Attached files
file | filename |
---|---|
8-K - FORM 8-K - Life Technologies Corp | a55993e8vk.htm |
EX-3.1 - EX-3.1 - Life Technologies Corp | a55993exv3w1.htm |
EX-10.2 - EX-10.2 - Life Technologies Corp | a55993exv10w2.htm |
EX-10.3 - EX-10.3 - Life Technologies Corp | a55993exv10w3.htm |
EX-10.1 - EX-10.1 - Life Technologies Corp | a55993exv10w1.htm |
Exhibit 3.2
FIFTH AMENDED AND RESTATED
BYLAWS
OF
LIFE TECHNOLOGIES CORPORATION,
A DELAWARE CORPORATION
TABLE OF CONTENTS
Page | ||||
ARTICLE I STOCKHOLDERS | 1 | |||
Section 1.1 |
Annual Meeting | 1 | ||
Section 1.2 |
Special Meetings | 1 | ||
Section 1.3 |
Notice of Meetings | 1 | ||
Section 1.4 |
Quorum | 1 | ||
Section 1.5 |
Organization | 2 | ||
Section 1.6 |
Conduct of Business | 2 | ||
Section 1.7 |
Notice of Stockholder Business | 2 | ||
Section 1.8 |
Proxies and Voting | 3 | ||
Section 1.9 |
Stock List | 3 | ||
Section 1.10 |
No Stockholder Action by Written Consent | 3 | ||
ARTICLE II BOARD OF DIRECTORS | 4 | |||
Section 2.1 |
Number and Term of Office | 4 | ||
Section 2.2 |
Vacancies and Newly Created Directorships | 4 | ||
Section 2.3 |
Removal | 4 | ||
Section 2.4 |
Regular Meetings | 4 | ||
Section 2.5 |
Special Meetings | 4 | ||
Section 2.6 |
Quorum | 5 | ||
Section 2.7 |
Participation in Meetings by Conference Telephone | 5 | ||
Section 2.8 |
Conduct of Business | 5 | ||
Section 2.9 |
Powers | 5 | ||
Section 2.10 |
Compensation of Directors | 6 | ||
Section 2.11 |
Nomination of Director Candidates | 6 | ||
ARTICLE III COMMITTEES | 7 | |||
Section 3.1 |
Committees of the Board of Directors | 7 | ||
Section 3.2 |
Conduct of Business | 7 | ||
ARTICLE IV OFFICERS | 8 | |||
Section 4.1 |
Generally | 8 | ||
Section 4.2 |
Chairman of the Board | 8 | ||
Section 4.3 |
Chief Executive Officer | 8 | ||
Section 4.4 |
President and Chief Operating Officer | 8 |
i
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 4.5 |
Chief Financial Officer | 9 | ||
Section 4.6 |
Divisional or Functional Presidents | 9 | ||
Section 4.7 |
Secretary | 9 | ||
Section 4.8 |
Delegation of Authority | 9 | ||
Section 4.9 |
Removal | 9 | ||
Section 4.10 |
Action With Respect to Securities of Other Corporations | 9 | ||
ARTICLE V STOCK | 9 | |||
Section 5.1 |
Certificates of Stock | 9 | ||
Section 5.2 |
Transfers of Stock | 10 | ||
Section 5.3 |
Record Date | 10 | ||
Section 5.4 |
Lost, Stolen or Destroyed Certificates | 10 | ||
Section 5.5 |
Regulations | 10 | ||
ARTICLE VI NOTICES | 10 | |||
Section 6.1 |
Notices | 10 | ||
Section 6.2 |
Waivers | 11 | ||
ARTICLE VII MISCELLANEOUS | 11 | |||
Section 7.1 |
Facsimile Signatures | 11 | ||
Section 7.2 |
Corporate Seal | 11 | ||
Section 7.3 |
Reliance Upon Books, Reports and Records | 11 | ||
Section 7.4 |
Fiscal Year | 11 | ||
Section 7.5 |
Time Periods | 11 | ||
ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS | 11 | |||
Section 8.1 |
Right to Indemnification | 11 | ||
Section 8.2 |
Right of Indemnitee to Bring Suit | 12 | ||
Section 8.3 |
Indemnification of Employees and Agents | 13 | ||
Section 8.4 |
Non Exclusivity of Rights | 13 | ||
Section 8.5 |
Indemnification Contracts | 13 | ||
Section 8.6 |
Insurance | 14 | ||
Section 8.7 |
Advance Payment of Expenses | 14 | ||
Section 8.8 |
Effect of Amendment | 14 | ||
Section 8.9 |
Savings Clause | 14 | ||
ARTICLE IX AMENDMENTS | 14 |
ii
LIFE TECHNOLOGIES CORPORATION, A DELAWARE CORPORATION
FIFTH AMENDED AND RESTATED BYLAWS
ARTICLE I
STOCKHOLDERS
STOCKHOLDERS
Section 1.1 Annual Meeting. An annual meeting of the stockholders, for the election
of directors to succeed those whose terms expire and for the transaction of such other business as
may properly come before the meeting, shall be held at such place, on such date, and at such time
as the Board of Directors shall each year fix, which date shall be within thirteen months after
the organization of the corporation or after its last annual meeting of stockholders.
Section 1.2 Special Meetings. Special meetings of the stockholders, for any purpose
or purposes prescribed in the notice of the meeting, may be called by (1) the Board of Directors
pursuant to a resolution adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board for adoption), or (2) the Chairman of the Board, and
shall be held at such place, on such date, and at such time as they shall fix. Business
transacted at special meetings shall be confined to the purpose or purposes stated in the notice.
Section 1.3 Notice of Meetings. Written notice of the place, date, and time of all
meetings of the stockholders shall be given, not less than ten (10) nor more than sixty (60) days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such
meeting, as provided herein or otherwise required by law (meaning, here and hereinafter, as
required from time to time by the Delaware General Corporation Law, the Certificate of
Incorporation of the Corporation or the rules and regulations promulgated by the Securities and
Exchange Commission).
When a meeting is adjourned to another place, date or time, written notice need not be given
of the adjourned meeting if the place, date and time thereof are announced at the meeting at which
the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than
thirty (30) days after the date for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the place, date, and time of the
adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business
may be transacted which might have been transacted at the original meeting.
Section 1.4 Quorum. At any meeting of the stockholders, the holders of a majority of
all of the shares of the stock entitled to vote at the meeting, present in person or by proxy,
shall constitute a quorum for all purposes, unless or except to the extent that the presence of a
larger number may be required by law or by the Certificate of Incorporation or Bylaws of this
corporation.
If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a
majority of the shares of stock entitled to vote who are present, in person or by proxy, may
adjourn the meeting to another place, date, or time.
1
If a notice of any adjourned special meeting of stockholders is sent to all stockholders
entitled to vote thereat, stating that it will be held with those present constituting a quorum,
then except as otherwise required by law, those present at such adjourned meeting shall constitute
a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
Section 1.5 Organization. Such person as the Board of Directors may have designated
or, in the absence of such a person, the Chairman, if there is such an officer, or if not, the
Presiding Director of the Corporation, or in the absence of all of the above, such person as may
be chosen by the holders of a majority of the shares entitled to vote who are present, in person
or by proxy, shall call to order any meeting of the stockholders and act as chairman of the
meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall
be such person as the chairman appoints.
Section 1.6 Conduct of Business. The chairman of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him in order.
Section 1.7 Notice of Stockholder Business. At an annual or special meeting of the
stockholders, only such business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before a meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b)
properly brought before the meeting by or at the direction of the Board of Directors, or (c) if,
and only if, the notice of an annual meeting or special meeting specifically provides for and
describes the business to be brought before the meeting by stockholders, properly brought before
the annual meeting or special meeting by a stockholder. For business to be properly brought
before a meeting by a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholders notice must be
delivered to or mailed and received at the principal offices of the Corporation no later than the
date on which stockholder proposals to be included in the stockholder proxy must be received by
the Corporation under the requirements of the Securities Exchange Act of 1934, as amended (the
Exchange Act), and the rules promulgated thereunder. A stockholders notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the annual or special
meeting (i) a brief description of the business desired to be brought before the annual or special
meeting and the reasons for conducting such business at the annual or special meeting, (ii) the
name and address, as they appear on the Corporations books, of the stockholder proposing such
business, (iii) the class and number of shares of the Corporation which are beneficially owned by
the stockholder, (iv) any material interest of the stockholder in such business, and (v) any
direct or indirect pecuniary or economic interest in any capital stock or other security of the
Corporation of such person, including, without limitation, any derivative instrument, swap,
option, warrant, short interest, hedge, or profit-sharing arrangement. Notwithstanding anything
in the Bylaws to the contrary (i) no business shall be conducted at an annual or special meeting
except in accordance with the procedures set forth in this Section 1.7, (ii) other than with
respect to stockholder nominations for the election of Directors, the procedures in clause (c) of
this Section 1.7 shall be the exclusive means for a stockholder to properly submit business (other
than business properly brought under Rule 14a-8 under the Exchange Act and included in the
Corporations proxy statement) before an annual or special meeting of stockholders; it being
understood that a
2
stockholder seeking to nominate directors at an annual or special meeting of stockholders
must comply with notice and information requirements of Section 2.11, and (iii) the procedures in
Section 2.11 (including the notice and information requirements therein) shall be the exclusive
means for a stockholder to submit nominations for the election of Directors before an annual or
special meeting of stockholders. The chairman of an annual or special meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly brought before the
meeting and in accordance with the provisions of this Section 1.7, and if he should so determine,
he shall so declare to the meeting and any such business not properly brought before the meeting
shall not be transacted.
Section 1.8 Proxies and Voting. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing
filed in accordance with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock entitled to vote which is
registered in his name on the record date for the meeting, except as otherwise provided herein or
required by law.
All voting, except where otherwise required by law, may be by a voice vote; provided, however,
that upon demand therefor by a stockholder entitled to vote or by his proxy, a stock vote shall be
taken. Every stock vote shall be taken by ballots, each of which shall state the name of the
stockholder or proxy voting and such other information as may be required under the procedure
established for the meeting. Every vote taken by ballots shall be counted by an inspector or
inspectors appointed by the chairman of the meeting.
Except as otherwise required by applicable law or by the Certificate of this Corporation or
these Bylaws, at any meeting of stockholders for the election of one or more Directors at which a
quorum is present, each Director shall be elected by the vote of a majority of the votes cast with
respect to the Director, provided that if, as of a date that is ten (10) days in advance of the
date on which the Corporation files its definitive proxy statement with the SEC (regardless of
whether thereafter revised or supplemented), the number of nominees for Director exceeds the number
of directors to be elected, the Directors shall be elected by the vote of a plurality of the votes
cast by the Stockholders entitled to vote at the election. For purposes of this Section 1.8, a
majority of the votes cast means that the number of shares voted for a Director exceeds the
number of votes cast against that Director. The following shall not be votes cast: (a) a share
otherwise present at the meeting but for which there is an abstention; and (b) a share otherwise
present at the meeting as to which a shareholder gives no authority or direction. If a Director
then serving on the Board of Directors does not receive the required majority, the Director shall
tender his or her resignation to the Board. Within ninety (90) days after the date of the
certification of the election results, the Governance and Nominating Committee or other committee
that may be designated by the Board will make a recommendation to the Board on whether to accept or
reject the resignation, or whether other action should be taken, and the Board will act on such
committees recommendation and publicly disclose its decision and the rationale behind it. In
addition, and except as otherwise required by law or by the Certificate of this Corporation or
these Bylaws, all other matters shall be determined by a majority of the votes cast.
3
Section 1.9 Stock List. A complete list of stockholders entitled to vote at any
meeting of stockholders, arranged in alphabetical order for each class of stock and showing the
address of each such stockholder and the number of shares registered in his name, shall be open to
the examination of any such stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the whole time thereof
and shall be open to the examination of any such stockholder who is present. This list shall
presumptively determine the identity of the stockholders entitled to vote at the meeting and the
number of shares held by each of them.
Section 1.10 No Stockholder Action by Written Consent. The stockholders of the
Corporation may not act by written consent and may act only at an annual or special meeting of the
stockholders.
ARTICLE II
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 2.1 Number and Term of Office. The number of directors shall be fixed from
time to time exclusively by the Board of Directors pursuant to a resolution adopted by a majority
of the total number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is presented to the Board for
adoption). The directors shall be elected at the annual meeting of the stockholders, who shall
vote for such directors as provided in the Certificate of Incorporation. The directors shall be
divided into three (3) classes, with the term of office of the first class to expire at the first
annual meeting of stockholders held after the closing of the first sale of the Corporations
common stock pursuant to a firmly underwritten registered public offering (the IPO); the term of
office of the second class to expire at the second annual meeting of stockholders held after the
IPO; the term of office of the third class to expire at the third annual meeting of stockholders
held after the IPO; and thereafter for each such term to expire at each third succeeding annual
meeting of stockholders after such election. All directors shall hold office until the expiration
of the term for which elected and until their respective successors are elected, except in the
case of the death, resignation or removal of any director. Directors need not be stockholders.
Section 2.2 Vacancies and Newly Created Directorships. Subject to the rights of the
holders of any series of Preferred Stock then outstanding, newly created directorships resulting
from any increase in the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, or other cause (other then
removal from office by a vote of the stockholders) may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen shall hold office for
a term expiring at the next annual meeting of stockholders at which the term of office to which
they have been elected expires, and until their respective successors are elected, except in the
case of death or resignation in which case the directors so chosen shall hold office for a term
4
expiring at the next annual meeting of stockholders. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent director.
Section 2.3 Removal. Subject to the limitations stated in the Certificate of
Incorporation, any director, or the entire Board of Directors, may be removed from office at any
time, with or without cause, but only by the affirmative vote of the holders of at least a
majority of the voting power of its then outstanding shares of stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single class. Any director
or the entire Board of Directors may be removed from office before the expiration of the
applicable term of office only with cause. Vacancies in the Board of Directors resulting from
such removal may be filled by (i) a majority of the directors then in office, though less than a
quorum, or (ii) the stockholders at a special meeting of the stockholders properly called for that
purpose, by the vote of the holders of a majority of the shares entitled to vote at such special
meeting. Directors so chosen shall hold office until the next annual meeting of stockholders.
Section 2.4 Regular Meetings. Regular meetings of the Board of Directors shall be
held at such place or places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A notice of each
regular meeting shall not be required.
Section 2.5 Special Meetings. Special meetings of the Board of Directors may be
called by one third of the directors then in office (rounded up to the nearest whole number), by
the chairman of the board or by the Chief Executive Officer (CEO), or by the Presiding Director
and shall be held at such place, on such date, and at such time as they or he shall fix. Notice
of the place, date, and time of each such special meeting shall be given each director by whom it
is not waived:
(i) by mailing written notice not less than five (5) days before the meeting;
(ii) delivering written notice by overnight courier not less than one (1) day before the
meeting
(iii) delivering written notice by overseas courier service not less than two (2) days before
the meeting; or
(iv) providing notice thereof by telephone, telecopy, email or personal delivery not less than
twelve (12) hours before the meeting.
Unless otherwise indicated in the notice thereof, any and all business may be transacted at a
special meeting.
Section 2.6 Quorum. At any meeting of the Board of Directors, a majority of the
total number of authorized directors shall constitute a quorum for all purposes. If a quorum
shall fail to attend any meeting, a majority of those present may adjourn the meeting to another
place, date, or time, without further notice or waiver thereof.
Section 2.7 Participation in Meetings by Conference Telephone. Members of the Board
of Directors, or of any committee of the Board of Directors, may participate in a meeting
5
of such Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other and such
participation shall constitute presence in person at such meeting.
Section 2.8 Conduct of Business. At any meeting of the Board of Directors, business
shall be transacted in such order and manner as the Board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present, except as
otherwise provided herein or required by law. Action may be taken by the Board of Directors
without a meeting if all members thereof consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors.
Section 2.9 Powers. The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be exercised or done by the
Corporation, including, without limiting the generality of the foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or privileges on such terms as it
shall determine;
(3) To authorize the creation, making and issuance, in such form as it may determine, of
written obligations of every kind, negotiable or non negotiable, secured or unsecured, and
(4) To remove any officer of the Corporation with or without cause, and from time to time to
pass on the powers and duties of any officer upon any other person for the time being;
(5) To confer upon any officer of the Corporation the power to appoint, remove and suspend
subordinate officers, employees and agents;
(6) To adopt from time to time such stock option, stock purchase, bonus or other compensation
plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it
may determine;
(7) To adopt from time to time such insurance, retirement, and other benefit plans for
directors, officers, employees and agents of the Corporation and its subsidiaries as it may
determine;
(8) To adopt from time to time regulations, not inconsistent with these Bylaws, for the
management of the Corporations business and affairs; and
(9) To appoint one of the independent directors to serve as Presiding Director and to
designate the authority and responsibilities of the Presiding Director.
Section 2.10 Compensation of Directors. Directors, as such, may receive, pursuant to
resolution of the Board of Directors, fixed fees and other compensation for their services as
6
directors, including, without limitation, their services as members of committees of the
Board of Directors.
Section 2.11 Nomination of Director Candidates. Subject to the rights of holders of
any class or series of Preferred Stock then outstanding, nominations for the election of Directors
may be made by the Board of Directors or a proxy committee appointed by the Board of Directors or
by any stockholder entitled to vote in the election of Directors generally who complies with the
procedures set forth in this Section 2.11 and who is a stockholder of record at the time notice is
delivered to the Secretary of the Corporation. However, any stockholder entitled to vote in the
election of Directors generally may nominate one or more persons for election as Directors at a
meeting only if timely notice of such stockholders intent to make such nomination or nominations
has been given in writing to the Secretary of the Corporation in accordance with this Section
2.11. To be timely, a stockholder nomination for a director to be elected at an annual meeting
shall be received at the Corporations principal executive offices not less than 120 calendar days
in advance of the first year anniversary of the date that the Corporations proxy statement was
released to stockholders in connection with the previous years annual meeting of stockholders,
except that if no annual meeting was held in the previous year or the date of the annual meeting
has been changed by more than 30 calendar days from the date contemplated at the time of the
previous years proxy statement, or in the event of a nomination for director to be elected at a
special meeting, notice by the stockholders to be timely must be received not later than the close
of business on the tenth day following the day on which such notice of the date of the special
meeting was mailed or such public disclosure was made. Each such notice shall set forth: (a) the
name and address of the stockholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the stockholder is a holder of record of stock
of the Corporation entitled to vote for the election of Directors on the date of such notice and
intends to appear in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other information regarding
each nominee proposed by such stockholder as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the Board of Directors; (e) the consent of each nominee
to serve as a director of the Corporation if so elected; and (f) any direct or indirect pecuniary
or economic interest in any capital stock or other security of the Corporation of such nominating
stockholders, including, without limitation, any derivative instrument, swap, option, warrant,
short interest, hedge, or profit-sharing arrangement.
In the event that a person is validly designated as a nominee in accordance with this Section
2.11 and shall thereafter become unable or unwilling to stand for election to the Board of
Directors, the Board of Directors or the stockholder who proposed such nominee, as the case may be,
may designate a substitute nominee upon delivery, not fewer than five days prior to the date of the
meeting for the election of such nominee, of a written notice to the Secretary setting forth such
information regarding such substitute nominee as would have been required to be delivered to the
Secretary pursuant to this Section 2.11 had such substitute nominee been initially proposed as a
nominee. Such notice shall include a signed consent to serve as a director of the Corporation, if
elected, of each such substitute nominee.
7
If the chairman of the meeting for the election of Directors determines that a nomination of
any candidate for election as a Director at such meeting was not made in accordance with the
applicable provisions of this Section 2.11, such nomination shall be void; provided, however, that
nothing in this Section 2.11 shall be deemed to limit any voting rights upon the occurrence of
dividend arrearages provided to holders of Preferred Stock pursuant to the Preferred Stock
designation for any series of Preferred Stock.
ARTICLE III
COMMITTEES
COMMITTEES
Section 3.1 Committees of the Board of Directors. The Board of Directors, by a vote
of a majority of the whole Board, may from time to time designate committees of the Board, with
such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the
Board and shall, for those committees and any others provided for herein, elect a director or
directors to serve as the member or members, designating, if it desires, other directors as
alternate members who may replace any absent or disqualified member at any meeting of the
committee. Any committee so designated may exercise the power and authority of the Board of
Directors to declare a dividend, to authorize the issuance of stock or to adopt an agreement of
merger or consolidation if the resolution which designates the committee or a supplemental
resolution of the Board of Directors shall so provide. In the absence or disqualification of any
member of any committee and any alternate member in his place, the member or members of the
committee present at the meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act
at the meeting in the place of the absent or disqualified member.
Section 3.2 Conduct of Business. Each committee may determine the procedural rules
for meeting and conducting its business and shall act in accordance therewith, except as otherwise
provided herein or required by law. Adequate provision shall be made for notice to members of all
meetings. If a quorum shall fail to attend any meeting, a majority of those present may adjourn
the meeting to another place, date, or time, without further notice or waiver thereof. All
matters shall be determined by a majority vote of the members present. Action may be taken by any
committee without a meeting if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV
OFFICERS
OFFICERS
Section 4.1 Generally. The officers of the Corporation shall consist of a CEO, a
Chief Financial Officer (CFO), and a Secretary. The Corporation may also have, at the discretion
of the Board of Directors, a Chairman of the Board, a President and COO, one or more division or
functional Presidents, one or more Executive or Senior Vice Presidents, and such other officers as
may from time to time be appointed by the Board of Directors. Officers shall be elected by the
Board of Directors, which shall consider that subject at its first meeting after every annual
meeting of stockholders. Each officer shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. Any number of offices may be held by the
same person.
8
Section 4.2 Chairman of the Board. The Chairman of the Board, if there shall be such
an officer, shall, if present, preside at all meetings of the Board of Directors, and exercise and
perform such other powers and duties as may be from time to time assigned to him by the Board of
Directors or as provided by these Bylaws.
Section 4.3 Chief Executive Officer. Subject to such supervisory powers, if any, as
may be given by the Board of Directors to the Chairman of the Board, if there be such an officer,
the CEO shall be the general manager of the corporation and shall, subject to the control of the
Board of Directors, have general supervision, direction, and control of the business and officers
of the corporation. He shall be ex officio a member of all the standing committees, including the
executive committee, if any, and shall have the general powers and duties of management usually
vested in the office of the chief executive officer of a corporation, and shall have such other
powers and duties as may be prescribed by the Board of Directors or by these Bylaws. If the CEO is
disabled or absent for an extended period (as determined in the discretion of the independent
directors), the Board may appoint a Director or Officer to perform the duties of the CEO on an
interim basis or otherwise, and when so acting such individual shall have all the powers of, and be
subject to all the restrictions upon, the CEO.
Section 4.4 President and Chief Operating Officer. The President and COO, if any,
shall have such powers and duties as may be prescribed by the CEO or these Bylaws.
Section 4.5 Chief Financial Officer. The CFO shall keep and maintain or cause to be
kept and maintained, adequate and correct books and records of account in written form or any other
form capable of being converted into written form. The CFO shall deposit all monies and other
valuables in the name and to the credit of the corporation with such depositaries as may be
designated by the Board of Directors. He shall disburse all funds of the corporation as may be
ordered by the Board of Directors, shall render to the CEO and Directors, whenever they request it,
an account of all of his transactions as CFO and of the financial condition of the Corporation, and
shall have such other powers and perform such other duties as may be prescribed by the CEO or these
Bylaws.
Section 4.6 Divisional or Functional Presidents, Executive Vice Presidents, or Senior Vice
Presidents. The Divisional or Functional Presidents, Executive Vice Presidents or Senior Vice
Presidents shall have such powers and perform such duties as from time to time may be prescribed
for them respectively by the CEO or these Bylaws.
Section 4.7 Secretary. The Secretary shall keep, or cause to be kept, a book of
minutes in written form of the proceedings of the Board of Directors, committees of the Board, and
stockholders. Such minutes shall include all waivers of notice, consents to the holding of
meetings, or approvals of the minutes of meetings executed pursuant to these Bylaws or the General
Delaware Corporation Law. The Secretary shall keep, or cause to be kept at the principal executive
office or at the office of the corporations transfer agent or registrar, a record of its
stockholders, giving the names and addresses of all stockholders and the number and class of shares
held by each.
The Secretary shall give or cause to be given, notice of all meetings of the stockholders and
of the Board of Directors required by these Bylaws or by law to be given, and shall keep the
9
seal of the corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the CEO or these Bylaws.
Section 4.8 Delegation of Authority. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officers or agents, notwithstanding any
provision hereof.
Section 4.9 Removal. Any officer of the Corporation may be removed at any time, with
or without cause, by the Board of Directors.
Section 4.10 Action With Respect to Securities of Other Corporations. Unless
otherwise directed by the Board of Directors, the CEO or any officer of the Corporation authorized
by the CEO shall have power to vote and otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other
corporation in which this Corporation may hold securities and otherwise to exercise any and all
rights and powers which this Corporation may possess by reason of its ownership of securities in
such other corporation.
ARTICLE V
STOCK
STOCK
Section 5.1 Certificates of Stock. Each stockholder shall be entitled to a
certificate signed by, or in the name of the Corporation by the CEO and by the Secretary, an
Assistant Secretary, or the Chief Financial Officer, certifying the number of shares owned by him
or her. Any or all of the signatures on the certificate may be facsimile.
Section 5.2 Transfers of Stock. Transfers of stock shall be made only upon the
transfer books of the Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a certificate is
issued in accordance with Section 5.4 of these Bylaws, an outstanding certificate for the number
of shares involved shall be surrendered for cancellation before a new certificate is issued
therefor.
Section 5.3 Record Date. The Board of Directors may fix a record date, which shall
not be more than sixty (60) nor fewer than ten (10) days before the date of any meeting of
stockholders, nor more than sixty (60) days prior to the time for the other action hereinafter
described, as of which there shall be determined the stockholders who are entitled: to notice of
or to vote at any meeting of stockholders or any adjournment thereof; to receive payment of any
dividend or other distribution or allotment of any rights; or to exercise any rights with respect
to any change, conversion or exchange of stock or with respect to any other lawful action.
Section 5.4 Lost, Stolen or Destroyed Certificates. In the event of the loss, theft
or destruction of any certificate of stock, another may be issued in its place pursuant to such
regulations as the Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5.5 Regulations. The issue, transfer, conversion and registration of
certificates of stock shall be governed by such other regulations as the Board of Directors may
establish.
10
ARTICLE VI
NOTICES
NOTICES
Section 6.1 Notices. Notice of Special Meetings of the Board shall be provided in
accordance with Section 2.5 above. Except for such notices of Special Meetings and except as
otherwise specifically provided herein or required by law, all notices required to be given to any
stockholder, director, officer, employee or agent shall be in writing and may in every instance be
effectively given (i) by hand delivery to the recipient thereof, (ii) by depositing such notice in
the mails, postage prepaid, (iii) by sending such notice by prepaid commercial courier service,
(iv) by telecopy, or (v) by e-mail or other form of widely adopted electronic communication. Any
such notice shall be addressed to such stockholder, director, officer, employee or agent at his
last known address as the same appears on the books of the Corporation.
Such notice shall be deemed to have been received by such stockholder, director, officer,
employee or agent, or person accepting such notice on behalf of such person, upon actual receipt
of the notice, or, if the time of actual receipt is in dispute, no later than (i) at the time
delivered by hand, (ii) five days after the notice is deposited prepaid in the mails, (iii) one
day after deposit (prepaid) with a domestic overnight courier service or two days after deposit
(prepaid) with an overseas courier service, (iv) at the time sent by telecopy, provided the sender
obtains electronic delivery confirmation, and (v) at the time sent by e-mail or other form of
widely adopted electronic communication.
Section 6.2 Waivers. A written waiver of any notice, signed by a stockholder,
director, officer, employee or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such
stockholder, director, officer, employee or agent. Neither the business nor the purpose of any
meeting need be specified in such a waiver. Attendance of a person at a meeting shall constitute
a waiver of notice for such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened.
ARTICLE VII
MISCELLANEOUS
MISCELLANEOUS
Section 7.1 Facsimile Signatures. In addition to the provisions for use of facsimile
signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer
or officers of the Corporation may be used whenever and as authorized by the Board of Directors or
a committee thereof.
Section 7.2 Corporate Seal. The Board of Directors may provide a suitable seal,
containing the name of the Corporation, which seal shall be in the charge of the Secretary. If
and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may
be kept and used by the Chief Financial Officer or by an Assistant Secretary or other officer
designated by the Board of Directors.
11
Section 7.3 Reliance Upon Books, Reports and Records. Each director, each member of
any committee designated by the Board of Directors, and each officer of the Corporation shall, in
the performance of his duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation, including reports made to the Corporation by any of
its officers, by an independent certified public accountant, or by an appraiser.
Section 7.4 Fiscal Year. The fiscal year of the Corporation shall be as fixed by the
Board of Directors.
Section 7.5 Time Periods. In applying any provision of these Bylaws which require
that an act be done or not done a specified number of days prior to an event or that an act be
done during a period of a specified number of days prior to an event, calendar days shall be used,
the day of the doing of the act shall be excluded, and the day of the event shall be included.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, or appellate (Proceeding), by reason of the fact that
he or a person of whom he is the legal representative, is or was a director or officer, employee
or agent of the Corporation or is or was serving at the request of the Corporation as a director
or officer, employee or agent of another corporation, or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans, whether the basis of
such Proceeding is alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended, (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior to such amendment)
against all expenses, liability and loss (including attorneys fees, judgment, fines, ERISA excise
taxes or penalties, amounts paid or to be paid in settlement and amounts expended in seeking
indemnification granted to such person under applicable law, this Bylaw or any agreement with the
Corporation) reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his heirs, executors and administrators; provided,
however, that, except as provided in Section 8.2, the Corporation shall indemnify any such person
seeking indemnity in connection with an action, suit or proceeding (or part thereof) initiated by
such person only if such action, suit or proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation; provided, however, that, if the Delaware General Corporation Law
then so requires, the payment of such expenses incurred by a director or officer of the
Corporation in his capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final disposition of such
proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf
of such director or
12
officer, to repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section or otherwise.
Section 8.2 Right of Indemnitee to Bring Suit. If a claim under Section 8.1 is not
paid in full by the corporation within sixty (60) days after a written claim has been received by
the corporation, except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim. If successful in whole or in
part in any such suit, or in a suit brought by the corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also
the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit by
the corporation to recover an advancement of expenses pursuant to the terms of an undertaking the
corporation shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth under the General Corporation
Law of Delaware. Neither the failure of the corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the indemnitee is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the General Corporation
law of Delaware, nor an actual determination by the corporation (including its board of directors,
independent legal counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct or, in the case of a suit brought by the indemnitee, be a defense to such a
suit. In a suit brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled
to be indemnified, or to such advancement of expenses, under this Article or otherwise shall be on
the corporation.
Section 8.3 Indemnification of Employees and Agents. The corporation may, to the
extent authorized from time to time by the Board of Directors, grant rights to indemnification,
and to the advancement of expenses to any employee or agent of the corporation to the fullest
extent of the provisions of this Article with respect to the indemnification of and advancement of
expenses to directors and officers of the corporation.
Section 8.4 Non Exclusivity of Rights. The rights conferred on any person by
Sections 8.1 and 8.2 shall not be exclusive of any other right which such persons may have or
hereafter acquired under any statute, provisions of the Certificate of Incorporation, by law,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 8.5 Indemnification Contracts. The Board of Directors is authorized to enter
into a contract with any director or his affiliates, officer, employee or agent of the
Corporation, or any person serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
including employee benefit plans, providing for indemnification rights equivalent to those
provided for in this Article VIII.
13
Section 8.6 Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any such director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to indemnify such person
against such expenses, liability or loss under Delaware General Corporation Law.
Section 8.7 Advance Payment of Expenses. Unless otherwise determined by (i) the
Board of Directors, (ii) if more than half of the Directors are involved in a Proceeding by a
majority vote of a committee of one or more distinguished Director(s) or (iii) if directed by the
Board of Directors, by independent legal counsel in a written opinion, any indemnification
extended to an officer or key employee pursuant to this Article VIII shall include payment by the
Corporation or a subsidiary of the Corporation of expenses as the same are incurred in defending a
Proceeding in advance of the final disposition of such Proceeding upon receipt of an undertaking
by such officer or key employee seeking indemnification to repay such payment if such officer or
key employee shall be adjudicated or determined not to be entitled to indemnification under this
Article VIII.
Section 8.8 Effect of Amendment. Any amendment, repeal or modification of any
provision of this Article VIII by the stockholders or the directors of the Corporation shall not
adversely affect any right or protection of a director or officer of the Corporation existing at
the time of such amendment, repeal or modification.
Section 8.9 Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director, officer, employee and agent of the Corporation as to costs,
charges and expenses (including attorneys fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article that shall not have been invalidated and to
the full extent permitted by applicable law.
ARTICLE IX
AMENDMENTS
AMENDMENTS
These Bylaws may be amended or repealed, and new Bylaws may be adopted, by the affirmative
vote of a majority of the outstanding voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of directors, voting
together as a single class, or by vote of at least a majority of the number of directors of the
Corporation then authorized, in the manner prescribed by the laws of the State of Delaware.
14
Secretarys Certificate of Fifth Amended and Restated
Bylaws of Life Technologies Corporation
I hereby certify:
That I am the duly elected Secretary of Life Technologies Corporation, a Delaware corporation;
That the foregoing Bylaws comprising fourteen (14) pages, constitute the amended and restated
Bylaws of said corporation as duly adopted by the Corporation on May 22, 1997 and as amended July
31, 1998, November 20, 1998, January 15, 1999, July 19, 2001 and as amended and restated on July
22, 2004, October 29, 2008, February 27, 2009, July 22, 2009 and April 29, 2010.
IN WITNESS WHEREOF, I have hereunder subscribed my name this 29th day of April, 2010.
/s/ John A. Cottingham | ||||
John A. Cottingham | ||||
Secretary |