BYLAWS
OF
AETRIUM
INCORPORATED
ARTICLE
I.
Offices
.
Section
1.
Registered Office
.
The registered office of the Corporation required by Chapter 302A of the
Minnesota Statutes to be maintained in the State of Minnesota is as designated
in the Articles of Incorporation. The Board of Directors of the Corporation may,
from time to time, change the location of the registered office. On or before
the day that such change is to become effective, a certificate of such change
and of the new address of the new registered office shall be filed with the
Secretary of State of the State of Minnesota.
Section
2.
Other Offices
. The
Corporation may establish and maintain such other offices, within or without the
State of Minnesota, as are from time to time authorized by the Board of
Directors.
ARTICLE
II.
Meetings of
Shareholders
.
Section
1.
Place of Meeting
. All
meetings of the shareholders shall be held at the registered office of the
Corporation in the State of Minnesota or at such place within or without the
state as may be fixed from time to time by the Board of Directors, provided that
a meeting called by or at the demand of a shareholder shall be held in the
county where the principal executive office of the Corporation is
located.
Section
2.
Date of Meeting
. A
regular meeting of shareholders may be held for the purpose of electing
directors or for the transaction of any other business as may come before the
meeting. It shall be the duty of the Chief Executive Officer or Chief Financial
Officer, upon demand of any shareholder holding three percent (3%) or more of
all voting shares, to call such meeting if a regular meeting of shareholders has
not been held during the immediately preceding fifteen (15) months. If said
officers fail to call and hold such meeting within ninety (90) days after
receipt of the demand, the shareholder making the demand shall have the right
and power to call such meeting.
Section
3.
Notice of Regular
Meetings
. Written notice of the time and place of each regular meeting
shall be mailed, postage prepaid, at least five (5) but not more than sixty (60)
days before such meeting, to each shareholder to vote thereat at his address as
the same appears upon the books of the Corporation.
Section
4.
Special Meetings
.
Special meetings of the shareholders, for any purpose or purposes, unless
otherwise prescribed by statute or by the Articles of Incorporation, may be
called by the Chief Executive Officer or Chief Financial Officer and shall be
called by the Chief Executive Officer or Chief Financial Officer at the request
in writing of two or more members of the Board of Directors, or at the request
in writing of shareholders owning ten percent (10%) or more of the voting power
of all outstanding voting shares. Such request, which shall be by registered
mail or delivered in person to the Chief Executive Officer or Chief Financial
Officer, shall state the purpose or purposes of the proposed
meeting.
Section
5.
Notice of Special
Meetings
. Written notice of the time, place and purpose or purposes of a
special meeting shall be mailed, postage prepaid, at least five (5) but not more
than sixty (60) days before such meeting, to each shareholder entitled to vote
at such meeting at his address as the same appears upon the books of the
Corporation.
Section
6.
Business to be
Transacted
. No business shall be transacted at any special meeting of
shareholders except that stated in the notice of the meeting.
Section
7.
Waiver of Notice
. A
shareholder may waive notice of a meeting of shareholders. A waiver of notice by
a shareholder entitled to notice is effective whether given before, at, or after
the meeting, and whether given in writing, orally, or by attendance. Attendance
by a shareholder at a meeting is a waiver of notice of that meeting, except
where the shareholder objects at the beginning of the meeting to the transaction
of business because the meeting Is not lawfully called or convened, or objects
before a vote on an item of business because the item may not lawfully be
considered at that meeting and does not participate in the consideration of the
item at that meeting.
Section
8.
Quorum and
Adjournment
. The holders of a majority of the voting power of the shares
present in person or by proxy entitled to vote at a meeting shall constitute a
quorum at all meetings of the shareholders for the transaction of business,
except as otherwise provided by statute or by the Articles of Incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
shareholders, the shareholders entitled to vote thereat, present In person or
represented by proxy shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the meeting as originally noticed. The shareholders present
at a duly called or held meeting at which a quorum is present may continue to
transact business until adjournment, even though the withdrawal of a number of
shareholders originally present leaves less than the proportion or number
otherwise required for a quorum.
Section
9.
Voting Rights
. A
shareholder may cast his vote in person or by proxy When a quorum Is present at
the time a meeting is convened, the vote of the holders of a majority of the
shares entitled to vote on any question present in person or by proxy shall
decide such question unless the question is one upon which, by express provision
of the applicable statute or the Articles of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section
10.
Manner of Voting
.
Each shareholder shall at every meeting of the shareholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such shareholder, except as otherwise provided by statute or by
the Articles of Incorporation. No proxy shall be valid after eleven (11) months
from its date, unless the proxy expressly provides for a longer period, and,
except where the transfer books of the Corporation have been closed or a date
has been fixed as a record date for the determination of Its shareholders
entitled to vote, no share of stock that has been transferred on the books of
the Corporation within twenty (20) days next preceding any election of directors
shall be voted on at such election for directors.
Section
11.
Record Date
. The
Board of Directors may fix a date, not exceeding sixty (60) days preceding the
date of any meeting of shareholders, as a record date for the determination of
the shareholders entitled to notice of and to vote at such meeting, and in such
case only shareholders of record on the date so fixed, or their legal
representatives, shall be entitled to notice of and to vote at such meeting,
notwithstanding any transfer of any shares on the books of the Corporation after
any record date so fixed. The Board of Directors may close the books of the
Corporation against transfers of shares during the whole or any part of such
period.
Section
12.
Organization of
Meetings
. The Chief Executive Officer shall preside at all meetings of
the shareholders, and in his or her absence the Chief Financial Officer shall
act as Chairman. The Secretary shall act as secretary of all meetings of the
shareholders, or in his or her absence any person appointed by the Chairman
shall act as secretary.
Section
13.
Action Without a
Meeting
. Any action required or permitted to be taken at a shareholders’
meeting may be taken without a meeting if authorized by a writing or writings
signed by all of the holders of shares who would be entitled to vote on that
action. Such action shall be effective at the time the last signature is placed
on such writing or writings, unless a different effective time is provided in
the written action. If any action so taken requires a certificate to be filed in
the office of the Secretary of State, the officer signing such certificate shall
state therein that the action was effected in the manner aforesaid.
ARTICLE
III.
Board of
Directors.
Section
1.
General Powers
. The
business and affairs of the Corporation shall be managed by or under its Board
of Directors which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Articles of
Incorporation or by these Bylaws required to be exercised or done by the
shareholders.
Section
2.
Number and Term of
Office
. The number of directors which shall constitute the whole board
shall be at least one (1), or such other number as may be determined by the
Board of Directors or by the shareholders at a regular meeting or as may be
required by the Articles of Incorporation. Except as otherwise permitted by
statue or required by the Articles of Incorporation, directors shall be elected
at each regular meeting of the Corporations shareholders (or at any special
meeting of the shareholders called for that purpose) by a majority of the voting
power of the shares represented and voting, and each director shall be elected
to serve until the next regular meeting of the shareholders or until his or her
successor shall have been duly elected and qualified.
Section
3.
Resignation and
Removal
. Any director may resign at any time by giving written notice to
the Corporation. Such resignation shall take effect at the date of the receipt
of such notice, or at any later time specified therein, and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective. Except as otherwise provided in the Articles of
Incorporation, any director may be removed at any time, with or without cause,
by the affirmative vote of the holders of a majority of the voting shares
entitled to elect such director.
Section
4.
Vacancies
. Except as
otherwise provided in the Articles of Incorporation, if the office of any
director becomes vacant by reason of death, resignation, removal,
disqualification, or otherwise, the directors then in office, although less than
a quorum, by a majority vote, may choose a successor who shall hold office for
the unexpired term in respect of which such vacancy occurred. With respect to
the initial election of a director to fill a newly created directorship
resulting from an increase in the number of directors by action of the Board of
Directors in the manner permitted by statute, such vacancy shall be filled by
the affirmative vote of a majority of the directors serving at the time of the
increase.
Section
5.
Meetings of
Directors
. The Board of Directors of the Corporation may hold meetings,
from time to time, either within or without the State of Minnesota, at such
place as a majority of the members of the Board of Directors may from time to
time appoint. If the Board of Directors fails to select a place for the meeting,
the meeting shall be held at the principal executive office of the
Corporation.
Section
6.
Calling Meetings
.
Meetings of the Board of Directors may be called by (I) the Chief Executive
Officer on two (2) days’ notice or (ii) any director on ten (10) days’ notice,
to each director, either personally, by telephone or by mail or telegram. Every
such notice shall state the date, time and place of the meeting. Notice of a
meeting called by a person other than the Chief Executive Officer shall state
the purpose of the meeting.
Section
7.
Participation by Conference
Telephone
. Directors of the Corporation may participate in a meeting of
the Board of Directors by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by that means shall
constitute presence in person at the meeting.
Section
8.
Waiver of Notice
. A
director may waive notice of a meeting of the Board of Directors. A waiver of
notice by a director entitled to notice is effective whether given before, at,
or after the meeting, and whether given in writing, orally, or by attendance.
Attendance by a director at a meeting is a waiver of notice of that meeting,
except where the director objects at the beginning of the meeting to the
transaction of business because the meeting was not lawfully called or convened
and does not participate thereafter in the meeting.
Section
9.
Absent Directors
. A
director may give advance written consent or opposition to a proposal to be
acted on at a meeting of the Board of Directors by actual delivery prior to the
meeting of such advance written consent or opposition to the Chief Executive
Officer or Chief Financial Officer or a director who is present at the meeting.
If the director is not present at the meeting, advance written consent or
opposition to a proposal shall not constitute presence for purposes of
determining the existence of a quorum, but consent or opposition shall be
counted as a vote In favor of or against the proposal and shall be entered in
the minutes or other record of action at the meeting, if the proposal acted on
at the meeting is substantially the same or has substantially the same effect as
the proposal to which the director has consented or objected.
Section
10.
Quorum
. At all
meetings of the Board of Directors a majority of the directors shall constitute
a quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there Is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
applicable statute or by the Articles of Incorporation. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present. If a quorum is present
at the call of a meeting, the directors may continue to transact business until
adjournment notwithstanding the withdrawal of enough directors to leave less
than a quorum.
Section
11.
Organization of
Meetings
. The Chief Executive Officer shall preside at all meetings of
the Board of Directors, and in his or her absence the Chief Financial Officer
shall act as Chairman. The Secretary shall act as secretary of all meetings of
the Board of Directors, and in his or her absence any person appointed by the
Chairman shall act as secretary.
Section
12.
Action Without
Meeting
. Unless otherwise restricted by the Articles of Incorporation or
these Bylaws, any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting, if a written consent thereto
is signed by all members of the Board of Directors and such written consent is
filed with the minutes of proceedings of the Board of Directors. If the proposed
action need not be approved by the shareholders and the Articles of
Incorporation so provide, action may be taken by written consent signed by the
number of directors that would be required to take the same action at a meeting
of the Board of Directors at which all directors were present. Such action shall
be effective on the date on which the last signature is placed on such writing
or writings, or such other effective date as is set forth therein.
Section
13.
Compensation of
Directors
. By resolution of the Board of Directors, each director may be
paid his or her expenses, if any, of attendance at each meeting of the Board of
Directors, and may be paid a stated amount as a director or a fixed sum for
attendance at each meeting of the Board of Directors, or both. No such payment
shall preclude a director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE
IV.
Officers
.
Section
1.
Number
. The officers
of the Corporation shall be chosen by the Board of Directors and shall include a
Chief Executive Officer, a Secretary, and a Treasurer. The Board of Directors
may also choose a President, one or more Vice Presidents, one or more Assistant
Secretaries, and one or more Assistant Treasurers. Any number of offices or
functions of those offices may be held or exercised by the same
person.
Section
2.
Election
. The Board
of Directors shall choose a Chief Executive Officer, a Secretary and a
Treasurer, who shall hold their offices for such terms as shall be determined
from time to time by the Board of Directors.
Section
3.
Other Officers and
Agents
. The Board of Directors may appoint such other officers and agents
as it shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors.
Section
4.
Salaries
. The
salaries of the Chief Executive Officer and all other officers of the
Corporation shall be fixed by the Compensation Committee of the Board of
Directors.
Section
5.
Term of Office
. The
officers of the Corporation shall hold office until their successors are chosen
and qualify. Any officer elected or appointed by the Board of Directors may be
removed with or without cause at any time by the affirmative vote of a majority
of the Board of Directors. Any officer may resign at any time by giving written
notice to the Chairman of the Board or the Secretary of the Corporation. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors.
Section
6.
The Chief Executive Officer:
Powers and Duties
. The Chief Executive Officer shall be the chief
executive officer of the Corporation, shall preside at all meetings of the Board
of Directors and the shareholders, shall have general active management of the
business of the Corporation, shall see that all orders and resolutions of the
Board of Directors are earned into effect, and shall perform such other duties
prescribed by the Board of Directors. He or she shall execute bonds, mortgages,
and other contracts of the Corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation, and shall maintain records of and,
whenever necessary, certify all proceedings of the Board of Directors and the
shareholders. Except as otherwise prescribed by these Bylaws or the Board of
Directors, he or she shall prescribe duties of other officers.
Section
7.
The President and Vice
President
. Powers and Duties. The President or Vice President or Vice
Presidents, if any, shall perform such duties and have such other powers as the
Board of Directors or the Chief Executive Officer may from time to time
prescribe.
Section
8.
The Secretary. Powers and
Duties
. The Secretary shall attend all meetings of the Board of Directors
and all meetings of the shareholders and record all the proceedings of the
meetings of the Corporation and of the Board of Directors in a book to be kept
for that purpose. He or she shall give, or cause to be given, notice of all
meetings of the shareholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or Chief Executive Officer, under whose supervision he or she shall
be.
Section
9.
Assistant Secretary
.
The Assistant Secretary or, if there be more than one, the Assistant
Secretaries, in the order determined by the Board of Directors, shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board of Directors or the Chief Executive Officer may from time to
time prescribe.
Section
10.
The Treasurer
. Powers
and Duties. The Treasurer, together with the Vice President of Finance, if any,
shall perform the responsibilities of the chief financial officer, as directed
by the Chief Executive Officer, shall have custody of the Corporation’s funds
and securities, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, shall deposit all monies
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors, and shall
perform such other duties prescribed by the Board of Directors or by the Chief
Executive Officer.
Section
11.
Treasurer’s
Accounting
. He or she shall disburse such funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all his or her transactions as Treasurer and of the financial
condition of the Corporation.
Section
12.
Treasurer’s Bond
. If
required by the Board of Directors, he or she shall give the Corporation a bond
(which shall be renewed every six (6) years) in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his or her office and for the restoration to the
Corporation, In case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind In his or her possession or under his or her control belonging to
the Corporation.
Section
13.
Vice President of
Finance
. The Vice President of Finance, if any, together with the
Treasurer, shall perform the responsibilities of the chief financial officer, as
directed by the Chief Executive Officer, shall, in the absence or disability of
the Treasurer, perform the duties and exercise the powers of the Treasurer,
shall render to the Chief Executive Officer and the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of all
his or her transactions as Vice President of Finance and of the financial
condition of the Corporation, and shall perform such other duties and have such
other powers as the Board of Directors or the Chief Executive Officer may from
time to time prescribe.
Section
14.
Assistant Treasurer
.
The Assistant Treasurer or, if there shall be more than one, the Assistant
Treasurers, in the order determined by the Board of Directors, shall, in the
absence or disability of the Treasurer and the Vice President of Finance, if
any, perform the duties and exercise the powers of the Treasurer, and shall
perform such other duties and have such other powers as the Board of Directors
or the Chief Executive Officer may from time to time prescribe.
ARTICLE
V.
Certificates of
Stock
.
Section
1.
Certificates of
Stock
. 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 Chief
Executive Officer and the Secretary or an Assistant Secretary of the
Corporation, if there be one, certifying the number of shares owned by him or
her in the Corporation. The certificates of stock of each class shall be
numbered in the order of their issue.
Section
2.
Facsimile Signatures
.
Where a certificate is signed (1) by a transfer agent or an assistant transfer
agent, or (2) by a transfer clerk acting on behalf of the Corporation and a
registrar, the signature of any such Chief Executive Officer, Secretary or
Assistant Secretary may be facsimile. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on any such
certificate or certificates shall cease to be such officer or officers of the
Corporation before such certificate or certificates have been delivered by the
Corporation, such certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer or officers
of the Corporation.
Section
3.
Lost or Destroyed
Certificates
. The Board of Directors may direct a new
certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his or her legal
representative, to advertise the same in such manner as it shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
Section
4.
Transfers of Stock
.
Upon surrender to the Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section
5.
Registered
Shareholders
. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and shall be entitled to hold
liable for calls and assessments a person so registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by applicable statute.
ARTICLE
VI.
General
Provisions
.
Section
1.
Dividends
. Subject to
the provisions of the applicable statute and the Articles of Incorporation,
dividends upon the capital stock of the Corporation may be declared by the Board
of Directors at any regular or special meeting, and may be paid in cash, in
property, or in shares of the capital stock.
Section
2.
Reserves
. Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purposes as the directors
shall think conducive to the interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was
created.
Section
3.
Checks
. All checks or
demands for money and notes of the Corporation shall be signed by such officer
or officers or such other person or persons as the Board of Directors may from
time to time designate.
Section
4.
Fiscal Year
. The
fiscal year of the Corporation shall be fixed by resolution of the Board of
Directors.
Section
5.
Corporate Seal
. The
Corporation shall not have a corporate seal.
Section
6.
Articles of
Incorporation
. References herein to the Articles of Incorporation include
any Certificate of Rights and Preferences or other resolution in effect adopted
by the Board of Directors and filed with the secretary of state establishing a
class or series of shares of the capital stock of the Corporation, setting forth
the designation of the class or series, and fixing the relative rights and
preferences of the class or series. In the event of any conflict between the
provisions of these Bylaws and the provisions of the Articles of Incorporation,
the provisions of the Articles of Incorporation shall govern.
ARTICLE
VII.
Amendments
Section
1.
Amendments
. The power
to make, alter, amend or rescind these Bylaws is vested in the Board of
Directors, subject to the power of the shareholders to adopt, amend or repeal
these Bylaws, as permitted by applicable statute.
