Attached files
| file | filename |
|---|---|
| 8-K - Xtant Medical Holdings, Inc. | v207953_8k.htm |
| EX-99.1 - Xtant Medical Holdings, Inc. | v207953_ex99-1.htm |
AMENDED
AND RESTATED BYLAWS
OF
BACTERIN
INTERNATIONAL HOLDINGS, INC.
A
Delaware Corporation
Amended
and Restated as of January 12, 2011
1
TABLE OF
CONTENTS
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INTRODUCTION
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ARTICLE
I - MEETINGS OF STOCKHOLDERS
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4
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1.1
Place of Meetings.
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4
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1.2
Annual Meetings.
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4
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1.3
Special Meetings.
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4
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1.4
Notice of Meetings.
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5
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1.5
Quorum.
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5
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1.6
Voting.
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5
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1.7
Action Without Meeting.
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5
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ARTICLE
II - DIRECTORS
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6
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2.1
Number, Election, and Term of Office.
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6
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2.2
Appointment
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6
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2.3
Vacancies.
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6
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2.4
Meetings of Directors.
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6
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2.5
Action Without a Meeting.
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7
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2.6
Power of Directors.
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7
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2.7
Committees of Directors.
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8
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2.8
Designated Committees.
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8
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2.9
Compensation of Directors.
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9
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2.10
Removal of Directors.
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10
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2.11
Resolution of Deadlocks
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10
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ARTICLE
III - OFFICERS
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10
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3.1
Enumeration.
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10
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3.2
Chairman of the Board.
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11
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3.3
President Chief Executive Officer.
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11
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3.4
Vice President.
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11
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3.5
Secretary.
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11
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3.6
Treasurer and Chief Financial Officer.
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12
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3.7
Other Officers.
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12
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3.8
Additional Powers and Duties.
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12
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2
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ARTICLE
IV - INDEMNIFICATION
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13
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4.1
Directors and Officers.
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13
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4.2
Timing of Indemnification.
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13
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4.3
Authorized Representatives.
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13
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4.4
Nonexclusivity.
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14
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4.5
Standard for Indemnification.
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14
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4.6
Insurance.
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14
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4.7
Constituent Corporations.
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15
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4.8
Eligibility.
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15
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ARTICLE
V - SHARES OF CAPITAL STOCK
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15
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5.1
Issuance of Stock.
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15
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5.2
Stock Certificates.
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15
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5.3
Transfer of Stock.
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16
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5.4
Lost, Stolen, Destroyed, or Mutilated Certificates.
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16
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5.5
Regulations.
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16
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5.6
Record Date for Stock.
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16
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ARTICLE
VI - GENERAL PROVISIONS
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16
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6.1
Corporate Seal.
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16
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6.2
Fiscal Year.
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16
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6.3
Authorization.
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17
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6.4
Financial Reports.
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17
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6.5
Effect of Bylaws.
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17
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ARTICLE
VII - AMENDMENTS
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17
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3
AMENDED
AND RESTATED BYLAWS
OF
BACTERIN INTERNATIONAL HOLDINGS,
INC.
INTRODUCTION
These
Amended and Restated By Laws of Bacterin International Holdings, Inc. amend,
restate and replace in all respects the Amended and Restated By Laws of the
Corporation previously approved by resolution of the Corporation’s Board of
Directors on September 2010.
ARTICLE I
- MEETINGS OF STOCKHOLDERS
1.1 Place of
Meetings.
Meetings
of the stockholders shall be held at such place within or without the
State of
Delaware as designated by the Board of Directors or the person or persons
calling the meeting. Whenever the Board fails to set such place, the meeting
shall be held at the registered office of the Corporation within the state of
Delaware.
1.2 Annual
Meetings.
The
annual meeting of the stockholders for the election of directors and the
transaction of such other business as may properly come before the meeting shall
be held after the close of the Corporation’s fiscal year on such date and at
such time as shall be designated by the Board of Directors.
1.3 Special
Meetings.
Special
meetings of the stockholders may be called at any time by the President; by a
majority of the Board of Directors; or by stockholders holding not less than
twenty-five (25%) of the outstanding voting shares of the
Corporation.
4
1.4 Notice of
Meetings.
A written
notice stating the place, date, and hour of each meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called shall
be given by, or at the direction of, the Secretary or the person or persons
authorized to call the meeting to each stockholder of record entitled to vote at
such meeting, not less than ten (10) days nor more than sixty (60) days before
the date of the meeting, unless a greater period of time is required by law in a
particular case.
1.5 Quorum.
The
holders of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business except as
otherwise provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time
by majority vote, without notice other than announcement at the meeting, until a
quorum shall be present or represented. 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. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
When a
quorum is present at any meeting, the vote of the holders of a majority of the
stock having voting power present in person or represented by proxy shall decide
any question brought before such meeting, unless the question is one upon which
by express provision of the statutes or of the Certificate of Incorporation, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
1.6 Voting.
Unless
otherwise provided in the Certificate of Incorporation, each stockholder shall
at every meeting of the stockholders be entitled to one vote in person or by
proxy for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its date,
unless the proxy provides for a longer period.
1.7 Action Without
Meeting.
Except to
the extent restricted by applicable law, the stockholders may take any action
that they may otherwise take at a Regular or Special meeting, by written consent
of the requisite number of stockholders that would otherwise would have been
required to vote in support of the subject action at such Regular or Special
meeting.
5
ARTICLE
II - DIRECTORS
2.1 Number, Election, and Term
of Office.
The Board
of Directors shall consist of not less than two nor more than nine members as
fixed from time to time by the Board of Directors. The Board is to be comprised
by a majority of independent Directors. The Directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 2.2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
2.2 Appointment.
Directors
shall be appointed by vote of the stockholders and shall hold office until the
next annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. A Director may resign
at any time upon written notice to the Chairman of the Board. The Chairman may
resign upon written notice to each of the remaining members of the
Board.
2.3 Vacancies.
Vacancies
and newly created directorships resulting from any increase in the authorized
number of Directors may be filled by a majority vote of the Directors then in
office, although less than a quorum, or by a sole remaining Director. The
occurrence of a vacancy which is not filled by action of the Board of Directors
within one hundred twenty (120) days of the vacancy shall constitute a
determination by the Board of Directors that the number of Directors is reduced
so as to eliminate such vacancy, unless the Board of Directors shall specify
otherwise. When one or more Directors shall resign from the Board, a majority of
the Directors then in office, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective.
2.4 Meetings of
Directors.
Regular Meetings.
Regular meetings of the Board of Directors shall be held at such times and at
such places within or without the State of Delaware as the Board of Directors
shall determine from time to time upon not less than ten (10) days notice to
each Director. The Board shall endeavor to establish the dates and locations of
its regular meetings at the commencement of each calendar year.
6
Special Meetings. The
Chairman or any director may call a special meeting of the Board of Directors by
giving one (1) day’s notice to each Director by letter, telegram, electronic
mail, telephone or other oral message.
Attendance
at any meeting without protest shall constitute a waiver of notice of such
meeting. Except as otherwise provided by these By Laws, a total number of two
Directors shall constitute a quorum for the transaction of business, and the
vote of a majority of the Directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors. Attendance by a Director at
any meeting shall constitute consent to all actions taken at such meeting unless
such Director enters his dissent in the minutes of the meeting, or files such
dissent with the Secretary of the meeting prior to the adjournment of the
meeting, or with the Secretary of the Corporation within three (3) days
following adjournment of the meeting.
2.5 Action Without a
Meeting.
Any
action required or permitted to be taken by the Board of Directors or any
Committee of the Board of Directors may be taken without a meeting, if all
members of the Board of Directors, or such Committee, shall individually or
collectively consent in writing to such action. Such written consent or consents
shall be filed with the minutes of the proceedings of the Board of Directors or
Committee of the Board of Directors, as appropriate. Such action by written
consent shall have the same force and effect as a unanimous vote of such
Directors.
2.6 Power of
Directors.
The Board
of Directors shall have all the powers normally conferred on a board of
directors of a Delaware corporation, including, without limitation, (a) to
charge, mortgage, hypothecate or pledge all or any of the assets of the
Corporation, real or personal, movable or immovable, including book debts,
rights, powers, franchises and undertakings, to secure the debt obligations or
any money borrowed or other debt or liability of the Corporation and (b) to
delegate to such one or more of the Directors and officers of the Corporation,
as allowed by law, the powers conferred on a board of directors to such extent
and in such manner as the Board of Directors shall determine at the time of such
delegation.
7
2.7 Committees of
Directors.
The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more Committees, each Committee to consist of one or more of
the Directors of the Corporation. The Board may designate one or more Directors
as alternate members of any Committee, who may replace any absent or
disqualified member at any meeting of the Committee.
In
the absence or disqualification of a member of a Committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
Any
such Committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such Committee shall have the power or authority in
reference to (i) amend the Certificate of Incorporation, (except that a
Committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors
as provided in Section 151(a) of the General Corporation Law of Delaware, fix
any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the Corporation); (ii) adopt an agreement of merger or consolidation;
(iii) recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation’s property and assets; (iv) recommend to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution; or (v) amend the ByLaws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provides, no such
Committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of
directors.
Each
committee shall keep regular minutes of its meetings and report the same to the
board of directors when required.
2.8 Designated
Committees
The
following Committees shall be established by the Board of Directors, having the
authority and responsibilities specified:
Audit Committee –
There shall be an Audit Committee comprised of one or more independent Directors
appointed from time to time by the Board of Directors. The Audit
Committee shall prepare and submit for approval by the Board of Directors an
Audit Committee Charter that complies with all applicable legal and regulatory
requirements. The obligations of the Audit Committee shall include those
responsibilities specified by the Board of Directors, including but not limited
to the selection of the Corporation’s external auditors, oversight of audit
scope and plans, review of the Corporation’s financial statements, address
complaints concerning the Corporation’s
accounting, internal controls and
audit matters, and critically evaluate the Corporation’s public
filings.
8
Compensation
Committee – There shall be a Compensation Committee comprised of one or
more Directors appointed from time to time by the Board of Directors, the
majority of which shall be independent Directors. The Compensation Committee
shall prepare and submit for approval by the Board of Directors a Compensation
Committee Charter that complies with all applicable legal and regulatory
requirements. The obligations of the Compensation Committee shall include those
responsibilities specified by the Board of Directors, including but not limited
to determining appropriate levels of compensation for the Corporation’s senior
executives, evaluating the employee benefits programs of the Corporation,
compiling recommendations for compensation for members of the Board of Directors
and Committees, evaluating and approving employment agreements for
executive officers, recommending incentive compensation plans to the Board of
Directors, and evaluating the Corporation’s public disclosures to ensure that
such disclosures accurately reflect the compensation received by the
Corporation’s Directors and senior executives.
Corporate Governance and
Nominating Committee – There shall be a Corporate Governance and
Nominating Committee comprised of one or more independent directors appointed
from time to time by the Board of Directors. The Corporate Governance and
Nominating Committee shall prepare an submit for approval by the Board of
Directors a Corporate Governance and Nominating Committee Charter that complies
with all applicable legal and regulatory requirements. The obligations of the
Corporate Governance and Nominating Committee shall include those
responsibilities specified by the Board of Directors, including but not limited
to the nomination of individuals for Board membership, Committee memberships,
senior executive positions, the development and monitoring of corporate
governance policies and guidelines, evaluating the effectiveness of the Board
and Committees, and sponsorship of Director education programs.
2.9 Compensation of
Directors.
Unless
otherwise restricted by the Certificate of Incorporation or these By Laws, the
Board of Directors shall have the authority to fix the compensation of
Directors. The Directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing Committees may be allowed like compensation for attending
Committee meetings. The Board of Directors shall direct the Compensation
Committee to advise the Board as to appropriate compensation for members of
the Board and its
Committees.
9
2.10
Removal of
Directors.
Unless
otherwise restricted by the Certificate of Incorporation or By Law, any Director
or the entire Board of Directors may be removed, with or without cause, by the
holders of a majority of shares entitled to vote at an election of
Directors.
2.11
Resolution of
Deadlocks.
In the
event members of the Board of Directors are unable to resolve a matter properly
before them, whether at a Regular or Special meeting of the Board, by virtue of
a deadlock vote, the stockholders of the Corporation may call a Special meeting
of stockholders, provided that the voting and notice requirements of Sections 1.3
and 1.4 of these By
Laws are satisfied. The subject of such Special meeting shall be specifically
limited to the matter which resulted in a deadlock of the Directors and to the
resolution of that matter by majority vote of the stockholders in compliance
with Sections 1.5 and 1.6 of these By Laws.
ARTICLE
III - OFFICERS
3.1 Enumeration.
The Board
of Directors from time to time shall elect officers, to serve at the pleasure of
the Board. Each officer shall hold office until his or her successor is elected
and qualified, or until his or her earlier resignation or removal. Any officer
may resign at any time upon written notice to the Corporation. The compensation
of all officers shall be fixed by, or pursuant to authority delegated by, the
Board of Directors from time to time. The officers of the Corporation shall be
elected by the Board of Directors and shall consist of a Chairman of the Board,
a Chief Executive Officer, a President, such number of Vice Presidents (if any)
and Assistant Vice-Presidents (if any) as the Board shall from time to time
elect, a Secretary, such number of Assistant Secretaries (if any) as the Board
shall from time to time elect, a Treasurer, such number of Assistant Treasurers
(if any) as the Board shall from time to time elect, a Chief Financial Officer
and such other officers (if any) as the Board shall from time to time elect. The
Chairman of the Board shall be a member of the Board of Directors. The same
person may hold any two or more offices.
10
3.2 Chairman of the
Board.
The
Chairman of the Board shall preside at meetings of the Board of Directors. The
Chairman of the Board shall have such powers and perform such duties as shall
from time to time be specified by the Board of Directors.
3.3 President and 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 President and Chief
Executive Officer of the Corporation shall, subject to the control of the Board
of Directors, have general supervision, direction and control of the business
and the officers of the Corporation. The President and Chief Executive Officer
shall preside at all meetings of the stockholders and, in the absence or
nonexistence of a Chairman of the Board, at all meetings of the Board of
Directors. The President and Chief Executive shall sign all certificates for
shares of the capital stock of the Corporation and may, together with the
Secretary, execute on behalf of the Corporation any contract that has been
approved by the Board of Directors.
The
President and Chief Executive Officer shall have the general powers and duties
of management usually vested in the President and Chief Executive Officer of a
Corporation and shall have such other powers and duties as may be prescribed by
the Board of Directors or these By Laws.
3.4 Vice
President.
The Vice
President or, if there shall be more than one, the Vice Presidents, in the order
of their seniority unless otherwise specified by the Board of Directors, shall
have all of the powers and perform all of the duties of the President during the
absence or inability to act of the President. Each Vice President shall also
have such other powers and perform such other duties as shall from time to time
be prescribed by the Board of Directors or the President.
3.5 Secretary.
The
Secretary shall record the proceedings of the meetings of the stockholders and
Directors in a book to be kept for that purpose, and shall give notice as
required by statute or these By Laws of all such meetings. The Secretary shall
have custody of the seal of the Corporation and of all books, records, and
papers of the Corporation, except such as shall be in the charge of the
Treasurer or of some other person authorized to have custody and possession
thereof by resolution of the Board of Directors. The Secretary may, together
with the President, execute on behalf of the Corporation any contract that has
been approved by the Board of Directors. The Secretary shall also have such
other powers and perform such other duties as are incident to the office of the
secretary of a corporation or as shall from time to time be prescribed by, or
pursuant to authority delegated by, the Board of Directors.
11
3.6 Treasurer and Chief
Financial Officer.
The
Treasurer shall be the Chief Financial Officer and shall keep full and accurate
accounts of the receipts and disbursements of the Corporation in books belonging
to the Corporation, shall deposit all moneys and other valuable effects of the
Corporation in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors, may execute, or
witness the execution of, on behalf of the Corporation any contract that has
been approved by the Board of Directors, and shall also have such other powers
and perform such other duties as
are
incident to the office of the treasurer of a corporation or as shall from time
to time be prescribed by, or pursuant to authority delegated by, the Board of
Directors.
3.7 Other
Officers.
The
powers and duties of each other officer who may from time to time be chosen by
the Board of Directors shall be as specified by, or pursuant to authority
delegated by, the Board of Directors at the time of the appointment of such
other officer or from time to time thereafter. In addition, each officer
designated as an assistant officer shall assist in the performance of the duties
of the officer to which he or she is assistant, and shall have the powers and
perform the duties of such officer during the absence or inability to act of
such officer.
3.8 Additional Powers and
Duties.
The Board
of Directors may from time to time by resolution increase or add to the powers
and duties of any of the officers of the Corporation. Except in cases in which
the signing and execution shall have been expressly delegated by the Board of
Directors to some other officer, employee or agent of the Corporation, the
Chairman of the Board of Directors or the President or a Vice-President may sign
and execute in the name of the Corporation all authorized deeds, mortgages,
bonds, contracts or other instruments; provided, however, that a Vice-President
may delegate to any other officer or manager reporting to such officer authority
to sign and execute in the name of the Corporation all authorized contracts and
similar instruments pursuant to a policy approved by the Board of
Directors.
12
ARTICLE
IV - INDEMNIFICATION
4.1 Directors and
Officers.
The
Corporation shall indemnify, to the fullest extent now or hereafter permitted by
law, each Director or officer (including each former Director or officer) of the
Corporation who was, is or becomes a party to, or a witness in, or is threatened
to be made a party to, or otherwise becomes involved in as a witness or
otherwise in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he or she is or was an authorized representative of the Corporation (as
defined in Section 4.8 herein), against all expenses (including attorneys’ fees
and disbursements), judgments, fines (including excise taxes, interest and
penalties) and amounts paid in settlement actually and reasonably incurred by
him or her in connection with such action, suit or proceeding.
4.2 Timing of
Indemnification.
The
Corporation shall pay expenses (including attorneys’ fees and disbursements)
incurred by a Director or officer of the Corporation referred to in Section 4.1
hereof in defending, prosecuting where the action was brought with the consent
of the Board of Directors, or appearing as a witness in any civil or criminal
action, suit or proceeding described in Section 4.1 hereof in advance of the
final disposition of such action, suit or proceeding. The expenses incurred by
such Director or officer in his or her capacity as a Director or officer of the
Corporation shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding only upon receipt of an undertaking by or on
behalf of such Director or officer to repay all amounts advanced if it shall
ultimately be determined that he or she is not entitled to
be
indemnified by the Corporation because he or she has not met the standard of
conduct set forth in Section 4.5 hereof.
4.3 Authorized
Representatives.
The
Corporation may, as determined by the Board of Directors from time to time,
indemnify to the fullest extent now or hereafter permitted by law, any person
who was or is a party to or a witness in or is threatened to be made a party to
or a witness in, or is otherwise involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was an authorized
representative of the Corporation (as defined in Section 4.8 herein), against
all expenses (including attorneys’ fees and disbursements), judgments, fines
(including excise taxes, interest and penalties), and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding. Subject to Section 4.2 hereof, the Corporation may, as
determined by the Board of Directors from time to time, pay expenses, including
attorneys fees, incurred by any such person by reason of his or her
participation in an action, suit or proceeding referred to in this Section 4.3
in advance of the final disposition of such action, suit or
proceeding.
13
4.4 Nonexclusivity.
Each
Director and officer of the Corporation shall be deemed to act in such capacity
in reliance upon such rights of indemnification and advancement of expenses as
are provided in this Article. The rights of indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of any other
rights to which any person seeking indemnification or advancement of expenses
may be entitled under any agreement, vote of stockholders or disinterested
directors, decision of independent counsel, statute or otherwise, both as to
action in such person’s official capacity and as to action in another capacity
while holding such office or position, and shall continue as to a person who has
ceased to be an authorized representative of the Corporation and shall inure to
the benefit of the heirs, executors, assigns and administrators of such
person.
4.5 Standard for
Indemnification.
Any
indemnification under this Article shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
authorized representative is proper in the circumstances because such person has
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding had no reasonable cause to believe his or her
conduct was unlawful. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of Directors who were not
parties to such action, suit or proceeding, or (2) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the officer or
Director did not act in good faith and in a manner which such officer or
Director reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that such
person’s conduct was unlawful.
4.6 Insurance.
The
Corporation shall purchase and maintain insurance on behalf of each Director and
officer against any liability asserted against or incurred by such Director or
officer in any capacity, or arising out of such Director’s or officer’s status
as such, whether or not the Corporation would have the power to indemnify such
Director or officer against such liability under the provisions of this Article.
The Corporation shall not be required to maintain such insurance if it is not
available on terms satisfactory to the Board of Directors or if, in the business
judgment of the Board of Directors, either (i) the premium cost for such
insurance is substantially disproportionate to the amount of coverage, or (ii)
the coverage provided by such insurance is so limited by exclusions that there
is insufficient benefit from such insurance. The Corporation may purchase and
maintain insurance on behalf of any person referred to in Section 4.3 hereof
against any liability asserted against or incurred by such person in any
capacity, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this
Article.
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4.7 Constituent
Corporations.
For
purposes of this Article, references to “the Corporation” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its authorized representatives so that any person who is or was an
authorized representative of such constituent corporation shall stand in the
same position under this Article with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent corporation
if its separate existence had continued.
4.8 Eligibility.
For the
purposes of this Article, the term “authorized representative” shall mean a
Director, officer, employee or agent of the Corporation or of any subsidiary of
the Corporation, or a trustee, custodian, administrator, or fiduciary of any
employee benefit plan established and maintained by the Corporation or by any
subsidiary of the Corporation, or a person serving another corporation,
partnership, joint venture, trust or other enterprise in any of the foregoing
capacities at the request of the Corporation.
ARTICLE V
- SHARES OF CAPITAL STOCK
5.1 Issuance of
Stock.
Shares of
capital stock of any class now or hereafter authorized, securities convertible
into or exchangeable for such stock, or options or other rights to purchase such
stock or securities may be issued or granted in accordance with authority
granted by resolution of the Board of Directors.
5.2 Stock
Certificates.
Certificates
for shares of the capital stock of the Corporation shall be in the form adopted
by the Board of Directors, may be signed by the Chairman of the Board of
Directors, or the President or Vice President and the Treasurer or the Assistant
Treasurer or the Secretary or the Assistant Secretary of the Corporation, and
may be sealed with the seal of the Corporation. All such certificates shall be
numbered consecutively, and the name of the person owning the shares represented
thereby, with the number of such shares and the date of issue, shall be entered
on the books of the Corporation.
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5.3 Transfer of
Stock.
Shares
of capital stock of the Corporation shall be transferred only on the books of
the Corporation, by the holder of record in person or by the holder’s duly
authorized representative, upon surrender to the Corporation of the certificate
for such shares duly endorsed for transfer, together with such other documents
(if any) as may be required to effect such transfer.
5.4 Lost, Stolen, Destroyed, or
Mutilated Certificates.
New stock
certificates may be issued to replace certificates alleged to have been lost,
stolen, destroyed, or mutilated, upon such terms and conditions, including proof
of loss or destruction, and the giving of a satisfactory bond of indemnity, as
the Board of Directors from time to time may determine.
5.5 Regulations.
The Board
of Directors shall have power and authority to make all such rules and
regulations not inconsistent with these Bylaws as it may deem expedient
concerning the issue, transfer, and registration of shares of capital stock of
the Corporation.
5.6 Record Date for
Stock.
In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting: provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
ARTICLE
VI - GENERAL PROVISIONS
6.1 Corporate
Seal.
The
Corporation may adopt a seal in such form as the Board of Directors shall from
time to time determine.
6.2 Fiscal
Year.
The
fiscal year of the Corporation shall be as designated by the Board of Directors
from time to time.
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6.3 Authorization.
All
checks, notes, vouchers, warrants, drafts, acceptances, and other orders for the
payment of moneys of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board of Directors may from time to time
designate.
6.4 Financial
Reports.
Except to
the extent required by applicable law or regulation, financial statements or
reports shall not be required to be sent to the stockholders of the Corporation,
but may be so sent in the discretion of the Board of Directors, in which event
the scope of such statements or reports shall be within the discretion of the
Board of Directors, and such statements or reports shall not be required to have
been examined by or to be accompanied by an opinion of an accountant or firm of
accountants.
6.5 Effect of
Bylaws.
No
provision in these Bylaws shall vest any property right in any
stockholder.
ARTICLE
VII - AMENDMENTS
The
authority to adopt, amend or repeal any By Laws of the Corporation is expressly
conferred upon the Board of Directors, which may take such action by the
affirmative vote of a majority of the whole Board of Directors at any Regular or
Special meeting duly convened after notice of that purpose, subject always to
the power of the stockholders to adopt, amend or repeal By Laws.
I, John
Gandolfo, do hereby certify:
1. That I
am the duly elected Secretary of Bacterin International Holdings, Inc., a
Delaware Corporation.
2. That
the foregoing Bylaws, comprising seventeen (17) pages, including this page,
constitute the Bylaws of the Corporation as of the 12th day of
January 2011.
IN
WITNESS WHEREOF, I have executed this certificate as of the 12th day of
January, 2011.
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Bacterin
International Holdings, Inc.
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By:
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/s/ John Gandolfo,
Secretary
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