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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
ORASURE TECHNOLOGIES, INC.
ARTICLE I
Name and Location
SECTION 1. Name. The name of the Corporation shall be the name set forth
in the Certificate of Incorporation.
SECTION 2. Principal Office. The principal office of the Corporation is
located at 8505 S.W. Creekside Place, Beaverton, Oregon 97008.
SECTION 3. Additional Offices. Other offices for the transaction of
business of the Corporation may be located at such place or places as the Board
of Directors may from time to time determine.
ARTICLE II
Capital Stock
SECTION 1. Stock Certificates. All certificates of stock shall be signed
by the Chairman of the Board of Directors, the Chief Executive Officer, the
President or a Vice President and the Secretary or an Assistant Secretary, and
sealed with the corporate seal.
SECTION 2. Stock Transfers. Transfers of stock shall be made on the books
of the Corporation upon the surrender of the old certificate properly endorsed,
and said old certificate shall be canceled before a new certificate is issued.
SECTION 3. Lost or Destroyed Stock Certificates. A new certificate of
stock may be issued in the place of any certificate theretofore issued, alleged
to have been lost or destroyed, and the Corporation may, in its discretion,
require the owner of the lost or destroyed certificate, or its legal
representative, to give a bond sufficient to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss of any
certificate.
SECTION 4. Preemptive Rights Denied. No holder of shares of any class of
the Corporation, or holder of any securities or obligations convertible into
shares of any class of the Corporation, shall have any preemptive right
whatsoever to subscribe for, purchase or otherwise acquire shares of the
Corporation of any class, whether now or hereafter authorized; provided,
however, that nothing in this Section 4 shall prohibit the Corporation from
granting, contractually or otherwise, to any such holder, the right to purchase
additional securities of the Corporation.
ARTICLE III
Stockholders' Meetings
SECTION 1. Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held, either within or without the State of Delaware, on
such date and at
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such time as may from time to time be determined by the Board of Directors. At
such meeting the stockholders shall elect directors in the manner provided in
the Certificate of Incorporation of the Corporation. The stockholders may
transact such other business at such annual meetings as may properly come before
the meeting.
SECTION 2. Special Meeting. A special meeting of the holders of any one
or more classes of the capital stock of the Corporation entitled to vote as a
class or classes with respect to any matter, as required by law or as provided
by the Certificate of Incorporation, may be called at any time and place, either
within or without the state of Delaware, only by the Chairman of the Board, the
Chief Executive Officer, the President or the Board of Directors.
SECTION 3. Notice. Notice of the time and place of all annual meetings
and of the time, place and purpose of all special meetings shall be mailed by
the Secretary to each stockholder at his or her last known post office address
as it appears on the records of the Corporation at least ten (10) days before
the date set for such meeting.
SECTION 4. Nomination of Directors. Nomination of persons for election to
the Board of Directors of the Corporation at a meeting of the stockholders may
be made by or at the direction of the Board of Directors or may be made at a
meeting of stockholders by any stockholder of the Corporation entitled to vote
for the election of Directors at the meeting in compliance with the notice
procedures set forth in this Section 4 of ARTICLE III. Such nomination, other
than those made by or at the direction of the Board, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than fifty (50) days nor
more than seventy-five (75) days prior to the meeting; provided, however, that
in the event that less than sixty-five (65) days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received no later than the close of
business on the fifteenth (15th) day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made, whichever
first occurs. Such stockholder's notice to the Secretary shall set forth: (a)
as to each person whom the stockholder proposes to nominate for election or re-
election as a Director, (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class and number of shares of capital stock of the Corporation
which are beneficially owned by the person, and (iv) any other information
relating to the person that is required to be disclosed in solicitations for
proxies for election of Directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and (b) as to
the stockholder giving the notice; (i) the name and record address of the
stockholder; and (ii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the stockholder. The Corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as a Director of the Corporation. No person shall be
eligible for election as a Director of the Corporation at a meeting of the
stockholders unless such person has been nominated in accordance with the
procedures set forth herein. If the facts warrant, the Chairman of the meeting
shall determine and declare to the meeting that a nomination does not satisfy
the requirements set forth in the preceding sentence and the defective
nomination shall be disregarded. Nothing in this Section 4
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shall be construed to affect the requirements for proxy statements of the
Corporation under Regulation 14A of the Exchange Act.
SECTION 5. Presentation of Business at Stockholders' Meetings. At any
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before a
meeting, business must be: (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before a meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than fifty (50) days nor more than seventy-five (75) days
prior to the meeting; provided, however, that in the event that less than sixty-
five (65) days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely must be so
received no later than the close of business on the fifteenth (15th) day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made, whichever first occurs. Such stockholder's
notice to the Secretary shall set forth: (a) as to each matter the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting, and (b) as to the stockholder giving the notice, (i)
the name and record address of the stockholder, (ii) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
stockholder and (iii) any material interest of the stockholder in such business.
No business shall be conducted at a meeting of the stockholders unless proposed
in accordance with the procedures set forth herein. The Chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the foregoing
procedure and such business shall not be transacted. To the extent this Section
5 shall be deemed by the Board of Directors or the Securities and Exchange
Commission, or finally adjudged by a court of competent jurisdiction, to be
inconsistent with the right of stockholders to request inclusion of a proposal
in the Corporation's proxy statement pursuant to Rule 14a-8 promulgated under
the Exchange Act, such rule shall prevail.
SECTION 6. Presiding Officials. The Chairman of the Board of Directors,
or in his or her absence or inability to act, the Chief Executive Officer, or in
his or her absence or inability to act, the President, or in his or her absence
or inability to act, any Vice President, shall preside at all stockholders'
meetings.
SECTION 7. Voting. Except as otherwise provided in the Certificate of
Incorporation of the Corporation, at each meeting of the stockholders, each
stockholder shall be entitled to cast one vote for each share of voting stock
standing of record on the books of the Corporation, in his or her name, and may
cast such vote either in person or by proxy. All proxies shall be in writing
and filed with the Secretary of the meeting.
SECTION 8. Quorum; Adjournment. At any meeting held for the purpose of
electing directors, the presence in person or by proxy of the holders of at
least a majority of the then outstanding voting shares of the Corporation shall
be required and be sufficient to constitute a
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quorum for the election of directors. At a meeting held for any purpose other
than the election of directors, shares representing a majority of the votes
entitled to be cast on such matter, present in person or represented by proxy,
shall constitute a quorum. In the absence of the required quorum at any meeting
of stockholders, a majority of such holders present in person or by proxy shall
have the power to adjourn the meeting, from time to time, without notice (except
as required by law) other than an announcement at the meeting, until a quorum
shall be present.
SECTION 9. Annual Statement of Business. At each of the annual
stockholders' meetings, one of the executive officers of the Corporation shall
submit a statement of the business done during the preceding year, together with
a report of the general financial condition of the Corporation.
ARTICLE IV
Directors
SECTION 1. Powers of the Board. The business and property of the
Corporation shall be managed by a Board consisting of such number of Directors
as is determined from time to time in accordance with the provisions of the
Certificate of Incorporation of the Corporation. The Board of Directors may
elect one of their number to act as Chairman of the Board.
SECTION 2. Qualification. Each Director upon his or her election shall
qualify by filing his or her written acceptance with the Secretary or an
Assistant Secretary and by fulfilling any prerequisite to qualification that may
be set forth in the Certificate of Incorporation of the Corporation.
SECTION 3. Annual Meetings. The annual meeting of the Board of Directors
shall be held immediately after the adjournment of each annual meeting of the
stockholders and in the event a quorum is not present, said meeting shall be
held within ten (10) days after adjournment upon proper notice by the Chairman
of the Board of Directors, the Chief Executive Officer, the President or a Vice
President.
SECTION 4. Special Meetings. Special meetings of the Board of Directors
may be called at any time or place by the Chairman of the Board, the Chief
Executive Officer, or by the President, and in the absence or inability of all
of them to act, by any Vice President, and may also be called by any two members
of the Board of Directors. By unanimous consent of the Directors, special
meetings of the Board may be held without notice, at any time and place.
SECTION 5. Notice; Telephonic Attendance; Unanimous Consent. Notice of
all regular and special meetings of the Board of Directors or the Executive
Committee or any committee established pursuant to this ARTICLE IV (an "Other
Committee") shall be sent to each Director or member of such committee, as the
case may be, by the Secretary or any Assistant Secretary, by a means reasonably
calculated to be received at least seven (7) days prior to the time fixed for
such meeting, or notice of special meetings of the Board of Directors or the
Executive Committee or any Other Committee may be given by telephone, telegraph,
telefax or telex to each Director or member of such committee, as the case may
be, at least twenty-four (24) hours prior to the time fixed for such meeting, or
on such shorter notice as the person or persons calling the meeting may
reasonably deem necessary or appropriate in the circumstances. To the extent
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provided in the notice of the meeting or as otherwise determined by the Chairman
of the Board or the Board of Directors, Directors may participate in any regular
or special meeting by means of conference telephone, videoconference or similar
communications equipment which allows all persons participating in such meeting
to hear each other, and participation in such meeting by means of such a device
shall constitute presence in person at such meeting. Attendance of a director
at any meeting shall constitute a waiver of notice of such meeting except where
a director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
If all the directors shall severally or collectively consent in writing to
any action to be taken by the directors, such consents shall have the same force
and effect as a unanimous vote of the directors at a meeting duly held. The
Secretary shall file such consents with the minutes of the meetings of the Board
of Directors.
SECTION 6. Quorum; Adjournment. Except as otherwise provided in the
Certificate of Incorporation of the Corporation, a quorum for the transaction of
business at any meeting of the directors shall consist of a majority of the
members of the Board, but the directors present, although less than a quorum,
shall have the power to adjourn the meeting from time to time or to some future
date.
SECTION 7. Election of Officers. The directors shall elect the officers
of the Corporation and fix their salaries and other compensation. Such election
shall be made at the Directors' meeting following each annual stockholders'
meeting.
SECTION 8. Advisers to the Board of Directors. The Board of Directors
from time to time, as they may deem proper, shall have authority to appoint a
general manager, counsel or attorneys and other employees for such length of
time and upon such terms and conditions and at such salaries and other
compensation as they may deem necessary and/or advisable.
SECTION 9. Compensation; Reimbursement of Expenses. The members of the
Board of Directors shall receive compensation for their services in such amount
as may be reasonable and proper and consistent with the time and service
rendered. The members of the Board of Directors shall receive the reasonable
expenses necessarily incurred in the attendance of meetings and in the
transaction of business for the Corporation.
SECTION 10. Indemnification; Insurance.
(a) Indemnification.
(1) Actions Other than Those by or in the Right of the Corporation.
To the extent permitted by Delaware law from time to time in effect and
subject to the provisions of paragraph (c) of this Section 10, the
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation)
by reason of the fact that such person is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
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enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation (or such other
corporation or organization), and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that such person's conduct was unlawful.
(2) Action by or in the Right of the Corporation. To the extent
permitted by Delaware law from time to time in effect and subject to the
provisions of paragraph (c) of this Section 10, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of
the fact that such person is or was a director, officer, employee or agent
of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation (or such
other corporation or organization) and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation (or such other
corporation or organization) unless and only to the extent that the court
in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
(3) Successful Defense of Action. Notwithstanding, and without
limitation of, any other provision of this Section 10, to the extent that a
director, officer, employee or agent of the Corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in sub-paragraph (1) or (2) of this paragraph (a), or in
defense of any claim, issue or matter therein, such director, officer,
employee or agent shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
(4) Determination Required. Any indemnification under sub-paragraph
(1) or (2) of this paragraph (a) (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because such director, officer,
employee or agent has met the applicable standard of conduct set forth in
said sub-paragraph. Such determination shall be made: (i) by the Board of
Directors by a majority vote of a quorum consisting of directors who were
not parties to the particular
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action, suit or proceeding, or (ii) if such a quorum is not obtainable, or,
even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the
stockholders.
(b) Insurance. The Corporation may, when authorized by the Board of
Directors, purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify him against such liability
under the provisions of this Section 10. The risks insured under any insurance
policies purchased and maintained on behalf of any person as aforesaid or on
behalf of the Corporation shall not be limited in any way by the terms of this
Section 10 and to the extent compatible with the provisions of such policies,
the risks insured shall extend to the fullest extent permitted by law, common or
statutory.
(c) Advancement of Expenses; Nonexclusivity; Duration. Expenses (including
attorneys' fees) incurred by an officer or director in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such officer or
director to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Section 10. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid by the Corporation upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The
indemnifications, advancement of expenses and rights provided by, or granted
pursuant to, this Section 10 shall not be deemed exclusive of any other
indemnifications, advancement of expenses, rights or limitations of liability to
which any person seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise, either as to action in such person's official capacity
or as to action in another capacity while holding office, and they shall
continue although such person has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's heirs, executors and
administrators. The authorization to purchase and maintain insurance set forth
in paragraph (b) shall likewise not be deemed exclusive.
SECTION 11. Committees.
(a) The Board of Directors may, by resolution or resolutions adopted by a
majority of the whole Board, designate two or more directors of the Corporation
to constitute one or more committees in addition to those committees required by
SECTIONS 12, 13 and 14 of this ARTICLE IV. Each such committee, to the extent
provided in such resolution or resolutions, shall have and may exercise all of
the authority of the Board in the management of the Corporation; provided,
however, that the designation of each such committee and the delegation thereto
of authority shall not operate to relieve the Board, or any member thereof, of
any responsibility imposed upon it or such member by law.
(b) Notwithstanding any other provision of these Bylaws, no committee of
the Board of Directors shall have the power or authority of the Board with
respect to (i) amending the
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Certificate of Incorporation, (ii) approving or recommending to stockholders any
type or form of "business combination" (as defined in Section 203 of the General
Corporation Law of Delaware as in effect on January 1, 1996), (iii) approving or
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, (iv) amending these Bylaws, (v) declaring a
dividend or making any other distribution to the stockholders, (vi) authorizing
the issuance of stock otherwise than pursuant to the grant or exercise of a
stock option under employee stock options of the Corporation or in connection
with a public offering of securities registered under the Securities Act of
1933, as amended, or (vii) appointing any member of any committee of the Board.
(c) Each such committee shall keep regular minutes of its proceedings,
which minutes shall be recorded in the minute book of the Corporation. The
Secretary or an Assistant Secretary of the Corporation may act as Secretary for
each such committee if the committee so requests.
SECTION 12. Executive Committee. The Chief Executive Officer of the
Corporation, together with no more than five additional Directors selected by
the Board shall constitute an Executive Committee of the Board of Directors.
The Executive Committee between regular meetings of the Board of Directors shall
manage the business and property of the Corporation and shall have the same
power and authority as the Board of Directors; provided, however, the Executive
Committee shall not act (other than to make a recommendation) in those cases
where it is provided by law or by the Certificate of Incorporation of the
Corporation that any vote or action in order to bind the Corporation shall be
taken by the Directors. Members of the Executive Committee may participate in
any meeting of the Executive Committee by means of conference telephone or
videoconference or similar communications equipment which allows all persons
participating in the meeting to hear each other, and participation in a meeting
by means of such a device shall constitute presence in person at such meeting.
The Executive Committee shall keep a record of its proceedings and may hold
meetings upon one (1) day's written notice or upon waiver of notice signed by
the members either before or after said Executive Committee meeting.
A majority of the Executive Committee shall constitute a quorum for the
transaction of business at any meeting for which notice has been given to all
members in accordance with ARTICLE IV, Section 5 hereof or for which notice has
been waived by all members.
The Executive Committee or any Other Committee may act by unanimous written
consent as provided in ARTICLE IV, SECTION 5.
SECTION 13. Audit Committee. The Board of Directors at the annual or any
regular or special meeting of the directors shall, by resolution adopted by a
majority of the whole Board, designate two or more directors to constitute an
Audit Committee and appoint one of the directors so designated as the chairman
of the Audit Committee. Membership on the Audit Committee shall be restricted
to those directors who are independent of the management of the Corporation and
are free from any relationship that, in the opinion of the Board, would
interfere with the exercise of independent judgment as a member of the
committee. Vacancies in the committee may be filled by the Board at any meeting
thereof. Each member of the committee
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shall hold office until such committee member's successor has been duly elected
and qualified, or until such committee member's resignation or removal from the
Audit Committee by the Board, or until such committee member otherwise ceases to
be a director. Any member of the Audit Committee may be removed from the
committee by resolution adopted by a majority of the whole Board. The
compensation, if any, of members of the committee shall be established by
resolution of the Board.
The Audit Committee shall be responsible for: recommending to the Board
the appointment or discharge of independent auditors; reviewing with the
management and the independent auditors the terms of engagement of independent
auditors, including the fees, scope and timing of the audit and any other
services rendered by the independent auditors; reviewing with the independent
auditors and management the Corporation's policies and procedures with respect
to internal auditing, accounting and financial controls; reviewing with the
management the independent statements, audit results and reports and the
recommendations made by any of the auditors with respect to changes in
accounting procedures and internal controls; reviewing the results of studies of
the Corporation's system of internal accounting controls; and performing any
other duties or functions deemed appropriate by the Board. The Audit Committee
shall have the powers and rights necessary or desirable to fulfill these
responsibilities, including the power and right to consult with legal counsel
and to rely upon the opinion of legal counsel. The Audit Committee is
authorized to communicate directly with the Corporation's financial officers and
employees, internal auditors and independent auditors as it deems desirable and
to have the internal auditors or independent auditors perform any additional
procedures as it deems appropriate.
All actions of the Audit Committee shall be reported to the Board at the
next meeting of the Board. The minute books of the Audit Committee shall at all
times be open to the inspection of any director.
The Audit Committee shall meet at the call of its chairman or of any two
members of the Audit Committee (or if there shall be only one other member, then
at the call of that member). A majority of the Audit Committee shall constitute
a quorum for the transaction of business (or if there shall only be two members,
then both must be present), and the act of a majority of those present at any
meeting at which a quorum is present (or if there shall be only two members,
then they must act unanimously) shall constitute the act of the Audit Committee.
SECTION 14. Compensation Committee. The Board of Directors at the annual
or any regular or special meeting shall, by resolution adopted by a majority of
the whole Board, designate two or more directors to constitute a Compensation
Committee. Membership on the Compensation Committee shall be restricted to
disinterested persons which for this purpose shall mean any director who, during
the time such director is a member of the Compensation Committee is not
eligible, and has not at any time within one year prior thereto been eligible,
for selection to participate (other than in a manner as to which the
Compensation Committee has no discretion) in any of the compensation plans
administered by the Compensation Committee. Vacancies in the committee may be
filled by the Board at any meeting. Each member of the committee shall hold
office until such committee member's successor has been duly elected and
qualified, or until such committee member's resignation or removal from the
Compensation Committee by the Board, or until such committee member otherwise
ceases to be a director or a
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disinterested person. Any member of the Compensation Committee may be removed
by resolution adopted by a majority of the whole Board. The compensation, if
any, of the members of the Compensation Committee shall be established by
resolution of the Board.
The Compensation Committee shall, from time to time, recommend to the Board
the compensation and benefits of the executive officers of the Corporation. The
Compensation Committee shall have the power and authority vested in the Board by
any benefit plan of the Corporation. The Compensation Committee shall also make
recommendations to the Board with regard to the compensation of the Board and
its committees, with the exception of the Compensation Committee.
All actions of the Compensation Committee shall be reported to the Board at
the next meeting of the Board. The minute books of the Compensation Committee
shall at all times be open to the inspection of any director.
The Compensation Committee shall meet at the call of the chairman of the
Compensation Committee or of any two members of the Compensation Committee (or
if there shall be only one other member, then at the call of that member). A
majority of the Compensation Committee shall constitute a quorum for the
transaction of business (or if there shall be only two members, then both must
be present), and the act of a majority of those present at any meeting at which
a quorum is present (or if there shall be only two members, then they must act
unanimously) shall be the act of the Compensation Committee.
SECTION 15. Alternate Committee Members. The Board of Directors, by
resolution adopted by a majority of the whole Board, may designate one or more
additional directors as alternate members of any committee to replace any absent
or disqualified member at any meeting of that committee, and at any time may
change the membership of any committee or amend or rescind the resolution
designating the committee. In the absence or disqualification of a member or
alternate member of a committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not the member or members
constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of any such absent or disqualified member, provided that
the director so appointed meets any qualifications stated in these Bylaws or the
resolution designating the committee or any amendment thereto.
SECTION 16. Committee Procedures. Unless otherwise provided in these
Bylaws or in the resolution designating any committee, any committee may fix its
rules or procedures, fix the time and place of its meetings and specify what
notice of meetings, if any, shall be given.
ARTICLE V
Officers
SECTION 1. Designations. The officers of this Corporation shall be a
Chairman of the Board of Directors, a Chief Executive Officer, a President, as
many Vice Presidents as the Board of Directors may from time to time deem
advisable and one or more of which may be designated Executive Vice President or
Senior Vice President, a Secretary, a Treasurer, and such Assistant Secretaries
and Assistant Treasurers as the Board of Directors may from time to time deem
advisable, and such other officers as the Board of Directors may from time to
time deem
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advisable and designate. The Chairman of the Board of Directors shall be a
member of and be elected by the Board of Directors. All other officers shall be
elected by the Board of Directors. All officers shall hold office until their
respective successors are elected and shall have qualified. Any two offices may
be held by one person except the office of President and Vice President.
SECTION 2. Chairman of the Board. The Chairman of the Board of Directors
shall preside at all meetings of the Directors and stockholders at which he or
she is present and shall have such other duties, power and authority as may be
prescribed by the Board of Directors from time to time or elsewhere in these
Bylaws.
SECTION 3. Chief Executive Officer. The Chief Executive Officer shall
have such general executive powers and duties as are usually vested in the
office of the chief executive officer and shall perform such other duties as are
authorized by the Board of Directors. Unless the Board of Directors otherwise
provides, the Chief Executive Officer, or any person designated in writing by
the Chief Executive Officer, shall have full power and authority on behalf of
the Corporation to: (i) attend and to vote or take action at any meeting of the
holders of securities of corporations in which the Corporation may hold
securities, and at such meetings shall possess and may exercise any and all
rights and powers incident to being a holder of such securities, and (ii)
execute and deliver waivers of notice and proxies for and in the name of this
Corporation with respect to securities of any such corporation held by this
Corporation.
SECTION 4. President. The President shall have such general executive
powers and duties of supervision and management as are usually vested in such
office and shall perform such other duties as are authorized by the Board of
Directors or the Chief Executive Officer. The Chairman of the Board, the Chief
Executive Officer, or the President shall sign contracts, certificates and other
instruments of the Corporation as authorized by the Board of Directors.
SECTION 5. Vice Presidents. A Vice President shall have the right and
power to perform all duties and exercise all authority of the President, in case
of the absence of the President or upon vacancy in the office of President or
delegation by the Board of Directors, until the Board of Directors otherwise
provides, and shall have all power and authority usually enjoyed by a person
holding the office of Vice President.
SECTION 6. Secretary and Assistant Secretaries. The Secretary shall issue
notices of all directors' and stockholders' meetings, and shall attend and keep
the minutes of the same; shall have charge of all corporate books, records and
papers; shall be custodian of the corporate seal; shall attest with his or her
signature, which may be a facsimile signature if authorized by the Board of
Directors, and impress with the corporate seal, all stock certificates and
written contracts of the Corporation; and shall perform all other duties as are
incident to his or her office. Any Assistant Secretary, in the absence or
inability of the Secretary, shall perform all duties of the Secretary and such
other duties as may be required.
SECTION 7. Treasurer and Assistant Treasurers. The Treasurer shall have
custody of all money and securities of the Corporation and shall give bond in
such sum and with such sureties as the directors may specify, conditioned upon
the faithful performance of the duties of his or her office. He or she shall
keep regular books of account and shall submit them, together with all of his or
her records and other papers, to the directors for their examination and
approval
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annually; and quarterly or as and when directed by the Board of Directors, he or
she shall submit to each director a statement of the condition of the business
and accounts of the Corporation; and shall perform all such other duties as are
incident to his or her office. An Assistant Treasurer, in the absence or
inability of the Treasurer, shall perform all the duties of the Treasurer and
such other duties as may be required.
SECTION 8. Bonding. Any officer or employee of the Corporation shall give
such bond for the faithful performance of his or her duties in such sum, as and
when the Board of Directors may direct.
ARTICLE VI
Dividends
SECTION 1. Dividends shall be paid out of the net income or earned surplus
of the Corporation, determined after making proper provision for required
sinking fund deposits for debt obligations and proper provisions for working
capital and such reserves as may be required by good and generally accepted
accounting practice, when declared from time to time by resolution of the Board
of Directors. No such dividends shall be declared or paid which will impair the
capital of the Corporation.
ARTICLE VII
Amendments
SECTION 1. Except as otherwise provided in the Certificate of
Incorporation of the Corporation, these Bylaws may be amended, altered or
repealed by the affirmative vote of a majority of the Board of Directors,
subject to the power of stockholders to amend, alter or repeal the Bylaws, or as
otherwise may from time to time be authorized by the laws of the State of
Delaware.
ARTICLE VIII
Corporate Seal
SECTION 1. The corporate seal of this Corporation shall have inscribed
thereon the name of the Corporation and its state of incorporation.
/s/ Andrew S. Goldstein
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Andrew S. Goldstein, Secretary
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