Bylaws - Cepheid
AMENDED AND RESTATED BYLAWS
OF
CEPHEID
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ARTICLE I.
SHAREHOLDERS
SECTION 1. ANNUAL MEETING.
(1) An annual meeting of the shareholders, 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.
(2) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the shareholders
may be made at an annual meeting of shareholders (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any shareholder of the Corporation who was a shareholder of
record at the time of giving of the notice provided for in this Bylaw, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this Bylaw.
(3) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (c) of paragraph (2) of this
Bylaw, the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not less than 120 days prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days from
such anniversary date, notice by the shareholder to be timely must be so
delivered not earlier than the 150th day prior to such annual meeting and not
later than the close of business on the later of (i) the 90th day prior to such
annual meeting or (ii) the 10th day following the day on which public
announcement of the date of such meeting is first made; and provided further
that if no annual meeting was held in the previous year, notice by the
shareholder to be timely must be so received a reasonable time before the
Corporation's notice of annual meeting is mailed or sent to shareholders. Such
shareholder's notice shall set forth (a) as to each person whom the shareholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities
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Exchange Act of 1934, as amended (the "Exchange Act") (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the shareholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such shareholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such shareholder and such
beneficial owner.
(4) Notwithstanding anything in the second sentence of paragraph (3) of
this Bylaw to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least 100
days prior to the first anniversary of the preceding year's annual meeting, a
shareholder's notice required by this Bylaw shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the corporation.
(5) Only such persons who are nominated in accordance with the
procedures set forth in these Bylaws shall be eligible to serve as directors and
only such business shall be conducted at an annual meeting of shareholders as
shall have been brought before the meeting in accordance with the procedures set
forth in these Bylaws. The chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought before
the meeting was made in accordance with the procedures set forth in these
Bylaws. The chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made in accordance with the procedures set forth in these Bylaws and, if any
proposed nomination or business is not in compliance with these Bylaws, to
declare that such defective proposed business or nomination shall be
disregarded.
(6) For purposes of these Bylaws, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(7) Notwithstanding the foregoing provisions of this Bylaw, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and
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regulations thereunder with respect to the matters set forth in this Bylaw.
Nothing in this Bylaw shall be deemed to affect any rights of shareholders to
request inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a 8 under the Exchange Act.
SECTION 2. SPECIAL MEETINGS: NOTICE.
Special meetings of the shareholders, other than those required by
statute, may be called at any time by the Board of Directors pursuant to a
resolution approved by a majority of the whole Board of Directors. Notice of
every special meeting, stating the time, place and purpose, shall be given by
mailing, postage prepaid, at least 10 but not more than 60 days before each such
meeting, a copy of such notice addressed to each shareholder of the Corporation
at his post office address as recorded on the books of the Corporation. The
Board of Directors may postpone or reschedule any previously scheduled special
meeting.
Only such business shall be conducted at a special meeting of shareholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting.
SECTION 3. NOTICE OF MEETINGS.
Written notice of the place, date, and time of all meetings of the
shareholders shall be given, not less than 10 nor more than 60 days before the
date on which the meeting is to be held, to each shareholder entitled to vote at
such meeting, except as otherwise provided herein or required by law (meaning,
here and hereinafter, as required from time to time by the General Corporation
Law of the State of California or the Corporation's Articles of Incorporation).
Written notice of any meeting of shareholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
shareholder at such shareholder's address as it appears on the records of the
Corporation. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent of the Corporation that the notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
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 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.
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SECTION 4. QUORUM.
At any meeting of the shareholders, 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. Where a
separate vote by a class or classes is required, a majority of the shares of
such class or classes present in person or represented by proxy shall constitute
a quorum entitled to take action with respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting
may adjourn the meeting to another place, date, or time.
SECTION 5. ORGANIZATION.
Such person as the Board of Directors may have designated or, in the
absence of such a person, the Chairman of the Board or, in his or her absence,
the Chief Executive Officer of the Corporation or, in his or her absence, 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 shareholders 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 6. CONDUCT OF BUSINESS.
The chairman of any meeting of shareholders 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 or her in order.
The chairman shall have the power to adjourn the meeting to another place, date
and time. The date and time of the opening and closing of the polls for each
matter upon which the shareholders will vote at the meeting shall be announced
at the meeting.
SECTION 7. PROXIES AND VOTING.
At any meeting of the shareholders, every shareholder entitled to vote may
vote in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established
for the meeting. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
A proxy must bear a date within 11 months prior to the meeting, unless the proxy
specifies a different length of time. A revocable proxy is revoked by a writing
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delivered to the Secretary of the corporation stating that the proxy is revoked
or by a subsequent proxy executed by, or by attendance at the meeting and voting
in person by, the person executing the proxy.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefore by a shareholder entitled to vote or by his or her proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots, each of
which shall state the name of the shareholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
The Corporation may, and to the extent required by law, shall, in advance
of any meeting of shareholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of shareholders, the
person presiding at the meeting may, and to the extent required by law, shall,
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his ability. Every vote taken by ballots shall be
counted by a duly appointed inspector or inspectors.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast affirmatively or negatively.
SECTION 8. ELECTION INSPECTORS.
One or three election inspectors may be appointed by the Board of
Directors in advance of a meeting of shareholders or at the meeting by the
chairman of the meeting. If not previously chosen, one or three inspectors shall
be appointed by the chairman of the meeting if a shareholder or proxyholder so
requests. When inspectors are appointed at the request of a shareholder or
proxyholder, the majority of shares represented in person or by proxy shall
determine whether one or three inspectors shall be chosen. The election
inspectors shall determine all questions concerning the existence of a quorum
and the right to vote, shall tabulate and determine the results of voting and
shall do all other acts necessary or helpful to the expeditious and impartial
conduct of the vote. If there are three inspectors, the decision, act or
certificate of a majority of the inspectors is effective as if made by all.
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SECTION 9. STOCK LIST.
A complete list of shareholders entitled to vote at any meeting of
shareholders, arranged in alphabetical order for each class of stock and showing
the address of each such shareholder and the number of shares registered in his
or her name, shall be open to the examination of any such shareholder, for any
purpose germane to the meeting, during ordinary business hours for a period of
at least 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 shareholder
who is present. This list shall presumptively determine the identity of the
shareholders entitled to vote at the meeting and the number of shares held by
each of them.
SECTION 10. WAIVER OF NOTICE.
Whenever notice is required to be given under any provision of the General
Corporation Law of the State of California or of the Articles of Incorporation
or these Bylaws, a written waiver, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the shareholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the Articles of
Incorporation or these Bylaws.
SECTION 11. CERTIFICATES OF STOCK.
Each shareholder shall be entitled to a certificate signed by, or in the
name of the Corporation by, the President or a Vice President, and by the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer,
certifying the number of shares owned by him or her. Any or all of the
signatures on the certificate may be by facsimile.
SECTION 12. 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 14 of Article I of these
Bylaws, an outstanding certificate for the number of
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shares involved shall be surrendered for cancellation before a new certificate
is issued therefor.
SECTION 13. RECORD DATE.
In order that the Corporation may determine the shareholders entitled to
notice of or to vote at any meeting of shareholders, or to receive payment of
any dividend or other distribution or allotment of any rights or 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, except as
otherwise required by law, fix a record date for the determination of the
shareholders entitled to notice of any meeting, to vote, to receive any dividend
or other distribution or allotment of rights or to exercise any rights. The
record date shall be not more than 60 nor less than 10 days prior to the date of
the meeting nor more than 60 days prior to such other action. If no record date
is fixed, the record date for determining shareholders entitled to notice of or
to vote at a meeting of shareholders shall be at the close of business on the
business day next preceding the day on which notice is given, or, if notice is
waived, the close of business on the business day next preceding the day on
which the meeting is held. Except as otherwise provided by law, when a record
date is fixed, as provided herein, only shareholders on the record date are
entitled to notice and to vote, to receive the dividend, distribution or
allotment of rights or to exercise rights, as the case may be, notwithstanding
any transfer of shares on the books of the corporation occurring after the
record date. Except as otherwise provided by law, the corporation shall be
entitled to treat the holder of record of any shares as the holder in fact of
such shares and shall not be bound to recognize any equitable or other claim to
or interest in such shares on the part of any other person, whether or not the
corporation shall have express or other notice of such claim or interest. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting unless the
Board of Directors fixes a new record date. The Board of Directors shall fix a
new record date if the adjourned meeting takes place more than 45 days after the
date set for the original meeting.
SECTION 14. 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 15. 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.
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ARTICLE II.
BOARD OF DIRECTORS
SECTION 1. NUMBER.
The authorized number of directors of this corporation shall be no less
than five or more than nine, with the exact number of directors within the
variable range to be set by resolution of the Board of Directors. An amendment
reducing the minimum number of directors to a number less than five cannot be
adopted if the votes cast against its adoption at a meeting of the shareholders,
or the shares not consenting in the case of action by written consent, are equal
to more than 16-2/3% of the outstanding shares entitled to vote. No amendment
may change the maximum number of authorized directors to a number greater than
two times the minimum number of directors minus one.
SECTION 2. ELECTION AND TERM.
Directors shall be elected pursuant to the Articles of Incorporation. At
each annual meeting of shareholders, directors up for election shall be elected
to hold office until the expiration of their term as set forth in the Articles
of Incorporation. Each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which the director was
elected and until a successor has been elected. The Board of Directors may
declare vacant the office of any director who has been declared to be of unsound
mind by court order or convicted of a felony. Vacancies on the Board of
Directors not caused by removal may be filled by a majority of the directors
then in office, regardless of whether they constitute a quorum, or by a sole
remaining director. The shareholders may elect a director at any time to fill
any vacancy not filled, or which cannot be filled, by the Board of Directors. No
reduction in the authorized number of directors shall have the effect of
removing any director prior to the expiration of his term of office.
SECTION 3. REMOVAL.
Except as described below, any or all of the directors may be removed
without cause if such removal is approved by the affirmative vote or written
consent of a majority of the outstanding shares entitled to vote. Unless the
entire Board of Directors is so removed, no director may be removed if (i) the
votes cast against removal, or not consenting in writing to such removal in the
case of written consent, would be sufficient to elect such director if voted
cumulatively at an election at which the same total number of votes was cast or,
if such action is taken by written consent, all shares entitled to vote were
voted and (ii) the entire number of directors authorized at the time of the
director's most recent election were then being elected.
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SECTION 4. RESIGNATION.
Any director may resign by giving notice to the Chairman of the Board, the
President, the Secretary or the Board of Directors. The resignation of a
director shall be effective when given unless the director specifies a later
time. The resignation shall be effective regardless of whether it is accepted by
the Corporation.
SECTION 5. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Subject to applicable law and to the rights of the holders of any series
of preferred stock with respect to such series of preferred stock, and unless
the Board of Directors otherwise determines, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall 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 until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the entire Board of Directors shall shorten
the term of any incumbent director.
SECTION 6. POWERS.
Subject to the limitations imposed by law or contained in the Articles of
Incorporation, the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised by or under the ultimate direction of
the Board of Directors. 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:
(a) To declare dividends from time to time in accordance with law;
(b) To purchase or otherwise acquire any property, rights or privileges
on such terms as it shall determine;
(c) 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 to do all things necessary in connection
therewith;
(d) To remove any officer of the Corporation with or without cause, and
from time to time to devolve the powers and duties of any officer upon any other
person for the time being;
(e) To confer upon any officer of the Corporation the power to appoint,
remove and suspend subordinate officers, employees and agents;
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(f) 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;
(g) 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; and,
(h) To adopt from time to time regulations, not inconsistent with these
Bylaws, for the management of the Corporation's business and affairs.
SECTION 7. INSPECTION OF RECORDS AND PROPERTIES.
Each director may inspect all books, records, documents and physical
properties of the corporation and its subsidiaries at any reasonable time.
Inspections may be conducted either by the director or the director's agent or
attorney. The right of inspection includes the right to copy and make extracts.
SECTION 8. TIME AND PLACE OF MEETINGS AND TELEPHONE MEETINGS.
Unless the Board of Directors determines otherwise, the Board shall hold a
regular meeting during each quarter of the corporation's fiscal year. One such
meeting shall take place immediately following the annual meeting of
shareholders. All meetings of directors shall be held at the principal executive
office of the corporation or at such other place, within or without California,
as shall be designated in the notice of the meeting or in a resolution of the
Board of Directors. Directors may participate in a meeting through use of
conference telephone, electronic video screen communication or other
communications equipment, provided that all of the following apply:
(a) each member participating in the meeting can communicate with all of
the other members concurrently; and
(b) each member is provided the means of participating in all matters
before the board, including the capacity to propose, or to interpose an
objection to, a specific action to be taken by the corporation; and
(c) the corporation adopts and implements some means of verifying both
of the following:
(i) a person communicating by telephone, electronic video screen,
or other communications equipment is a director entitled to participate in
the board meeting; and
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(ii) all statements, questions, actions, or votes were made by that
director and not by another person not permitted to participate as a
director.
SECTION 9. CALL.
Meetings of the Board of Directors, whether regular or special, may be
called by the Chairman of the Board, the President, the Secretary, any Vice
President or any two directors.
SECTION 10. NOTICE.
Regular meetings of the Board of Directors may be held without notice if
the time and the place of such meetings has been fixed by the Bylaws or the
Board. Special meetings shall be held upon four days, notice by mail or 48
hours, notice delivered personally or by telephone, including a voice messaging
system or other system or technology designed to record and communicate
messages, telegraph, facsimile, electronic mail or other electronic means and
regular meetings shall be held upon similar notice if notice is required for
such meetings. A notice or waiver of notice need not specify the purpose of any
regular or special meeting. Notice of the time and place of holding an adjourned
meeting need not be given to absent directors if the time and place of the
adjourned meeting is announced at the meeting at which the adjournment is taken,
but if a meeting is adjourned for more than 24 hours, notice of the adjourned
meeting shall be given prior to the time of such meeting to the directors who
were not present at the time of the adjournment.
SECTION 11. MEETING WITHOUT REGULAR CALL AND NOTICE.
The transactions of any meeting of the Board of Directors, however called
and noticed or wherever held, are as valid as though had at a meeting duly held
after regular call and notice if a quorum is present and if, either before or
after the meeting, each of the directors not present signs a written waiver of
notice, a consent to the holding of the meeting or an approval of the minutes of
the meeting. For such purposes, a director shall not be considered present at a
meeting if, although in attendance at the meeting, the director protests the
lack of notice prior to the meeting or at its commencement.
SECTION 12. CONDUCT OF BUSINESS; ACTION WITHOUT MEETING.
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.
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SECTION 13. QUORUM AND REQUIRED VOTE.
A majority of the directors then in office shall constitute a quorum for
the transaction of business, provided that, unless the authorized number of
directors is one, the number constituting a quorum shall not be less than the
greater of one-third of the authorized number of directors or two directors.
Subject to the provisions of Section 310 (relating to certain transactions
involving interested directors) and Section 317(e) (relating to indemnification
of corporate agents) of the California Corporations Code, every act or decision
done or made by a majority of the directors present at a meeting duly held at
which a quorum is present is the act of the Board. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting. A majority of the directors present at
a meeting, whether or not a quorum is present, may adjourn the meeting to
another time and place.
SECTION 14. WAIVER OF NOTICE.
Whenever notice is required to be given under any provision of the General
Corporation Law of the State of California, the Articles of Incorporation, or
these Bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when such 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the directors, or members of a committee of directors, need be specified in
any written waiver of notice unless so required by the Articles of Incorporation
or these Bylaws.
SECTION 15. COMPENSATION OF DIRECTORS.
Unless otherwise restricted by the Articles of Incorporation, the Board of
Directors shall have the authority to fix the compensation of the 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 the meeting
of the Board of Directors or paid a stated salary or paid other compensation 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.
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ARTICLE III.
COMMITTEES
SECTION 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, each consisting of two or
more directors, and 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. In the absence or disqualification of any member of any committee and
any alternate member in his or her place, the member or members of the committee
present at the meeting and not disqualified from voting, whether or not he or
she 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. To the extent permitted by the resolution of the Board of
Directors, a committee may exercise all of the authority of the Board except:
(a) the approval of any action which, under the California Corporations
Code, must be approved by the outstanding shares or approved by the
shareholders;
(b) the filling of vacancies on the Board or any committee;
(c) the fixing of compensation of the directors for serving on the Board
or any committee;
(d) the adoption, amendment or repeal of Bylaws;
(e) the amendment or repeal of any resolution of the Board which by its
express terms is not so amendable or repealable;
(f) a distribution to the shareholders of the corporation, except at a
rate, in a periodic amount or within a price range determined by the Board; and
(g) the appointment of any other committees of the Board or the members
of such committees.
SECTION 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; one-third (1/3) of the members shall
constitute a quorum unless the committee
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shall consist of two (2) members, in which event one (1) member shall constitute
a quorum; and 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.
SECTION 3. COMMITTEE MEETINGS.
The principles set forth in Sections 7 through 14 of Article II of these
Bylaws shall apply to committees of the Board of Directors and to actions taken
by such committees.
ARTICLE IV.
OFFICERS
SECTION 1. GENERALLY.
The officers of the corporation shall include a Chairman of the Board or a
President or both, a Secretary and a Chief Financial Officer. The Board of
Directors may also choose one or more Vice Presidents, Assistant Secretaries or
other officers. Any number of offices may be held by the same person. The
salaries of officers elected by the Board of Directors shall be fixed from time
to time by the Board of Directors or by such officers as may be designated by
resolution of the Board.
SECTION 2. ELECTION, TERM OF OFFICE AND VACANCIES.
At its regular meeting after each annual meeting of shareholders, the
Board of Directors shall choose the officers of the corporation. The Board may
choose additional officers or fill vacant offices at any other time. No officer
must be a member of the Board of Directors except the Chairman of the Board. The
officers shall hold office until their successors are chosen, except that the
Board of Directors may remove any officer at any time.
SECTION 3. RESIGNATION.
Any officer may resign at any time upon notice to the corporation without
prejudice to the rights, if any, of the corporation under any contract to which
the officer is a party. The resignation of an officer shall be effective when
given unless the officer specifies a later time. The resignation shall be
effective regardless of whether it is accepted by the corporation.
SECTION 4. CHAIRMAN OF THE BOARD; PRESIDENT.
If the Board of Directors elects a Chairman of the Board, such officer
shall preside over all meetings of the Board of Directors and of shareholders.
If there be no Chairman
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of the Board, the President shall perform such duties. The Board of Directors
shall designate either the Chairman of the Board or the President as the chief
executive officer and may prescribe the duties and powers of the chief executive
officer. If there be no Chairman of the Board, the President shall be the chief
executive officer. He or she shall have power to sign all stock certificates,
contracts and other instruments of the Corporation which are authorized and
shall have general supervision and direction of all of the other officers,
employees and agents of the Corporation.
SECTION 5. SECRETARY.
Unless otherwise determined by the Board of Directors or the chief
executive officer, the Secretary shall have the following powers and duties:
(a) Record of Corporate Proceedings. The Secretary shall attend all
meetings of shareholders and the Board of Directors and its committees and shall
record all votes and the minutes of such meetings in a book to be kept at the
principal executive office of the corporation or at such other place as the
Board may determine. The Secretary shall keep at the corporation's principal
executive office, if in California, or at its principal business office in
California if the principal executive office is not in California, the original
or a copy of these Bylaws, as amended.
(b) Record of Shares. Unless a transfer agent is appointed by the Board
of Directors to keep a share register, the Secretary shall keep a share register
at the principal executive office of the corporation showing the names of the
shareholders and their addresses, the number and class of shares held by each,
the number and date of certificates issued and the number and date of
cancellation of each certificate surrendered for cancellation.
(c) Notices. The Secretary shall give such notices as may be required by
law or these Bylaws.
SECTION 6. CHIEF FINANCIAL OFFICER.
Unless the Board of Directors designates another treasurer, the Chief
Financial Officer shall be the treasurer of the corporation. Unless otherwise
determined by the Board of Directors or the chief executive officer, the Chief
Financial Officer shall have custody of the corporate funds and securities,
shall keep adequate and correct accounts of the corporation's properties and
business transactions, shall disburse such funds of the corporation as may be
ordered by the Board or the chief executive officer (taking proper vouchers for
such disbursements), and shall render to the chief executive officer and the
Board, at regular meetings of the Board or whenever the Board may require, an
account of all transactions and the financial condition of the corporation.
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SECTION 7. OTHER OFFICERS.
The other officers of the corporation, if any, shall exercise such powers
and perform such duties as the Board of Directors or the chief executive officer
shall prescribe.
SECTION 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 9. REMOVAL.
Any officer of the Corporation may be removed at any time, with or without
cause, by the Board of Directors.
SECTION 10. ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS.
Unless otherwise directed by the Board of Directors, the President or any
officer of the Corporation authorized by the President shall have power to vote
and other wise act on behalf of the Corporation, in person or by proxy, at any
meeting of shareholders of or with respect to any action of shareholders 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.
NOTICES
SECTION 1. NOTICES.
Except as otherwise specifically provided herein or required by law, all
notices required to be given to any shareholder, director, officer, employee or
agent shall be in writing and may in every instance be effectively given by hand
delivery to the recipient thereof, by depositing such notice in the mails,
postage paid, recognized overnight delivery service or by sending such notice by
facsimile, receipt acknowledged, or by prepaid telegram or mailgram. Any such
notice shall be addressed to such shareholder, director, officer, employee or
agent at his or her last known address as the same appears on the books of the
Corporation. The time when such notice is received, if hand delivered, or
dispatched, if delivered through the mails or by telegram or mailgram, shall be
the time of the giving of the notice.
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SECTION 2. WAIVERS.
A written waiver of any notice, signed by a shareholder, 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 shareholder, director, officer, employee or agent. Neither
the business nor the purpose of any meeting need be specified in such a waiver.
Attendance at any meeting shall constitute waiver of notice except attendance
for the sole purpose of objecting to the timeliness of notice.
ARTICLE VI.
MISCELLANEOUS
SECTION 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 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 Treasurer or by an Assistant Secretary or
Assistant Treasurer.
SECTION 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
or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any
other person as to matters which such director or committee member reasonably
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Corporation.
SECTION 4. FISCAL YEAR.
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
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SECTION 5. TIME PERIODS.
In applying any provision of these Bylaws which requires that an act be
done or not be 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 VII.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. RIGHT TO INDEMNIFICATION.
To the fullest extent permitted by law, this corporation shall indemnify
its directors, officers, employees and other persons described in Section 317(a)
of the California Corporations Code, including persons formerly occupying any
such position, against all expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred by them in connection with any
"proceeding", as that term is used in such Section and including an action by or
in the right of the corporation, by reason of the fact that such person is or
was a person described by such Section. "Expenses", as used in this Bylaw, shall
have the same meaning as in Section 317(a) of the California Corporations Code.
SECTION 2. APPROVAL OF INDEMNITY.
Upon written request to the Board of Directors by any person seeking
indemnification under Section 317(b) or Section 317(c) of the California
Corporations Code, the Board shall promptly determine in accordance with Section
317(e) of the Code whether the applicable standard of conduct set forth in
Section 317(b) or Section 317(c) has been met and, if so, the Board shall
authorize indemnification. If the Board cannot authorize indemnification because
the number of directors who are parties to the proceeding with respect to which
indemnification is sought prevent the formation of a quorum of directors who are
not parties to such proceeding, the Board shall promptly call a meeting of
shareholders. At such meeting, the shareholders shall determine in accordance
with Section 317(e) of the Code whether the applicable standard of conduct set
forth in Section 317(b) or Section 317(c) has been met and, if so, the
shareholders present at the meeting in person or by proxy shall authorize
indemnification.
SECTION 3. RIGHT TO ADVANCEMENT OF EXPENSES.
To the full extent permitted by law and except as is otherwise determined
by the Board of Directors in the specific instance, expenses incurred by a
person seeking indemnification under this Bylaw in defending any proceeding
covered by this Bylaw shall be advanced by the corporation prior to the final
disposition of the proceeding upon
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receipt by the corporation of an undertaking by or on behalf of such person to
repay such amount unless it shall ultimately be determined that such person is
entitled to be indemnified by the corporation therefor.
SECTION 4. RIGHT OF INDEMNITEE TO BRING SUIT.
If a claim under Section 1 or 3 of this ARTICLE VII is not paid in full by
the Corporation within 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 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 brought 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 any applicable standard for indemnification set
forth in the California General Corporation Law. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the California General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or its
shareholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought 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 VII or otherwise shall be on the Corporation.
SECTION 5. NON EXCLUSIVITY OF RIGHTS.
The rights to indemnification and to the advancement of expenses conferred
in this ARTICLE VII shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Corporation's Articles of
Incorporation, Bylaws, agreement, vote of shareholders or disinterested
directors or otherwise.
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SECTION 6. INSURANCE.
The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
California General Corporation Law.
SECTION 7. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
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 and
advancement of expenses of directors and officers of the Corporation.
ARTICLE VIII.
AMENDMENTS
In furtherance and not in limitation of the powers conferred by law, the
Board of Directors is expressly authorized to make, alter, amend and repeal the
Bylaws subject to the power of the holders of capital stock of the Corporation
to alter, amend or repeal the Bylaws; provided, however, that, with respect to
the powers of holders of capital stock to make, alter, amend and repeal Bylaws
of the Corporation, notwithstanding any other provision of these Bylaws or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of the capital stock of the Corporation required by law, these Bylaws or
any preferred stock, the affirmative vote of the holders of at least 50 percent
of the voting power of all of the then-outstanding shares entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to make, alter, amend or repeal any provision of these Bylaws.
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This is to certify that the foregoing is a true and correct copy of the
Bylaws of Cepheid and that such Bylaws were duly adopted by the Board of
Directors of such corporation on May __, 2000 and approved by the Shareholders
on May __, 2000.
_____________________________________
Secretary
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