AMENDED
AND RESTATED BYLAWS
OF
ULURU
Inc.
ARTICLE
1
SHAREHOLDERS
MEETINGS
1.1
Annual
Meeting
. An
annual meeting of the shareholders of ULURU Inc. (the “
Corporation
”) shall be held each year on the date,
at the time, and at the place, fixed by the Board of Directors. The
annual meeting shall be held for the purpose of electing directors and for the
transaction of such other business as may properly come before the
meeting.
1.2
Special
Meetings
. Special meetings of the
shareholders, for any purposes, unless otherwise prescribed by statute, may be
called by the Chief Executive Officer of the Corporation or the Board of
Directors
.
1.3
Place of
Meetings
. Meetings of the
shareholders shall be held at any place in or out of Nevada designated by the
Board of Directors.
1.4
Meeting by
Telephone Conference
. Shareholders may
participate in an annual or special meeting by, or conduct the meeting through,
use of any means of communication by which all shareholders participating may
simultaneously hear each other during the meeting.
1.5
Quorum
. The
presence in person or by proxy of the holders of not less than one third of the
votes entitled to be cast at any meeting of shareholders shall constitute a
quorum for the transaction of business. The shareholders 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
shareholders to leave less than a quorum.
1.6.
Advance Notice of Director
Nominations by Shareholders and Shareholder Proposals
.
(a)
Nomination of
Directors
. Only persons who are nominated in accordance with
the procedures set forth in these Bylaws shall be eligible to serve as
directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders
(x) pursuant to the Corporation’s notice of meeting, (y) by or at the
direction of the Board of Directors or (z) by any stockholder of the Corporation
who is a stockholder of record at the time of giving of notice provided for in
this Section 1.6(a), who shall be entitled to vote for the election of directors
at the meeting and who complies with the notice procedures set forth in this
Section 1.6(a). The foregoing clause (z) shall be the exclusive means
for a stockholder to make any nomination of a person or persons for the election
to the Board of Directors of the Corporation at an annual meeting or special
meeting of the stockholders. Such nominations, other than those made
by or at the direction of the Board of Directors, 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 first anniversary of the preceding year’s annual
meeting of stockholders;
provided, however
, that in
the event that the date of the annual meeting is advanced more than 30 days
prior to such anniversary date or delayed more than 60 days after such
anniversary date, then to be timely such notice must be received by the
Corporation no later than the later of 70 days prior to the date of the meeting
or the 10th day following the day on which public announcement of the date of
the meeting was made. With respect to special meetings of
stockholders, such notice must be delivered to the Secretary not more than 90
days prior to such meeting and not later than the later of (i) 60 days prior to
such meeting or (ii) 10 days following the date on which public announcement of
the date of such meeting is first made by the Corporation. For
purposes of this Section 1.6, public disclosure of the date of a forthcoming
meeting may be made by the Corporation not only by giving formal notice of the
meeting, but also by notice to a national securities exchange (if the
Corporation's common stock is then listed on such exchange), by filing a report
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) (if the Corporation is then subject thereto), by
mailing to stockholders, or by a general press release. Such
stockholder’s notice shall set forth:
(i) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Exchange Act (including such person’s written consent to being named in the
proxy statement as a nominee and to serving as a director if elected);
and
(ii) as
to the stockholder giving the notice:
(A) the
name and address, as they appear on the Corporation’s books, of such stockholder
and any Stockholder Associated Person (defined below) covered by clause (B)
below,
(B)
(1) the class and number of shares of the Corporation which are,
directly or indirectly, held of record or are beneficially owned by such
stockholder or by any Stockholder Associated Person, (2) any Derivative
Positions (defined below) held or beneficially held by the stockholder or any
Stockholder Associated Person, (3) any rights to dividends of the Corporation
that are separable from the underlying shares of the Corporation held by the
stockholder or any Stockholder Associated Person, (4) any proportionate interest
in the Corporation’s securities held by a partnership in which the stockholder
or any Stockholder Associated Person is a general partner, either directly or
indirectly, (5) any performance-related fees that such stockholder or any
Stockholder Associated Person is entitled to based on any increase or decrease
in the value of the Corporation’s securities, and (6) whether and the extent to
which any hedging (including any short-interest positions) or other transaction
or series of transactions have been entered into by or on behalf of such
stockholder or any Stockholder Associated Person, or any other agreement,
arrangement or understanding has been made by or on behalf of such stockholder
or any Stockholder Associated Person, if the effect of or intent of any of the
foregoing is to increase or decrease the voting power of such stockholder or any
Stockholder Associated Person with respect to Corporation’s securities,
and
(C) any
proxy, contract, arrangement, understanding or relationship pursuant to which
such stockholder or any Stockholder Affiliated Person has the right to vote any
security of the Corporation.
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 that
information required to be set forth in a stockholder’s notice of nomination
which pertains to the nominee. No person shall be eligible to serve
as a director of the Corporation unless nominated in accordance with the
procedures set forth in this Section 1.6(a). 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. Notwithstanding the
foregoing provisions of this Section 1.6(a), a stockholder shall also comply
with all applicable requirements of the Exchange Act, and the rules and
regulations thereunder with respect to the matters set forth in this Section
1.6(a). Notwithstanding anything to the contrary herein, no provision
of these Bylaws shall be deemed to prohibit or restrict the ability of the Board
of Directors of the Corporation to fill vacancies in the membership of the Board
of Directors of the Corporation pursuant to Nev. Rev. Stat. §§ 78.335
or pursuant to any other statutory or contractual right of the Board of
Directors of the Corporation to fill any such vacancy.
“
Stockholder Associated
Person
” of any stockholder means (x) any person controlling, directly or
indirectly, or acting in concert with, such stockholder, (y) any beneficial
owner of shares of stock of the Corporation owned of record or beneficially by
such stockholder and (z) any person controlling, controlled by or under
common control with such Stockholder Associated Person.
“
Derivative Position
”
means any option, warrant, convertible security, stock appreciation right, or
similar right with an exercise or conversion privilege or a settlement payment
or mechanism at a price related to any class or series of shares of the
Corporation or with a value derived in whole or in part from the value of any
class or series of shares of the Corporation, whether or not such instrument or
right shall be subject to settlement in the underlying class or series of
capital stock of the Corporation or otherwise.
(b)
Notice of
Business
. At any meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting (y) by
or at the direction of the Board of Directors or (z) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of the notice
provided for in this Section 1.6(b), who shall be entitled to vote at such
meeting and who complies with the notice procedures set forth in this Section
1.6(b). For business to be properly brought before a stockholder
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary. 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
first anniversary of the preceding year’s annual meeting of stockholders;
provided, however
, that in
the event that the date of the annual meeting is advanced more than 30 days
prior to such anniversary date or delayed more than 60 days after such
anniversary date then to be timely such notice must be received by the
Corporation no later than the later of 70 days prior to the date of the meeting
or the 10th day following the day on which public announcement of the date of
the meeting was made. With respect to special meetings of stockholders, such
notice must be delivered to the Secretary not more than 90 days prior to such
meeting and not later than the later of (y) 60 days prior to such meeting or (z)
10 days following the date on which public announcement of the date
of such
meeting is first made by the Corporation. A stockholder’s notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the meeting:
(i) the
information required to be disclosed in solicitations of proxies with respect to
the matter pursuant to Regulation 14A of the Exchange Act;
(ii) a
brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting;
(iii) the
name and address, as they appear on the Corporation’s books, of the stockholder
proposing such business and any Stockholder Associated Person covered by clauses
(iv) and (v) below;
(iv) (A) the
class and number of shares of the Corporation which are, directly or indirectly,
held of record or are beneficially owned by such stockholder or by any
Stockholder Associated Person, (B) any Derivative Positions held or beneficially
held by the stockholder or any Stockholder Associated Person, (C) any rights to
dividends of the Corporation that are separable from the underlying shares of
the Corporation held by the stockholder or any Stockholder Associated Person,
(D) any proportionate interest in the Corporation’s securities held by a
partnership in which the stockholder or any Stockholder Associated Person is a
general partner, either directly or indirectly, (E) any performance-related fees
that such stockholder or any Stockholder Associated Person is entitled to based
on any increase or decrease in the value of the Corporation’s securities, and
(F) whether and the extent to which any hedging (including any short-interest
positions) or other transaction or series of transactions have been entered into
by or on behalf of such stockholder or any Stockholder Associated Person, or any
other agreement, arrangement or understanding has been made by or on behalf of
such stockholder or any Stockholder Associated Person, if the effect of or
intent of any of the foregoing is to increase or decrease the voting power of
such stockholder or any Stockholder Associated Person with respect to
Corporation’s securities; and
(v) any
material interest of the stockholder or any Stockholder Associated Person in
such business, including all arrangements, agreements and understandings with
the stockholder or Stockholder Associated Person in connection with the proposed
business.
Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at a
stockholder meeting except as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 1.6(b). 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 and in
accordance with the provisions of the Bylaws, 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. Notwithstanding the
foregoing provisions of this Section 1.6(b), a stockholder shall also comply
with all applicable requirements of the Exchange Act, and the rules and
regulations thereunder with respect to the matters set forth in this Section
1.6(b).
ARTICLE
2
BOARD
OF DIRECTORS
2.1
Number and
Qualification of Directors
. The authorized number of
directors of the Corporation shall be not less than one (1) and no more than
fifteen (15).
2.2
Regular
Meetings
. A
regular meeting of the Board of Directors shall be held without notice other
than this Bylaw immediately after, and at the same place as, the annual meeting
of the shareholders.
2.3
Special
Meetings
. Special meetings of the
Board of Directors may be called by the Chief Executive Officer or any two
directors. The person or persons calling a special meeting of the Board of
Directors may fix any place in or out of Nevada as the place for holding the
special meeting of the Board of Directors. If a special meeting of
the Board of Directors is preceded by less than three business days’ notice, the
Company shall provide a mechanism by which a director may participate in the
special meeting, and speak to and hear all other directors, by electronic means
such a telephone or video conferencing equipment.
2.4
Notice
. Special meetings of the
Board of Directors must be preceded by at least 24 hours notice to the directors
prior to the meeting of the date, time, and place of the
meeting. Notice may be communicated in person, by telephone, by any
form of electronic communication, by mail, or by private carrier. At
the written request of any director, notice of any special meeting of the Board
of Directors shall be given to such director by facsimile at the number
designated in writing by such director from time to time.
2.5
Compensation of
Directors
. Directors shall be entitled to receive compensation in such
amounts, and on such terms and conditions, as are approved by a majority of the
entire Board of Directors or by a committee composed entirely of directors who
satisfy the independence standard of any stock market or exchange on which the
Company’s capital stock is listed or quoted (or if such market has no stated
independence standard, such standard as is determined by the Board of
Directors). Without limiting the breadth of the foregoing, directors
may be compensated on a fixed fee basis, on a per-meeting or per-committee
basis, by means of stock options or other equity-based compensation or any
combination of the foregoing.
ARTICLE
3
OFFICERS
3.1
Appointment
. The Board of Directors
shall appoint a President, a Secretary and a Treasurer. The Board of
Directors may appoint any other officers, assistant officers, and agents as the
Board of Directors determines from time to time, including, without limitation,
a Chief Executive Officer. In the event the Board of Directors
appoints a Chief Executive Officer, the Chief Executive Officer shall have the
same rights and powers granted to the President in these Bylaws. Any
two or more offices may be held by the same person.
3.2
Term
. The term of office of all
officers commences upon their appointment and continues until their successors
are appointed or until their resignation or removal.
3.3
Removal
. Any officer or agent
appointed by the Board of Directors may be removed by the Board of Directors at
any time with or without cause.
3.4
President
. The President shall be the
Chief Executive Officer of the Corporation unless the Board of Directors
appoints a Chief Executive Officer, in which case the Chief Executive Officer
shall be Chief Executive Officer of the Corporation. Subject to the
control of the Board of Directors, the Chief Executive Officer shall be
responsible for the general operation of the Corporation. The Chief Executive
Officer shall have any other duties and responsibilities prescribed by the Board
of Directors. Unless otherwise determined by the Board of Directors,
the Chief Executive Officer shall have authority to vote any shares of stock
owned by the Corporation and to delegate this authority to any other
officer.
3.5
Secretary
. The Secretary shall record
and keep the minutes of all meetings of the directors and shareholders in one or
more books provided for that purpose and perform any other duties prescribed by
the Board of Directors or the Chief Executive Officer.
3.6
Treasurer
. The Treasurer shall have
the care and custody of and be responsible for all the funds and securities of
the Corporation and shall perform any other duties prescribed by the Board of
Directors or the Chief Executive Officer.
ARTICLE
4
ISSUANCE
OF SHARES
4.1
Adequacy of
Consideration
. The authorization by the
Board of Directors of the issuance of shares for stated consideration shall
evidence a determination by the Board that such consideration is
adequate.
ARTICLE
5
INDEMNIFICATION
5.1
Third Party
Actions
. The corporation shall 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, except an action by or in the right of the corporation, by reason
of the fact that he 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 him or her in connection with the action, suit or proceeding if he acted 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 no reasonable cause to believe his or her conduct
was
unlawful. The
termination of any action, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does 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 that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his or her conduct was
unlawful.
5.2
Derivative
Actions.
The
corporation shall 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 he 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 amounts paid in
settlement and attorneys’ fees actually and reasonably incurred by him or her in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification shall not
be made for any claim, issue or matter as to which such a person has been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the corporation or for amounts paid in settlement to
the corporation, unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction determines
upon application that in view of all the circumstances of the case, the person
is fairly and reasonably entitled to indemnity for such expenses as the court
deems proper.
5.3
Success on
Merits or Otherwise
. To the extent that a
director, officer, employee or agent of the corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Sections 1 and 2 of this Article V or in defense of any claim, issue or
matter therein, he shall be indemnified by the corporation against expenses,
including attorneys’ fees, actually and reasonably incurred by him or her in
connection with the defense.
5.4
Determination
. Any indemnification under
Sections 1 and 2 of this Article V, unless ordered by a court or advanced
pursuant to Section 5 of this Article V, shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The
determination must be made:
5.4.1
By the
shareholders;
5.4.2
By the board of directors by majority
vote of a quorum consisting of directors who were not parties to the act, suit
or proceeding;
5.4.3
If a majority vote of a quorum
consisting of directors who were not parties to the act, suit or proceeding so
orders, by independent legal counsel in a written opinion;
or
5.4.4
If a quorum consisting of directors who
were not parties to the act, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
5.5
Payment in
Advance
. The expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding shall be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this Section 5
do not
affect any rights to advancement of expenses to which corporate personnel other
than directors or officers may be entitled under any contract or otherwise by
law.
5.6
Other
Indemnification; Period of Indemnification
. The indemnification and
advancement of expenses authorized in or ordered by a court pursuant to this
Article V:
5.6.1
Does not exclude any other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under the Articles of Incorporation, these Bylaws, an agreement, vote
of shareholders or disinterested directors or otherwise, for either an action in
his or her official capacity or an action in another capacity while holding his
or her office, except that indemnification, unless ordered by a court pursuant
to Section 2 of this Article V or for the advancement of expenses made pursuant
to Section 5 of this Article V, may not be made to or on behalf of any director
or officer if a final adjudication establishes that his or her acts or omissions
involved intentional misconduct, fraud or a knowing violation of the law and was
material to the cause of action.
5.6.2
Continues for a person who has ceased
to be a director, officer, employee or agent with respect to events occurring
during their tenure and inures to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE
6
AMENDMENTS
6.1
The Corporation’s Board of Directors
may amend these Bylaws, except to the extent that the Articles of Incorporation,
these Bylaws, or Chapter 78 of the Nevada Revised Statutes reserve this power
exclusively to the shareholders in whole or in part. The Corporation’s
shareholders may amend or repeal the Corporation’s Bylaws even though the Bylaws
may also be amended or repealed by the Corporation's Board of
Directors.
ARTICLE
7
ELECTION
NOT TO BE GOVERNED BY CERTAIN PROVISIONS OF THE NEVADA REVISED
STATUTES
7.1
The Corporation will NOT be governed by
the provisions of Nev. Rev. Stat. §§ 78.378 through and including
78.3793, as amended (Acquisition of Controlling Interest). None of
the aforementioned provisions in any way whatsoever will affect the management
or operation of the Corporation or be applied to the
Corporation.
Adopted: December
5, 2008