stockholders
called for the election of directors and/or for the removal of one or more
directors and for the filling of any vacancy in that connection, newly created
directorships and any vacancies in the Board of Directors, including unfilled
vacancies resulting from the removal of directors for cause or without cause,
may be filled by the vote of a majority of the remaining directors then in
office, although less than a quorum, or by the sole remaining director.
4. MEETINGS.
a. TIME. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
b. PLACE. Meetings shall be held at such place within or without the
State of Delaware as shall be fixed by the Board.
c. CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, or by a majority of the directors in office.
d. NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required
for regular meetings for which the time and place have been fixed. Not less
than two days notice of the time and place shall be given for special meetings.
Attendance of any such person at a meeting shall constitute a waiver of notice
of such meeting, except when he attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
e. QUORUM AND ACTION. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, provided, that
such majority shall constitute at least one-third of the whole Board. A
majority of the directors present, whether or not a quorum is present, may
adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the Delaware General Corporation
Law, the vote
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of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions of the Delaware
General Corporation Law and these By-Laws which govern a meeting of directors
held to fill vacancies and newly created directorships in the Board or action of
disinterested directors.
Any member or members of the Board of Directors or of any committee
designated by the Board, may participate in a meeting of the Board, or any such
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
f. EXPENSES AND COMPENSATION. Members of the Board of Directors shall be
entitled to reimbursement for expenses incurred in attending Board of Directors'
meetings, or committees of the Board of Directors, or otherwise fulfilling their
responsibilities as directors. Members of the Board of Directors also shall
receive annual fees and meeting fees upon the corporation's attainment of two
consecutive quarters in which the corporation has made a profit as determined by
its outside auditors. Such fees shall be determined by the Board of Directors.
5. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the
Delaware General Corporation Law, any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election or directors.
6. COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the full Board, designate one or more committees, each committee
shall consist of at least one 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.
Any such committee, to the extent provided in the resolution of the Board shall
have and may exercise the power and authority of the Board of Directors in the
management of the business and affairs of the corporation with the exception of
any authority the delegation of which is prohibited by Section 141 of the
Delaware General Corporation Law.
7. WRITTEN ACTION. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
8. STRUCTURE. For so long as 10% or more of the outstanding shares of the
Company's Series A Convertible Preferred Stock are held by Investors (as defined
in that certain Preferred Stock Purchase Agreement entered into by the
corporation dated April 28, 1997), the Chairman of the Board of Directors and
the office of the corporation President or Chief Executive Officer will not be
held by the same individual.
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ARTICLE III
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OFFICERS
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The officers of the corporation shall consist of a President, a Secretary,
a Treasurer, and such other officers as deemed necessary or expedient or
desirable the Board of Directors.
1. PRESIDENT. The President shall have general charge and direction of
the business of the corporation and shall perform such other duties as are
properly required of him by the Board of Directors.
2. SECRETARY. The Secretary shall keep the minutes of the meetings of
shareholders and the Board of Directors and shall give notice of all such
meetings as required by these By-Laws. The Secretary shall have custody of such
minutes, the seal of the corporation and the stock certificate records of the
corporation, except to the extent some other person is authorized to have
custody and possession thereof by a resolution of the Board of Directors.
3. TREASURER. The Treasurer shall keep the fiscal accounts of the
corporation, including an account of all moneys received or disbursed.
4. VICE PRESIDENT. The Vice President performs the duties of the
President in the absence of that officer or in the event of his or her death,
incompetence, or inability or refusal to act. Vice Presidents act in the order
designated, as may be amended from time to time, by Resolution of the full
Board.
ARTICLE IV
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CORPORATE SEAL
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The corporate seal shall be in such form as the Board of Directors shall
prescribe.
ARTICLE V
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FISCAL YEAR
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The fiscal year of the corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
ARTICLE VI
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CONTROL OVER BY-LAWS
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Subject to the provisions of the Certificate of Incorporation and the
provisions of the Delaware General Corporation Law, the power to amend, alter or
repeal these By-Laws and to adopt new By-Laws may be exercised by the Board of
Directors or by the stockholders.
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