-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SWut81NNPjyj8nsVmORvUzDYtvinmWXdmBPzJXbYfyFpIrcKZRVva7f/7B7JBQi4 cgG5uvVMe/KwuMTdwPWpXQ== 0000830736-01-500016.txt : 20010515 0000830736-01-500016.hdr.sgml : 20010515 ACCESSION NUMBER: 0000830736-01-500016 CONFORMED SUBMISSION TYPE: 10QSB PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20010331 FILED AS OF DATE: 20010514 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BIOPOOL INTERNATIONAL INC CENTRAL INDEX KEY: 0000830736 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 581729436 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10QSB SEC ACT: SEC FILE NUMBER: 001-14257 FILM NUMBER: 1632408 BUSINESS ADDRESS: STREET 1: 370 INTERLOCKEN BLVD CITY: BROOMFIELD STATE: CO ZIP: 80021 BUSINESS PHONE: 8056540643 MAIL ADDRESS: STREET 1: 370 INTERLOCKEN BLVD CITY: BROOMFIELD STATE: CO ZIP: 80021 FORMER COMPANY: FORMER CONFORMED NAME: CYTRX BIOPOOL LTD DATE OF NAME CHANGE: 19890716 10QSB 1 a10q033101.txt 10-QSB FOR PERIOD ENDED MARCH 31, 2001 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-QSB /_/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF SECURITIES EXCHANGE ACT OF 1934 /_/ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarter ended March 31, 2001 ------------------------------ COMMISSION FILE NUMBER 0-17714 ------------------------------ BIOPOOL INTERNATIONAL, INC. (Exact name of Registrant as specified in its charter) DELAWARE 58-1729436 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 370 INTERLOCKEN BOULEVARD, BROOMFIELD, COLORADO 80021 (Address of principal executive offices) (805) 654-0643 (Registrant's telephone number including area code) Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the proceeding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES /X/ NO / / Indicate the number of shares outstanding of each of the issuer's classes of Common Stock, as of the latest practicable date. Outstanding at March 31, 2001, Common Stock, $.01 par value per share, 17,163,012 shares. ================================================================================ PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS BIOPOOL INTERNATIONAL, INC. CONDENSED CONSOLIDATED BALANCE SHEETS MARCH 31, DECEMBER 31, 2001 2000 (UNAUDITED) - -------------------------------------------------------------------------------- (in thousands except share data) ASSETS CURRENT ASSETS Cash .......................................... $ 3,047 $ 4,011 Accounts receivable, net ...................... 1,734 1,356 Inventories ................................... 2,044 2,056 Prepaid expenses and other current assets ..... 435 266 -------- -------- TOTAL CURRENT ASSETS ............................... 7,260 7,689 PROPERTY AND EQUIPMENT ............................. 3,742 3,718 Less accumulated depreciation ................. (2,771) (2,745) -------- -------- PROPERTY AND EQUIPMENT, NET ........................ 971 973 Goodwill, net of amortization of $1,027 and $761 in 2001 and 2000, respectively ........... 9,656 9,922 OTHER ASSETS ....................................... 136 146 -------- -------- TOTAL ASSETS ....................................... $ 18,023 $ 18,730 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY TOTAL CURRENT LIABILITIES .......................... $ 1,741 $ 1,306 DEFERRED TAX LIABILITY ............................. 164 164 STOCKHOLDERS' EQUITY: Common stock, $.01 par value, 50,000,000 shares authorized; 17,163,012 shares issued and outstanding in 2001 and 2000 ....... 171 171 Other stockholders' equity ......................... 18,565 18,745 Accumulated deficit ................................ (2,618) (1,656) -------- -------- TOTAL STOCKHOLDERS' EQUITY ......................... 16,118 17,260 -------- -------- TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY ......... $ 18,023 $ 18,730 ======== ======== See accompanying notes to consolidated financial statements. 2 BIOPOOL INTERNATIONAL, INC. CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited) THREE MONTHS ENDING MARCH 31, 2001 2000 - -------------------------------------------------------------------------------- (in thousands except per share data) SALES ............................................ $ 2,426 $ 2,409 COST OF SALES .................................... 1,234 1,162 -------- -------- GROSS PROFIT ..................................... 1,192 1,247 Operating expenses: Selling, general and administrative ......... 1,664 886 Research and development .................... 500 81 Other income, net ................................ (28) (35) -------- -------- INCOME (LOSS) FROM CONTINUING OPERATIONS BEFORE TAXES ................................ (944) 315 Income tax expense ............................... 18 115 -------- -------- NET INCOME (LOSS) ................................ $ (962) $ 200 ======== ======== WEIGHTED AVERAGE SHARES OUTSTANDING Basic ....................................... 17,163 8,294 Effect of dilutive shares ................... -- 42 -------- -------- Diluted ..................................... 17,163 8,336 ======== ======== BASIC AND DILUTED EARNINGS PER SHARE Net Income (loss) - Basic ................... $ (0.06) $ 0.02 Net income (loss) - Diluted ................. $ (0.06) $ 0.02 See accompanying notes to consolidated financial statements. 3 BIOPOOL INTERNATIONAL, INC. CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) THREE MONTHS ENDING MARCH 31, 2001 2000 - -------------------------------------------------------------------------------- (in thousands) OPERATING ACTIVITIES ................................. $ (650) $ (310) INVESTING ACTIVITIES ................................. (134) (59) FINANCING ACTIVITIES ................................. -- 28 DISCONTINUED OPERATIONS .............................. -- 192 EFFECT OF EXCHANGE RATES ............................. (180) (33) ------- ------- NET INCREASE (DECREASE) IN CASH ...................... (964) (182) CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD ....... 4,011 2,749 ------- ------- CASH AND CASH EQUIVALENTS, END OF PERIOD ............. $ 3,047 $ 2,567 ======= ======= See accompanying notes to consolidated financial statements. 4 BIOPOOL INTERNATIONAL, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) 1. BASIS OF PRESENTATION The accompanying unaudited consolidated financial statements have been prepared in accordance with generally accepted accounting principles for interim financial information and with the instructions to Form 10-QSB and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the three-month period ended March 31, 2001, is not necessarily indicative of the results that may be expected for the year ended December 31, 2001. For further information, refer to the consolidated financial statements and footnotes thereto included in the Company's annual report on Form 10-KSB for the year ended December 31, 2000. The balance sheet at December 31, 2000 has been derived from the audited financial statements at that date but does not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. Financial information presented in the notes to the consolidated financial statements excludes discontinued operations except where noted. 2. INVENTORIES March 31, December 31, 2001 2000 --------- ---------- Raw materials $ 742 $ 584 Work in process 630 685 Finished products 851 966 Reserves (179) (179) --------- ---------- $ 2,044 $ 2,056 ========= ========== 3. EARNINGS PER SHARE Basic earnings per share is based upon the weighted average number of common shares outstanding. Diluted earnings per share is based upon the weighted average number of common shares and dilutive potential common shares outstanding. Potential dilutive shares are outstanding options under the Company's stock option plans and outstanding warrants, which are included under the treasury stock method. 4. COMPREHENSIVE INCOME SFAS No. 130 requires unrealized gains and losses on the Company's foreign currency translation adjustments to be included in other comprehensive income. However, the adoption of this statement had no impact on the Company's net income or stockholders' equity. Total comprehensive loss for the three months ended March 31, 2001 was $1,142,000, compared to comprehensive income of $167,000 for the same period in 2000. 5 5. SEGMENT INFORMATION The Company currently operates in two industries, in vitro diagnostic medical products and nucleic acid (DNA/RNA) testing. Within the in vitro diagnostic medical products industry, the Company has two reportable segments, Biopool International and its wholly owned operating subsidiary, Biopool Sweden. These two segments each manufacture and sell distinct products with different production processes. Biopool International manufactures hemostasis products, and Biopool Sweden primarily manufactures fibrinolytic system testing kits. The nucleic acid (DNA/RNA) testing segment is operated under the Xtrana name and was acquired by the Company on August 10, 2000, as described in Footnote 8, "Merger with Xtrana, Inc." The Company evaluates the segments and allocates resources based on revenue and anticipated return on investment. The accounting policies of the reportable segments are the same as those described in the 2000 Form 10-KSB, "Summary of significant accounting policies." The consolidated financial statements include the following information for the continuing operation of Biopool International, Biopool Sweden, and Xtrana in thousands of dollars.
INTER- COMPANY BIOPOOL BIOPOOL ELIMIN- CONSOLI- INTERNATIONAL SWEDEN XTRANA ATIONS DATED - ----------------------------------------------------------------------------------------------------------- (in thousands) THREE MONTHS ENDED MARCH 31, 2001 Sales $ 1,879 $ 781 $ 153 $ (387) $ 2,426 Less intercompany (196) (191) - 387 - -------- -------- --------- --------- -------- Sales to unafilliated customers 1,683 590 153 - 2,426 Pre-tax income (loss) (4) 45 (996) (7) (962) Total assets as of March 31, 2001 9,296 2,412 8,850 (2,535) 18,023 - ----------------------------------------------------------------------------------------------------------- THREE MONTHS ENDED MARCH 31, 2000 Sales $ 1,852 $ 951 $ (394) $ 2,409 Less intercompany (158) (236) 394 -- --------- -------- --------- ------- Sales to unaffiliated customers 1,694 715 -- 2,409 Pre-tax income 91 224 315 Total assets as of March 31, 2000 8,814 2,444 (133) 11,125 - -----------------------------------------------------------------------------------------------------------
6 6. INCOME TAXES For the year ended December 31, 2000, the Company recorded a full valuation allowance for its net operating loss carryforwards, which historically had been carried as a deferred tax asset, as well as providing a provision for the payment of income tax for the Company's Swedish subsidiary. The current quarter ended March 31, 2001, reflects a full valuation allowance on the net operating loss recorded for the quarter, as well as a provision for income tax for the Company's Swedish subsidiary. 7. LITIGATION On March 26, 2001, we entered into a settlement agreement with Agen Biomedical Ltd. with regard to a patent infringement filed on March 10, 2000, by Agen. As a part of the settlement, the Company and Agen have entered into a non-exclusive license agreement for the underlying patent and all claims by Agen and counter claims made by us have been dropped. We do not believe that the settlement will have a material impact on our results of operations. 8. MERGER WITH XTRANA, INC. Effective August 10, 2000, Xtrana, Inc. was merged with and into the Company pursuant to an Agreement and Plan of Reorganization dated May 3, 2000, between Xtrana and the Company, as reported on the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on August 11, 2000, and amended October 24, 2000. The Company issued 8,829,461 shares of the Company's common stock in exchange for all the outstanding capital stock of Xtrana. Of the total shares issued, 936,946 shares are held in escrow and are contingently cancelable if certain sales objectives for the Xtrana business are not met. The contingently cancelable consideration would be recorded as additional purchase price when the contingency is resolved. The contingent shares are reflected as outstanding common stock as the holders of these shares have full right to vote the shares while in escrow. Additionally, as a part of the merger, 998,366 warrants with an estimated fair value of $587,000 were issued to warrant holders of Xtrana and certain financial advisors. The former stockholders of Xtrana now hold approximately 50% of the outstanding stock of the Company, on a fully diluted basis. ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION Founded in 1987, Biopool International develops, manufactures, and markets a full range of test kits to assess and diagnose disorders of blood coagulation, thrombotic risk factors, fibrinolysis, platelet function, and the vascular system. Effective with our merger with Xtrana, the Company also develops nucleic acid-based tests for use in drug discovery, detection of environmental and food contaminants, forensics and identity testing, human and animal diseases, genetic predisposition to disease, and other applications. RESULTS OF OPERATIONS Sales were $2.4 million for the three-month period ended March 31, 2001, compared with $2.4 million for the corresponding period of 2000. The revenue for the Hemostasis operations was $2.3 million for the three months ended March 31, 2001, compared to $2.4 million for the same period in 2000. This slight decline was the result of reduced sales by our Swedish subsidiary and the timing of large orders from our significant OEM customers. The Xtrana operations generated revenue of $0.2 million for the three months ended March 31, 2001, which was primarily income from various research and development grants. Cost of goods sold was $1.2 million for the three-month period ended March 31, 2001, compared with $1.2 million for the corresponding period in 2000. Gross margin was 49.1% for the three-month period ended March 31, 2001, compared with 51.8% for the corresponding period in 2000. Gross margins were reduced by 2.7% for the three-month period in 2001 as a result of reduced fixed overhead absorption to inventory as a part of a program to reduce finished goods inventory on hand, which was partially offset by higher standard margins due to a more favorable product mix for the period. Finished goods inventory on hand at March 31, 2001 was $0.9 million, down 13% from the year ended December 31, 2000. 7 Operating expenses were $2.2 million for the three months ended March 31, 2001, compared with $1.0 million for the same period in 2000. Operating expenses increased by $1.1 million during the first quarter as a result of the addition of the Xtrana business. Of this $1.1 million increase from the Xtrana operations, $0.3 million related to the amortization of goodwill in connection with the merger and $0.2 million represented severance obligations relating to the departure of the former CEO in February 2001. The remaining increase in overall operating expenses of $0.1 million was due to increased spending on marketing, research and development, and quality assurance in the Hemostasis business segment. Other income is primarily interest income. FINANCIAL CONDITION As of March 31, 2001, working capital was $5.5 million, with a current ratio of 4.2 to 1.0. We have a $2.1 million revolving credit facility of which $2.0 million is unused and available. The Company is currently consuming cash to fund the research and development of the Xtrana technologies. The Company believes that some of this investment will be offset by government grants and revenue from the sale of Xtrana products over the next twelve months. This revenue combined with the Company's current availability of cash, unused line of credit, working capital, and cash flow from operations are adequate to meet our ongoing needs for at least the next twelve months. However, should revenues from government grants and the Xtrana product lines not materialize, it may become necessary for the Company to raise additional capital to fund its ongoing operations. FORWARD LOOKING STATEMENTS Except for the historical information contained herein, this report contains forward-looking statements (identified by the words "estimate," "anticipate," "expect," "believe," and similar expressions) which are based upon management's current expectations and speak only as of the date made. These forward-looking statements are subject to risks, uncertainties and factors that could cause actual results to differ materially from the results anticipated in the forward-looking statements and include, but are not limited to, competitors' pricing strategies and technological innovations, changes in health care and government regulations, litigation claims, foreign currency fluctuation, product acceptance, as well as other factors discussed in the Company's last Report on Form 10-KSB. PART II. OTHER INFORMATION ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS On April 3, 2001, the Company's Board of Directors, in accordance with its authority under the Company's Bylaws, unanimously approved the adoption of a form of Amended and Restated Bylaws of the Company, a copy of which is attached to this Form 10-QSB as Exhibit 3.1. The primary purpose of the amendments to the Bylaws was to update the Company's bylaws to more accurately reflect the current General Corporation Law of the State of Delaware. In addition, the Bylaws were amended to require that special meetings of the stockholders for any purpose or purposes may be called at any time only by the Board of Directors, the Chairman of the Board, or the Chief Executive Officer or President of the Company, and not by the stockholders. 8 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibit 3.1 - Restated Bylaws of Biopool International, Inc. (b) Reports on Form 8-K. 1. Form 8-K dated December 19, 2000. Items 5 and 7 - Press Release dated January 22, 2001, announcing that the Company and Beckman Coulter entered into an agreement to offer a novel automated nucleic acid extraction system; Lease Agreement dated December 19, 2000, by and between the Company and James M. Roswell, d/b/a Burbank East Business Park. 2. Form 8-K dated February 8, 2001. Items 5 and 7 - Press Release dated February 8, 2001, announcing FDA clearance of MiniQuant(TM) D-dimER Assay System; Press Release dated February 9, 2001, announcing the resignation of John H. Wheeler. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Date: MAY 14, 2000 BIOPOOL INTERNATIONAL, INC. ---------------------- ------------------------------- (Registrant) /S/ TIMOTHY J. DAHLTORP ------------------------------- Timothy J. Dahltorp Chief Operating Officer and Chief Financial Officer 9 EX-3.(II) 2 bylaws2001.txt RESTATED BYLAWS OF BIOPOOL INTERNATIONAL EXHIBIT 3.1 RESTATED BYLAWS OF BIOPOOL INTERNATIONAL, INC. A DELAWARE CORPORATION (THE "CORPORATION") AS OF APRIL 3, 2001 ARTICLE I STOCKHOLDERS MEETINGS Section 1 PLACE OF MEETING. Meetings of the Stockholders shall be held at the principal offices of the Corporation or at such place, within or without the State of Delaware, as may from time to time be designated for that purpose, by the Board. Section 2 ANNUAL MEETINGS. Unless directors are elected by written consent in lieu of an annual meeting as permitted by this Section 2, an annual meeting of the Stockholders for the election of directors shall be held on such date and at such time as may be designated, from time to time, by the Board. Stockholders may, unless the Certificate of Incorporation otherwise provides, act by written consent to elect directors; PROVIDED, HOWEVER, that if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action. If the annual meeting for the election of directors is not held on the date designated therefor or action by written consent to elect directors in lieu of an annual meeting has not been taken, the directors shall cause the meeting to be held as soon as is convenient. Any other proper business may be transacted at the annual meeting. Section 3 SPECIAL MEETINGS. Special meetings of the Stockholders for any purpose or purposes may be called at any time only by the Board of Directors, the Chairman of the Board, or the Chief Executive Officer or President of the Corporation. Section 4 NOTICE OF MEETINGS. Except as otherwise provided by the DGCL written notice of each meeting of the Stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days prior to the date upon which the meeting is to be held to each Stockholder entitled to vote at such meeting. Such notice shall be deemed delivered when deposited in the United States mail, postage prepaid, addressed to the Stockholder at such person's address as it appears on the stock records of the Corporation, or otherwise actually delivered to such address or such person. Such notice shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting. Section 5 QUORUM. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of Stockholders the presence in person or by proxy 1 of the holders of shares of stock having a majority of the votes which could be cast by the holders of all outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, any meeting of the Stockholders may be adjourned from time to time by a majority of the votes represented either in person or by proxy, and no other business may be transacted at a meeting except that the Stockholders 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 Stockholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. Section 6 ADJOURNED MEETING. Any Stockholders' meeting, annual or special, whether or not a quorum is present, may be adjourned by vote of a majority of the shares present, either in person or by proxy. At any adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. Section 7 CHAIRMAN OF MEETING; OPENING OF POLLS. Meetings of Stock holders shall be presided over by the person designated by the Board, or in the absence of such designation, by the Chairman of the Board, if any, or in his absence by the Vice Chairman of the Board, if any, or in his absence by the Chief Executive Officer, or in their absence by a chairman chosen at the meeting by the Stockholders. The Secretary shall act as secretary of the meeting, but in his absence, the chairman of the meeting may appoint any person to act as secretary of the meeting. The chairman of the meeting shall announce at each meeting of Stockholders the date and time of the opening of the polls for each matter upon which the Stockholders will vote. Section 8 PROXIES. Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such person by proxy. Section 9 STOCKHOLDER LIST. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten 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 list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present. Section 10 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken, or that may be taken, at any annual or special meeting of the Stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action to be taken, shall have been signed by the holders of outstanding stock eligible to vote on such action, having not less than the minimum number of votes of each class of stock that would be necessary to authorize or take such action at a meeting at which all shares of each class of stock entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or to an officer or agent of the Corporation having custody of the 2 book in which proceedings of minutes of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this Section to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of minutes of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. The Secretary shall give prompt notice of the taking of any corporate action without a meeting by less than unanimous written consent to those Stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided in this Section 10. Section 11 INSPECTORS OF ELECTION. In advance of any meeting of the Stockholders, the Board shall appoint at least one person, other than nominees for office, as inspectors of election, to act at such meeting or any adjournment thereof. The number of such inspectors of election shall be one or three. In case any person appointed as inspector fails to appear or refuses to act, the vacancy shall be filled by appointment by the Board in advance of the meeting, or at the meeting by the chairman of the meeting. The duties of each such inspector shall include: determining the number of shares outstanding and voting power of each; determining the shares represented at the meeting; determining the existence of a quorum; determining the authenticity, validity and effect of proxies; receiving votes, ballots or consents; hearing and determining all challenges and questions in any way arising in connection with the right to vote; retaining for a reasonable period the disposition of any challenges made to the inspector's determinations; counting and tabulating all votes; determining when the polls shall close; determining the result of any election; certifying the determination of the number of shares represented at the meeting, and the count of all votes and ballots; certifying any information considered in determining the validity and counting of proxies and ballots if that information is used for the purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the Stockholder holds of record; and performing such acts as may be proper to conduct the election or vote with fairness to all Stockholders. An announcement shall be made at each meeting of the Stockholders by the chairman of the meeting of the date and time of the opening and closing of polls for each matter upon which the Stockholders will vote at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after the closing of the polls unless the Delaware Court of Chancery upon application by a Stockholder shall determine otherwise. 3 Unless otherwise provided in the Certificate of Incorporation or these Bylaws, this Section 11 shall not apply to the Corporation if the Corporation does not have a class of voting stock that is: (a) listed on a national securities exchange; (b) authorized for quotation on an interdealer quotation system of a registered national securities association; or (c) held of record by more than 2,000 stockholders. Section 12 RECORD DATE. In order that the Corporation may determine the Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. If no record date is fixed: (a) The record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (b) The record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board is necessary, shall be the day on which the first written consent is expressed; (c) The record date for determining Stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto. A determination of Stockholders of record entitled to notice of or to vote at a meeting of Stockholders shall apply to any adjournment of the meeting; PROVIDED, HOWEVER, that the Board may fix a new record date for the adjourned meeting. Section 13 CONDUCT OF MEETINGS. The Board may adopt such rules and regulations for the conduct of meetings of Stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the chairman of any meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of the chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Stockholders of record, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to meeting after the time fixed for commencement thereof; (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairman of 4 meeting, meetings of Stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. Section 14 EXCEPTION TO REQUIREMENTS OF NOTICE. No notice is required to be given to any Stockholder under the Certificate of Incorporation or these Bylaws if under Section 230 of the DGCL no such notice is required to be given. Section 15 MATTERS CONSIDERED AT ANNUAL MEETING. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board, (b) otherwise properly brought before the meeting by or at the direction of the Board, or (c) otherwise properly brought before the meeting by a Stockholder. For business to be properly brought before an annual meeting by a Stockholder, the Stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than 60 days nor more than 90 days prior to the meeting; PROVIDED, HOWEVER, that in the event that less than 70 days' notice or prior public disclosure of the date of the meeting is given or made to the Stockholders, notice by the Stockholder to be timely must be so received not later than the close of business on the 10th day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made. A Stockholder's notice to the Secretary shall set forth as to each matter the Stockholder proposes to bring before the annual meeting (a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (b) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business, (c) the class and number of shares of the Corporation which are beneficially owned by the Stockholder, and (d) any material interest of the Stockholder in such business. Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this section and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Section 16 NOMINATIONS FOR DIRECTOR. Only persons who are nominated in accordance with the procedures set forth in this Section shall be eligible for election as Directors. Nominations of persons for election to the Board may be made at a meeting of Stockholders by or at the direction of the Board or by any Stockholder entitled to vote for the election of Directors at the meeting who complies with the notice procedures set forth in this Section. Such nominations, other than those made by or at the direction of the Board shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a Stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation not less than 60 days nor more than 90 days prior to the meeting PROVIDED, HOWEVER, that in the event that less than 70 days' notice or prior public disclosure of the date of the meeting is given or made to the stockholders, notice by the Stockholder to be timely must be so received not later than the close of business on the 10th day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. Such Stockholder's notice shall set forth (a) as to each person whom the Stockholder proposes to nominate for election or re-election as a Director, (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment 5 of such person, (iii) the class and number of shares of the Corporation which are beneficially owned by such person, and (iv) any other 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 Exchange Act of 1934, as amended (including without limitation such persons' written consent to being named in the proxy statement as a nominee and to serving as a Director if elected); and (b) as to the Stockholder giving the notice (i) the name and address, as they appear on the Corporation's books, of such stockholder and (ii) the class and number of shares of the Corporation which are beneficially owned by such stockholder. At the request of the Board any person nominated by the Board for election as a Director shall furnish to the Secretary of the Corporation that information required to be set forth in a stockholder's notice of nomination which pertains to the nominee. No person shall be eligible for election as a Director of the Corporation unless nominated in accordance with the procedures set forth in this Section. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by the Bylaws, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. ARTICLE II BOARD OF DIRECTORS Section 1 POWERS. The business and affairs of the Corporation shall be managed by, or under the direction of the Board, except as may be otherwise provided by the DGCL or in the Certificate of Incorporation or these Bylaws. Section 2 NUMBER. The Board shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board. Section 3 PLACE OF MEETING. Unless otherwise provided in the Certificate of Incorporation, meetings, both regular and special, of the Board shall be held at the Corporation's principal executive offices, or at such other place or places, as the Board or the Chairman of the Board may from time to time determine. Section 4 REGULAR MEETINGS. Immediately following each annual meeting of the Stockholders the Board shall hold a regular meeting at the same place at which such Stockholders' meeting is held, or any other place as may be fixed from time to by the Board or the Chairman of the Board. Notice of such meeting need not be given. Other regular meetings of the Board shall be held without call at such time as the Board may from time to time determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting which would otherwise be held on that day shall be held at the same hour on the next succeeding business day not a legal holiday. Notice of a regular meeting need not be given. Section 5 SPECIAL MEETINGS. Except as otherwise provided in the Certificate of Incorporation, special meetings of the Board for any purpose or purposes may be called at any time by the Chairman of the Board, the Chief Executive Officer or by any two directors. 6 Written notice of the time and place of special meetings shall be delivered personally to each director or communicated to each director personally or by telephone, telegram, telex or facsimile transmission or mail or other form of recorded communication, charges prepaid, addressed to each director at that director's address as it is shown on the records of the Corporation or, if it is not so shown on such records or is not readily ascertainable, at that director's residence or usual place of business. In case such notice is mailed, it shall be either deposited in the United States mail at least five days prior to the time of the holding of the meeting or sent by overnight delivery with a recognized express delivery service at least three days prior to the time of the holding of the meeting. In case such notice is delivered personally, by telephone, by facsimile or by other form of written communication, it shall be delivered at least 48 hours before the time of the holding of the meeting. The notice shall state the time of the meeting, but need not specify the place of the meeting if the meeting is to be held at the principal executive office of the Corporation. The notice need not state the purpose of the meeting unless expressly provided otherwise by statute. Section 6 MEETINGS BY COMMUNICATION EQUIPMENT. Members of the Board, or any committee designated by the Board, may participate in a meeting of the Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section shall constitute presence in person at such meeting. Section 7 QUORUM AND MANNER OF ACTING. The presence of a majority of the total number of directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum is present. Notice of an adjourned meeting need not be given. Section 8 ACTION WITHOUT MEETING. Any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board or committee. Section 9 COMPENSATION OF DIRECTORS. The Board may fix the compen- sation of directors. Section 10 COMMITTEES. The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. IN THE ABSENCE OR DISQUALIFICATION OF A MEMBER OF THE COMMITTEE, THE MEMBER OR MEMBERS THEREOF PRESENT AT ANY MEETING AND NOT DISQUALIFIED FROM VOTING, WHETHER OR NOT SUCH MEMBER OR MEMBERS CONSTITUTE A QUORUM, MAY UNANIMOUSLY APPOINT ANOTHER MEMBER OF THE BOARD TO ACT AT THE MEETING IN PLACE OF ANY SUCH ABSENT OR DISQUALIFIED MEMBER. Any such committee, to the extent permitted by law and to the extent authorized by the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. The Board may remove any director from a committee with or without cause at any time. 7 ARTICLE III OFFICERS Section 1 OFFICERS. The Board may elect such officers with such titles as the Board deems advisable. Each officer shall have the powers and duties set forth in these Bylaws and any resolution of the Board appointing such officer (to the extent such resolution is not inconsistent with these Bylaws), and to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board. The Board may designate two or more persons as Chairman of the Board, in which case each shall be a Co-Chairman of the Board. Each such officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Subject to contractual obligations to the Company, any officer may resign at any time upon written notice to the Corporation. The Board may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation. One person may hold any number of offices. Section 2 CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an officer be elected, shall, if present, preside at all meetings of the Board and exercise and perform such other powers and duties as may be from time to time assigned to such person by the Board. Section 3 CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if any, as may be given by the Board to the Chairman of the Board, the Chief Executive Officer, if such an officer be elected, shall, subject to the control of the Board, have general supervision, direction and control of the business and the officers of the Corporation. The Chief Executive Officer shall exercise and perform such other powers and duties as may be from time to time assigned to such person by the Board, consistent with such person's position as Chief Executive Officer. Section 4 PRESIDENT. Subject to such supervisory powers, if any, as may be given by the Board to the Chairman of the Board and the Chief Executive Officer, if there be such officers, the President shall be the chief operating officer of the Corporation and shall, subject to the control of the Board, have general supervision, direction, and control of the business and the officers of the Corporation (other than the Chairman and Chief Executive Officer). The President shall have the general powers and duties of management usually vested in the office of president and general manager of a Corporation, and shall have such other powers and duties as may be prescribed by the Board and the Chief Executive Officer. Section 5 VICE PRESIDENTS. In the absence or disability of the Chairman, the Chief Executive Officer and the President, the Vice Presidents, if any, in order of their rank as fixed by the Board, or, if not ranked, the Vice President designated by the Board shall perform all the duties of such officer, and when so acting shall have all the powers of, and be subject to all the restrictions upon, such offices. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board, the Chief Executive Officer or the President. Section 6 SECRETARY. The Secretary shall keep, or cause to be kept, at the principal executive office or such other place as the Board may direct, a book of minutes of all meetings and actions of directors, committees of directors, and Stockholders, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice given, the names of those 8 present at directors' meetings or committee meetings, the number of shares present or represented at Stockholders' meetings, and the proceedings. The Secretary shall give, or cause to be given, notice of all meetings of the Stockholders and of the Board required by the Bylaws or by law to be given, and he shall keep the seal of the Corporation, if one be adopted, in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board. Section 7 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares, and shall send or cause to be sent to the Stockholders of the Corporation such financial statements and reports as are by law or these Bylaws required to be sent to them. The Chief Financial Officer shall deposit all monies and other valuables in the name or to the credit of the Corporation with such depositories as may be designated by the Board or by an officer, if such authority is delegated by the Board. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board, shall render to the President and directors, whenever they request it, an account of all transactions undertaken as Chief Financial Officer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board. ARTICLE IV INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS Section 1 AGENTS, PROCEEDINGS AND EXPENSES. For the purposes of this Article IV, "agent" means any person who is or was a director, officer, employee or other agent of the Corporation, or is or was a director, officer, employee or other agent of the Corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened, pending or complete action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 2 or Section 3 of this Article IV. Section 2 ACTIONS OTHER THAN BY THE CORPORATION. The Corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person 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, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in 9 connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contender or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person's conduct was unlawful. Section 3 ACTIONS BY THE CORPORATION. The Corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any 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 such person 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, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of such person's duty to the Corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. Section 4 SUCCESSFUL DEFENSE BY AGENT. To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 2 and 3 of this Article IV, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. Section 5 REQUIRED APPROVAL. Any indemnification under Sections 1 and 2 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in Sections 2 and 3 of this Article IV. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (a) by a majority vote of the members of the Board who are not parties to such action, suit or proceeding, even though less than a quorum, or (b) by a committee of such disinterested directors designated by majority vote of such disinterested directors, even though less than a quorum, or (c) if there are no such disinterested directors, or if such disinterested directors so direct, by independent legal counsel in a written opinion, or (d) by the affirmative vote of a majority of Stockholders. Section 6 ADVANCE OF EXPENSES. The Corporation may, in its discretion, pay the expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding, in advance of the final disposition of such action, suit or proceeding, PROVIDED, HOWEVER, that the payment of expenses incurred by a director or 10 officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by or on behalf of such director or officer to repay all amounts advanced if it should ultimately be determined that the director or officer is not entitled to be indemnified by the Corporation as authorized in this Article IV or otherwise. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate. Section 7 CONTRACTUAL RIGHTS. The indemnification and advancement of expenses provided by, or granted pursuant to, the other sections of this Article IV shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of Stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office and shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8 LIMITATIONS. No indemnification or advance shall be made under this Article IV, except as provided in Section 4, in any circumstances where it appears: (a) That it would be inconsistent with a provision of the Certificate of Incorporation, a resolution of the Stockholders or an agreement in effect at the time of accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9 INSURANCE. The Corporation shall have the 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, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article IV. Section 10 CONSTITUENT CORPORATIONS. For purposes of this Article IV, references to "the Corporation" shall include, in addition to the Corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article IV with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. Section 11 DEFINITIONS. For purposes of this Article IV, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes 11 assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article IV. ARTICLE V MISCELLANEOUS Section 1 INSPECTION OF BOOKS AND RECORDS BY STOCKHOLDERS. Any Stock- holder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation's stock ledger, a list of its Stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person's interest as a Stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the Stockholder. The demand under oath shall be directed to the Corporation at its registered office in the State of Delaware or at its principal place of business. Section 2 INSPECTION OF BOOKS AND RECORDS BY DIRECTORS. Any director shall have the right to examine the Corporation's stock ledger, a list of its Stockholders and its other books and records for a purpose reasonably related to such person's position as a director. Such right to examine the records and books of the Corporation shall include the right to make copies and extract therefrom. Section 3 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts, or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by the Board. In the absence of such determination, the Chief Executive Officer, the President, the Chief Operating Officer and the Chief Financial Officer shall have the authority to sign or endorse such instruments and documents. Section 4 CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board, except as otherwise provided in these Bylaw, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation, and such person's authority may be general or confined to specific instances; and, unless so authorized or ratified by the Board or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or agreement or to pledge its credit or to render it liable for any purpose or for any amount. In the absence of specific resolution of the Board relating to the authority of officers to execute contracts generally, the Chief Executive Officer, the President, the Chief Operating Officer and the Chief Financial shall have the authority to execute contracts of the Corporation. 12 Section 5 CERTIFICATES FOR SHARES. Every holder of stock in the Corporation shall be entitled to have a certificate signed by, or in the name of the Corporation by the Chairman or the President or a Vice-President, and by the Chief Financial Officer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation representing the number of shares owned by such person in the Corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. Section 6 TRANSFER OF SHARES. Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by such person's attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation or a transfer agent of the Corporation, if any, and on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name appears on shares of stock and on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and upon any transfer of shares of stock the person or persons into whose name or names such shares shall have been transferred, shall enjoy and bear all rights, privileges and obligations of holders of stock of the Corporation and as against the Corporation or any other person or persons. The term "person" or "persons" wherever used herein shall be deemed to include any partnership, corporation, association or other entity. Whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact, if known to the Secretary or to such transfer agent, shall be so expressed in the entry of transfer. Section 7 LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such person's legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. Section 8 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer or any person designated by any of such officers is authorized, in the absence of authorization by the Board, to vote on behalf of the Corporation any and all shares of any other corporation or corporations, foreign or domestic, for which the Corporation has the right to vote. The authority granted to these officers to vote or represent on behalf of the Corporation any and all shares held by the Corporation in any other corporation or corporations may be exercised by any of these officers in person or by any person authorized to do so by proxy duly executed by these officers. Section 9 CONSTRUCTION AND DEFINITIONS. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL shall govern the construction of these Bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular. In addition, as used in these Bylaws, the following terms have the meanings set forth below: "Board" means the Board of Directors of the Corporation. 13 "DGCL" means the Delaware General Corporation Law, as the same may from time to time be amended. "Stockholders" means the stockholders of the Corporation. Section 10 AMENDMENTS TO BYLAWS. Unless otherwise provided in the Certificate of Incorporation, these Bylaws may be altered or repealed, and new Bylaws made, by the Board, but the Stockholders may make additional Bylaws and may alter and repeal any Bylaws whether adopted by them or otherwise. Section 11 CONFORMANCE TO THE LAW. In the event that it is determined that these Bylaws, as now written or as amended, conflict with the DGCL, or any other applicable law, as now enforced or as amended, these Bylaws shall be deemed amended, without action of the Board or the Stockholders, to conform with such law. Such amendment to be so interpreted as to bring these Bylaws within minimum compliance. For purposes of this section, "amendment" shall include a repeal of, or a change in interpretation of, the relevant compendium. Section 12 FISCAL YEAR. The fiscal year of the Corporation shall be determined by the Board. Section 13 DIVIDENDS; SURPLUS. Subject to the provisions of the Certificate of Incorporation and any restrictions imposed by statute, the Board may declare dividends out of the net assets of the Corporation in excess of its capital or, in case there shall be no such excess, out of the net profits of the Corporation for the fiscal year then current and/or the preceding fiscal year, or out of any funds at the time legally available for the declaration of dividends (hereinafter referred to as "surplus or net profits") whenever, and in such amounts as, in its sole discretion, the conditions and affairs of the Corporation shall render advisable. The Board in its sole discretion may, in accordance with law, from time to time set aside from surplus or net profits such sum or sums as it may think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for the purpose of maintaining or increasing the property or business of the Corporation, or for any other purpose as it may think conducive to the best interests of the Corporation. Section 14 WAIVER OF NOTICE. Whenever notice is required to be given under these Bylaws or the Certificate of Incorporation or the DGCL, 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 where 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 Stockholders, Board or any committee of the Board need be specified in any written waiver of notice unless so required by the Certificate of Incorporation or these Bylaws. 14 CERTIFICATE OF SECRETARY I, the undersigned, do hereby certify: (1) That I am the duly elected and acting Secretary of Biopool International, Inc., a Delaware corporation (the "Corporation"); and (2) That the foregoing Bylaws comprising of 14 pages, constitute the Bylaws of the Corporation as of April 3, 2001, as duly adopted by the Board of Directors. IN WITNESS WHEREOF, I have hereunto subscribed my name as of this 3rd day of April, 2001. /s/ Timothy J. Dahltorp ------------------------------ Timothy J. Dahltorp, Secretary 15 BYLAWS OF BIOPOOL INTERNATIONAL, INC. A DELAWARE CORPORATION PAGE ARTICLE I STOCKHOLDERS MEETINGS................................................1 - ------------------------------- SECTION 1 PLACE OF MEETING.............................................1 --------- ---------------- SECTION 2 ANNUAL MEETINGS..............................................1 --------- --------------- SECTION 3 SPECIAL MEETINGS.............................................1 --------- ---------------- SECTION 4 NOTICE OF MEETINGS...........................................1 --------- ------------------ SECTION 5 QUORUM.......................................................1 --------- ------ SECTION 6 ADJOURNED MEETING............................................2 --------- ----------------- SECTION 7 CHAIRMAN OF MEETING; OPENING OF POLLS........................2 --------- ------------------------------------- SECTION 8 PROXIES......................................................2 --------- ------- SECTION 9 STOCKHOLDER LIST.............................................2 --------- ---------------- SECTION 10 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING...................2 ---------- ------------------------------------------ SECTION 11 INSPECTORS OF ELECTION.......................................3 ---------- ---------------------- SECTION 12 RECORD DATE..................................................4 ---------- ----------- SECTION 13 CONDUCT OF MEETINGS..........................................4 ---------- ------------------- SECTION 14 EXCEPTION TO REQUIREMENTS OF NOTICE..........................5 ---------- ----------------------------------- SECTION 15 MATTERS CONSIDERED AT ANNUAL MEETING.........................5 ---------- ----------------------------------- SECTION 16 NOMINATIONS FOR DIRECTORS....................................5 ---------- ----------------------------------- ARTICLE II BOARD OF DIRECTORS..................................................6 - ----------------------------- SECTION 1 POWERS.......................................................6 --------- ------ SECTION 2 NUMBER.......................................................6 --------- ------ SECTION 3 PLACE OF MEETING.............................................6 --------- ---------------- SECTION 4 REGULAR MEETINGS.............................................6 --------- ---------------- SECTION 5 SPECIAL MEETINGS.............................................6 --------- ---------------- SECTION 6 MEETINGS BY COMMUNICATION EQUIPMENT..........................7 --------- ----------------------------------- SECTION 7 QUORUM AND MANNER OF ACTING..................................7 --------- --------------------------- SECTION 8 ACTION WITHOUT MEETING.......................................7 --------- ---------------------- i SECTION 9 COMPENSATION OF DIRECTORS....................................7 --------- ------------------------- SECTION 10 COMMITTEES...................................................7 ---------- ---------- ARTICLE III OFFICERS...........................................................8 - -------------------- SECTION 1 OFFICERS.....................................................8 --------- -------- SECTION 2 CHAIRMAN OF THE BOARD........................................8 --------- --------------------- SECTION 3 CHIEF EXECUTIVE OFFICER......................................8 --------- ----------------------- SECTION 4 PRESIDENT....................................................8 --------- --------- SECTION 5 VICE PRESIDENTS..............................................8 --------- --------------- SECTION 6 SECRETARY....................................................8 --------- --------- SECTION 7 CHIEF FINANCIAL OFFICER......................................9 --------- ----------------------- ARTICLE IV INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS..9 - ----------------------------------------------------------------------------- SECTION 1 AGENTS, PROCEEDINGS AND EXPENSES.............................9 --------- -------------------------------- SECTION 2 ACTIONS OTHER THAN BY THE CORPORATION........................9 --------- ------------------------------------- SECTION 3 ACTIONS BY THE CORPORATION..................................10 --------- -------------------------- SECTION 4 SUCCESSFUL DEFENSE BY AGENT.................................10 --------- --------------------------- SECTION 5 REQUIRED APPROVAL...........................................10 --------- ----------------- SECTION 6 ADVANCE OF EXPENSES.........................................10 --------- ------------------- SECTION 7 CONTRACTUAL RIGHTS..........................................11 --------- ------------------ SECTION 8 LIMITATIONS.................................................11 --------- ----------- SECTION 9 INSURANCE...................................................11 --------- --------- SECTION 10 CONSTITUENT CORPORATIONS....................................11 ---------- ------------------------ SECTION 11 DEFINITIONS.................................................11 ---------- ----------- ARTICLE V MISCELLANEOUS.......................................................12 - ----------------------- SECTION 1 INSPECTION OF BOOKS AND RECORDS BY STOCKHOLDERS.............12 --------- ----------------------------------------------- SECTION 2 INSPECTION OF BOOKS AND RECORDS BY DIRECTORS................12 --------- -------------------------------------------- SECTION 3 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS...................12 --------- ----------------------------------------- SECTION 4 CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED...........12 --------- ------------------------------------------------- SECTION 5 CERTIFICATES FOR SHARES.....................................13 --------- ----------------------- SECTION 6 TRANSFER OF SHARES..........................................13 --------- ------------------ SECTION 7 LOST, STOLEN OR DESTROYED CERTIFICATES......................13 --------- -------------------------------------- SECTION 8 REPRESENTATION OF SHARES OF OTHER CORPORATIONS..............13 --------- ---------------------------------------------- ii SECTION 9 CONSTRUCTION AND DEFINITIONS................................13 --------- ---------------------------- SECTION 10 AMENDMENTS TO BYLAWS........................................14 ---------- -------------------- SECTION 11 CONFORMANCE TO THE LAW......................................14 ---------- ---------------------- SECTION 12 FISCAL YEAR.................................................14 ---------- ----------- SECTION 13 DIVIDENDS; SURPLUS..........................................14 ---------- ------------------ SECTION 14 WAIVER OF NOTICE............................................14 ---------- ---------------- iii -----END PRIVACY-ENHANCED MESSAGE-----