EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
INFORMAX, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be at 1209 Orange Street, in the City of Wilmington, County of New Castle,
State of Delaware. The registered agent of the Corporation at such address is
The Corporation Trust Company.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders shall be
held at such places either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meeting of stockholders for the
election of directors and the transaction of other business shall be held, in
each
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year, commencing with the year 1991, at such date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting.
Section 3. Notice of Annual Meetings. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting, either personally or by mail, not
less than ten nor more than sixty days before the date of the meeting. If
mailed, such notice shall be deemed to have been 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.
Section 4. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten 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 meeting during the whole
time thereof, and may be inspected by any stockholder who is present at such
meeting.
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Section 5. Special Meetings. Special meetings of the stockholders for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the president or by the board of
directors and shall also be called by the secretary at the request in writing of
the holders of, in the aggregate, not less than 25% of the outstanding shares of
the Corporation entitled to vote at such meeting, or of the board of directors.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Notice of Special Meetings. Written notice of a special
meeting stating the place, date and hour of the meeting, and the purpose or
purposes for which the meeting is called; shall be given not less than ten nor
more than sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
Section 7. Business of Special Meetings. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
Section 8. Quorum. The holders of at least a majority of the stock
issued and outstanding and entitled to vote at any meeting of the stockholders,
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business except as otherwise
provided by statute or by the certificate of incorporation. If, however, such
quorum shall not be present or represented at any meeting of the 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, without
notice other than announcement at the
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meeting of the time and place of the adjourned meeting, until a quorum shall be
present or represented. At such adjourned meeting, at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than thirty
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 9. Vote Required for Action. When a quorum is present at any
meeting:
(1) In all matters other than the election of directors, the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter shall be the act
of the stockholders;
(2) Directors shall be elected by a plurality of the votes of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors; and
(3) Where a separate vote by a class or classes is required, a
majority of the outstanding shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter and the affirmative vote of the majority of
shares of such class or classes present in person or represented by proxy at the
meeting shall be the act of such class.
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Section 10. Voting Rights. Each stockholder shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share of
stock having voting power held by such stockholder, but no proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period. Each holder of shares of Series A Preferred Stock, $0.01 par
value, of the Corporation shall at every meeting of the stockholders be entitled
to the number of votes designated pursuant to the Certificate of the
Designations, Powers, Preferences and Rights of the Series A Preferred Stock of
the Corporation.
Section 11. Action Without Meeting.
(a) Unless otherwise restricted by the certificate of incorporation or
these bylaws, any action required or permitted to be taken at any meeting of the
stockholders may be taken without a meeting and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be (i) 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 and (ii)
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested.
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(b) Following the taking of corporate action without a meeting, prompt
notice shall be given to all stockholders who did not consent in writing to such
action.
ARTICLE III
DIRECTORS
Section 1. Number Constituting Entire Board; Election. The number of
directors which shall constitute the whole board shall be not less than one nor
more than seven. Within such limits the actual number of directors which shall
constitute the whole board shall be as fixed from time to time by the board of
directors. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 3 of this Article and except that
the first directors of the Corporation were elected by the incorporator of the
Corporation, and each director elected shall hold office until his successor is
elected and qualified or until his earlier resignation or removal. Directors
need not be stockholders.
Section 2. Resignation and Removal. Any director may resign at any time
upon written notice to the Corporation. Any director may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of directors.
Section 3. Filling of Vacancies. Vacancies and newly created
directorships resulting from any increases in the authorized number of directors
elected by all of the stockholders having the right to vote as a single class
may be filled by a majority of the directors then in office, though less than a
quorum, or by a sole
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remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
or until their earlier resignation or removal. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute.
Section 4. Management by Directors. The business and affairs of the
Corporation shall be managed by its board of directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are not
by statute or by the certificate of incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
Section 5. Place of Meetings. The board of directors of the Corporation
may hold meetings, both regular and special, either within or outside the State
of Delaware.
Section 6. Annual Meeting. The first meeting of each newly elected
board of directors shall be held immediately after the annual meeting of
stockholders and at the same place, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event such meeting is not
held at that time and place, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors, or as shall be specified in a written waiver
signed by all of the directors.
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Section 7. Regular Meetings. Regular meetings of the board of directors
may be held without notice at such time and at such place as shall from time to
time be determined by the board.
Section 8. Special Meetings. Special meetings of the board may be
called by the present on one day's notice to each director, either personally or
by mail, telegram or express courier; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of a majority of the directors.
Section 9. Quorum; Vote Required for Action. At all meetings of the
board, a majority of the total number of directors shall constitute a quorum for
the transaction of business and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum shall not be present at any meeting of
the board of directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting of the
time and place of the adjourned meeting, until a quorum shall be present.
Section 10. Participation By Conference Telephone. 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
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each other, and participation in a meeting pursuant to this subsection shall
constitute presence in person at such meeting.
Section 11. Action Without Meeting. Unless otherwise restricted by the
certificate of incorporation or these bylaws, 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 such committee
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or such committee.
Section 12. Compensation. The directors may be paid their expenses, if
any, of attendance at each meeting of the board of directors and may be paid a
fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of standing or special committees may be allowed like compensation for attending
committee meetings.
Section 13. 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. Any such committee, to the extent provided in the resolution, and
subject to any restrictions imposed by statute, shall have and may exercise the
powers of the board
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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; provided, however, that in the absence or disqualification of
any member of such committee or committees, the member or members thereof
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. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 14. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the board of directors
when required.
Section 15. Series A Preferred Stock. Notwithstanding anything to the
contrary herein, any actions taken pursuant to this Article III shall at all
times be consistent with the terms of the Certificate of the Designations,
Powers, Preferences and Rights of the Series A Preferred Stock of the
Corporation.
ARTICLE IV
NOTICES
Section 1. Manner of Giving Notice. Whenever, under the provisions of
the statutes or of the certificate of incorporation or of these bylaws, notice
is required to be given to any director or stockholder, it shall not be
construed to require personal notice, but such notice may be given in writing,
by mail, addressed to such director
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or stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice may also
be given by telegram or by express courier.
Section 2. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the certificate of
incorporation or of these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at
a meeting of stockholders, directors, or members of a committee of directors,
shall constitute a waiver of notice of such meeting, except when the
stockholder, director or committee member 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the certificate
of incorporation or these bylaws.
ARTICLE V
OFFICERS
Section 1. Required Officers. The officers of the Corporation shall be
chosen by the board of directors and shall include a president, a treasurer, and
a
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secretary. Any number of offices may be held by the same person unless the
certificate of incorporation or these bylaws otherwise provide.
Section 2. Additional Officers. The board of directors may appoint one
or more vice president and such other officers and agents as it shall deem
necessary, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
board.
Section 3. Election of Officers. The board of directors at its first
meeting after each annual meeting of stockholders shall choose the officers of
the Corporation, except that the first officers of the Corporation shall be
chosen by the board of directors at the organizational meeting of the board of
directors following incorporation.
Section 4. Compensation. The salaries of all officers and agents of the
Corporation shall be fixed by or in the manner prescribed by the board of
directors.
Section 5. Tenure. Each officer of the Corporation shall hold office
until his successor is elected and qualified or until his earlier resignation or
removal. Any officer elected or appointed by the board of directors may be
removed at any time by the affirmative vote of a majority of the total number of
directors. Any officer may resign at any time upon written notice to the
Corporation. Any vacancy occurring in any office of the Corporation shall be
filled by or in the manner prescribed by the board of directors.
Section 6. President. The president shall be the chief executive
officer and chief operating officer of the Corporation and shall have general
and active
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supervision and management of the business of the Corporation. The president may
sign, on behalf of the Corporation, certificates for shares of the Corporation,
any deeds, mortgages, bonds, contracts or other instruments which the board of
directors has authorized to be executed, except in cases where the signing and
execution thereof shall be expressly delegated by the board of directors or by
these bylaws to some other officer or agent of the Corporation, or shall be
required by law to be otherwise signed or executed, and, in general, shall
perform all duties incident to the office of president and such other duties as
may be prescribed by the board of directors from time to time.
Section 7. Vice President. In the absence of the president, the vice
president, if any, or in the event there be more than one vice president, the
vice presidents in the order designated, or in the absence of any designation,
then in the order of their election, shall perform the duties of the president,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the president. The vice president shall generally assist the
president and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
Section 8. Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and shall record all the
proceedings of the meetings of the stockholders and of the board of directors in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when requested by such committees. The secretary shall give,
or cause to be given,
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required notice of all meetings of the stockholders and the board of directors,
and shall perform such other duties as may be prescribed by the board of
directors. The secretary shall have custody of the stock certificate books and
stockholder records and such other books and records as the board of directors
may direct. The secretary shall have custody of the corporate seal of the
Corporation and shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by the secretary's
signature. The board of directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing thereof
by his signature.
Section 9. Treasurer. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the board of
directors and shall disburse the funds of the Corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and shall
render to the chairman and the board of directors, at its regular meetings, or
when the board of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the Corporation and shall perform
such other duties and have such other powers as the board of directors or
president may from time to time prescribe.
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ARTICLE VI
CERTIFICATES OF STOCK; STOCK TRANSFERS; RECORD DATE
Section 1. Certificates. 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 president or the vice president and by the treasurer or the secretary
certifying the number of shares owned by him in the Corporation. Any or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation as if he were such officer, transfer agent or registrar at the date
of issue.
Section 2. Lost Certificates. The board of directors may direct a new
stock certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the owner
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issues of a new certificate, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
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Section 3. Transfer of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares accompanied by
proper evidence of authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 4. Fixing Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the board of directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the board of directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
is fixed by the board of directors, 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 closed of business on the day next preceding the
next day on which the meeting is held. 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.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the board
of directors may fix a record date, which record date shall not precede the date
upon which the
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resolution fixing the record date is adopted by the board of directors, and
which date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the board of directors. If no
record date has been fixed by the board of directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the board of directors is required by
the General Corporation Law of Delaware, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the board of directors and prior action by the board of
directors is required by the General Corporation Law of Delaware, the record
date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on which
the board of directors adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders 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 a record date, which record date
shall not precede the
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date upon which the resolution fixing the record date is adopted, and which
record date shall be not more than sixty days prior to such action. If no record
date is fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
Section 5. Registered Stockholders. The Corporation shall be entitled
to treat the record holder of any shares of stock of the Corporation as the
owner thereof for all purposes, including all rights deriving from such shares,
and except as required by law shall not be bound to recognize any equitable or
other claim to, or interest in, such shares or rights deriving from such shares,
on the part of any other person, including, but without limiting the generality
thereof, a purchaser, assignee or transferee of such shares or rights deriving
from such shares, unless and until such purchaser, assignee, transferee or other
person becomes the record holder of such shares, whether or not the Corporation
shall have either actual or constructive notice of the interest of such
purchaser, assignee, transferee or other person. Any such purchaser, assignee,
transferee or other person shall not be entitled to receive notice of the
meetings of stockholders, to vote at such meetings, to examine a complete list
of the stockholders entitled to vote at meetings, or to own, enjoy, and exercise
any other property or rights deriving from such shares against the Corporation,
until such purchaser, assignee, transferee or other person has become the record
holder of such shares.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
January 1 to December 31. The board of directors shall have the power to change
the fiscal year of the Corporation from time to time.
Section 2. Execution of Instruments. Contracts, deeds, documents and
instruments shall be executed by the president, unless the board of directors
shall, in a particular situation or as a general direction, designate another
procedure for their execution.
Section 3. Checks and Drafts. The Corporation shall establish a bank
account for deposit of the funds of the Corporation and the drawing of checks or
drafts thereon. All checks or drafts drawn on such account shall require the
signature of one officer of the Corporation. The appointment of additional
signatories of the bank account and the opening of additional bank accounts
shall require the approval of the board of directors.
Section 4. Corporate Seal. The corporate seal, if the directors shall
adopt one, shall have inscribed thereon the name of the Corporation, the year of
its organization and the words "Corporate Seal, Delaware." The seal may be used
by causing it or a facsimile thereof to be impressed, affixed, or reproduced in
any other manner.
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Section 5. Indemnification. The Corporation shall indemnify its
officers and directors to the full extent permitted by the General Corporation
Law of the State of Delaware as such may be amended from time to time.
Section 6. Voting Shares in Other Corporations. In the absence of other
arrangements by the board of directors, shares of stock issued by any other
corporation and owned or controlled by this Corporation may be voted at any
shareholders' meeting of the other corporation by the president of this
Corporation or, if he is not present at the meeting, by any vice president of
this Corporation, and in the event neither the president nor any vice president
is to be present at a meeting, the shares may be voted by such person as the
president and secretary of this Corporation shall be duly executed proxy
designate to represent this Corporation.
ARTICLE VIII
AMENDMENTS
Section 1. Power of Stockholders. New bylaws may be adopted or these
bylaws may be amended or repealed by the vote of stockholders entitled to
exercise a majority of the voting power of the Corporation or by the written
consent of such stockholders, except as otherwise provided by law or by the
certificate of incorporation.
Section 2. Power of Directors. As specified in the Corporation's
certificate of incorporation, the board of directors shall have the power to
amend or repeal
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these bylaws or to adopt new bylaws by the vote of a majority of the total
number of directors or by the written consent of all of the directors.
Section 3. Series A Preferred Stock. Notwithstanding anything to the
contrary herein, any action taken pursuant to this Article VIII shall at all
times be consistent with the terms of the Certificate of the Designations,
Powers, Preferences and Rights of the Series A Preferred Stock of the
Corporation.
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