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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
ILX LIGHTWAVE CORPORATION
ARTICLE I
OFFICES
1.01. Registered Office. The registered office of ILX Lightwave
Corporation, in the State of Minnesota shall be as provided in the Amended and
Restated Articles of Incorporation, or resolution of the directors filed with
the Minnesota Secretary of State changing the registered office.
1.02. Other Offices. The corporation may also have an office or offices
at such other place or places either within or without the State of Minnesota as
the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.01. Place of Meetings. Each meeting of the shareholders of the
corporation shall be held at such place either within or without the State of
Minnesota as shall be fixed by the board of directors and specified in the
notice of said meeting.
2.02. Annual Meetings. The annual meeting of the shareholders for the
transaction of such business as may properly come before the meeting shall be
held at such place, date and hour as shall be determined by the board of
directors.
2.03. Special Meetings. A special meeting of the shareholders for any
purpose or purposes may be called at any time by the chief executive officer,
the chief financial officer, two or more directors of the board or by a
shareholder or shareholders holding 10% of the voting power of all entitled to
vote, except that a special meeting for the purpose of considering any action to
directly or indirectly facilitate or effect a business combination, including
any action to change or affect the composition of the board of directors for
that purpose, must be called by 25% of the voting power of all shares entitled
to vote. Such shareholder request shall be made to the chief executive officer
or the chief financial officer and shall state the purpose or purposes of the
proposed meeting. This section 2.03 may not be altered, amended or repealed
except by the affirmative vote of holders of at least 66 2/3% of the outstanding
voting stock of the corporation.
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2.04. Notice of Annual and Special Meetings. Written notice of the
annual and any special meetings of the shareholders, stating the place, date and
hour of the meeting, and for special meetings the purpose or purposes for which
the meeting is called, shall be given to each shareholder entitled to vote at
such meeting, either personally or by mail, not less than ten, nor more than 60
days before the date of the meeting.
2.05. Business at Annual and Special Meetings. The business to be
transacted at any annual or special meeting of shareholders shall be limited to
business which is properly brought before the meeting. For the purposes of these
Bylaws, "properly brought before the meeting" shall mean (i) the business which
is specified in the notice of the meeting given by the board of directors, (ii)
otherwise brought before the meeting by order of the board of directors or (iii)
otherwise properly brought before an annual meeting by a shareholder. In order
for business to be properly brought before an annual meeting by a shareholder,
the shareholder must give written notice of such shareholder's intent to bring a
matter before the annual meeting, either by personal delivery or by United
States mail, postage pre-paid, to the chief executive officer or secretary of
the corporation no later than the date specified by Rule 14a-8 promulgated under
the Securities Act of 1934, as the same may be amended from time to time and any
successor rule or regulation, as the last date for receipt of shareholder
proposals to be submitted under such rule (such date, the "Notice Date"). Each
such notice shall set forth: (a) the name and address of the shareholder who
intends to bring such matter before a meeting; (b) the number of shares of the
corporation entitled to vote at such meeting held by the shareholder; (c) a
representation that the shareholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person at
the meeting to bring such matter before the meeting; (d) a description of the
business desired to be brought before the meeting and the reasons of such
shareholder in requesting that such matter be included in proxy statement
pertaining to the matter; (e) such other information regarding the business
proposed by such shareholder as would be required to be included in the proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; and (f) a representation as to the shareholder's material interest
in the business being proposed. The presiding officer of the meeting shall
refuse to acknowledge any business proposed to be brought before an annual
meeting not made in compliance with the foregoing procedure.
2.06. Quorum and Adjourned Meetings. The holders of a majority of the
stock issued and outstanding and entitled to vote there at, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business, except as otherwise provided by
statute or by the Amended and Restated Articles of Incorporation. If, however,
such quorum shall not be present or represented at any meeting of the
shareholders, the shareholders 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 meeting, until a quorum
shall be present or represented. At such adjourned meeting, at which the quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally notified. If the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
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2.07. Required Vote. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of statute or by the
Amended and Restated Articles of Incorporation, a different vote is required, in
which case such express provisions shall govern and control the decision of such
question.
2.08. Proxies. Every shareholder entitled to vote at a meeting may
authorize another person or persons to act for such shareholder by proxy duly
appointed by an instrument in writing, subscribed by such shareholder, or by
transmitting or authorizing the transmission of a facsimile, telegram, cablegram
or other means of electronic transmission as permitted by Section 302A.449 of
the Minnesota Business Corporations Act or any successor provision thereof. The
appointment of a proxy shall be made not more than eleven (11) months prior to
the meeting, unless the appointment provides for a longer period. To be valid,
all proxies must meet the requirements of, and shall be governed by, Section
302A.449 of the Minnesota Business Corporations Act or any successor provision
thereof. The attendance at any meeting of shareholders of a shareholder who
theretofore may have given a proxy shall not have the effect of revoking such
proxy unless such shareholder shall in writing or by electronic transmission in
accordance with Section 302A.449 of the Minnesota Business Corporations Act or
any successor provision thereof so notify the secretary of the meeting prior to
the voting of the proxy.
2.09. Conduct of Meetings of Shareholders. The chairman of the board of
directors, or if there shall be none or in his or her absence, the highest
ranking officer of the corporation, among a group consisting of the chief
executive officer, president and the vice presidents, who is present at the
meeting, shall call to order and act as the chair of any meeting of the
shareholders of the corporation. The secretary of the corporation shall serve as
the secretary of the meeting or, if there shall be none or in his or her
absence, the secretary of the meeting shall be such person as the chair of the
meeting appoints. The chair of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to take or refrain from
taking such actions as, in the judgment of the chair of the meeting, are
appropriate for the conduct of the meeting. To the extent not prohibited by
applicable law, such rules, regulations and procedures may include, without
limitation, establishment of (i) an agenda or order of business for the meeting,
(ii) the method by which business may be proposed and procedures for determining
whether business has been properly (or not properly) introduced before the
meeting, (iii) procedures for casting and the form of ballots to be used by
shareholders in attendance at the meeting and the procedures to be followed for
counting shareholder votes, (iv) rules, regulations and procedures for
maintaining order at the meeting and the safety of those present, (v)
limitations on attendance at or participation in the meeting to shareholders of
record of the corporation, their duly authorized proxies or such other persons
as the chair of the meeting shall determine, (vi) restrictions on entry to the
meeting after the time fixed for commencement thereof and (vii) limitations on
the time allotted to questions or comments by participants. Unless and to the
extent otherwise determined by the chair of the meeting, it shall not be
necessary to follow Roberts' Rules of Order or any other rules of parliamentary
procedure at the meeting of shareholders. Following completion of the business
of the meeting as determined by the chair of the meeting, the chair of the
meeting shall have the exclusive authority to adjourn the meeting.
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2.10. Conduct of Business. No business shall be conducted at an annual
meeting of shareholders of the corporation except business brought before the
meeting in accordance with the procedures set forth in these Bylaws; provided,
however, that once business has been properly brought before the meeting in
accordance with such procedures, nothing in this Section shall be deemed to
preclude discussion by any shareholder of any such business. If the introduction
of any business at a annual meeting of shareholders does not comply with the
procedures specified in this Section, the chair of the meeting shall declare
that such business is not properly before the meeting and shall not be
considered at the meeting.
ARTICLE III
BOARD OF DIRECTORS
3.01. General Powers. The business, property and affairs of the
corporation shall be managed under the direction of the board of directors.
3.02. Nomination of Directors. Nominations for the election of
directors may be made by the board of directors or a committee appointed by the
board of directors or by any shareholder entitled to vote in the election of
directors generally. Any shareholder entitled to vote in the election of
directors generally may nominate one or more persons for election as directors
at a meeting only if written notice of such shareholder's intent to make such
nomination or nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the chief executive officer or secretary
of the corporation not later than (i), with respect to an election to be held at
an annual meeting of shareholders, the Notice Date, and (ii), with respect to
the election to be held at a special meeting of shareholders for the election of
directors, the close of business on the tenth day following the date on which
notice of such meeting is first given to shareholders. Each such notice shall
set forth (a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) the number of
shares of the corporation entitled to vote at such meeting held by the
shareholder and by each nominee; (c) a representation that the shareholder is a
holder of record of stock of the corporation entitled to vote at such meeting
and that such shareholder and the nominee or nominees proposed by such
shareholder intend to appear in person at the meeting to nominate the person or
persons specified in the notice; (d) a description of all arrangements or
understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (e) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (f) the consent of each nominee to serve
as a director of the corporation if so elected. In order to be properly before
the meeting at which such nominations are to be considered, the shareholder
proposing the nomination or nominations and the person or persons so nominated
shall be present at the meeting. The chair of the meeting shall refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
3.03 Quorum and Manner of Acting. One-half in number of the directors
in office at the time shall constitute a quorum for the transaction of business
at any meeting. If the number
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of directors in office at the time is not evenly divisible by two, any resulting
fraction shall be rounded upwards to the next whole number in calculation of the
quorum number. Except as otherwise required by the Amended and Restated Articles
of Incorporation or these Bylaws, the affirmative vote of a majority of the
directors present at any meeting at which a quorum is present shall be required
for the taking of any action by the board of directors. In the absence of a
quorum at any meeting of the board, such meeting, need not be held, or a
majority of the directors present thereat or, if no director is present, the
chief executive officer or secretary, may adjourn such meeting from time to time
until a quorum shall be present. Notice of any adjourned meeting need not be
given.
3.04. Offices; Place of Meetings. The board of directors may hold
meetings and have an office or offices at such place or places within or without
the State of Minnesota and at such time, as the board of directors may from time
to time determine.
3.05. Annual Meeting. The board of directors shall meet for the purpose
of organization, the election of officers and the transaction of other business,
as soon as practicable following each annual meeting of shareholders. Such
meeting shall be called and held at the place and time specified in the notice
or waiver of notice thereof as in the case of a special meeting of the board of
directors.
3.06. Regular Meeting. Regular meetings of the board of directors shall
be held at such places and at such times as the board of directors shall from
time to time determine. Notice of regular meetings of the board of directors
need not be given.
3.07. Special Meetings. Special meetings of the board of directors
shall be held whenever called by the chairman of the board, the chief executive
officer or any two of the directors. Notice of each such meeting shall be mailed
by the chief executive officer, secretary or chairman of the board to each
director, addressed to him or her at his or her residence, usual place of
business or other location designated by such director as the address for
receipt of such notices, at least 48 hours before the day on which the meeting
is to be held, or shall be sent to him or her at his or her residence or at such
place of business or other address by facsimile, electronic transmission or
similar means, or be delivered personally or by telephone, not later than 48
hours before the day on which the meeting is to be held. Each such notice shall
state the time and place of the meeting but need not state the purposes thereof
except as otherwise herein expressly provided. Notice of any such meeting need
not be given to any director, however, if waived by him or her in writing or by
facsimile, electronic or similar means, or by mail, whether before or after such
meeting shall be held, or if he or she shall be present at such meeting; and any
meeting of the board shall be a legal meeting without any notice thereof having
been given if all of the directors shall be present thereat.
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3.08. Organization. At each meeting of the board of directors, the
chairman of the board, or in the absence of the chairman of the board, or if
they be directors, the chief executive officer, or in the absence of the chief
executive officer, the president, or in the absence of the president, any
director chosen by a majority of the directors present thereat, shall preside.
The secretary, or in his or her absence an assistant secretary of the
corporation, or in the absence of the secretary and all assistant secretaries or
subject to other direction of the board of directors, a person whom the chairman
of such meeting shall appoint, shall act as secretary of such meeting and keep
the minutes thereof.
3.09. Order of Business. At all meetings of the board of directors
business shall be transacted in the order determined by the board of directors.
3.10. Action by Written Consent. Any action which might be taken at a
meeting of the board of directors, or any duly authorized committee thereof, may
be taken without a meeting if done in writing and signed by all of the directors
or committee members, unless the articles provide otherwise and the action need
not be approved by the shareholders.
3.11. Telephone, etc. Meetings. Members of the board of directors, or
any committee designated by the board of directors, may participate in a meeting
of the board of directors, 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 such participation shall constitute the
presence of such person at such meeting.
3.12. Resignation. Any director of the corporation may resign at any
time by giving written notice of his or her resignation to the chairman of the
board, the chief executive officer or the secretary of the corporation. Such
resignation shall take effect at the time specified therein, or, if the time
when it shall become effective shall not be specified therein, then it shall
take effect when received. Except as aforesaid, the acceptance of such
resignation shall not be necessary to make it effective.
3.13. Compensation. Each director, in consideration of his or her
serving as such, shall be entitled to receive from the corporation such amount
per annum or such fees for attendance at directors' and committee meetings, or
both, as the board of directors shall from time to time determine. The board of
directors may likewise provide that the corporation shall reimburse each
director or member of a committee for any expenses incurred by him or her on
account to his or her attendance at any such meeting. Nothing herein contained
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving proper compensation therefor.
3.14. Indemnification of Directors and Officers. The corporation shall
indemnify its directors and officers in the manner and to the extent provided by
law.
3.15. Removal. Any director or the entire board of directors may be
removed at any time but only for cause.
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ARTICLE IV
COMMITTEES
The board of directors may, by resolution or resolutions passed by a
majority of the full board of directors, designate one or more committees, each
such committee to consist of one or more directors of the corporation, which to
the extent provided in said resolution or resolutions shall have and may
exercise the powers of the board of directors in the management of the business
and affairs of the corporation. 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. A majority of all the members of any such committee may
determine its actions and fix the time and place of its meetings, unless the
board of directors shall otherwise provide. The board of directors shall have
power to change the members of any such committee at any time, to fill vacancies
and to discharge any such committee, either with or without cause, at any time.
ARTICLE V
OFFICERS
5.01. Number. The principal officers of the corporation shall be chosen
by the board of directors and shall be a chief executive officer and chief
financial officer and, if elected by the board of directors, a president, one or
more vice presidents (the number thereof to be determined by the board of
directors and one or more of whom may be designated as executive or senior vice
presidents), a secretary, a treasurer and one or more assistant secretaries and
assistant treasurers. The board of directors may also elect a chairman and a
vice chairman or vice chairmen of the board whom the board may designate to be
an officer or officers of the corporation. In addition, there may be such
subordinate officers, agents and employees as may be appointed in accordance
with the provisions of Section 5.03. Any two or more offices may be held by the
same person. The offices of the corporation for which officers may be elected
shall be set forth, from time to time, by resolution of the board of directors.
5.02. Election, Qualifications and Term of Office. Each officer of the
corporation, except such officers as may be appointed in accordance with the
provisions of Section 5.03, shall be elected by the board of directors from time
to time, and shall hold office until his or her successor shall have been duly
elected and qualified, or until his or her death, or until he or she shall have
resigned or shall have been removed in the manner herein provided.
5.03. Other Officers. The corporation may have such other subordinate
officers, agents and employees as the chief executive officer may deem
necessary, including one or more vice presidents, assistant secretaries, or
assistant treasurers, a controller and one or more assistant controllers, each
of whom shall hold office for such period, have such authority, and perform such
duties as the chief executive officer may from time to time determine.
5.04. Removal. Any officer may be removed, either with or without
cause, by the vote of a majority of the full board of directors or, except in
the case of the chief executive officer or chief financial officer, by any
officer upon whom the power of removal may be conferred by the board of
directors. Such removal from office shall not affect any rights which such
removed officer may have under any employment or stockholder agreement.
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5.05. Resignation. Any officer may resign at any time by giving written
notice to the board of directors or to the chief executive officer. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, then it shall take
effect when accepted by action of the board of directors. Except as aforesaid,
the acceptance of such resignation shall not be necessary to make it effective.
5.06. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these Bylaws for regular
election or appointment to such office. If there shall occur a vacancy in the
office of chief executive officer or chief financial officer, such vacancy shall
be filled by the board of directors as expeditiously as practicable. If there
shall occur a vacancy in the position of chairman of the board of directors or
in any other office of the corporation, such vacancy may, but need not, be
filled by the board of directors.
5.07. Chairman of the Board. The chairman of the board, if one is
elected, shall preside at all meetings of the shareholders and of the board of
directors and shall perform such other duties and have such responsibilities as
the board of directors may from time to time determine.
5.08. Chief Executive Officer. The chief executive officer of the
corporation shall have general active management of the business and affairs of
the corporation. In the absence of the chairman of the board of directors, or if
one is not elected or refuses to act, the chief executive officer shall preside
at all meetings of the shareholders and directors. In the absence of the
secretary and assistant secretary, or if none shall be elected, the chief
executive officer shall maintain records of and, whenever necessary, certify all
proceedings of the board of directors and the shareholders. The chief executive
officer shall have such other duties as may, from time to time, be prescribed by
the board of directors. The powers and duties specified herein may be modified
or limited at any time by the board of directors.
5.09. President. The president, if one is elected, shall have such
power and duties regarding the management and daily conduct of the business of
the corporation as shall be determined by the board of directors, and, unless
otherwise provided by the board of directors, such power and duties of the chief
executive officer as may be delegated to the president by the chief executive
officer. Unless otherwise provided by the board of directors, in the absence of
the chairman of the board of directors (or if one is not elected) and the chief
executive officer, the president shall preside at all meetings of the
shareholders and directors. In the absence of the chief executive officer, the
president shall succeed to the chief executive officer's powers and duties
unless otherwise directed by the chief executive officer or the board of
directors.
5.10. Chief Financial Officer. The chief financial officer shall (i)
keep accurate financial records for the corporation; (ii) deposit all moneys,
drafts and checks in the name of, and to the credit of, the corporation in such
banks and depositories as the board of directors shall, from time to time,
designate or otherwise authorize; (iii) have the power to endorse, for deposit,
all notes, checks and drafts received by the corporation; (iv) disburse the
funds of the corporation, making or causing to be made proper vouchers therefor;
(v) render to the chief executive officer and the board of directors, whenever
requested, an account of all of his or her
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transactions as chief financial officer and of the financial condition of the
corporation, and (vi) perform such other duties as may, from time to time, be
prescribed by the board of directors or by the chief executive officer. The
powers and duties specified herein may be modified or limited at any time by the
board of directors.
5.11. Vice President. Each vice president shall have such powers and
duties as may be prescribed by the board of directors and, unless otherwise
provided by the board of directors, such power and duties of the chief executive
officer or president as may be delegated from time to time to each vice
president by the chief executive officer or president, as the case may be. In
the event of the absence of the president, the vice presidents shall succeed to
the duties and powers of such office in the order of their election, as appears
from the minutes of the meeting or meetings at which such elections shall have
taken place, unless otherwise provided by the board of directors, chief
executive officer or president.
5.12. Secretary. The secretary, if one shall be elected by the board of
directors, shall be secretary of and shall attend all meetings of the
shareholders and board of directors. The secretary shall act as clerk thereof
and shall record all proceedings of such meetings in the minute book of the
corporation and, whenever necessary, certify all proceedings of the board of
directors and the shareholders. The secretary shall give proper notices of
meetings of shareholders and directors as provided in these Bylaws. The
secretary shall, with the chairman of the board of directors, president or any
vice president, sign or cause to be signed by facsimile signature all
certificates for shares of the corporation and shall have such other powers and
shall perform such other duties as may be prescribed from time to time by the
board of directors.
5.14. Treasurer. The treasurer, if one shall be elected by the board of
directors, shall have such powers and duties as may be prescribed by the board
of directors and, unless otherwise provided by the board of directors, such
power and duties of the chief financial officer as may be delegated from time to
time to the treasurer by the chief financial officer. In the absence of the
chief financial officer, the treasurer shall succeed to the duties and powers of
the chief financial officer unless otherwise directed by the board of directors,
chief executive officer or chief financial officer. The treasurer shall have
charge and custody of, and be responsible for, all funds and securities of the
corporation, and shall deposit all such funds to the credit of the corporation
in such banks, trust companies or other depositories as shall selected in
accordance with the provisions of these Bylaws; shall disburse the funds of the
corporation as may be ordered by the board of directors, making proper vouchers
for such disbursements, and shall render to the board of directors, whenever the
board may require him or her so to do, and shall present at the annual meeting
of the stockholders a statement of all his or her transactions as treasurer;
and, in general, shall perform all the duties incident to the office of
treasurer and such other duties as from time to time may be assigned to him or
her by the board of directors, chief executive officer or the chief financial
officer.
5.13. Assistant Secretary, Assistant Secretary and Assistant Treasurer.
Any assistant secretary or assistant treasurer, who may from time to time be
elected by the board of directors, may perform the duties of the secretary or of
the treasurer, as the case may be, under the supervision and subject to the
control of the secretary or of the treasurer, respectively. Unless otherwise
provided by the board of directors, the chief executive officer or the
secretary, in the
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event of the absence of the secretary, an assistant secretary shall have the
powers and perform the duties of the office of secretary. If there shall be more
than one assistant secretary, the assistant secretary appearing as first elected
in the minutes of the meeting at which such elections shall have taken place
shall exercise such powers and have such duties. Unless otherwise provided by
the board of directors, the chief executive officer, the chief financial officer
or the treasurer, in the event of the absence of the treasurer, an assistant
treasurer shall have the powers and perform the duties of the office of
treasurer. If there shall be more than one assistant treasurer, the assistant
treasurer appearing as first elected in the minutes of the meeting or meetings
at which such elections shall have taken place, shall exercise such powers and
have such duties. Each assistant secretary and each assistant treasurer shall
also have such powers and duties of the secretary or the treasurer as the
secretary or the treasurer respectively may delegate to such assistant and shall
also have such other powers and perform such other duties as may be prescribed
from time to time by the board of directors. Any assistant secretary shall have
authority to attest by his or her signature to the same extent as the secretary.
5.15 Compensation. The compensation of the officers shall be fixed from
time to time by or in the manner prescribed by the board of directors, and none
of such officers shall be prevented from receiving compensation by reason of the
fact that he or she is also a director of the corporation. The application of
this Section 5.15 shall not affect the right any officer may have regarding
compensation under an employment agreement.
ARTICLE VI
AMENDMENTS
Subject to the provisions of the articles of incorporation, these
Bylaws may be altered, amended or repealed at any regular meeting of the
shareholders (or at any special meeting thereof duly called for that purpose).
Subject to the MBCA (as defined in the articles of incorporation), the board of
directors may, by the approval of a majority of all directors, amend these
Bylaws, or enact such other Bylaws as in their judgment may be advisable for the
regulation of the conduct of the affairs of the corporation.
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