AMENDED
AND RESTATED
BY
-
LAWS
OF
ISORAY,
INC.
ARTICLE
I
OFFICES
The
corporation may have offices and places of business at such locations as the
Board of Directors may from time to time designate, or as the business of the
corporation may require.
ARTICLE
II
SHAREHOLDERS’
MEETINGS
Section
1
PLACE.
All
meetings of the shareholders shall be held at such place as may be fixed by
the
Chief Executive Officer or the Board of Directors, except as may otherwise
be
required in this Article.
Section
2
REGULAR
MEETINGS
.
A.
Frequency
.
Regular
meetings of the shareholders may be held on an annual or other less frequent
basis as determined by the Board of Directors.
B.
Shareholder
Demand
.
If a
regular meeting of shareholders has not been held during the immediately
preceding fifteen (15) months, a shareholder or shareholders holding three
percent (3%) or more of all voting shares may demand a regular meeting of
shareholders in accordance with Chapter 302A, Minnesota Statutes, as amended
from time to time (hereinafter “Chapter 302A”).
C.
Notice
.
Written
notice of a regular meeting stating the date, time and place of the meeting
shall be mailed at least ten (10) calendar days prior to the meeting and not
more than sixty (60) calendar days before the date of the meeting to each
shareholder entitled to vote thereat, to the last known address of such
shareholder as the same appears upon the books of the corporation. Notice need
not be given where the meeting is an adjourned meeting and the date, time and
place of the meeting was announced at the time of adjournment.
Section
3.
SPECIAL
MEETINGS
.
A.
Call
.
Special
meetings of the shareholders may be called for any purpose or purposes at any
time, by:
|
(a)
|
The
Chief Executive Officer;
|
|
(b)
|
The
Chief Financial Officer;
|
|
(c)
|
Two
or more directors; or
|
|
(d)
|
One
or more shareholders holding not less than ten percent (10%) of the
voting
power of all shares of the corporation entitled to vote (except that
a
special meeting for the purpose of considering any action to directly
or
indirectly effect a business combination, including any action to
change
or otherwise affect the composition of the Board of Directors for
that
purpose, must be called by shareholders holding not less than twenty-five
percent (25%) of all shares of the corporation entitled to vote),
who
shall demand such special meeting by written notice given to the
Chief
Executive Officer or the Chief Financial Officer of the corporation
specifying the purposes of such meeting.
|
B.
Shareholder
Demand
.
Within
thirty (30) days after receipt of a demand by the Chief Executive Officer or
the
Chief Financial Officer from any shareholder or shareholders entitled to call
a
special meeting of the shareholders, it shall be the duty of the Board of
Directors of the corporation to cause a special meeting of shareholders to
be
duly called and held on notice no later than ninety (90) days after receipt
of
such demand. If the Board fails to cause such a meeting to be called and held
as
required by this Section 3B. of Article II, the shareholder or shareholders
making the demand may call the meeting by giving notice as provided in Section
3C. of this Article II at the expense of the corporation.
C.
Notice
.
Written
notice of a special meeting of the shareholders stating the date, time, place,
and purpose thereof shall be given at lease ten (10) calendar days prior to
the
meeting and not more than sixty (60) calendar days before the date of the
meeting to each shareholder entitled to vote thereat to the last known address
of such shareholder as the same appears upon the books of the corporation.
Notice need not be given where the meeting is an adjourned meeting and the
date,
time and place of the meeting was announced at the time of adjournment.
Section
4
WAIVER
OF NOTICE
.
Notice
of
the time, place and purpose of any meeting of shareholders, whether required
by
Chapter 302A, the Articles of Incorporation or these By-laws may be waived
by
any shareholder. Such waiver may be given at, before, or after the meeting,
and
may be given in writing, orally or by attendance. Attendance by a shareholder
at
a meeting shall constitute 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 the meeting and does not
participate in consideration of the item at the meeting.
Section
5
ACTION
WITHOUT
A
MEETING
.
Any
action which may be taken at a meeting of the shareholders may be taken without
a meeting, if authorized in writing or writings signed by all shareholders
who
would be entitled to vote on that action. The written action is effective when
it has been signed by all of those shareholders, unless a different effective
time is provided in the written action.
Section
6
QUORUM
.
The
presence at any meeting, in person or by proxy, of the holders of a majority
of
the voting power of the shares entitled to vote at a meeting, shall constitute
a
quorum for the transaction of business. If, however, a quorum shall not be
present in person or by proxy at any meeting of the shareholders, those present
shall have the power to adjourn the meeting from time to time, without notice
other than by announcement at the meeting of the date, time and location of
the
reconvening of the adjourned meeting, until the requisite amount of voting
shares shall be represented. At any such adjourned meeting at which the required
number of voting shares shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. If a
quorum is present when a duly called or held meeting is convened the
shareholders 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
7
RECORD
DATE
.
The
Board
of Directors may fix a time not exceeding sixty (60) days preceding the date
of
any meeting of the shareholders as a record date for the determination of the
shareholders 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.
Section
8
VOTING
.
At
all
meetings of the shareholders, the holder of each share having the power to
vote
shall be entitled to vote in person or by proxy, duly appointed by an instrument
in writing which conforms to the requirements of Chapter 302A. Each shareholder
shall
have
one
(1) vote for each share having voting power standing in his name on the books
of
the corporation. Shares owned by two or more shareholders may be voted by any
one of them unless the corporation receives written notice, addressed to the
Board of Directors at the address of the principal executive office, from any
one of them denying the authority of that person to vote those shares. Upon
the
demand of any shareholder, the vote for directors or the vote upon any question
before the meeting shall be by ballot. All elections shall be had and all
questions decided by a majority vote of those present except as otherwise
required by Chapter 302A or the Articles of Incorporation.
Section
9
ADVANCE-NOTICE
REQUIREMENTS
.
A.
Advance-Notice
Requirements for Nomination of Directors
.
Only
persons who are nominated in accordance with the procedures set forth in this
Section 9.A of this Article II shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of
the
corporation may be made at a meeting of shareholders by or at the direction
of
the Board of Directors, or by any shareholder of the corporation entitled to
vote for the election of directors at the meeting who complies with the notice
procedures hereinafter set forth in this Section 9.A of this
Article II.
(a)
Timing
of Notice
.
Nominations by shareholders shall be made pursuant to timely notice in writing
to the Secretary of the corporation. To be timely, a shareholder’s notice of
nominations to be made at an annual meeting of shareholders must be delivered
to
the Secretary of the corporation, or mailed and received at the principal
executive office of the corporation, not less than ninety (90) days before
the
first anniversary of the date of the preceding year’s annual meeting of
shareholders. If, however, the date of the annual meeting of shareholders is
more than thirty (30) days before or after such anniversary date, notice by
a
shareholder shall be timely only if so delivered or so mailed and received
not
less than ninety (90) days before such annual meeting or, if later, within
ten
(10) days after the first public announcement of the date of such annual
meeting. If a special meeting of shareholders of the corporation is called
in
accordance with Section 3 of Article II of the By-Laws for the purpose
of electing one or more directors to the Board of Directors or if a regular
meeting other than an annual meeting is held, for a shareholder’s notice of
nominations to be timely it must be delivered to the Secretary of the
corporation, or mailed and received at the principal executive office of the
corporation, not less than ninety (90) days before such special meeting or
such
regular meeting or, if later, within ten (10) days after the first public
announcement of the date of such special meeting or such regular meeting. Except
to the extent otherwise required by law, the adjournment of a regular or special
meeting of shareholders shall not commence a
new
time
period for the giving of a shareholder’s notice as described above.
(b)
Content
of Notice
.
A
shareholder’s notice to the corporation of nominations for a regular or special
meeting of shareholders shall set forth (x) as to each person whom the
shareholder proposes to nominate for election or re-election as a director:
(i) such person’s name, (ii) all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or that is otherwise required, pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, and
(iii) such person’s written consent to being named in the proxy statement
as a nominee and to serving as a director if elected; and (y) as to the
shareholder giving the notice: (i) the name and address, as they appear on
the corporation’s books, of such shareholder, (ii) the class or series (if
any) and number and type of shares of the corporation that are beneficially
owned by such shareholder, and (iii) a representation that the shareholder
is a holder of record of shares of the corporation entitled to vote for the
election of directors and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice. At the request of
the
Board of Directors, any person nominated by the Board of Directors for election
as a director shall furnish to the Secretary of the corporation the information
required to be set forth in a shareholder’s notice of nomination that pertains
to a nominee.
(c)
Consequences
of Failure to Give Timely Notice
.
Notwithstanding anything in these By-Laws to the contrary, 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 9A. of this
Article II. 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 in this Section 9A. of this
Article II, if the Chairman should so determine, the Chairman shall so
declare to the meeting, and the defective nomination shall be
disregarded.
B.
Business
Conducted
.
The
business conducted at any special meeting of shareholders of the corporation
shall be limited to the purposes stated in the notice of the special meeting
pursuant to Section 3C. of Article II of the By-Laws. At any regular
meeting of shareholders of the corporation, only such business (other than
the
nomination and election of directors, which shall be subject to Section 9B.
of this Article II) may be conducted as shall be appropriate for
consideration at the meeting of shareholders and as shall have been brought
before the meeting (i) by or at the direction of the Board of Directors, or
(ii) by any shareholder of the corporation entitled to vote at the meeting
who
complies
with the notice procedures hereinafter set forth in this Section 9B. of
this Article II.
(a)
Timing
of Notice
.
For
such business to be properly brought before any regular meeting by a
shareholder, the shareholder must have given timely notice thereof in writing
to
the Secretary of the corporation. To be timely, a shareholder’s notice of any
such business to be conducted at an annual meeting must be delivered to the
Secretary of the corporation, or mailed and received at the principal executive
office of the corporation, not less than ninety (90) days before the first
anniversary of the date of the preceding year’s annual meeting of shareholders.
If, however, the date of the annual meeting of shareholders is more than thirty
(30) days before or after such anniversary date, notice by a shareholder shall
be timely only if so delivered or so mailed and received not less than ninety
(90) days before such annual meeting or, if later, within ten (10) days after
the first public announcement of the date of such annual meeting. To be timely,
a shareholder’s notice of any such business to be conducted at a regular meeting
other than an annual meeting must be delivered to the Secretary of the
corporation, or mailed and received at the principal executive office of the
corporation, not less than ninety (90) days before such regular meeting or,
if
later, within ten (10) days after the first public announcement of the date
of
such regular meeting. Except to the extent otherwise required by law, the
adjournment of a regular meeting of shareholders shall not commence a new time
period for the giving of a shareholder’s notice as required above.
(b)
Content
of Notice
.
A
shareholder’s notice to the corporation shall set forth as to each matter the
shareholder proposes to bring before the regular meeting (v) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (w) the name and
address, as they appear on the corporation’s books, of the shareholder proposing
such business, (x) the class or series (if any) and number and type of
shares of the corporation that are beneficially owned by the shareholder,
(y) any material interest of the shareholder in such business, and
(z) a representation that the shareholder is a holder of record of shares
entitled to vote at the meeting and intends to appear in person or by proxy
at
the meeting to make the proposal.
(c)
Consequences
of Failure to Give Timely Notice
.
Notwithstanding anything in these By-Laws to the contrary, no business (other
than the nomination and election of directors) shall be conducted at any regular
meeting except in accordance with the
procedures
set forth in this Section 9B. of this Article II. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
procedures described in this Section 9B. of this Article II and, if
the Chairman should so determine, the Chairman shall so declare to the meeting,
and any such business not properly brought before the meeting shall not be
transacted. Nothing in this Section shall be deemed to preclude discussion
by
any shareholder of any business properly brought before the meeting in
accordance with these By-Laws.
C.
Public
Announcement
.
For
purposes of this Section, “public announcement” means disclosure (i) when
made in a press release reported by the Dow Jones News Service, Associated
Press, or comparable national news service, (ii) when filed in a document
publicly filed by the corporation with the Securities and Exchange Commission
pursuant to Section 13, 14, or 15(d) of the Securities Exchange Act of
1934, as amended, or (iii) when mailed as the notice of the meeting
pursuant to Section 2C. or Section 3C. of this
Article II.
D.
Compliance
With Law
.
Notwithstanding the foregoing provisions of this Section 9 of this
Article II, a shareholder shall also comply with all applicable
requirements of Minnesota law and the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with respect to the matters
set forth in this Section 9 of Article II.
ARTICLE
III
BOARD
OF DIRECTORS
Section
1
ELECTION
OF
DIRECTORS
.
The
business and affairs of this corporation shall be managed by or under the
direction of its Board of Directors which shall not be less than one (1) nor
more than ten (10) in number, as determined by resolution of the Board, from
time to time, prior to the election of directors. Directors need not be
shareholders. Each director shall be elected to serve for a term specified
by
the shareholders at the time of election and until his successor shall have
been
duly elected and qualified.
Section
2
SHAREHOLDER
MANAGEMENT
.
Any
action that the Articles or By-laws of this corporation or Chapter 302A require
or permit the Board of Directors to take or the shareholders to take after
action or approval of the Board, may be taken by the holders of the voting
shares of the corporation by unanimous affirmative vote.
Section
3
MEETINGS
.
A.
Time
and Place
.
Meetings of the Board of Directors shall be held at such time and place as
determined by the Board of Directors.
B.
Notice
.
Meetings of the Board of Directors may be called at any time by a director
by
giving five (5) days notice to all directors of the date, time and place of
the
meeting. The notice need not state the purpose of the meeting. Notice of an
adjourned meeting need not be given other than by announcement at the meeting
at
which adjournment is taken.
C.
Waiver
of Notice
.
A
director may waive notice of a meeting by the Board. 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 is not lawfully called or convened and does not participate
thereafter in the meeting.
D.
Electronic
or Remote Communications
.
The
Board of Directors may meet by means of electronic or remote communication
in
accordance with Chapter 302A.
E.
Quorum
.
At all
meetings of the Board of Directors, a majority of the directors shall be
necessary and sufficient to constitute a quorum for the transaction of
business.
Section
4
VACANCIES
.
A.
Death,
Resignation, Removal or Disqualification
.
Vacancies on the board resulting from the death, resignation, removal, or
disqualification of a director may be filled by the affirmative vote of a
majority of the remaining directors, even though less than a
quorum.
B.
Newly
Created Directorships
.
Vacancies on the board resulting from newly created directorships may be filled
by the affirmative vote of a majority of the directors serving at the time
of
the increase.
C.
Duration
of Term
.
A
director elected under this section to fill a vacancy holds office until a
qualified successor is elected by the shareholders at the next meeting of the
shareholders.
Section
5
COMMITTEES
.
The
Board
of Directors, by resolution approved by the affirmative vote of a majority
of
the Board, may establish committees having the authority of the Board in the
management of the business of the corporation to the extent provided in the
resolution. A committee member need not be a director.
Section
6
AUTHORIZATION
WITHOUT
MEETING
.
Any
action required or permitted to be taken at a meeting of the Board of Directors
may be taken without a meeting if authorized by a writing or writings signed
by
a majority of the directors. The written action is effective when signed by
the
required number of directors, unless a different effective time is provided
in
the written action.
Section
7
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 in accordance with Chapter
302A.
ARTICLE
IV
OFFICERS
Section
1
ELECTION,
TERM;
NUMBER
.
The
officers of the corporation shall be elected or appointed by the Board of
Directors. The officers of the corporation shall consist of a Chief Executive
Officer, who shall be President of the corporation; a Chief Financial Officer,
who shall be Treasurer of the corporation; and such other officer or officers
as
are elected or appointed by the Board of Directors. A person may hold more
than
one office. The officers shall perform such duties and have such
responsibilities as provided for in these By-laws or as otherwise determined
by
the Board of Directors. The terms of office with respect to each officer shall
be prescribed by the Board at the time of election of the officers, and absent
the specifications of a term, the term shall be determined to be at the pleasure
of the Board of Directors.
Section
2
PRESIDENT
.
The
President shall be the Chief Executive Officer of the corporation, and shall
have the general active management of the business of the corporation in
addition to the duties and powers prescribed by the Board of Directors or by
Chapter 302A.
Section
3
VICE
PRESIDENTS
.
The
Vice
Presidents, if any, in the order designated by the Board of Directors shall
perform the duties and exercise the powers of the Chief Executive Officer in
his
absence or upon his incapacity and shall perform such other duties as the Board
of Directors may from time to prescribe or as may be delegated by the Chief
Executive Officer.
Section
4
TREASURER
.
The
Treasurer shall be the Chief Financial Officer of the corporation and shall
have
and exercise the duties and powers prescribed by the Board of Directors or
by
Chapter 302A.
Section
5
SECRETARY
.
The
Secretary, if any, shall attend all meetings of the Board of Directors,
committees thereof, if any, and all meetings of the shareholders and record
all
votes and minutes of all proceedings in a book kept for that purpose. The
Secretary shall give or cause to be given notice of all meetings of the
shareholders and of the Board of Directors and of committees, if any, and shall
perform such other duties as may be prescribed by the Board of Directors or
delegated to him by the Chief Executive Officer or the Chief Financial Officer.
He shall cause and affix the seal of the corporation, to the extent the
corporation shall have one, to any instrument requiring the same. If there
is no
Secretary, then the duties and responsibilities provided for herein shall be
discharged by the Chief Executive Officer.
Section
6
VACANCIES
.
If
any
office becomes vacant by reason of death, resignation, retirement,
disqualification, removal, or other cause, the directors then in office,
although less than a quorum, may by a majority vote, choose a successor or
successors who shall hold office for the unexpired term in respect of which
such
vacancy occurred.
Section
7
DELEGATION
.
Unless
prohibited by a resolution approved by the affirmative vote of the Board of
Directors, an officer of the corporation may delegate some or all of the duties
and powers of an office to other persons, provided that such delegation is
in
writing.
ARTICLE
VI
SHARES
Section
1
TYPE
OF
CERTIFICATE
Certificates
of shares, if any, of the corporation shall be in such form as approved by
the
Board of Directors. Each certificate shall be signed by the Chief Executive
Officer or the Chief Financial Officer. Such signature and the corporate seal,
if any, may be facsimiles, engraved or printed, if authorized by the Board
of
Directors.
Section
2
TRANSFER
OF
SHARES
.
Transfer
of certificated shares shall be made on the records of the corporation only
by
the shareholder named in the certificate or certificates or by the duly
authorized attorney in fact, and upon surrender of the certificates or
certificates therefor properly endorsed. The transfer of uncertified shares,
if
any, shall be made by the means determined by the Board of
Directors.
SECTION
3
LOST
CERTIFICATES
.
Any
shareholder claiming a certificate of certificated shares to be lost, stolen or
destroyed shall make an affidavit or affirmation of that fact in such form
as
the Board of Directors may require, and shall, if the Board of Directors so
requires, give the corporation a bond of indemnity in form and with one (1)
or
more sureties satisfactory to the Board of Directors in an amount at least
double the value of the stock represented by said certificate, whereupon a
new
certificate may be issued of the same number of shares as the one alleged to
have been lost, stolen or destroyed.
Section
4
UNCERTIFICATED
SHARES
.
Some
or
all of any or all classes and series of the shares of stock of this corporation,
upon resolution approved by the Board of Directors may be uncertificated shares.
Within twenty (20) calendar days after the issuance or transfer of
uncertificated shares, the Chief Executive Officer shall send to the shareholder
such notice as required by Chapter 302A.
ARTICLE
VII
MISCELLANEOUS
Section
1
CORPORATE
SEAL
.
The
corporation may use a corporate seal, but the failure to use such seal shall
not
affect the validity of any documents executed on behalf of the corporation.
The
seal need only include the word “seal,” but it may also include, at the
discretion of the Board, such additional wording as is permitted by Chapter
302A.
Section
2
FISCAL
YEAR
.
The
fiscal year of this corporation shall be as determined by resolution of the
Board of Directors.
Section
3
COMPUTATION
OF
TIME
.
Whenever
notice is required to be given pursuant to these By-laws, the day upon which
notice is personally served, deposited in the mail, given by telegram, telex,
telecopied or otherwise delivered, shall not be counted for the purpose of
computing the time period of the notice. All notice periods shall be computed
in
calendar days.
Section
4
AMENDMENTS
TO
BY-LAWS
.
These
By-laws may be amended or altered by the Board of Directors at any meeting.
Such
authority of the Board of Directors is subject to the power of the shareholders
to change or repeal such By-laws.
THESE
AMENDED AND RESTATED BY-LAWS WERE ADOPTED ON
January
8, 2008
BY
RESOLUTION OF THE BOARD OF DIRECTORS OF
ISORAY,
INC.
David
J.
Swanberg
Secretary