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EXHIBIT 3.2
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AMENDED AND RESTATED BY-LAWS
OF
IDEXX LABORATORIES, INC.
(AMENDED THROUGH OCTOBER 17, 2000)
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BY-LAWS
TABLE OF CONTENTS
ARTICLE I - Stockholders 4
Section 1.1 Place of Meetings 4
Section 1.2 Annual Meeting 4
Section 1.3 Special Meetings 4
Section 1.4 Notice of Meetings 4
Section 1.5 Voting List 4
Section 1.6 Quorum 4
Section 1.7 Adjournments 5
Section 1.8 Voting and Proxies 5
Section 1.9 Action of Meeting 5
Section 1.10 Introduction of Business at Meeting 5
Section 1.11 Action without Meeting 6
ARTICLE 2 - Directors 7
Section 2.1 General Powers 7
Section 2.2 Number; Election and Qualification 7
Section 2.3 Classes of Directors 7
Section 2.4 Terms in Office 7
Section 2.5 Allocation of Directors Among Classes in the Event of
Increases or Decreases in the Number of Directors 7
Section 2.6 Tenure 8
Section 2.7 Vacancies 8
Section 2.8 Resignation 8
Section 2.9 Regular Meetings 8
Section 2.10 Special Meetings 8
Section 2.11 Notice of Special Meetings 8
Section 2.12 Meetings by Telephone Conference Calls 8
Section 2.13 Quorum 9
Section 2.14 Action at Meeting 9
Section 2.15 Action by Consent 9
Section 2.16 Removal 9
Section 2.17 Committees 9
Section 2.18 Compensation of Directors 9
Section 2.19 Amendments to Article 10
ARTICLE 3 - Officers 10
Section 3.1 Enumeration 10
Section 3.2 Election 10
Section 3.3 Qualification 10
Section 3.4 Tenure 10
Section 3.5 Resignation and Removal 10
Section 3.6 Vacancies 10
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Section 3.7 Chairman of the Board and Vice Chairman of the Board 11
Section 3.8 President 11
Section 3.9 Vice President 11
Section 3.10 Secretary and Assistant Secretaries 11
Section 3.11 Treasurer and Assistant Treasurers 11
Section 3.12 Salaries 12
ARTICLE 4 - Capital Stock 12
Section 4.1 Issuance of Stock 12
Section 4.2 Certificates of Stock 12
Section 4.3 Transfers 12
Section 4.4 Lost, Stolen or Destroyed Certificates 13
Section 4.5 Record Date 13
ARTICLE 5 - General Provisions 13
Section 5.1 Fiscal Year 13
Section 5.2 Corporate Seal 13
Section 5.3 Waiver of Notice 13
Section 5.4 Voting of Securities 14
Section 5.5 Evidence of Authority 14
Section 5.6 Certificate of Incorporation 14
Section 5.7 Transactions with Interested Parties 14
Section 5.8 Severability 15
Section 5.9 Pronouns 15
ARTICLE 6 - Amendments 15
Section 6.1 By the Board of Directors 15
Section 6.2 By the Stockholders 15
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BY-LAWS OF IDEXX LABORATORIES, INC.
ARTICLE 1 - STOCKHOLDERS
1.1 PLACE OF MEETINGS. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from
time to time by the Board of Directors or the President or, if not so
designated, at the registered office of the corporation. The Board of
Directors may, in its sole discretion, determine that a meeting shall not
be held any place but may instead be held solely by means of remote
communication in a manner consistent with the General Corporation Law of
Delaware.
1.2 ANNUAL MEETING. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date and at a time designated
by the Board of Directors or the President (which date shall not be a legal
holiday in the place where the meeting is to be held). If no annual
meeting is held in accordance with the foregoing provisions, the Board of
Directors shall cause the meeting to be held as soon thereafter as
convenient. If no annual meeting is held in accordance with the foregoing
provisions, a special meeting may be held in lieu of the annual meeting,
and any action taken at that special meeting shall have the same effect as
if it had been taken at the annual meeting, and in such case all references
in these By-Laws to the annual meeting of the stockholders shall be deemed
to refer to such special meeting.
1.3 SPECIAL MEETINGS. Special meetings of stockholders may be called at any
time by the Chairman of the Board or the President. Business transacted at
any special meeting of the stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
1.4 NOTICE OF MEETINGS. Except as otherwise provided by law, written notice of
each meeting of stockholders, whether annual or special, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. Without limiting the manner
by which notice otherwise may be given to stockholders, any notice shall be
effective if given by a form of electronic transmission consented to (in a
manner consistent with the Delaware General Corporation Law) by the
stockholder to whom the notice is given. The notices of all meetings shall
state the place, if any, date and time of the meeting and the means of
remote communications, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such meeting. The notice of
a special meeting shall state, in addition, the purpose or purposes for
which the meeting is called. If notice is given by mail, such notice shall
be deemed 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. If notice is given by electronic transmission, such
notice shall be deemed given at the time specified in Section 232 of the
Delaware General Corporation Law.
1.5 VOTING LIST. The officer who has charge of the stock ledger of the
corporation shall prepare, at least 10 days before every meeting of
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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, for a period of at
least 10 days prior to the meeting: (i) on a reasonably accessible
electronic network, provided that the information required to gain access
to such list is provided with the notice of the meeting, or (ii) during
ordinary business hours, at the principal place of business of the
corporation. If the meeting is to be held at a place, then the list shall
also be produced and kept at the time and place of the meeting during the
whole time of the meeting, and may be inspected by any stockholder who is
present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall
be provided with the notice of the meeting.
1.6 QUORUM. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the holders of a majority of the shares of
the capital stock of the corporation issued and outstanding and entitled to
vote at the meeting, present in person, present by means of remote
communication in a manner, if any, authorized by the Board of Directors in
its sole discretion or represented by proxy, shall constitute a quorum for
the transaction of business. A quorum once established at a meeting shall
not be broken by the withdrawal of enough votes to leave less than a
quorum.
1.7 ADJOURNMENTS. Any meeting of stockholders may be adjourned to any other
time and to any other place at which a meeting of stockholders may be held
under these By-laws by the stockholders present or represented at the
meeting and entitled to vote, although less than a quorum, or, if no
stockholder is present, by any officer entitled to preside at or to act as
Secretary of such meeting. It shall not be necessary to notify any
stockholder of any adjournment of less than 30 days if the time and place,
if any, of the adjourned meeting and the means of remote communication, if
any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such adjourned meeting, are announced at the meeting at
which adjournment is taken, unless after the adjournment a new record date
is fixed for the adjourned meeting. At the adjourned meeting, the
corporation may transact any business, which might have been transacted at
the original meeting.
1.8 VOTING AND PROXIES. Each stockholder shall have one vote for each share of
stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise
provided by law or in the Certificate of Incorporation. Each stockholder
of record entitled to vote at a meeting of stockholders may vote in person
or may authorize another person or persons to vote for him by proxy
executed or transmitted in a manner permitted by the General Corporation
Law of Delaware by the stockholder or his authorized agent and delivered to
the Secretary (including by electronic transmission) of the corporation.
No such proxy shall be voted or acted upon after three years from the date
of its execution, unless the proxy expressly provides for a longer period.
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1.9 ACTION IN A MEETING. When a quorum is present at any meeting, the holders
of a majority of the stock present or represented and voting on a matter
(or if there are two or more classes of stock entitled to vote as separate
classes, then in the case of each such class, the holders of a majority of
the stock of that class present or represented and voting on a matter)
shall decide any matter to be voted upon by the stockholders at such
meeting other than the election of directors, except when a different vote
is required by express provision of law, the Certificate of Incorporation
or these By-Laws. Any election by stockholders of directors shall be
determined by a plurality of the votes cast by the stockholders entitled to
vote at the election.
1.10 INTRODUCTION OF BUSINESS AT MEETING. Except as otherwise provided by law,
at any annual or special meeting of stockholders only such business shall
be conducted as shall have been properly brought before the meeting. In
order to be properly brought before the meeting, such business must have
been either (A) specified in the written notice of the meeting (or any
supplement thereto) given to stockholders of record on the record date for
such meeting by or at the direction of the Board of Directors, (B) brought
before the meeting at the direction of the Board of Directors or the
chairman of the meeting or (C) specified in a written notice given by or on
behalf of a stockholder of record on the record date for such meeting
entitled to vote thereat or a duly authorized proxy for such stockholder,
in accordance with all of the following requirements. A notice referred to
in clause (C) hereof must be delivered personally to or mailed to and
received at the principal executive office of the corporation, addressed to
the attention of the Secretary, not more than ten (10) days after the date
of the initial notice referred to in clause (A) hereof, in the case of
business to be brought before a special meeting of stockholders, and not
less than thirty (30) days prior to the first anniversary date of the
initial notice referred to in clause (A) hereof to the previous year's
annual meeting, in the case of business to be brought before an annual
meeting of stockholders, provided, however, that such notice shall not be
required to be given more than sixty (60) days prior to an annual meeting
of stockholders. Such notice referred to in clause (C) hereof shall set
forth (i) a full description of each such item of business proposed to be
brought before the meeting, (ii) the name and address of the person
proposing to bring such business before the meeting, (iii) the number and
class of shares held of record, held beneficially and represented by proxy
by such person as of the record date for meeting (if such date has been
made publicly available) and as of the date of such notice, (iv) if any
item of such business involves nomination for director, all information
regarding each such nominee that would be required to be set forth in a
definitive proxy statement filed with the Securities Exchange Commission
pursuant to Section 14 of the Securities Act of 1934, as amended, or any
successor thereto, and the written consent of each such nominee to serve if
elected, and (v) all other information that would be required to be filed
with the Securities and Exchanged Commission if, with respect to the
business proposed to be brought before the meeting, the person proposing
such business was a participant in a solicitation subject to Section 14 of
the Securities Exchange Act of 1934, as amended, or any successor thereto.
No business shall be brought before any meeting of stockholders of the
corporation otherwise than as provided in this paragraph.
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Notwithstanding the foregoing provisions, the Board of Directors shall be
obligated to include information as to any nominee for director in any
proxy statement or other communication sent to stockholders.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that any proposed item of business was not brought
before the meeting in accordance with the foregoing procedure and, if he
should so determine, he shall so declare to the meeting and the defective
item of business shall be disregarded.
1.11 ACTION WITHOUT MEETING. Until the closing of a firm commitment,
underwritten public offering of the corporation's Common Stock (a "Public
Offering"), any action required or permitted to be taken at any annual or
special meeting of stockholders of the corporation may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is 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 on such action were present and voted. Prompt notice of
the taking of corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented
in writing. Effective upon the closing of a Public Offering, stockholders
of the corporation may not take any action by written consent in lieu of a
meeting. Notwithstanding any other provision of law, the Certificate of
Incorporation, as amended, or these By-Laws, and notwithstanding the fact
that a lesser percentage may be specified by law, the affirmative vote of
the holders of at least seventy-five percent (75%) of the votes which all
the stockholders would be entitled to cast at any annual election of
directors or class of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, this Section 1.11.
1.12 CONDUCT OF MEETINGS.
(a) CHAIRMAN OF MEETING. Meetings of stockholders shall be presided over by
the Chairman of the Board, if any, or in the Chairman's absence by the Vice
Chairman of the Board, if any, or in the Vice Chairman's absence by the
President, or in the President's absence by a Vice President, or in the
absence of all of the foregoing persons by a chairman designated by the
Board of Directors, or in the absence of such designation by a chairman
chosen by vote of the stockholders at the meeting. The Secretary shall act
as secretary of the meeting, but in the Secretary's absence the chairman of
the meeting may appoint any person to act as secretary of the meeting.
(b) RULES AND PROCEDURES. The Board of Directors of the corporation may
adopt by resolution such rules, regulations and procedures for the conduct
of any meeting of stockholders of the corporation as it shall deem
appropriate including, without limitation, such guidelines and procedures
as it may deem appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically present at a
meeting. Except to the extent inconsistent with such rules, regulations
and procedures as adopted by the Board of Directors, the chairman of any
meeting of stockholders shall have the right and authority to prescribe
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such rules, regulations and procedures and to do all such acts as, in the
judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the
Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an
agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting of
stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as shall be determined; (iv)
restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions
or comments by participants. Unless and to the extent determined by the
Board of Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of
parliamentary procedure.
ARTICLE 2 - DIRECTORS
2.1 GENERAL POWERS. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise
all of the powers of the corporation except as otherwise provided by law or
the Certificate of Incorporation. In the event of a vacancy in the Board
of Directors, the remaining directors, except as otherwise provided by law,
may exercise the powers of the full Board until the vacancy is filled.
2.2 NUMBER; ELECTION AND QUALIFICATION. The number of directors which shall
constitute the whole Board of Directors shall be determined by resolution
of the stockholders or the Board of Directors, but in no event shall be
less than three. The number of directors may be decreased at any time and
from time to time by a majority of the directors then in office, but only
to eliminate vacancies existing by reason of the death, resignation,
removal or expiration of the term of one or more directors. The directors
shall be elected at the annual meeting of stockholders by such stockholders
as have the right to vote on such election. Directors need not be
stockholders of the corporation.
2.3 CLASSES OF DIRECTORS. The Board of Directors shall be and is divided into
three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class. If a fraction is
contained in the quotient arrived at by dividing the authorized number of
directors by three, then if such fraction is one-third, the extra director
shall be a member of Class I and, if such fraction is two thirds, one of
the extra directors shall be a member of Class I and the other extra
director shall be a member of Class II, unless otherwise provided for from
time to time by resolution adopted by a majority of the Board of Directors.
2.4 TERMS IN OFFICE. Each director shall serve for a term ending on the date
of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that each initial director in
Class I shall serve for a term ending on the date of the annual meeting
next following the end of the corporation's fiscal year ending December 31,
1993; each initial director in Class II shall serve for a term ending on
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the date of the annual meeting next following the end of the corporation's
fiscal year ending December 31, 1992; and each initial director in Class
III shall serve for a term ending on the date of the annual meeting next
following the end of the corporation's fiscal year ending December 31,
1991.
2.5 ALLOCATION OF DIRECTORS AMONG CLASS IN THE EVENT OF INCREASES OR DECREASES
IN THE NUMBER OF DIRECTORS. In the event of any increase or decrease in
the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as director of the class of which he is a
member until the expiration of his current term or his prior death,
retirement or resignation and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned
by the Board of Directors among the three classes of directors so as to
ensure that no one class has more than one director more than any other
class. To the extent possible, consistent with the foregoing rule, any
newly created directorships shall be added to those classes whose terms of
office are to expire at the latest dates following such allocation, and any
newly eliminated directorships shall be subtracted from those classes whose
terms of office are to expire at the earliest dates following such
allocation, unless otherwise provided for from time to time by resolution
adopted by a majority of the directors then in office, although less than a
quorum.
2.6 TENURE. Notwithstanding any provisions to the contrary contained herein,
each director shall hold office until his successor is elected and
qualified, or until his earlier death, resignation or removal.
2.7 VACANCIES. Unless and until filled by the stockholders, any vacancy in the
Board of Directors, however occurring, including a vacancy resulting from
an enlargement of the Board, may be filled by vote of a majority of the
directors then in office, although less than a quorum, or by a sole
remaining director. A director elected to fill a vacancy shall be elected
for the unexpired term of his predecessor in office, and a director chosen
to fill a position resulting from an increase in the number of directors
shall hold office until the next annual meeting of stockholders and until
his successor is elected and qualified, or until his earlier death,
resignation or removal.
2.8 RESIGNATION. Any director may resign by delivering his written resignation
to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some
other event.
2.9 REGULAR MEETINGS. Regular meetings of the Board of Directors may be held
without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of
Directors; provided that any director who is absent when such a
determination is made shall be given notice of the determination. A
regular meeting of the Board of Directors may be held without notice
immediately after and at the same place as the annual meeting of
stockholders.
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2.10 SPECIAL MEETINGS. Special meetings of the Board of Directors may be held
at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board, President, two or more directors,
or by one director in the event that there is only a single director in the
office.
2.11 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one
of the directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone at
least 48 hours in advance of the meeting, (ii) by sending a telegram or
telex, or delivering written notice by hand, to his last known business or
home address at least 48 hours in advance of the meeting, or (iii) by
mailing written notice to his last known business or home address at least
72 hours in advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes of the
meeting.
2.12 MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors or any members of any
committee designated by the directors may participate in a meeting of the
Board of Directors or such committee by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation by such
means shall constitute presence in person at such meeting.
2.13 QUORUM. A majority of the total number of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors. In
the event one or more of the directors shall be disqualified to vote at any
meeting, then the required quorum shall be reduced by one for each such
director so disqualified; provided, however, that in no case shall less
than one-third (1/3) of the number so fixed constitute a quorum. In the
absence of a quorum at any such meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice
other than announcement at the meeting, until a quorum shall be present.
2.14 ACTION AT MEETING. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law,
the Certificate of Incorporation or these By-Laws.
2.15 ACTION BY CONSENT. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board
Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing, and the
written consents are filed with the minutes of proceedings of the Board or
committee.
2.16 REMOVAL. Any one or more or all of the directors may be removed, with or
without cause, by the holders of at least seventy-five percent (75%) of the
shares then entitled to vote at an election of directors.
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2.17 COMMITTEES. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee,
the member or members of the committee 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. Any
such committee, to the extent provided in the resolution of the Board of
Directors and subject to the provisions of the General Corporation Law of
the State of Delaware, shall have and may exercise all the powers and
authority of the Board 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. Each such committee shall
keep minutes and make such reports as the Board of Directors may from time
to time request. Except as the Board of Directors may otherwise determine,
any committee may make rules for the conduct of its business, but unless
otherwise provided by the directors or in such rules, its business shall be
conducted as nearly as possible in the same manner as is provided in these
By-Laws for the Board of Directors.
2.18 COMPENSATION OF DIRECTORS. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at
meetings as the Board of Directors may from time to time determine. No
such payment shall preclude any director from serving the corporation or
any of its parent or subsidiary corporations in any other capacity and
receiving compensation for such service.
2.19 AMENDMENTS TO ARTICLE. Notwithstanding any other provisions of law, the
Certificate of Incorporation or these By-Laws, and notwithstanding the fact
that a lesser percentage may be specified by law, the affirmative vote of
the holders of at least seventy-five percent (75%) of the votes which all
the stockholders would be entitled to cast at any annual election of
directors or class of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, this Article 2.
ARTICLE 3 - OFFICERS
3.1 ENUMERATION. The officers of the corporation shall consist of a President,
a Secretary, a Treasurer and such other officers with such other titles as
the Board of Directors shall determine, including a Chairman of the Board,
a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant
Treasurers, and Assistant Secretaries. The Board of Directors may appoint
such other officers, as it may deem appropriate.
3.2 ELECTION. The President, Treasurer and Secretary shall be elected annually
by the Board of Directors at its first meeting following the annual meeting
of stockholders. Other officers may be appointed by the Board of Directors
at such meeting or at any other meeting.
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3.3 QUALIFICATION. No officer need be a stockholder. Any two or more offices
may be held by the same person.
3.4 TENURE. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in
the vote choosing or appointing him, or until his earlier death,
resignation or removal.
3.5 RESIGNATION AND REMOVAL. Any officer may resign by delivering his written
resignation to the corporation at its principal office or to the President
or Secretary. Such resignation shall be effective upon receipt unless it
is specified to be effective at some other time or upon the happening of
some other event.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an
officer for any period following his resignation or removal, or any right
to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise, unless such compensation is expressly
provided in a duly authorized written agreement with the corporation.
3.6 VACANCIES. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of President,
Treasurer and Secretary. Each such successor shall hold office for the
unexpired term of his predecessor and until his successor is elected and
qualified, or until his earlier death, resignation or removal.
3.7 CHAIRMAN OF THE BOARD AND VICE-CHAIRMAN OF THE BOARD. The Board of
Directors may appoint a Chairman of the Board and may designate the
Chairman of the Board as Chief Executive Officer. If the Board of
Directors appoints a Chairman of the Board, he shall perform such duties
and possess such powers as are assigned to him by the Board of Directors.
If the Board of Directors appoints a Vice-Chairman of the Board, he shall,
in the absence or disability of the Chairman of the Board, perform the
duties and exercise the powers of the Chairman of the Board, and shall
perform such other duties and possess such other powers as may from time to
time be vested in him by the Board of Directors.
3.8 PRESIDENT. The President shall, subject to the direction of the Board of
Directors, have general charge and supervision of the business of the
corporation. Unless otherwise provided by the Board of Directors, he shall
preside at all meetings of the stockholders, if he is a director, at all
meetings of the Board of Directors. Unless the Board of Directors has
designated the Chairman of the Board or another officer as Chief Executive
Officer, the President shall be the Chief Executive Officer of the
corporation. The President shall perform such other duties and shall have
such other powers as the Board of Directors may from time to time
prescribe.
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3.9 VICE PRESIDENTS. Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the President may from time to
time prescribe. In the event of the absence, inability or refusal to act
of the President, the Vice President (or if there shall be more than one,
the Vice Presidents in the order determined by the Board of Directors)
shall perform the duties of the President and when so performing shall have
all the powers of and be subject to all the restrictions upon the
President. The Board of Directors may assign to any Vice President, the
title of Executive Vice President, Senior Vice President or any other title
selected by the Board of Directors.
3.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the
President may from time to time prescribe. In addition, the Secretary
shall perform such duties and have such powers as are incident to the
office of the secretary, including without limitation the duty and power to
give notices of all meetings of stockholders and special meetings of the
Board of Directors, to attend all meetings of stockholders and the Board of
Directors and keep a record of the proceedings, to maintain a stock ledger
and prepare lists of stockholders and their addresses as required, to be
custodian of corporate records and the corporate seal and to affix and
attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or the Secretary may from time to
time prescribe. In the event of the absence, inability or refusal to act
of the Secretary, the Assistant Secretary (or if there shall be more than
one, the Assistant Secretaries in the order determined by the Board of
Directors), shall perform the duties and exercise the powers of the
Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall perform such
duties and shall have such powers as may from time to time be assigned to
him by the Board of Directors or the President. In addition, the Treasurer
shall perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and power to
keep and be responsible for all funds and securities of the corporation, to
deposit funds of the corporation in depositories selected in accordance
with these By-Laws, to disburse such funds as ordered by the Board of
Directors, to make proper accounts of such funds, and to render as required
by the Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the President or the Treasurer may from time to
time prescribe. In the event of the absence, inability or refusal to act
of the Treasurer, the Assistant Treasurer (or if there shall be more than
one, the Assistant Treasurers in the order determined by the Board of
Directors), shall perform the duties and exercise the powers of the
Treasurer.
<PAGE> 14
3.12 SALARIES. Officers of the corporation shall be entitled to such salaries,
compensation or reimbursement as shall be fixed or allowed from time to
time by the Board of Directors.
ARTICLE 4 - CAPITAL STOCK
4.1 ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and subject
to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any unissued balance of the
authorized capital stock of the corporation held in its treasury may be
issued, sold, transferred or otherwise disposed of by vote of the Board of
Directors in such manner, for such consideration and on such terms as the
Board of Directors may determine.
4.2 CERTIFICATES OF STOCK. Every holder of stock of the corporation shall be
entitled to have a certificate, in such form as may be prescribed by law
and by the Board of Directors, certifying the number and class of shares
owned by him in the corporation. Each such certificate shall be signed by,
or in the name of the corporation by, the Chairman or Vice-Chairman, if
any, of the Board of Directors, or the President or a Vice President, and
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfers pursuant to the Certificate of Incorporation, the By-Laws,
applicable securities laws or any agreement among any number of
shareholders or among such holders and the corporation shall have
conspicuously noted on the face or back of the certificate either the full
text of the restriction or a statement of the existence of such
restriction.
4.3 TRANSFERS. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender
to the corporation or its transfer agent of the certificate representing
such shares properly endorsed or accompanied by a written assignment or
power of attorney properly executed, and with such proof of authority or
the authenticity of signature as the corporation or its transfer agent may
reasonably require. Except as may be otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends
and the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the shares have
been transferred on the books of the corporation in accordance with the
requirements of these By-Laws.
4.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged
to have been lost, stolen, or destroyed, upon such terms and conditions as
the Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the giving of
such indemnity as the Board of Directors may require for the protection of
the corporation or any transfer agent or registrar.
<PAGE> 15
4.5 RECORD DATE. The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice of or to
vote at any meeting of stockholders, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor less than 10
days before the date of such meeting, nor more than 60 days prior to any
other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the day
on which the meeting is held. The record date for determining stockholders
for any other purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating to such purpose.
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.
ARTICLE 5 - GENERAL PROVISIONS
5.1 FISCAL YEAR. Except as from time to time otherwise designated by the Board
of Directors, the fiscal year of the corporation shall begin on the first
day of January in each year and end on the last day of December in each
year.
5.2 CORPORATE SEAL. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 WAIVER OF NOTICE. Whenever notice is required to be given by law, by the
Certificate of Incorporation or by these By-Laws, a written waiver, signed
by the person entitled to notice, or a waiver by electronic transmission by
the person entitled to notice whether before, at or after the time stated
in such waiver, or the attendance of such person at such meeting, shall be
deemed equivalent to such notice.
5.4 VOTING OF SECURITIES. Except as the directors may otherwise designate, the
President or Treasurer may waive notice of, and act as, or appoint any
person or persons to act as, proxy or attorney-in-fact for this corporation
(with or without power of substitution) at, any meeting of stockholders or
shareholders of any other corporation or organization, the securities of
which may be held by this corporation.
5.5 EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of
the corporation shall as to all persons who rely on the certificate in good
faith be conclusive evidence of such action.
<PAGE> 16
5.6 CERTIFICATE OF INCORPORATION. All references in these By-Laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to
time.
5.7 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction between
the corporation and one or more of the directors or officers, or between
the corporation and any other corporation, partnership, association, or
other organization in which one or more of the directors or officers are
directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of Directors or a
committee of the Board of Directors which authorizes the contract or
transaction or solely because his or their votes are counted for such
purpose, if:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum;
(2) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of
Directors, a committee of the Board of Directors, or the
stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
5.8 SEVERABILITY. Any determination that any provision of these By-Laws is for
any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
5.9 PRONOUNS. All pronouns used in these By-Laws shall be deemed to refer to
the masculine, feminine or neuter, singular or plural, as the identity of
the person or persons may require.
<PAGE> 17
ARTICLE 6 - AMENDMENTS
6.1 BY THE BOARD OF DIRECTORS. Except as is otherwise set forth in these By-
Laws, these By-Laws may be altered, amended or repealed or new by-laws may
be adopted by the affirmative vote of a majority of the directors present
at any regular or special meeting of the Board of Directors at which a
quorum is present.
6.2 BY THE STOCKHOLDERS. Except as otherwise set forth in these By-Laws, these
By-Laws may be altered, amended or repealed or new by-laws may be adopted
by the affirmative vote of the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to
vote at any regular meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment, repeal or
adoption of new by-laws shall have been stated in the notice of such
special meeting.
