BYLAWS OF TEST AND DIAGNOSTICS CONSORTIUM, INC.
Contents
Page No.
2. ARTICLE I - GENERAL
2. ARTICLE II - PURPOSES
3. ARTICLE III - FISCAL YEAR
3. ARTICLE IV - BOARD OF DIRECTORS
6. ARTICLE V - COMMITTEES
7. ARTICLE VI - MEMBERS
11. ARTICLE VII - MEMBERSHIP MEETINGS
13. ARTICLE
VIII - NOTICES
14. ARTICLE IX - OFFICERS
16. ARTICLE X - DEPOSITS AND CHECKS
17. ARTICLE XI - INDEMNIFICATION
19. ARTICLE XII – RESEARCH
PROJECTS, TECHNOLOGY OWNERSHIP AND LICENSE
20. ARTICLE XIII - CORPORATE RECORDS AND
REPORTS
21.
ARTICLE XIV – CORPORATE ACTIONS
22.
ARTICLE
XV – MISCELLANEOUS
23. CERTIFICATION
BYLAWS OF
TEST AND DIAGNOSTICS CONSORTIUM, INC.
Section 1.1. Certificate of Incorporation. All references in these Bylaws to the Certificate of
Incorporation shall be construed to mean the Certificate of Incorporation of
the Corporation filed with State of Delaware pursuant to the General
Corporation Law of the State of Delaware, Chapter I, Title 8.
Section 1.2. Principal Office. The
principal office and other offices of the Test and Diagnostics Consortium, Inc.
(the “Corporation”) shall be located in such places, either in or outside the
State of Delaware, as the Board of Directors may designate or as the business
of the Corporation may require.
Section 1.3. Registered Office. The
registered office of the Corporation shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 1.4.
Seal. The Directors may, but are not
required to, provide a corporate seal which shall be circular in form and shall
have inscribed thereon the name of the Corporation, the state of incorporation,
year of incorporation and the words “Corporate Seal”. The seal may be used by causing it or a facsimile thereof to be
affixed, impressed or reproduced on documents.
Section
2.1. Purposes. The purposes of the
Corporation are set forth in Article II of the Certificate of Incorporation. As
a general matter, the Corporation is organized exclusively for the purpose of
receiving and administering funds for the purposes set forth in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), or corresponding provisions of
any subsequent federal tax laws, including the making of distributions to
organizations that qualify as exempt organizations under Section 501(c)(3) of
the Code and not treated as a private foundation as a result of the provisions
of Section 509(a) of the Code, or corresponding provisions of any subsequent
federal tax laws. In general, the
Corporation may engage in any activity within the aforedescribed purposes for
which a Delaware nonprofit corporation may be organized under the General
Corporation Law of the State of Delaware, including, but not limited to the
following:
a. To conduct, sponsor, fund, direct, and otherwise promote scientific research, development and demonstration of technologies and scientific methods that will optimize the test and diagnostic environment;
b. To assist in the implementation of such
technologies and methods;
c. To provide a forum for users and suppliers of test and diagnostic equipment and products for examination and discussion of technical and scientific issues having a significant impact on the test and diagnostic environment;
d. To publish or sponsor articles, newsletters and other publications related to test and diagnostic equipment and products;
e. To seek and accept gifts, grants and other support from individuals, corporations, organizations, foundations, and others, and charge fees for carrying out the foregoing purposes; and
f. To
engage in such other activities as may be possible, and to do every act
appropriate or necessary to carry out any of the foregoing purposes.
Notwithstanding
any other provision of these Bylaws, this Corporation shall not carry on any
activity not permitted to be carried on by a corporation exempt from federal
income tax under Section 501(c)(3) of the Code, or corresponding provisions of
any subsequent federal tax laws.
ARTICLE III
FISCAL YEAR
Section 3.1. Fiscal Year. The fiscal year of the
Corporation shall begin on the first (1st) day of July and end on the thirtieth
(30th) day of June each year or such other fiscal year as may be determined by
the Board of Directors.
ARTICLE IV
BOARD OF DIRECTORS
Section 4.1. General Powers. Except as
otherwise provided in the Certificate of Incorporation, or these Bylaws, the
property and affairs of the Corporation shall be managed by or under the
direction of its Board of Directors.
The Board of Directors shall not take any action that is not permitted
herein, under the General Corporation Law of the State of Delaware, or other
relevant Delaware law, nor shall it take any action prohibited by Section
501(c)(3) the Code, or corresponding provisions of any subsequent federal tax
laws. The Directors shall in all cases
act as a Board. Day-to-day operations
of the Corporation shall be managed by the Officers of the Corporation. However, the Board of Directors shall be
charged with the responsibility of setting the general policy of the
Corporation, and exercising oversight authority over the Corporation Officers.
Section 4.2. Composition of Board.
Directors need not be Members of the Corporation. The number of Directors of the Corporation
shall be between five (5) and ten (10), as may be determined from time to time
by resolution of the Board of Directors.
The required number of Directors may be changed from time to time by
amendment to these Bylaws, provided that a minimum of three (3) Directors are
maintained.
Section 4.3. Advisors
to the Board.
The Board may select such advisors to the Board at it deems necessary from time
to time. Notwithstanding the foregoing, the Department of Defense may nominate
one representative to serve as an advisor to the Board which nomination shall
be accepted by the Board.
Section 4.4. Tenure. Directors
may be elected at any meeting of the Members. A Director shall hold office for
a term of one (1) year and until his or her successor is elected and qualified
or until his or her resignation or removal.
All Directors shall be eligible to be re-elected to successive terms of
office without limitation.
Section 4.5. Resignation. A Director
may resign at any time by notice to the Corporation tendered to the Board, or
the President or Secretary of the Corporation.
A Director may also resign upon notice given by electronic transmission
to the Corporation. Unless otherwise specified in the notice, the resignation
shall take effect upon receipt thereof by the Board or such Officer, and the
acceptance of the resignation shall not be necessary to make it effective.
Section 4.6. Removal. The Directors may remove one (1) or more Directors,
with or without cause, by a majority vote of the remaining Directors.
Section 4.7. Vacancies. Vacancies
caused by removal and not filled by the Members at the meeting at which such
removal shall have been made, or any vacancy caused by the death or resignation
of any Director or for any other reason, and newly created Directorships
resulting from any increase in the authorized number of Directors, may be
filled by the affirmative vote of a majority of the Directors then in office;
provided, however, that any Director so elected to fill such vacancy shall serve
for the unexpired term of his or her predecessor. The term of any Director elected to fill a newly created
Directorship shall expire at the conclusion of the next succeeding annual
meeting of the Board of Directors.
Section 4.8.
Place of Meetings. All
meetings of the Board of Directors shall be held at the principal office of the
Corporation or such other place either in or outside the State of Delaware as
shall be determined by the Board of Directors.
Section 4.9.
Annual Meetings. An annual
meeting of the Board of Directors shall be held in each fiscal year at such
time and place as may be designated by the Board of Directors or if not so
designated, the annual meeting of the Board of Directors shall be held on the
last Tuesday in May of each fiscal year at such place as may be
designated. The purposes of the annual
meeting shall be for the election of Officers and Directors, and to transact
any other business as may properly come before the meeting.
Section 4.10.
Special Meetings. Special meetings
of the Board of Directors may be called by the President or by any two (2)
Directors.
Section 4.11.
Notice of Meeting. Notice of a
special meeting of Directors, or Committee of Directors, stating the place,
date and hour of the meeting shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting.
Section 4.12.
Action Without a Meeting. Any action
required to be taken at a meeting of the Board of Directors or any action which
may be taken at a meeting of the Directors or of a Committee of Directors, may
be taken without a meeting if a consent in writing or by electronic
transmission, setting forth the action so taken, is signed or otherwise
approved by all of the Directors entitled to vote with respect to the subject
matter thereof, or all of the members of the Committee of Directors, as the
case may be. Such writing or writings
or electronic transmission or transmissions shall be filed with the minutes of
the proceedings of the Directors or Committee. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic
form if the minutes are maintained in electronic form.
Section 4.13. Quorum. A majority
of the Board of Directors constitutes a quorum for the transaction of business
at any meeting of the Board of Directors, but if less than two-thirds (2/3) of
the Directors are present at the meeting a majority of the Directors present
may adjourn the meeting without further notice.
Section 4.14.
Voting. The vote of a majority of the
Members present at a meeting at which a quorum is present constitutes the
action of the Board of Directors or a Committee of Directors.
Section 4.15. Participation in Meetings by Telecommunications. A member of the Board of Directors, or a
Committee, may participate in a meeting by means of telephone conference or
similar communications through which all persons participating in the meeting
can communicate with the other participants.
Participation in a meeting pursuant to this Section 4.15 constitutes
presence in person at the meeting.
Section 4.16. Compensation. No
compensation shall be paid to Directors for their service on the Board. By resolution of the Board, payment of
expenses for actual attendance at each regular or special meeting is
authorized.
Section 4.17. Conduct
of Meetings. At all meetings of the Board of Directors,
the President shall preside. If there
is not a President than such other person chosen by the Board of Directors
shall preside. The Secretary of the
Corporation shall act as Secretary of each meeting of the Board of Directors,
but in his or her absence, the President shall appoint some person to act as
Secretary of the meeting and to keep a record of the proceedings thereof for
entry in the minute book of the Corporation.
Should any questions arise regarding the procedure at any meeting, it
shall be resolved by reference to “Roberts’ Rule of Order Revised.”
Section 4.18.
Dissent. A Director who is present at a meeting of the Board of Directors
or a Committee of which he or she is a member, at which action on a corporate
matter is taken, is presumed to have concurred in that action unless his or her
dissent is entered in the minutes of the meeting, or unless he or she files his
or her written dissent to the action with the person acting as Secretary of the
meeting before or promptly after the adjournment thereof. The right to dissent shall not apply to a
Director who voted in favor of the action.
A Director who is absent from a meeting of the Board of Directors, or a
Committee, of which he or she is a member, at which any such action is taken is
presumed to have concurred in the action unless he or she files a dissent with
the Secretary of the Corporation within five (5) days after he or she has
knowledge of the action.
ARTICLE V
Section 5.1. Committees. The Board
of Directors may designate one (1) or more Committees, each Committee to
consist of two (2) or more Directors of the Corporation. The Board of Directors may designate one (1)
or more Directors as alternate members of a Committee, who may replace an
absent or disqualified member at a meeting of the Committee provided, however,
that in the absence or disqualification of a member of a Committee, the members
thereof present at a meeting of the Committee and not disqualified from voting,
whether or not they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of such an absent
or disqualified member. A Committee may
select non-Board members to serve in an advisory capacity. A Committee, and each member thereof, shall
serve at the pleasure of the Board of Directors.
Section 5.2. Authority. A Committee
may exercise all powers and authority of the Board of Directors in the
management of the property and affairs of the Corporation, provided however,
that a Committee does not have the power or authority to do any of the
following:
a. Amend the Certificate of Incorporation;
b. Adopt an agreement of merger or
consolidation;
c. Sell, lease, or exchange all or
substantially all of the Corporation’s assets;
d. Dissolve the Corporation or revoke a
dissolution;
e. Amend the Bylaws; or
f. Appoint or remove an Officer, Director, or Committee member.
ARTICLE VI
MEMBERS
Section 6.1. User and Supplier Member. Any user or supplier of test
and diagnostic equipment or products, located and incorporated or located and
established in the United States, Canada or Mexico, shall be eligible to be a
Member of the Corporation if, in the determination of the Board of Directors,
such entity has goals and objectives compatible with those set forth in these Bylaws.
Section 6.2. User and Supplier Members - United States. Any legally constituted entity in the United States
shall be eligible to be a Member of the Corporation if, in addition to
satisfying the requirements in Section 6.1 above, in the determination of the
Board of Directors:
a.
Any
research activity or any research project undertaken or technology developed by
the Corporation will be used predominantly by such United States entity to
benefit the United States and United States manufacturers in competing in the
global marketplace;
b.
Any
research project undertaken or technology developed by the Corporation, or
information relating thereto, will not be used or made available by such United
States entity to foreign manufacturers or other foreign entities which are not
Members except as may be authorized or approved by the Corporation;
c.
Such
United States entity is located and incorporated or located and established in
a state of the United States, has its central management and control in the
United States, Canada or Mexico, and has its principal place of business
located within the United States, Canada or Mexico;
d.
Such
United States entity is not, to the best of its knowledge and belief, owned or
controlled, directly or indirectly, by persons who are not citizens of the
United States or by corporations, partnerships or proprietorships that are not
corporations, partnerships or proprietorships of the United States, Canada or
Mexico; and
e.
Such
United States entity meets such other criteria for admission for United States
entities as shall be established by the Board of Directors from time to time to
further the overall mission and achieve the objectives of the Corporation.
Section 6.3. User and Supplier
Members - Canada and Mexico. Any legally constituted
entity in Canada or Mexico shall be eligible to be a Member of the Corporation
if, in addition to satisfying the requirements in Section 6.1 above, in the
determination of the Board of Directors:
a. Such Canadian or Mexican entity has
sufficient domestic ties to Canada or Mexico and the Canadian or Mexican
economy, as applicable, such that the entity’s business objectives are
substantially similar to and designed to promote the principles and objectives
underlying the Canada-United States Free Trade Agreement or the North American
Free Trade Agreement which are directed toward positioning the United States,
Canada and Mexico to compete as leaders in the global marketplace;
b. Such Canadian or Mexican entity has
sufficient ties to the United States by way of relationships with United States
companies as trading partners and/or as a United States government defense
contractor, and such Canadian or Mexican entity has manufacturing and research
goals and objectives aligned with those of United States manufacturers, such
that knowledge of any research activity or any research project undertaken or
technology developed by the Corporation will be used predominantly by such
entity to benefit the United States, United States manufacturers, Canada,
Mexico, and Canadian and Mexican manufacturers in competing as allies in the
global marketplace;
c. Any research project undertaken or technology
developed by the Corporation, or information relating thereto, will not be used
or made available by such Canadian or Mexican entity to foreign manufacturers
or other foreign entities which are not Members except as may be authorized or
approved by the Corporation;
d. Such Canadian or Mexican entity agrees that
certain government agencies and other sponsors may impose conditions on
participation in certain research projects with which the sponsor will require
the Corporation to comply and which could cause the Canadian or Mexican entity
to be precluded from participation on such projects, and in the event this
occurs, the Canadian or Mexican entity agrees to indemnify and hold the
Corporation, its Board of Directors and Officers, employees and agents harmless
from and against any loss of costs associated with attempting to secure
participation on such projects;
e. Such Canadian or Mexican entity is located and
incorporated or located and established in a province of Canada or state of
Mexico, has its central management and control in the United States, Canada or
Mexico, and has its principal place of business located within the United
States, Canada or Mexico;
f. Such Canadian or Mexican entity is not, to the
best of its knowledge or belief, owned or controlled, directly or indirectly,
by persons who are not citizens of the United States, Canada or Mexico or by
corporations, partnerships or proprietorships that are not corporations,
partnerships or proprietorships of the United States, Canada or Mexico;
g. Such Canadian or Mexican entity submits to the
jurisdiction of the laws of the United States in any litigation involving the
Corporation or its Board of Directors and agrees in writing to special
contractual restrictions as may be set by the Board of Directors from time to
time in the Membership Application and Agreement in order to protect and
indemnify the Corporation, its Board of Directors and its Members that are
United States manufacturers from damages incurred if such Canadian or Mexican
entity discloses any Corporation research project or technology, intentionally
or unintentionally, to a foreign manufacturer or other foreign entity absent a
written license from the Corporation;
and
h. Such Canadian or Mexican entity meets such
other criteria for admission for Canadian or Mexican entities as shall be
established by the Board of Directors from time to time to further the overall
mission and achieve the objectives of the Corporation.
Section 6.4.
Divisions of
Members. A operating division of a Member (not a
legally constituted entity) shall be eligible to be a Member of the Corporation
if, in addition to satisfying the requirements in Section 6.1 above, such
division meets any separate or distinct requirements of membership in the
determination of the Board of Directors.
Section 6.5.
Wholly-owned
and controlled subsidiaries and majority-owned and controlled subsidiaries. Unless otherwise set forth in these Bylaws or declared in writing
by the Corporation, a Member’s Membership Agreement in the Corporation, though
limited to one (1) vote, shall include the Membership of all of its
wholly-owned and controlled subsidiary corporations throughout the world as
well as its majority-owned and controlled subsidiary corporations throughout
the world, or technology developed under a research project may be licensed or
otherwise transferred to such subsidiary, affiliate, joint venture, corporation
or entity, provided such subsidiaries, affiliates, joint ventures, corporations
and entities can ensure to the satisfaction of the Board of Directors that the
knowledge or technology will be protected in the country of destination and/or
use to the same extent it is protected under United States laws and that the
license or transfer of such knowledge or technology is not contrary to the
meaning or intent of these Bylaws, or the export trade laws, and that the
knowledge or technology will not be used by such subsidiary, affiliate, joint
venture, corporation or entity to compete with or disadvantage any Member. For purposes of these Bylaws, the term
“wholly-owned and controlled” shall include one-hundred (100%) beneficial
ownership and control of any subsidiary corporation, and the term
“majority-owned and controlled” shall mean more than fifty (50%) ownership and control
of any subsidiary corporation.
Section 6.6. Other Subsidiaries,
Affiliates. There shall be no right, absolute or
otherwise, in any subsidiary corporation of a Member which is not a
wholly-owned and controlled subsidiary bound by the Member’s Membership
Agreement or a majority-owned and controlled subsidiary bound by the Member’s
Membership Agreement, nor any right in an affiliate of a Member, nor any right
in any joint venture to which the Member or one or more of its subsidiaries is
a party, nor any right in any other corporation or entity, to access knowledge
with respect to a Corporation research project or technology developed under a
research project by license or otherwise. However, the Board of Directors may
provide from time to time that knowledge with respect to a research project
provided the Member causes such subsidiary corporations, by resolution or
otherwise, to be bound by the applicable and appropriate provisions (including
but not limited to provisions protecting research project technology and
information relating thereto) of the Member’s Membership Agreement and these
Bylaws.
Section 6.7.
Application
for Membership. Application for Membership in the Corporation shall be made by
completing the official Corporation Membership Application and Agreement and
mailing to the President at the Corporation’s principal place of business. The
Application for Membership shall contain such information as may be needed to
complete an application to the United States Department of Justice for approval
under the National Cooperative Research and Production Act of 1993, 15 U.S.C.
4301-4306, including such information to establish the standard industrial
classifications for the applicant.
Section 6.8. Determination
of Eligibility. A determination of
eligibility and approval as a Member shall be made by a majority vote of the
Board of Directors after review of the Application for Membership. Alternatively, the Board of Directors, by
resolution, may authorize the President of the Corporation to make such
determination if the President has provided the Board of Directors with
notification of such Membership Application.
As a condition of approval of the Membership Application, the Board of
Directors and/or President may place such restrictions as it deems necessary on
the Member’s participation in research projects and access to technology in
order to further the overall mission and objectives of the Corporation.
Section 6.9. Waiver of
Membership Criteria. The Board of Directors, in
its sole discretion may, by majority vote, waiver any requirements specified in
Sections 6.1 through 6.6.
Section 6.10. Continuation
of Membership Upon Acquisition. The
foregoing notwithstanding, the Board of Directors may in its sole discretion, on
a case-by-case basis, agree by majority vote to allow any company which was
qualified to be, and was accepted as, a Member, to continue its Membership in
Corporation despite acquisition by another company which does not qualify for
Membership. In making its
determination, the Board of Directors shall consider length of the company’s
Membership in Corporation, its participation in Corporation’s research projects
and the anticipated benefits to be derived from such continuing Membership, and
may place such restrictions as it deems necessary on the company’s Membership,
participation in research projects, and access to technology in order to
further the overall mission and objectives of the Corporation.
Section 6.11. Termination
or Suspension of Membership. No Member in good standing,
as such term is defined in Section 6.14 may have its Membership terminated or
be suspended as a Member except by a vote of two-thirds (2/3) of all the
Members, except that any Member that ceases to meet the requirements of
Sections 6.1 through 6.6. of these Bylaws at any time automatically will have
its Membership terminated by a majority vote of the Board of Directors
immediately upon notice to such Member, and no further action as specified in
a. through c. below will be necessary.
Any Member meeting the Membership requirements but not in good standing
may have its Membership terminated or be suspended as a Member by a two-thirds
(2/3) vote of the Board of Directors.
However, no such termination or suspension of Membership will be
effective unless:
a. The Member is given notice of the
proposed termination or suspension of Membership and of the reasons therefor;
b. Such notice is given at least thirty
(30) days prior to the effective date of the proposed termination or suspension
of Membership; and
c. Such notice provides for an opportunity
for the Member to be heard by the Members or Board of Directors, as applicable,
either orally or in writing at the discretion of the Corporation not less than
ten (10) days before the effective date of this proposed termination or
suspension.
Section 6.12. Resignation
by Member. A Member may resign as a
Member at any time, upon notice to the Corporation, provided, however, that
such resigning Members will not be relieved of any obligation for any charges
incurred, services or benefits actually rendered, contributions, dues,
assessments or fees, or other obligations arising under its Membership
Application and Agreement or otherwise.
Section 6.13. Members
Book. The name and address of each
Member will be contained in a Members Book to be maintained at the principal
office of the Corporation. The termination or resignation of any Member will be
recorded in the Members Book together with the date of such termination or
resignation. The Members will be responsible for apprising the Corporation of
all changes of name and address and such other information as may be required
by law.
Section 6.14.
Levy of
Contribution. The Corporation may require
such contributions from its Members as set by resolution of the Board of
Directors from time to time. A Member
may avoid liability for any such contribution by promptly resigning as a
Member, except where the Member is, by contract or otherwise, liable for such
contribution. No provision of the
Certificate of Incorporation or these Bylaws authorizing such contribution
shall, of itself, create such liability. To be a Member in good standing, each
Member must pay such contribution within the time and on the conditions set by
the resolution.
Section 6.15.
Transfer
of Membership. No Member may transfer, for
value or otherwise, a Membership or any right arising from it.
ARTICLE VII
MEMBERSHIP MEETINGS
Section 7.1. Place and Hour of
Meetings. All meetings of the Members
will be held either at the principal office of the Corporation or at such other
place within or without the State of Delaware and at such hour as may be
designated by the Board of Directors in the notice of such meeting or in the
waiver of notice thereof.
Section 7.2. Regular
and Annual Meetings. Annual meetings of the
Members will be held for the election of Directors on a date and at a time
designated by the Board of Directors and stated in the notice of the meeting or
in a duly executed waiver of notice.
The regular meetings of Members will be held on such day and at such
hour as may be fixed by the Board of Directors and any proper business may be
transacted at any annual meeting.
Section 7.3. Special
Meetings. Special meetings of the
Members may be called at any time by a majority of the Board of Directors or
the President, or by Members entitled to cast not less than twenty percent
(20%) of the votes at the meeting. Such
request shall state the purpose or purposes of such meeting.
Section 7.4. Notice of Meetings.
a. Subject to the waiver of notice
provisions, notice of each regular, annual or special meeting of Members shall
be given not less than ten (10) days nor more than sixty (60) days before the
date of the meeting to each Member entitled to vote at such meeting. If no such address appears or is given,
notice shall be given to the Member at the place where the principal office of
the Corporation is located, or by publication or on the Corporation’s site on
the World Wide Web.
b.
All
such notices shall state the place, the date and the hour of such meeting. The notice of any regular, annual, or
special meeting at which Directors are to be elected shall include the names of
all those who are nominees at the time the notice is given. Notice of any regular, annual or special
meeting shall specify the general nature of the business to be transacted
thereat. Business transacted at a
special meeting shall be limited to the purpose or purposes stated in the
notice.
c. Where the matter to be acted upon at a
meeting of Members is a merger or consolidation of the Corporation or a sale,
lease, or exchange of all or substantially all of its assets, notice of such
meeting shall be given not less than twenty (20) nor more than sixty (60) days
prior to such meeting.
d. All notices shall be sent by the Secretary or an Assistant Secretary, or if there be no such Officer, or in the case of such Officer’s neglect or refusal to act, by any other Officer, or by those persons calling the meeting.
Section 7.5. Adjournment of Meetings.
a. Any regular, annual or special meeting
of the Members, whether or not a quorum is present, may be adjourned from time
to time by the vote of a majority of the Members present or represented either
in person or by proxy. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting.
b.
When
a meeting of the Members is adjourned to another time or place, notice of the
adjourned meeting need not be given if the time and place thereof are announced
at the meeting at which the adjournment is taken; except that 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, notice of the adjourned meeting
shall be given to each Member entitled to vote at such meeting.
Section 7.6. Quorum and Voting.
a. One fourth (1/4) of the voting power,
represented in person or by proxy, shall constitute a quorum at a meeting of
the Members.
b. Each Member in good standing shall be
entitled to one vote on each matter submitted to a vote of the Members. That
vote may be viva voce or by ballot, as determined by the presiding Officer of
the meeting; provided, however, that elections for the Directors must be by
ballot upon demand made by a Member at the meeting and before the voting
begins.
c. If a quorum is present, the affirmative vote of
a majority of the Members represented at the meeting and entitled to vote on
any matter will be the act of the Members, unless the question is one which by
the Certificate of Incorporation or by the General Corporation Law of the State
of Delaware requires a different vote, in which case such express provision
will govern.
d. The Members present at a duly called or
held meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough Members to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the Members required to constitute a quorum.
Section 7.7. Consents. Whenever a vote of Members at a meeting thereof is
required or permitted to be taken in connection with any corporate action by
any provision of a statute or of the Certificate of Incorporation or these
Bylaws, the meeting, prior notice thereof and vote of the Members may be
dispensed with if the number of Members, representing not less than the minimum
number of votes that would have been necessary to authorize or take such action
at a meeting at which all Members entitled to vote were present and voted,
consent in writing to the taking of such action. Where corporate action is
taken in such manner by less than unanimous written consent, prompt notice of
the taking of such action will be given to all Members who have not consented
in writing to the action. The written
consent or consents will be filed with the minutes of the proceedings of the
Members.
Section 7.8.
Proxies. Members entitled to vote may vote in person or by
proxy. An appointment of proxy must be in writing and becomes effective when
received by the Secretary or other authorized Officer of the Corporation. An appointment of proxy is valid for a
period of three (3) years thereafter unless otherwise provided in the proxy or
until revoked.
ARTICLE VIII
NOTICES
Section 8.1. General Notice Provision. When a notice or communication is required or permitted by the
General Corporation Law of the State of Delaware to be given, it shall be in
writing and given personally or mailed to the person to whom it is directed at
the address designated by him or her for that purpose, of if none is
designated, at his or her last known address.
The notice or communication is given when deposited, with postage
thereon prepaid, in a post office or official depository under the exclusive
care and custody of the United States postal service.
Section 8.2. Electronic
Transmission. Without limiting the manner by which notice
otherwise may be given effectively to Members, any notice to Members given by
the Corporation under any provision of the Certificate of Incorporation, or
these Bylaws, shall be effective if (1) if by facsimile telecommunication, when
directed to a number at which the Member has consented to receive notice; (2)
if by electronic mail, when directed to an electronic mail address at which the
Member has consented to receive notice; (3) if by any other form of electronic
transmission which the Member has consented to, when directed to the
Member. An affidavit of the Secretary
or an assistant Secretary or of the transfer agent or other agent of the
Corporation that the notice has been given by a form of electronic transmission
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein. For purposes of this Section,
“electronic transmission” means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be
retained, retrieved and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
Section 8.3. Waiver. When, under the General Corporation Law of the State of Delaware,
the Certificate of Incorporation, these Bylaws, or by the terms of an agreement
or instrument, the Corporation or the Board of Directors or any Committee may
take action, after notice to any person or after lapse of a prescribed period
of time, the action may be taken without notice and without lapse of the period
of time, if at any time before or after the action is completed, the person
entitled to notice or to participate in the action to be taken, submits a
signed waiver of the requirements. A
Director’s attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless he or she at the beginning of the
meeting, or upon his or her arrival, objects to the meeting or the transacting
of business at the meeting and does not thereafter vote for or assent to any
action taken at the meeting.
ARTICLE IX
OFFICERS
Section 9.1. Offices. The
Officers of the Corporation shall be a President, a Secretary and a Treasurer,
each of whom shall be elected by the Board of Directors. Such other Officers as may be deemed
necessary may be elected or appointed by the Board of Directors. Any two (2) or more offices may be held by
the same person, except the offices of President and Secretary.
Section 9.2. Tenure. At each
annual meeting, the Board of Directors shall elect Officers to hold office
until the succeeding annual meeting. If
election of Officers shall not be held on the day designated herein for any
annual meeting of the Directors, the Board of Directors shall cause the
election to be held as soon thereafter as possible. An Officer shall hold office for the term for which he or she is
elected or appointed and until his or her successor is elected or appointed and
qualified, or until his or her resignation or removal.
Section 9.3. Qualifications. No Officer
need be a Director.
Section 9.4. Removal. An Officer
may be removed by a majority vote of the Board of Directors with or without
cause. The removal of an Officer shall
be without prejudice to his or her contract rights, if any. The election or appointment of an Officer
does not of itself create contract rights.
Section 9.5. Resignation. An Officer
may resign by notice to the Corporation.
The resignation is effective upon its receipt by the Corporation or at a
subsequent time specified in the notice of resignation.
Section 9.6. Vacancies. A vacancy
in any office may be filled by the Board of Directors for the unexpired portion
of the term.
Section 9.7. Compensation. The
compensation of all Officers of the Corporation, for services rendered to the
Corporation, shall be fixed by the Board of Directors and no Officer shall be
prevented from receiving compensation by reason of the fact that he or she is
also a Director of the Corporation. In
no event shall a loan be authorized by the Corporation to any Officer.
Section 9.8. Bonds. The Board of Directors may
require any and all of the Officers to give bonds in favor of the Corporation,
with sufficient surety or sureties, and in such amounts as the Board of
Directors may fix, conditioned for the faithful performance of the duties of
their respective offices.
Section 9.9. President. The President shall be the principal executive Officer of the
Corporation and shall, subject to the control of the Board of Directors,
supervise and control all of the property and affairs of the Corporation and
shall have the general duties incident to the office of the President and such
other duties as may be prescribed by the Board of Directors. Within this
authority and in the course of his or her duties, he or she shall sign,
execute, acknowledge or verify instruments of any nature which the Board of
Directors has authorized to be signed, executed, acknowledged or verified,
except in cases where expressly delegated by the Board of Directors or by these
Bylaws to some other Officer or agent of the Corporation, unless required by
the General Corporation Law of the State of Delaware or other applicable law to
be otherwise signed, executed, acknowledged or verified.
Section 9.10. Secretary. The Secretary shall have the general duties incident to the
office of Secretary and such other duties as may be prescribed by the President
or the Board of Directors. Within this
authority and in the course of his or her duties, he or she shall:
a. Keep the minutes of the proceedings of
the Board of Directors’ meetings in one or more books provided for that
purpose;
b. See that all notices are duly given in
accordance with the provisions of these Bylaws or as required by the General
Corporation Law of the State of Delaware;
c. Be custodian of the corporate records
and of the seal of the Corporation and see that the seal of the Corporation is
affixed to all documents where authorized; and
d. Keep a register of the mailing address
of each Director which shall be furnished to the Secretary.
Section 9.11. Treasurer. The
Treasurer shall have the general duties incident to the office of Treasurer and
such other duties as may be prescribed by the President, or the Board of
Directors. Within this authority and in
the course of his or her duties, he or she or his or her designee shall:
a. Have charge and custody of and be responsible
for all funds and securities of the Corporation; and
b. Receive and give receipts for monies due and
payable to the Corporation from any source whatsoever and deposit all such
monies to the credit of the Corporation in such duly authorized
depositories.
Section 9.12. Assistant Secretary. At
the request of the Secretary, or in his or her absence or disability, the
Assistant Secretary, designated by him or her, shall perform all the duties of
the Secretary and be subject to all the restrictions upon the Secretary. The Assistant Secretary shall perform such
other duties as may be assigned to him or her by the Board of Directors or the
Secretary.
Section 9.13. Assistant Treasurer. At
the request of the Treasurer, or in his or her absence or disability, the
Assistant Treasurer, designated by him or her, shall perform all the duties of
the Treasurer and be subject to all the restrictions upon the Treasurer. The Assistant Treasurer shall perform such
other duties as may be assigned to him or her by the Board of Directors or the
Treasurer.
ARTICLE X
DEPOSITS AND CHECKS
Section 10.1. Deposits. All funds
of the Corporation not otherwise employed shall be deposited to the credit of
the Corporation in such depositories as the Board of Directors may select.
Endorsements for deposit of commercial paper may be by the Treasurer or by any
other Officer or agent of the Corporation to whom the Board of Directors, by
resolution, shall have delegated such power, without countersignature by the
President, or by hand stamped impression in the name of the Corporation.
Section 10.2. Investments. The Corporation shall retain and invest funds of the Corporation
in accordance with such standards as may be established by the Board of
Directors.
Section 10.3. Checks. All checks,
drafts or other orders for payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation shall be signed by such
Officer or Officers, agent or agents of the Corporation and in such manner as
shall be determined by the Board of Directors.
INDEMNIFICATION
Section 11.1. Indemnification, Non-Derivative Actions. The Corporation has the power to indemnify a person who was or is
a party or is threatened to be made a party to a threatened, pending or
completed action, suit, or proceeding, whether civil, criminal, administrative
or investigative and whether formal or informal, other than an action by or in
the right of the Corporation, by reason of the fact that he or she is or was a
Director, Officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a Director, Officer, partner, trustee,
employee, or agent of another foreign or domestic Corporation, partnership,
joint venture, trust or other enterprise, whether for profit or not, against
expenses, including attorneys’ fees, judgments, penalties, fines, and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with the action, suit or proceeding, except in relation to matters to which the
person shall be adjudged in such action, suit or proceeding to be liable for
negligence or misconduct in the performance of his duty.
Section 11.2. Indemnification, Derivative Actions. The Corporation has the power to indemnify a person
who was or is a party or is threatened to be made a party to a threatened,
pending or completed action or suit by or in the right of the Corporation, to
procure a judgment in its favor by reason of the fact that he or she is or was
a Director, Officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a Director, Officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, whether for profit or not, against expenses,
including attorneys’ fees and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action, suit or
proceeding, except in relation to matters to which the person shall be adjudged
in such action, suit or proceeding to be liable for negligence or misconduct in
the performance of his duty.
Section 11.3. Expenses, Successful Defense. To the extent that a Director, Officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of an
action, suit, or proceeding referred to in Section 11.1 or 11.2, or in defense
of a claim, issue, or matter in the action, suit or proceeding, he or she shall
be indemnified against actual and reasonable expenses, including attorneys’
fees incurred by him or her in connection with the action, suit or proceeding
and an action, suit, or proceeding brought to enforce the mandatory
indemnification provided in this Section 11.3.
Section 11.4. Determination that Indemnification is Proper. An indemnification under Section 11.1. or 11.2., unless ordered
by the court, shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the Director,
Officer, employee, or agent is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in Sections 11.1 and 11.2
and upon an evaluation of the reasonableness of expenses and amounts paid in
settlement. This determination shall be
made by a majority vote of a quorum of the Board of Directors consisting of
Directors who are not parties or threatened to be made parties to the action,
suit, or proceeding.
If
a person is entitled to indemnification under Section 11.1. or11.2. for a
portion of expenses, including reasonable attorneys’ fees, judgments,
penalties, fines and amounts paid in settlement, but not for the total amount,
the Corporation may indemnify the person for the portion of the expenses,
judgments, penalties, fines or amounts paid in settlement for which the person
is entitled to be indemnified.
Section 11.5. Expense Advance. The
Corporation may pay or reimburse the reasonable expenses incurred by a
Director, Officer, employee, or agent who is a party or threatened to be made a
party to an action, suit or proceeding in advance of final disposition of the
proceeding if all of the following apply:
a. The person furnishes the Corporation a
written affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct set forth in Sections 11.1 and 11.2;
b. The person furnishes the Corporation a
written undertaking, executed personally or on his or her behalf, to repay the
advance if it is ultimately determined that he or she did not meet the standard
of conduct; and
c. A determination is made that the facts
then known to those making the determination would not preclude indemnification
under the General Corporation Law of the State of Delaware.
The
undertaking required under subdivision b. of this Section 11.5 must be an unlimited
general obligation of the person but need not be secured. Determinations of payments under this
Section shall be made in the manner specified in Section 11.4.
Section 11.6. Application, Order, Limitation. A Director, Officer, employee, or agent of the Corporation who is
a party or threatened to be made a party to an action, suit, or proceeding may
apply for indemnification to the court conducting the proceeding or to another
court of competent jurisdiction. On
receipt of an Application, the court after giving any notice it considers
necessary may order indemnification if it determines that the person is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he or she met the applicable standard of conduct
set forth in Sections 11.1 and 11.2 or was adjudged liable as described in
Section 11.2, but if he or she was adjudged liable, his or her indemnification
is limited to reasonable expenses incurred.
Section 11.7. Other Rights of Directors and Officers. The indemnification or advancement of expenses provided under
Sections 11.1 to 11.6 is not exclusive of other rights to which a person
seeking indemnification or advancement of expenses may be entitled under the Certificate
of Incorporation, these Bylaws or a contractual agreement. The total amount of expenses advanced or
indemnified from all sources combined shall not exceed the amount of actual
expenses incurred by the person seeking indemnification or advancement of
expenses.
Section 11.8. Former Directors and Officers. The indemnification provided for in Sections 11.1. to 11.6.
continues as to a person who ceases to be a Director, Officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of the person.
Section 11.9. Insurance. The
Corporation shall have power to purchase and maintain insurance on behalf of
any person who is or was a Director, Officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, Officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the Corporation would
have the power to indemnify him or her against liability under Sections 11.1 to
11.7.
Section 11.10. Changes in Law. In the event of any change to the General Corporation Law of the
State of Delaware relating to the subject matter of these Bylaws, the
indemnification to which any person shall be entitled hereunder shall be
determined by such changed provisions.
The Board of Directors is authorized to amend these Bylaws to conform to
any such changed statutory provisions.
ARTICLE XII
Section 12.1.
Research
Projects. All cooperation initiatives and joint ventures entered into by the
Corporation, shall be in writing and approved by a majority vote of the Board
of Directors. Membership in the
Corporation shall not limit any Member from participating in other research and
developments activities.
Section 12.2. Technology
Ownership and License
a. The
Corporation shall endeavor to own and protect any Technology resulting from
research projects of the Corporation. In most instances, protection will be
sought through the patent system. In
some instances, copyright protection may be obtained (e.g. computer software).
b.
Unless otherwise authorized by the Board of
Directors or agreed upon by all Members participating in a research project,
Members participating in the research project shall have a non-exclusive
royalty free right to Technology.
Members not participating in the research project shall have the right
to license for royalties the Technology for a period of 40 months. The 40
months shall be calculated from later of
(i) completion of the research project or (ii) the date of patent or
copyright issuance. Thereafter, a license for royalties to Technology will be
offered to the non-Members and the general public. The terms of the license including the royalty rate shall be
determined by the Board of Directors or its designee based on factors including,
but not limited to, the scope of the Technology, the scope of the license, and
manner in which the Technology will be used. Notwithstanding the foregoing, the
license of Technology shall be subject to the terms of the research project
agreement and consistent with the requirements of continued exemption of the
Corporation under section 501(c)(3) of the Code, or corresponding provisions of
any subsequent federal tax laws.
c.
As used in this Section 12.2, Technology shall
include any products, processes, or related intellectual property resulting
from a research project of the Corporation.
Section 13.1. Records. The
Corporation shall keep books and records of account and minutes of the
proceedings of its Board of Directors and Committees, if any, at its registered
office in or outside the State of Delaware, records containing the names and
addresses of all Directors. Any of the books, records, or minutes may be in
written form or in any other form capable of being converted into written form within
a reasonable time.
Section 13.2.
Annual Report. The Corporation shall cause to
be mailed to Directors, its balance sheet as at the end of the preceding fiscal
year; its statement of income for the fiscal year; and, if prepared by the
Corporation, its statement of source and application of funds for the fiscal
year.
Section 13.3. Auditors. The Board
of Directors may, but is not required to, appoint an independent public
accountant to examine the books and records of the Corporation and render a
report on the financial status of the Corporation as of the close of each
fiscal year.
Section 13.4. Inspection of Records by Directors. All books and records of the Corporation may be inspected by any
Director or Officer, or his agent or attorney, for any proper purpose at any at
any reasonable time, upon reasonable notice.
Section 13.5. Reliance on Information and Opinions. A Director or Officer, in discharging his or her duties, is
entitled to rely on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or presented by any
of the following:
a. One (1) or more Directors, Officers, or
employees of the Corporation, or of a business organization under joint control
or common control, whom the Director of Officer reasonably believes to be
reliable and competent in the matters presented;
b. Legal counsel, public accountants,
engineers, or other persons as to the matters the Director or Officer
reasonably beliefs are within the person’s professional or expert competence;
or
c. A Committee of the Board if the Director
or Officer reasonably believes the Committee merits confidence.
A
Director or Officer is not entitled to rely on the information set forth above
if he or she has knowledge concerning the matter in question that makes
reliance otherwise permitted by this Section 13.5 is unwarranted.
Section 14.1. Contracts and Instruments. All contracts or instruments of any nature shall be signed,
executed, acknowledged or verified by such Officer or Officers or such agent or
agents of the Corporation as the Board of Directors may determine, and such
authority may be general or confined to specific instances. However, an Officer may not sign, execute,
acknowledge or verify a contract or instrument in more than one capacity if the
instrument is required to be signed, executed, acknowledged or verified by two
(2) or more Officers.
Section 14.2. Grants. The making of grants and contributions, and
otherwise rendering financial assistance for the purposes of the Corporation,
may be authorized by the Board of Directors. The Board of Directors may
authorize any Director, Officer or Officers, agent or agents, in the name of
and on behalf of the Corporation to make any such grants, contributions or
render assistance.
Section 14.3.
Loans. No loans shall be contracted
on behalf of the Corporation and no evidence of indebtedness shall be issued in
its name unless authorized by of the Board of Directors. Such authority may be general or confined to
specific instances. No loans shall be
made by the Corporation to its Directors or Officers.
Section 14.4. Conflict of Interest. A
transaction in which a Director or Officer is determined to have an interest
shall not, because of the interest, be enjoined, set aside, or give rise to an
award of damages or other sanctions, in a proceeding by or in the right of the
Corporation, if the person interested in the transaction establishes any of the
following:
a. The transaction was fair to the
Corporation at the time entered into; or
b. The material facts of the transaction and the Director’s or Officer’s interest were disclosed or known to the Directors entitled to vote and they authorized, approved, or ratified the transaction by a vote of the majority of Directors who did not have an interest in the (transaction. A majority of the Directors who did not have any an interest in the transaction constitutes a quorum for the purpose of taking action under this Section 14.4.
Section 14.5. Payments to Officers or Directors. Any payment to or benefit conferred on an Officer or Director of
the Corporation, such as loans, salary, commission, interest, rent or expenses
incurred by him, that are determined to be in violation of relevant provisions
of the Code, or corresponding provisions of subsequent federal tax laws, or the
General Corporation Law of the State of Delaware, by either the Internal
Revenue Service (after final judgment), the Attorney General (or other
designated official) of the State of Delaware or in the opinion of an
independent auditor selected by the Corporation, shall be reimbursed or
returned, as the case may be, by the
Officer or Director to the full extent of such benefit or payment. It shall be the duty of the Board of
Directors to take such necessary and appropriate steps, including legal action,
to enforce such reimbursement or return.
Section 14.6. Dissolution. Upon the
dissolution of the Corporation, the Board of Directors shall, after paying or
making provision for the payment of all the liabilities of the Corporation, and
returning assets requiring return upon dissolution, dispose all of the assets
of the Corporation exclusively for the purposes of the Corporation in such
manner, or to such organization or organizations, organized and operated
exclusively for charitable, educational, or scientific purposes, as shall at
the time qualify as an exempt organization under Section 501(c)(3) of the Code,
or corresponding provisions of any subsequent federal tax laws, as the
Directors of the Corporation shall determine.
ARTICLE XV
MISCELLANEOUS
Section 15.1. Amendment of Bylaws.
These Bylaws, may be adopted, amended, restated or repealed by a
two-thirds (2/3) vote of the Board of Directors, provided that such Bylaws as
amended or repealed are not in conflict with the Certificate of Incorporation,
the General Corporation Law of the State of Delaware or other applicable law.
Section 15.2.
Rules. The Board of Directors may
adopt additional rules and regulations, not inconsistent with the General
Corporation Law of the State of Delaware or other applicable law, general or
specific, for the conduct of their meetings and additional rules and
regulations, general or specific, for the conduct of the affairs of the
Corporation.
Section 15.3. Definitions. Unless the
context requires otherwise, the general provisions, rules of construction, and
definitions contained in the General Corporation Law of the State of Delaware
shall govern the construction of these Bylaws.