Attached files
| file | filename |
|---|---|
| S-1/A - CRYPORT, INC. AMENDMENT NO. 1 TO FORM S-1 - Cryoport, Inc. | cryoport_s1a1.htm |
| EX-5.1 - OPINION - Cryoport, Inc. | cryoport_ex0501.htm |
| EX-10.4.1 - SECOND AMEND TO LEASE - Cryoport, Inc. | cyroport_ex1041.htm |
| EX-23.1 - CONSENT - Cryoport, Inc. | cryoport_ex2301.htm |
| EX-3.4.2 - CERTIFICATE OF AMENDMENT - Cryoport, Inc. | cryoport_ex030402.htm |
Exhibit 3.5
AMENDED
AND RESTATED BYLAWS
OF
CRYPORT,
INC.
ARTICLE
1
OFFICES
1.1
BUSINESS OFFICE
The
principal business office ("principal office") of the corporation shall be
located at any place either inside or outside the State of Nevada as designated
in the corporation's most current Annual Report filed with the Nevada Secretary
of State. The corporation may have such other offices, either inside or outside
the State of Nevada, as the Board of Directors may designate or as the business
of the corporation may require from time to time.
1.2
REGISTERED OFFICE
The
registered office of the corporation shall be located within Nevada and may be,
but need not be, identical with the principal office, provided the principal
office is located within Nevada. The address of the registered office may be
changed from time to time by the Board of Directors.
ARTICLE
2
SHAREHOLDERS
2.1
ANNUAL SHAREHOLDER
MEETING
The
annual meeting of the shareholders shall be held each year at a date and time
fixed by the Board of Directors, for the purpose of electing directors and for
the transaction of such other business as may come before the meeting. If the
day fixed for the annual meeting shall be a legal holiday in the State of
Nevada, such meeting shall be held on the next succeeding business day. If the
election of directors shall not be held on the day designated herein for any
annual meeting of the shareholders, or at any subsequent continuation after
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the shareholders as soon thereafter as
convenient.
2.2
SPECIAL SHAREHOLDER MEETINGS
Special
meetings of the shareholders, for any purpose or purposes described in the
notice of meeting, may be called by the president, or by the Board of Directors,
and shall be called by the president at the request of the holders of not less
than one-tenth of all outstanding shares of the corporation entitled to vote on
any issue at the meeting.
1
2.3
PLACE OF SHAREHOLDER
MEETINGS
The Board
of Directors may designate any place, either inside or outside the State of
Nevada, as the place for any annual or any special meeting of the shareholders,
unless by written consent, which may be in the form of waivers of notice or
otherwise, all shareholders entitled to vote at the meeting designate a
different place, either inside or outside the State of Nevada, as the place for
the holding of such meeting. If no designation is made by either the Board of
Directors or unanimous action of the voting shareholders, the place of meeting
shall be the principal office of the corporation in the State of
Nevada.
2.4
NOTICE OF SHAREHOLDER
MEETING
(a)
REQUIRED
NOTICE. Written notice stating the place, day and hour of any annual or special
shareholder meeting shall be delivered not less than 10 nor more than 60 days
before the date of the meeting, either personally or by mail, by or at the
direction of the president, the Board of Directors, or other persons calling the
meeting, to each shareholder of record entitled to vote at such meeting and to
any other shareholder entitled by the laws of the State of Nevada governing
corporations (the "Act") or the Articles of Incorporation ("Articles") to
receive notice of the meeting. Notice shall be deemed to be effective at the
earlier of: (1) when deposited in the United States mail, addressed to the
shareholder at his/her/its address as it appears on the stock transfer books of
the corporation, with postage thereon prepaid; (2) on the date shown on the
return receipt if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the addressee; (3) when
received; or (4) 5 days after deposit in the United States mail, if mailed
postpaid and correctly addressed to an address, provided in writing by the
shareholder, which is different from that shown in the corporation's current
record of shareholders.
(b)
ADJOURNED
MEETING. If any shareholder meeting is adjourned to a different date, time, or
place, notice need not be given of the new date, time, and place if the new
date, time, and place is announced at the meeting before adjournment. But if a
new record date for the adjourned meeting is, or must be fixed (see Section 2.5
of this Article 2) then notice must be given pursuant to the requirements of
paragraph (a) of this Section 2.4, to those persons who are shareholders as of
the new record date.
(c)
WAIVER OF
NOTICE. A shareholder may waive notice of the meeting (or any notice required by
the Act, Articles of Incorporation, or Bylaws), by a writing signed by the
shareholder entitled to the notice, which is delivered to the corporation
(either before or after the date and time stated in the notice) for inclusion in
the minutes of filing with the corporate records.
A
shareholder's attendance at a meeting:
(i)
waives objection to lack of notice or defective notice of the meeting
unless the shareholder, at the beginning of the meeting, objects to holding the
meeting or transacting business at the meeting; and
2
(ii)
waives objection to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice, unless the
shareholder object to consideration of the matter when it is
presented.
(d)
CONTENTS
OF NOTICE. The notice of each special shareholder meeting shall include a
description of the purpose or purposes for which the meeting is called. Except
as provided in this Section 2.4(d), or as provided in the corporation's
Articles, or otherwise in the Act, the notice of an annual shareholder meeting
need not include a description of the purpose or purposes for which the meeting
is called.
If a
purpose of any shareholder meeting is to consider either: (1) a proposed
amendment to the Articles of Incorporation (including any restated articles
requiring shareholder approval); (2) a plan of merger or share exchange; (3) the
sale, lease, exchange or other disposition of all, or substantially all of the
corporation's property; (4) the dissolution of the corporation; or (5) the
removal of a director, the notice must so state and be accompanied by,
respectively, a copy or summary of the: (a) articles of amendment; (b) plan of
merger or share exchange; and (c) transaction for
disposition of all, or substantially all, of the corporation's property.
If the proposed corporate action creates dissenters' rights, as provided in the
Act, the notice must state that shareholders are, or may be entitled to assert
dissenters' rights, and must be accompanied by a copy of relevant provisions of
the Act. If the corporation issues, or authorizes the issuance of shares for
promissory notes or for promises to render services in the future, the
corporation shall report in writing to all the shareholders the number of shares
authorized or issued, and the consideration received with or before the notice
of the next shareholder meeting. Likewise, if the corporation indemnifies or
advances expenses to an officer or a director, this shall be reported to all the
shareholders with or before notice of the next shareholder meeting.
2.5
FIXING OF RECORD
DATE
For the
purpose of determining shareholders of any voting group entitled to notice of or
to vote at any meeting of shareholders, or shareholders entitled to receive
payment of any distribution or dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may fix in
advance a date as the record date. Such record date shall not be more than 70
days prior to the date on which the particular action requiring such
determination of shareholders entitled to notice of, or to vote at a meeting of
shareholders, or shareholders entitled to receive a share dividend or
distribution. The record date for determination of such shareholders shall be at
the close of business on:
(a)
With
respect to an annual shareholder meeting or any special shareholder meeting
called by the Board of Directors or any person specifically authorized by the
Board of Directors or these Bylaws to call a meeting, the day before the first
notice is given to shareholders;
(b)
With
respect to a special shareholder meeting demanded by the shareholders, the date
the first shareholder signs the demand;
(c)
With
respect to the payment of a share dividend, the date the Board of Directors
authorizes the share dividend;
3
(d)
With
respect to actions taken in writing without a meeting pursuant to Article 2,
Section 2.12), the first date any shareholder signs a consent; and
(e)
With
respect to a distribution to shareholders, (other than one involving a
repurchase or reacquisition of shares), the date the Board of Directors
authorizes the distribution. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made, as provided in this section,
such determination shall apply to any adjournment thereof unless the Board of
Directors fixes a new record date, which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting. If
no record date has been fixed, the record date shall be the date the written
notice of the meeting is given to shareholders.
2.6 SHAREHOLDER LIST
The
officer or agent having charge of the stock transfer books for shares of the
corporation shall, at least ten (10) days before each meeting of shareholders,
make a complete record of the shareholders entitled to vote at each meeting of
shareholders, arranged in alphabetical order, with the address of and the number
of shares held by each. The list must be arranged by class or series of shares.
The shareholder list must be available for inspection by any shareholder,
beginning two business days after notice of the meeting is given for which the
list was prepared and continuing through the meeting. The list shall be
available at the corporation's principal office or at a place in the city where
the meeting is to be held, as set forth in the notice of meeting. A shareholder,
his/her/its agent or attorney, is entitled, on written demand, to inspect and,
subject to the requirements of Section 2.14 of this Article 2, to copy the list
during regular business hours and at his/her/its expense, during the period it
is available for inspection. The corporation shall maintain the shareholder list
in written form or in another form capable of conversion into written form
within a reasonable time.
2.7
SHAREHOLDER
QUORUM AND VOTING REQUIREMENTS
A
majority of the outstanding shares of the corporation entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders. If less than a majority of the outstanding shares are represented
at a meeting, a majority of the shares so represented may adjourn the meeting
from time to time without further notice. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified. The
shareholders present at a
duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum. Once a share is represented for any
purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting; unless a new record date
is or must be set for that adjourned meeting. If a quorum exists, a majority
vote of those shares present and voting at a duly organized meeting shall
suffice to defeat or enact any proposal unless the Statutes of the State of
Nevada, the Articles of Incorporation or these Bylaws require a
greater-than-majority vote, in which event the higher vote shall be required for
the action to constitute the action of the corporation.
4
2.8 INCREASING EITHER QUORUM OR VOTING
REQUIREMENTS
For
purposes of this Section 2.8, a "supermajority" quorum is a requirement that
more than a majority of the votes of the voting group be present to constitute a
quorum; and a "supermajority" voting requirement is any requirement that
requires the vote of more than a majority of the affirmative votes of a voting
group at a meeting.
The
shareholders, but only if specifically authorized to do so by the Articles of
Incorporation, may adopt, amend, or delete a Bylaw which fixes a "supermajority"
quorum or "supermajority" voting requirement. The adoption or amendment of a
Bylaw that adds, changes, or deletes a "supermajority" quorum or voting
requirement for shareholders must meet the same quorum requirement and be
adopted by the same vote required to take action under the quorum and voting
requirement then if effect or proposed to be adopted, whichever is
greater.
A Bylaw
that fixes a supermajority quorum or voting requirement for shareholders may not
be adopted, amended, or repealed by the Board of Directors.
2.9
PROXIES
At all
meetings of shareholders, a shareholder may vote in person, or vote by written
proxy executed in writing by the shareholder or executed by his/her/its duly
authorized attorney-in fact. Such proxy shall be filed with the secretary of the
corporation or other person authorized to tabulate votes before or at the time
of the meeting. No proxy shall be valid after eleven (11) months from the date
of its execution unless otherwise specifically provided in the proxy or coupled
with an interest.
2.10 VOTING OF SHARES
Unless
otherwise provided in the articles, each outstanding share entitled to vote
shall be entitled to one vote upon each matter submitted to a vote at a meeting
of shareholders. Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy, without the
transfer of such shares into his/her/its name. Shares standing in the name of a
trustee may be voted by him, either in person or by proxy, but trustee shall be
entitled to vote shares held by him without transfer of such shares into
his/her/its name. Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his/her/its name if authority to
do so is contained in an appropriate order of the Court by which such receiver
was appointed. A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares are transferred into the name of the pledgee, and
thereafter, the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to the corporation or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time. Redeemable shares are not entitled to vote after notice of
redemption is mailed to the holders and a sum sufficient to redeem the shares
has
been deposited with a bank, trust company, or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares.
5
2.11
CORPORATION'S ACCEPTANCE OF VOTES
(a)
If the
name signed on a vote, consent, waiver, or proxy appointment corresponds to the
name of a shareholder, the corporation, if acting in good faith, is entitled to
accept the vote, consent, waiver, or proxy appointment and give it effect as the
act of the shareholder.
(b)
If the
name signed on a vote, consent, waiver, or proxy appointment does not correspond
to the name of its shareholder, the corporation, if acting in good faith, is
nevertheless entitled to accept the vote, consent, waiver, or proxy appointment
and give it effect as the act of the shareholder if
(i)
the
shareholder is an entity, as defined in the Act, and the name signed purports to
be that of an officer or agent of the entity;
(ii)
the name
signed purports to be that of an administrator, executor, guardian or
conservator representing the shareholder and, if the corporation requests,
evidence of fiduciary status acceptable to the corporation has been presented
with respect to the vote, consent, waiver, or proxy appointment;
(iii)
the name
signed purports to be that of a receiver or trustee in bankruptcy of the
shareholder and, if the corporation requests, evidence of his/her/its status
acceptable to the corporation has been presented with respect to the vote,
consent, waiver or proxy appointment;
(iv)
the name
signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact
of the shareholder and, if the corporation requests, evidence acceptable to the
corporation of the signatory's authority to sign for the shareholder has been
presented with respect to the vote, consent, waiver, or proxy appointment;
or
(v) the
shares are held in the name of two or more persons as co-tenants or fiduciaries
and the name signed purports to be the name of at least one of the co-owners and
the person signing appears to be acting on behalf of all the
co-owners.
(vi)
The
corporation is entitled to reject a vote, consent, waiver, or proxy appointment
if the secretary or other officer or agent authorized to tabulate votes, acting
in good faith, has reasonable basis for doubt about the validity of the
signature on it or about the signatory's authority to sign for the
shareholder.
(vii)
The
corporation and its officer or agent who accepts or rejects a vote, consent,
waiver, or proxy appointment in good faith and in accordance with the standards
of this Section 2.11 are not liable in damages to the shareholder for the
consequences of the acceptance or rejection.
(viii)
Corporation
action based on the acceptance or rejection of a vote, consent, waiver, or proxy
appointment under this section is valid unless a court of competent jurisdiction
determines otherwise.
6
2.12
INFORMAL ACTION BY
SHAREHOLDERS
Any
action required or permitted to be taken at a meeting of the shareholders may be
taken without a meeting if one or more written consents, setting forth the
action so taken, shall be signed by shareholders holding a majority of the
shares entitled to vote with respect to the subject matter thereof, unless a
"supermajority" vote is required by these Bylaws, in which case a
"supermajority" vote will be required. Such consent shall be delivered to the
corporation secretary for inclusion in the minute book. A consent signed under
this Section has the effect of a vote at a meeting and may be described as such
in any document.
2.13
VOTING FOR
DIRECTORS
Unless
otherwise provided in the Articles of Incorporation, directors are elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present.
ARTICLE
3
BOARD OF
DIRECTORS
3.1
GENERAL
POWERS
Unless
the Articles of Incorporation have dispensed with or limited the authority of
the Board of Directors by describing who will perform some or all of the duties
of a Board of Directors, all corporate powers shall be exercised by or under the
authority of, and the business and affairs of the corporation shall be managed
under the direction of the Board of Directors.
3.2 NUMBER, TENURE AND QUALIFICATION OF
DIRECTORS
Unless
otherwise provided in the Articles of Incorporation, the authorized number of
directors shall be not less than 1 (minimum number) nor more than 9 (maximum
number). The number of directors shall be ( ). The number of
directors shall always be within the limits specified above, and as determined
by resolution adopted by the Board of Directors. After any shares of this
corporation are issued, neither the maximum nor minimum number of directors can
be changed, nor can a fixed number be substituted for the maximum and minimum
numbers, except by a duly adopted amendment to the Articles of Incorporation
duly approved by a majority of the outstanding shares entitled to vote. Each
director shall hold office until the next annual meeting of shareholders or
until removed. However, if his/her term expires, he shall continue to serve
until his/her successor shall have been elected and qualified, or until there is
a decrease in the number of directors. Unless required by the Articles of
Incorporation, directors do not need to be residents of Nevada or shareholders
of the corporation.
3.3
REGULAR MEETINGS OF THE BOARD OF
DIRECTORS
A regular
meeting of the Board of Directors shall be held without other notice than this
Bylaw immediately after, and at the same place as, the annual meeting of
shareholders. The Board of Directors may provide, by resolution, the time and
place for the holding of additional regular meetings without other notice than
such resolution. (If permitted by Section 3.7, any regular meeting may be held
by telephone).
7
3.4
SPECIAL MEETING OF THE BOARD OF
DIRECTORS
Special
meetings of the Board of Directors may be called by or at the request of the
president or any one director. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either within or without
the State of Nevada, as the place for holding any special meeting of the Board
of Directors or, if permitted by Section 3.7, any special meeting may be held by
telephone.
3.5
NOTICE OF, AND WAIVER OF NOTICE
OF, SPECIAL MEETINGS OF THE BOARD OF DIRECTORS
Unless
the Articles of Incorporation provide for a longer or shorter period, notice of
any special meeting of the Board of Directors shall be given at least two days
prior thereto, either orally or in writing. If mailed, notice of any director
meeting shall be deemed to be effective at the earlier of: (1) when received;
(2) five days after deposited in the United States mail, addressed to the
director's business office, with postage thereon prepaid; or (3) the date shown
on the return receipt, if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the director. Notice may
also be given by facsimile and, in such event; notice shall be deemed effective
upon transmittal thereof to a facsimile number of a compatible facsimile machine
at the director's business office. Any director may waive notice of any meeting.
Except as otherwise provided herein, the waiver must be in writing, signed by
the director entitled to the notice, and filed with the minutes or corporate
records. The attendance of a director at a 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 and at the
beginning of the meeting, or promptly upon his/her arrival, objects to holding
the meeting or transacting business at the meeting, and does not thereafter vote
for or assent to action taken at the meeting. Unless required by the Articles of
Incorporation or the Act, neither the business to be transacted at, nor the
purpose of, any special meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting.
3.6
DIRECTOR QUORUM
A
majority of the number of directors fixed, pursuant to Section 3.2 of this
Article 3, shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, unless the Articles of Incorporation or the
Act require a greater number for a quorum.
Any
amendment to this quorum requirement is subject to the provisions of
Section 3.8 of this Article 3.
Once a
quorum has been established at a duly organized meeting, the Board of Directors
may continue to transact corporate business until adjournment, notwithstanding
the withdrawal of enough directors to leave less than a quorum.
3.7
ACTIONS BY
DIRECTORS
The act
of the majority of the directors present at a meeting at which a quorum is
present when the
vote is taken shall be the act of the Board of Directors, unless the
Articles of Incorporation or the Act require a greater percentage. Any amendment
which changes the number of directors needed to take action is
subject to the provisions of Section 3.8 of this Article 3.
8
Unless
the Articles of Incorporation provide otherwise, any or all directors may
participate in a regular or special meeting by, or conduct the meeting through
the use of, any means of communication by which all directors participating may
simultaneously hear each other during the meeting. Minutes of any such meeting
shall be prepared and entered into the records of the corporation. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
A
director who is present at a meeting of the Board of Directors or a
committee of the Board of Directors when corporate action is taken is deemed to
have assented to the action taken unless: (1)
he/she objects at the beginning of the meeting, or promptly upon
his/her/its arrival, to holding it or transacting business at the meeting; or
(2) his/her dissent or abstention from the action taken is entered in the
minutes of the meeting; or (3) he/she delivers written notice of his/her dissent
or abstention to the presiding officer of the meeting before its adjournment or
to the corporation within 24 hours after adjournment of the meeting. The right
of dissent or abstention is not available to a director who votes in favor of
the action taken.
3.8
ESTABLISHING
A "SUPERMAJORITY" QUORUM OR VOTING REQUIREMENT FOR THE BOARD OF
DIRECTORS
For
purposes of this Section 3.8, a "supermajority" quorum is a requirement that
more than a majority of the directors in office constitute a quorum; and a
"supermajority" voting requirement is one which requires the vote of more than a
majority of those directors present at a meeting at which a quorum is present to
be the act of the directors.
(a)
A Bylaw that fixes a supermajority quorum or supermajority voting requirement
may be amended or repealed:
(i)
if
originally adopted by the shareholders, only by the shareholders (unless
otherwise provided by the shareholders); or
(ii)
if
originally adopted by the Board of Directors, either by the shareholders or by
the Board of Directors.
(b)
A Bylaw adopted or amended by the shareholders that fixes a supermajority
quorum or supermajority voting requirement for the Board of Directors may
provide that it may be amended or repealed only by a specified vote of either
the shareholders or the Board of Directors.
Subject
to the provisions of the preceding paragraph, action by the Board of Directors
to adopt, amend, or repeal a Bylaw that changes the quorum or voting requirement
for the Board of Directors must meet the same quorum requirement and be adopted
by the same vote required to take action under the quorum and voting requirement
then in effect or proposed to be adopted, whichever is greater.
9
3.9
DIRECTOR ACTION WITHOUT A
MEETING
Unless
the Articles of Incorporation provide otherwise, any action required or
permitted to be taken by the Board of Directors at a meeting may be taken
without a meeting if all the directors sign a written consent describing the
action taken. Such consents shall be filed with the records of the corporation.
Action taken by consent is effective when the last director signs the consent,
unless the consent specifies a different effective date. A signed consent has
the effect of a vote at a duly noticed and conducted meeting of the Board of
Directors and may be described as such in any document.
3.10
REMOVAL OF
DIRECTORS
The
shareholders may remove one or more directors at a meeting called for that
purpose if notice has been given that a purpose of the meeting is such removal.
The removal may be with or without cause unless the Articles of Incorporation
provide that directors may only be removed for cause. If cumulative voting is
not authorized, a director may be removed only if the number of votes cast in
favor of removal exceeds the number of votes cast against removal.
3.11
BOARD OF DIRECTOR
VACANCIES
Unless
the Articles of Incorporation provide otherwise, if a vacancy occurs on the
Board of Directors, the director(s) remaining in office shall fill the vacancy.
If the directors remaining in office constitute fewer than a quorum of the Board
of Directors, they may fill the vacancy by the affirmative vote of a majority of
all the directors remaining in office.
A vacancy
that will occur at a specific later date (by reason of a resignation effective
at a later date) may be filled by the Board of Directors before the vacancy
occurs, but the new director may not take office until the vacancy
occurs.
The term
of a director elected to fill a vacancy expires at the next shareholders'
meeting at which directors are elected. However, if his/her term expires, he/she
shall continue to serve until his/her successor is elected and qualifies or
until there is a decrease in the number of directors.
3.12
DIRECTOR
COMPENSATION
Unless
otherwise provided in the Articles of Incorporation, by resolution of the Board
of Directors, each director may be paid his/her expenses, if any, of attendance
at each meeting of the Board of Directors, and may be paid a stated salary as
director or a fixed sum for attendance at each meeting of the Board of
Directors, or both. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation
therefore.
3.13
DIRECTOR
COMMITTEES
(a)
CREATION OF COMMITTEES. Unless the Articles of Incorporation provide otherwise,
the Board of Directors may create one or more committees and appoint members of
the Board of Directors to serve on them. Each committee must have two
or more members, who serve at the pleasure of the Board of
Directors.
10
(b)
SELECTION
OF MEMBERS. The creation of a committee and appointment of members to it must be
approved by the greater of (1) a majority of all the directors in office when
the action is taken, or (2) the number of directors required by the Articles of
Incorporation to take such action.
(c)
REQUIRED
PROCEDURES, Sections 3.4, 3.5, 3.6, 3.7, 3.8 and 3.9 of this Article 3 apply to
committees and their members.
(d) AUTHORITY.
Unless limited by the Articles of Incorporation or the Act, each committee may
exercise those aspects of the authority of the Board of Directors which the
Board of Directors confers upon such committee in the resolution creating the
committee. Provided, however, a committee may not:
(i)
authorize
distributions to shareholders;
(ii)
approve
or propose to shareholders any action that the Act requires be approved by
shareholders;
(iii)
fill
vacancies on the Board of Directors or on any of its committees;
(iv)
amend the
Articles of Incorporation;
(v)
adopt,
amend, or repeal Bylaws;
(vi)
approve a
plan of merger not requiring shareholder approval;
(vii)
authorize
or approve reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; or
(viii)
authorize
or approve the issuance or sale, or contract for sale of shares, or determine
the designation and relative rights, preferences, and limitations of a class or
series of shares; except that the Board of Directors may authorize a committee
to do so within limits specifically described by the Board of
Directors.
ARTICLE
4
OFFICERS
4.1
DESIGNATION OF
OFFICERS
The
officers of the corporation shall be a president, a secretary, and a treasurer,
each of whom shall be appointed by the Board of Directors. Such other officers
and assistant officers as may be deemed necessary, including a Chairman of the
Board and any vice-presidents, may be appointed by the Board of Directors. The
same individual may simultaneously hold more than one office in the
corporation.
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4.2
APPOINTMENT AND TERM OF
OFFICE
The
officers of the corporation shall be appointed by the Board of Directors for a
term as determined by the Board of Directors. If no term is specified, they
shall hold office until the first meeting of the directors held after the next
annual meeting of shareholders. If the appointment of officers is not made at
such meeting, such appointment shall be made as soon thereafter as is
convenient. Each officer shall hold office until his/her successor has been duly
appointed and qualified, until his/her death, or until he/she resigns or has
been removed in the manner provided in Section 4.3 of this Article
4.
The
designation of a specified term does not grant to the officer any contract
rights, and the Board of Directors can remove the officer at any time prior to
the termination of such term.
Appointment of an officer shall not of
itself create any contract rights.
4.3
REMOVAL OF
OFFICERS
Any
officer may be removed by the Board of Directors at any time, with or without
cause. Such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
4.4
CHAIRMAN OF THE
BOARD
The
Chairman of the Board, if such an officer be elected, shall, if present, preside
at meetings of the Board of Directors and exercise and perform such other powers
and duties as may be from time to time assigned by the Board of Directors or
prescribed by the Bylaws. If there is no President, the Chairman of the Board
shall in addition be the Chief Executive Officer of the corporation and shall
have the powers and duties described in Article 4, Section 4.5.
4.5
PRESIDENT
The
president shall be the principal executive officer of the corporation and,
subject to the control of the Board of Directors, shall generally supervise and
control all of the business and affairs of the corporation. He/she shall, when
present, preside at all meetings of the shareholders. He/she may sign, with the
secretary or any other proper officer of the corporation thereunto duly
authorized by the Board of Directors, certificates for shares of the corporation
and deeds, mortgages, bonds, contracts, or other instruments which the Board of
Directors has authorized to be
executed, except in cases where the signing and execution thereof shall
be expressly delegated by the Board of Directors or by these Bylaws to some
other officer or agent of the corporation, or shall be required by law to be
otherwise signed or executed. The president shall generally perform all duties
incident to the office of president and such other duties as may be prescribed
by the Board of Directors from time to time,
4.6
VICE-PRESIDENT
If
appointed, in the absence of the president or in the event of the president's
death, inability or refusal to act, the vice-president (or in the event there be
more than one vice-president, the vice-presidents in the order designated
at the time of their election, or in the absence of any designation, then in the
order of their appointment) shall perform the duties of the president, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the president. If there is no vice-president, then the treasurer shall
perform such duties of the president. Any vice-president may sign, with the
secretary or an assistant secretary, certificates for shares of the corporation
the issuance of which have been authorized by resolution of the Board of
Directors. A vice-president shall perform such other duties as from time to time
may be assigned to him/her by the president or by the Board of
Directors.
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4.7
SECRETARY
The
secretary shall (a) keep the minutes of the proceedings of the shareholders and
of the Board of Directors in one or more books provided for that purpose; (b)
see that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be custodian of the corporate records and of
any seal of the corporation and, if there is a seal of the corporation, see that
it is affixed to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized; (d) when requested or required,
authenticate any records of the corporation; (e) keep a register of the post
office address of each shareholder, as provided to the secretary by the
shareholders; (f) sign with the president, or a vice-president, certificates for
shares of the corporation, the issuance of which has been authorized by
resolution of the Board of Directors; (g) have general charge of the stock
transfer books of the corporation; and (h) generally perform all duties incident
to the office of secretary and such other duties as from time to time may be
assigned to /her by the president or by the Board of Directors.
4.8
TREASURER
The
treasurer shall (a) have charge and custody of and be responsible for all funds
and securities of the corporation; (b) receive and give receipts for moneys due
and payable to the corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies, or other
depositaries as may be selected by the Board of Directors; and (c) generally
perform all of the duties incident to the office of treasurer and such other
duties as from time to time may be assigned to him/her by the president or by
the Board of Directors.
If
required by the Board of Directors, the treasurer shall give a bond for the
faithful discharge of his/her duties in such sum and with such surety or
sureties as the Board of Directors shall determine.
4.9
ASSISTANT SECRETARIES AND ASSISTANT
TREASURERS
The
assistant secretaries, when authorized by the Board of Directors, may sign with
the president, or a vice-president, certificates for shares of the corporation,
the issuance of which has been authorized by a resolution of the Board of
Directors, The assistant treasurers shall respectively, if required by the Board
of Directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board of Directors shall determine. The assistant
secretaries and assistant treasurers, generally, shall perform such duties as
may be assigned to them by the secretary or the treasurer, respectively, or by
the president or the Board of Directors.
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4.10
COMPENSATION
The
compensation of the officers, if any, shall be fixed from time to time by the
Board of Directors, or an authorized committee thereof.
ARTICLE
5
INDEMNIFICATION
OF DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES
5.1
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS
Unless
otherwise provided in the Articles of Incorporation, the corporation shall
indemnify any individual made a party to a proceeding because he is or was an
officer, director, employee or agent of the corporation against liability
incurred in the proceeding, all pursuant to and consistent with the provisions
of NRS 78.751, as amended from time to time.
5.2 ADVANCE
EXPENSES FOR OFFICERS AND DIRECTORS
The
expenses of officers and directors incurred in defending a civil or criminal
action, suit or proceeding shall be paid by the corporation as they are incurred
and in advance of the final disposition of the action, suit or proceeding, but
only after receipt by the corporation of an undertaking by or on behalf of the
officer or director on terms set by the Board of Directors, to repay the
expenses advanced if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the
corporation.
5.3
SCOPE OF
INDEMNIFICATION
The
indemnification permitted herein is intended to be to the fullest extent
permissible under the laws of the State of Nevada, and any amendments
thereto.
ARTICLE
6
CERTIFICATES
FOR SHARES AND THEIR TRANSFER
6.1
CERTIFICATES FOR SHARES
(a)
Content-Certificates representing shares of the corporation shall at minimum,
state on their face the name of the issuing corporation; that the corporation is
formed under the laws of the State of Nevada; the name of the person to whom
issued; the certificate number; class and par value of shares; and the
designation of the series, if any, the certificate represents. The form of the
certificate shall be as determined by the Board of Directors. Such certificates
shall be signed (either manually or by facsimile) by the president or a vice
president and by the secretary or an assistant secretary and may be sealed with
a corporate seal or a facsimile thereof. Each certificate for shares shall be
consecutively numbered or otherwise identified.
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(b)
Legend as
to Class or Series
- If the corporation is authorized to issue different classes of shares
or different series within a class, the designations, relative rights,
preferences, and limitations applicable to each class and the variations in
rights, preferences, and limitations determined for each series (and the
authority of the Board of Directors to determine variations for future series)
must be summarized on the front or back of the certificate indicating that the
corporation will furnish the shareholder this information on request in writing
and without charge.
(c)
Shareholder
List
- The name and address of the person to whom the shares are issued, with
the number of shares and date of issue, shall be entered on the stock transfer
books of the corporation.
(d)
Transferring
Shares - All certificates surrendered to the corporation for transfer shall be
canceled and no new certificate shall be issued until the former certificate for
a like number of shares shall have been surrendered and canceled, except that in
case of a lost, destroyed, or mutilated certificate, a new one may be issued
therefor upon such terms as the Board of Directors may prescribe, including
indemnification of the corporation and bond requirements.
6.2
REGISTRATION OF THE TRANSFER OF
SHARES
Registration
of the transfer of shares of the corporation shall be made only on the stock
transfer books of the corporation. In order to register a transfer, the record
owner shall surrender the share certificate to the corporation for cancellation,
properly endorsed by the appropriate person or persons with reasonable
assurances that the endorsements are genuine and effective. Unless the
corporation has established a procedure by which a beneficial owner of shares
held by a nominee is to be recognized by the corporation as the owner, the
person in whose name shares stand on the books of the corporation shall be
deemed by the corporation to be the owner thereof for all purposes.
6.3
RESTRICTIONS ON TRANSFER OF SHARES
PERMITTED
The Board
of Directors may impose restrictions on the transfer or registration of transfer
of shares, including any security convertible into, or carrying a right to
subscribe for or acquire shares. A restriction does not affect shares issued
before the restriction was adopted unless the holders of the shares are parties
to the restriction agreement or voted in favor of the restriction.
(a)
A restriction on the transfer or registration of transfer of shares may be
authorized:
(i)
to
maintain the corporation's status when it is dependent on the number or identity
of its shareholders;
(ii)
to
preserve exemptions under federal or state securities law; or
(iii)
for any
other reasonable purpose.
(b)
A restriction on the transfer or
registration of transfer of shares may:
15
(i)
obligate
the shareholder first to offer the corporation or other persons (separately,
consecutively, or simultaneously) an opportunity to acquire the restricted
shares;
(ii)
obligate
the corporation or other persons (separately, consecutively, or simultaneously)
to acquire the restricted shares;
(iii)
require
the corporation, the holders or any class of its shares, or another person to
approve the transfer of the restricted shares, if the requirement is not
manifestly unreasonable; or
(iv)
prohibit
the transfer of the restricted shares to designated persons or classes of
persons, if the prohibition is not manifestly unreasonable.
A
restriction on the transfer or registration of transfer of shares is valid and
enforceable against the holder or a transferee of the holder if the restriction
is authorized by this Section 6.3 and its existence is noted conspicuously on
the front or back of the certificate. Unless so noted, a restriction is not
enforceable against a person without knowledge of the restriction.
6.4
ACQUISITION OF SHARES
The
corporation may acquire its own shares and unless otherwise provided in the
Articles of Incorporation, the shares so acquired constitute authorized but
unissued shares.
If the
Articles of Incorporation prohibit the reissue of shares acquired by the
corporation, the number of authorized shares is reduced by the number of shares
acquired, effective upon amendment of the Articles of Incorporation, which
amendment shall be adopted by the shareholders, or the Board of Directors
without shareholder action (if permitted by the Act). The amendment must be
delivered to the Secretary of State and must set forth:
(i)
the name
of the corporation;
(ii) the
reduction in the number of authorized shares, itemized by class and series;
and;
(iii)
the total
number of authorized shares, itemized by class and series, remaining after
reduction of the shares.
ARTICLE
7
DISTRIBUTIONS
7.1
DISTRIBUTIONS
The Board
of Directors may authorize, and the corporation may make, distributions
(including dividends on its outstanding shares) in the manner and upon the terms
and conditions provided by law.
16
ARTICLE
8
CORPORATE
SEAL
8.1
CORPORATE SEAL
The Board
of Directors may adopt a corporate seal which may be circular in form and have
inscribed thereon any designation, including the name of the corporation, Nevada
as the state of incorporation, and the words "Corporate Seal."
ARTICLE
9
RECORDS,
INSPECTION
9.1
RECORDS
The
corporation shall maintain, in accordance with generally accepted accounting
principles, adequate and correct accounts, books and records of its business and
properties. All of such books, records and accounts shall be kept at its
principal executive office as fixed by the Board of Directors from time to
time.
9.2
INSPECTION OF BOOKS
AND RECORDS
All books
and records shall be open to inspection of the Directors and Shareholders from
time to time and in the manner provided under applicable law.
9.3
CERTIFICATION
AND INSPECTION OF BYLAWS
The
original or a copy of these bylaws, as amended or otherwise altered to date,
certified by the Secretary, shall be kept at the corporation's principal
executive office and shall be open to inspection by the Shareholders at all
reasonable times during office hours.
9.4
CHECK, DRAFTS,
ETC.
All
checks, drafts, or other orders for payment of money, notes or other evidences
of indebtedness, issued in the name of or payable to the corporation shall be
signed or endorsed by such person or persons and in such manner as shall be
determined from time to time by the Board of Directors.
9.5
CONTRACT, ETC.
—
HOW
EXECUTED
The Board
of Directors, except as in the Bylaws otherwise provided, may authorize any
Officer or Officers, agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation. Such authority may
be general or confined to specific instances. Unless so authorized by the Board
of Directors, no Officer, agent or employee shall have any power or authority to
bind the corporation by any contract or agreement, or to pledge its credit, or
to render it liable for any purpose or to any amount except as may be provided
under applicable law.
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9.6
ACCOUNTING
YEAR
The
accounting year of the corporation shall be fixed by resolution of the Board of
Directors.
ARTICLE
10
AMENDMENTS
10.1 AMENDMENTS
The Board
of Directors may amend or repeal the corporation's Bylaws unless:
(i)
The
Articles of Incorporation or the Act reserve this power exclusively to the
shareholders, in whole or part; or
(ii)
the
shareholders, in adopting, amending, or repealing a particular Bylaw, provide
expressly that the Board of Directors may not amend or repeal that Bylaw;
or
(iii)
the Bylaw
either establishes, amends or deletes a "supermajority" shareholder quorum or
voting requirement, as defined in Section 2.8 of Article 2.
Any
amendment which changes the voting or quorum requirement for the Board of
Directors must comply with Section 3.8 of Article 3, and for the shareholders,
must comply with Section 2.8 of Article 2.
The
corporation's shareholders may also amend or repeal the corporation's Bylaws at
any meeting held pursuant to Article 2.
CERTIFICATE
OF SECRETARY
I hereby
certify that I am the Secretary CRYOPORT, INC. and that the foregoing Amended
and Restated Bylaws, consisting of eighteen (18) pages, constitutes the Amended
and Restated Bylaws of CRYOPORT, INC. as duly adopted by the Board of Directors
of the corporation on this 21st day of June, 2005.
|
/s/ Gary
C.
Cannon
Secretary
|
18
CERTIFICATE
OF AMENDMENT OF
AMENDED
AND RESTATED BYLAWS
OF
CRYOPORT,
INC.
I hereby
certify that I am the duly elected, qualified and acting Secretary of CryoPort,
Inc., a Nevada corporation (the “Corporation”), and that the
Board of Directors of the Corporation adopted the following resolutions amending
the Bylaws of the Corporation at a duly held meeting of the Board of Directors
on October 9, 2009:
1. The Company’s Amended and Restated
Bylaws (the “Bylaws”)
are hereby amended by deleting Article 6, Section 6.1(a) thereof in its entirety
and inserting the following in lieu thereof:
“(a) The shares of the corporation’s stock may be
certificated or uncertificated, as provided under Nevada law, and shall be
entered in the books of the corporation and registered as they are
issued. Any certificates representing shares of stock shall be in
such form as the Board of Directors shall prescribe, certifying the number and
class of shares of the stock of the corporation owned by the
shareholder. Any certificates issued to any shareholder of the
corporation shall bear the name of the corporation and state that it is organized under the laws of the
State of Nevada, the name of the shareholder, and the number and class (and the
designation of the series, if any) of the shares represented. Each
certificate shall be signed either manually or by facsimile, by (i) the
president or a vice president and (ii) by the secretary or an assistant
secretary, and may be sealed with the seal of the corporation or a facsimile
thereof. If applicable, each certificate for shares shall be
consecutively number or otherwise identified.
Within a
reasonable time after the issuance or transfer of uncertificated stock, the
corporation shall send to the registered owner thereof a written notice that
shall set forth the name of the corporation, that the corporation is organized
under the laws of the State of Nevada, the name of the shareholder, the number
and class (and the designation of the series, if any) of the shares represented,
and any restrictions on the transfer or registration of such shares of stock
imposed by the corporation’s articles of incorporation, these Bylaws, any
agreement among shareholders or any agreement between shareholders and the
corporation.”
2. The Bylaws are hereby amended by deleting
Article 6, Section 6.1(b) thereof in its entirety and inserting the following in
lieu thereof:
“(b) Legend
as to Class or Series - If the corporation is authorized to issue different
classes of shares or different series within a class, the designations, relative
rights, preferences, and limitations applicable to each class and the variations
in rights, preferences, and limitations determined for each series (and the
authority of the Board of Directors to determine variations for future series)
must be summarized on the front or back of the certificate (if certificates for
such shares are issued) indicating that the corporation will furnish the
shareholder this information on request in writing and without
charge.”
3. The Bylaws are hereby amended by deleting
Article 6, Section 6.1(d) thereof in its entirety.
4. The Bylaws are hereby amended by deleting
Article 6, Section 6.2 thereof in its entirety and inserting the following in
lieu thereof:
“6.2 REGISTRATION
OF THE TRANSFER OF SHARES.
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Upon
surrender to the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate or evidence of the issuance of
uncertificated shares to the shareholder entitled thereto, cancel the old
certificate and record the transaction upon the corporation’s
books. Upon the surrender of any certificate for transfer of stock,
such certificate shall at once be conspicuously marked on its face “Cancelled”
and filed with the permanent stock records of the corporation.
Upon the
receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the shareholder entitled thereto and the transaction shall be recorded upon the
books of the corporation. If the corporation has a transfer agent or
registrar acting on its behalf, the signature of any officer or representative
thereof may be in facsimile.
The Board
of Directors may appoint a transfer agent and one or more co-transfer agents and
registrar and one or more co-registrars and may make or authorize such agent to
make all such rules and regulations deemed expedient concerning the issue,
transfer and registration of shares of stock.”
5. The Bylaws are hereby amended by adding
the following as Article 6, Section 6.5 to read in its entirety as
follows:
“6.5 LOST,
STOLEN OR DESTROYED CERTIFICATES.
Any
person claiming a share certificate to be lost, stolen or destroyed shall make
an affidavit or affirmation of the fact in such manner as the Board of Directors
may require and shall, if the Board of Directors so requires, give the
corporation a bond of indemnity in form and amount, and with one or more
sureties satisfactory to the Board of Directors, as the Board of Directors may
require, whereupon the corporation may issue (i) a new certificate or
certificates of stock or (ii) uncertificated shares in place of any certificate
or certificates previously issued by the corporation alleged to have been lost,
stolen or destroyed.”
6. The Bylaws are hereby amended by adding
the following as Article 2, Section 2.14 to read in its entirety as
follows:
“2.14 NATURE OF
BUSINESS AT MEETINGS OF THE SHAREHOLDERS.
No
business (other than nomination of directors pursuant to Article 2, Section 2.15
of these Bylaws) may be transacted at any annual meeting of the shareholders, or
at any special meeting of the shareholders, other than business that is (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) or the president, (b) otherwise properly brought before the meeting by
or at the direction of the Board of Directors (or any duly authorized committee
thereof), the chairman of the board or the president or (c) otherwise properly
brought before the meeting by any shareholder of the corporation (i) who is a
shareholder of record on the date of the giving of the notice provided for in
this Section 2.14 and on the record date for the determination of shareholders
entitled to vote at such meeting and (ii) who complies with the notice
procedures set forth in this Section 2.14. In addition to any other
applicable requirements, for business to be properly brought by a shareholder
before an annual meeting, or at any special meeting, of the shareholders, such
shareholder must have given timely notice thereof in proper written form to the
secretary of the corporation.
20
To be
timely, a shareholder’s notice to the secretary must be delivered to or mailed
and received at the corporation’s corporate headquarters (a) in the case of an
annual meeting, not less than 120 days prior to the anniversary date of the
immediately preceding annual meeting of the shareholders; provided, however, that in the
event that the annual meeting is called for a date that is not within 30 days
before or after such anniversary date, notice by the shareholder in order to be
timely must be so received not later than the close of business on the tenth day
following the day on which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting was made, whichever first
occurs; and (b) in the case of a special meeting of the shareholders, not later
than the close of business on the tenth day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever first occurs.
To be in
proper written form, a shareholder’s notice to the secretary must set forth as
to each matter such shareholder proposes to bring before the annual meeting, or
at any special meeting, of the shareholders (a) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting, (b) the name and record address of such
shareholder, (c) the class or series and number of shares of capital stock of
the corporation which are owned beneficially or of record by such shareholder,
(d) a description of all arrangements or understandings between such shareholder
and any other person or persons (including their names) in connection with the
proposal of such business by such shareholder and any material interest of such
shareholder in such business and (e) a representation that such shareholder
intends to appear in person or by proxy at the meeting to bring such business
before the meeting.
No
business shall be conducted at the annual meeting, or at any special meeting, of
the shareholders except business brought before the meeting in accordance with
the procedures set forth in this Section 2.14. If the chairman of any
meeting determines that business was not properly brought before the meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.”
7. The Bylaws are hereby amended by adding
the following as Article 2, Section 2.15 to read in its entirety as
follows:
“2.15 NOMINATION
OF DIRECTORS.
Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the corporation. Nominations of
persons for election to the Board of Directors may be made at any annual meeting
of the shareholders, or at any special meeting of the shareholders, (a) by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any shareholder of the corporation who (i) is a shareholder
of record on the date of the giving of the notice provided for in this Section
2.15 and on the record date for the determination of shareholders entitled to
vote at such meeting and (ii) complies with the notice procedures set forth in
this Section 2.15. In addition to any other applicable requirements,
for a nomination to be made by a shareholder, such shareholder must have given
timely notice thereof in proper written form to the secretary of the
corporation.
To be
timely, a shareholder’s notice to the secretary must be delivered to or mailed
and received at the corporation’s corporate headquarters of the corporation (a)
in the case of an annual meeting, not less than 120 days prior to the
anniversary date of the immediately preceding annual meeting of the
shareholders; provided, however, that in the
event that the annual meeting is called for a date that is not within 30 days
before or after such anniversary date, notice by the shareholder in order to be
timely must be so received not later than the close of business on the tenth day
following the day on which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting was made, whichever first
occurs; and (b) in the case of a special meeting of the shareholders called for
the purpose of electing directors, not later than the close of business on the
tenth day following the day on which notice of the date of the special meeting
was mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
21
To be in
proper written form, a shareholder’s notice to the secretary must set forth (a)
as to each person whom the shareholder proposes to nominate for 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 or series and number of shares of capital stock of the corporation which
are owned beneficially or of record by the person and (iv) any other information
relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations promulgated thereunder; and (b) as to the shareholder giving the
notice (i) the name and record address of such shareholder, (ii) the class or
series and number of shares of capital stock of the corporation which are owned
beneficially or of record by such shareholder, (iii) a description of all
arrangements or understandings between such shareholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such shareholder, (iv) a
representation that such shareholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such shareholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
No person
shall be eligible for election as a director of the corporation by the
shareholders unless nominated in accordance with the procedures set forth in
this Section 2.15. If the chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
chairman shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.”
WITNESS
my signature this 9th day of October, 2009.
| By: | /s/ Carlton M. Johnson, Jr. | |
| Carlton M. Johnson, Jr. | ||
| Secretary |
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