The following table sets forth the number of outstanding shares of common stock beneficially owned, and the percentage of the class
beneficially owned, as of April 29, 2020, by:
The number of shares of common stock beneficially owned by each person is determined under the rules of the SEC. Under these rules, beneficial
ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares that the individual has the right to acquire by June 28, 2020 (60 days after April 29, 2020) through the
exercise or conversion of a security or other right. Unless otherwise indicated, each person has sole investment and voting power, or shares such power with a family member, with respect to the shares set forth in the following table.
The inclusion in this table of any shares deemed beneficially owned does not constitute an admission of beneficial ownership of those shares for any other purpose. As of April 29, 2020, there were 17,548,910 shares of common stock
outstanding. Shares not outstanding, but deemed beneficially owned by virtue of the right of a person to acquire those shares, are treated as outstanding only for purposes of determining the number and percent of shares of common stock
owned by such person or group. Unless otherwise noted below, the address of each person listed in the table is in care of Chembio Diagnostics, Inc., 555 Wireless Boulevard, Hauppauge, New York 11788.
Section 16(a) of the Securities Exchange Act requires our executive officers and directors and any persons owning ten percent or more of the
common stock to file reports with the SEC to report their beneficial ownership of common stock
Based solely upon a review of the Section 16(a) reports furnished to us, along with written representations from our executive officers and directors, we believe
that all required reports were timely filed during 2019, except that one report reporting one transaction on behalf of John J. Sperzel III, our former Chief Executive Officer and President, was filed on an untimely basis.
Our director compensation program is intended to enhance our ability to attract, retain and motivate non-employee directors of exceptional
ability and to promote the common interest of directors and stockholders in enhancing the value of the common stock. The board of directors reviews director compensation at least annually based on recommendations by the nominating and
governance committee. The nominating and governance committee has the sole authority to engage a consulting firm to evaluate director compensation.
Under our non-employee director compensation program, each qualifying non-employee director is eligible to receive compensation for board and
committee service consisting of annual cash retainers and equity awards. Directors also may be paid for serving on ad hoc committees of the board. In 2019, our qualifying non-employee directors received the following compensation for
their service on the board:
The following table shows the total compensation for non-employee directors during 2019. John J. Sperzel III, our former
Chief Executive Officer and President was our sole executive officer who served as a member of the board during 2019, and he did not receive any additional compensation for his service as a director. In light of our financial position
and circumstances, the compensation committee determined to forego any equity award grants to non-employee directors with respect to 2019.
Summary Compensation Table
We are eligible, and have chosen, to comply with the executive and director compensation disclosure rules applicable to a “smaller reporting
company,” as defined in applicable SEC rules.
The following table provides information concerning the compensation paid for 2019 and 2018 to our “named executive officers” as of December
31, 2019, who consisted of our former Chief Executive Officer and President and our next two most highly compensated executive officers during 2019.
Name and Principal Position
|
|
Year
|
|
Salary($)
|
|
Bonus($)
|
|
Stock
Awards($)(1)
|
|
All Other
Compensation($)
|
|
Total($)
|
John J. Sperzel III(2)
|
|
2019
|
|
463,846
|
|
—
|
|
2,175,000
|
|
—
|
|
2,638,877
|
Former Chief Executive Officer and President
|
|
2018
|
|
416,847
|
|
89,250
|
|
950,000
|
|
—
|
|
1,456,097
|
Neil A. Goldman
|
|
2019
|
|
319,039
|
|
23,767
|
|
—
|
|
4,130
|
|
347,026
|
Executive Vice President and Chief Financial Officer
|
|
2018
|
|
294,231
|
|
50,400
|
|
300,000
|
|
2,769
|
|
647,000
|
Javan Esfandiari
|
|
2019
|
|
373,299
|
|
27,983
|
|
—
|
|
8,697
|
|
410,009
|
Executive Vice President and Chief Science and Technology Officer
|
|
2018
|
|
357,807
|
|
72,450
|
|
375,000
|
|
7,391
|
|
791,948
|
(1)
|
Reflects the aggregate grant date fair value of any restricted common stock granted determined in accordance with Financial Accounting Standards Board Accounting Standards
Codification Topic 718, Compensation—Stock Compensation. Assumptions used in the calculation of this amount are included in Note 10. Equity Incentive to the Consolidated Financial Statements included in our Annual Report. This
amount does not reflect the actual economic value realized by each named executive officer.
|
(2)
|
Mr. Sperzel resigned as our Chief Executive Officer and President and one of our directors effective as of January 3, 2020. For additional information, including severance
benefits paid to Mr. Sperzel, see “—Agreements” below
|
Narrative Explanation of the Summary Compensation
Table
The compensation paid to our named executive officers consists of the following components:
|
•
|
performance-based cash bonuses;
|
|
•
|
long-term incentive compensation in the form of restricted stock units and stock options; and
|
|
•
|
benefits consisting principally of housing subsidies and health and welfare plan contributions.
|
Grants of Plan-Based Awards
2019 Annual Incentive Bonus Plan
We have established an annual incentive bonus plan, or the bonus plan, intended to enhance stockholder value by aligning our performance with the variable-based
compensation of our executive officers. Participants are eligible to receive incentive bonuses based on their individual performance, the performance of our company, the performance of the operating group in which they work, or other
performance metrics established by the compensation committee with respect to a calendar year. In order to be eligible for a bonus for a calendar year, an individual must be identified by the compensation committee as a participant
under the bonus plan for such year and must continue to be employed as of December 31 of that year and as of the payment date of the bonus. A participant hired after commencement of a plan year is eligible for a pro-rated bonus, based
on the date of hire. For 2019, the compensation committee did not make any awards under the Annual Bonus Plan.
2019 Discretionary Bonuses
In light of numerous changes and developments during 2019, many of which could not be foreseen as of the beginning of 2019, and their
individual performance during 2019, in March 2020 the compensation committee awarded discretionary bonuses to Neil A. Goldman in the amount of $23,767 and Javan Esfandiari in the amount of $27,983.
2019 Equity Awards
The following table sets forth certain information with respect to a grant of plan-based awards to John J. Sperzel III, the only named
executive officer to whom we granted an award in 2019. Please see “—Outstanding Equity Awards at December 31, 2019” below for additional information regarding the vesting parameters applicable to this award.
Grantee
|
Grant Date
|
Award Type
|
Number of Securities
|
Equity Compensation Plan
|
John J. Sperzel III
|
June 18, 2019
|
Restricted stock
|
375,000
|
2019 Omnibus Incentive Plan
|
On February 20, 2020, the board of directors adopted Equity Award Grant Guidelines, or the Guidelines, in the form
recommended by the compensation committee. The Guidelines are intended to establish procedures for granting of equity-based awards that minimize the opportunity – or the perception of an opportunity – for Chembio to time an equity award
grant in a manner that could take advantage of any material nonpublic information or could result in an assertion that the equity award has been are priced at a value less than the fair market value of common stock on the grant date.
Under the Guidelines, the compensation committee generally is to consider and, if approved, grant equity awards to our employees once annually during the first quarter of the fiscal year, on the first Monday that follows the date on
which we file our Annual Report on Form 10-K. The Guidelines contemplate that the compensation committee may, from time to time, determine that it is in our best interests to deviate from the foregoing terms with respect to the grant of
an equity award, in which case such Equity Award must be reviewed and approved by the board.
Outstanding Equity Awards at December 31, 2019
The following table sets forth information regarding each unexercised option held by each of our named executive officers as of December 31,
2019:
|
|
|
|
Name
|
|
Number of Securities
Underlying
Unexercised Options
(#)
Exercisable
|
|
Number of Securities
Underlying
Unexercised Options
(#)
Unexercisable(1)
|
|
Option
Exercise Price($)
|
|
Option
Expiration Date
|
Number of
Shares that have
not Vested(#)(2)
|
Market Value of
Shares that have
not Vested($)
|
John J. Sperzel III
|
|
250,000
|
|
—
|
|
$3.4163
|
|
03/21/21
|
440,631(3)
|
2,808,339
|
|
|
5,000
|
|
—
|
|
5.25
|
|
03/15/22
|
—
|
—
|
|
|
—
|
|
20,000(4)
|
|
5.3666
|
|
03/31/24
|
—
|
—
|
Neil A. Goldman
|
|
83,334
|
|
41,667(5)
|
|
7.04
|
|
12/18/24
|
20,725(6)
|
199,996
|
Javan Esfandiari
|
|
20,000
|
|
—
|
|
5.64
|
|
03/11/21
|
25,907(6)
|
250,003
|
(1)
|
As of December 31, 2019, a total of 148,667 shares of common stock were subject to outstanding option that were not exercisable.
|
(2)
|
As of December 31, 2019, a total of 545,986 shares of common stock were subject to outstanding stock awards that had not vested.
|
(3)
|
375,000 shares of common stock were to vest on November 11, 2022, and one-half of the remaining 65,631 shares of common stock were to vest on each of October 8, 2020 and 2021.
All of these unvested shares were forfeited upon Mr. Sperzel’s termination of employment as of January 3, 2020.
|
(4)
|
All of these options were to vest and become exercisable on March 31, 2020. Mr. Sperzel’s right to purchase these unvested shares was cancelled upon the termination of his
employment.
|
(5)
|
All of these options will vest and become exercisable on December 18, 2020.
|
(6)
|
One-half of these shares will vest and become exercisable on each of October 8, 2020 and 2021.
|
For information regarding the vesting acceleration provisions applicable to the options held by our named executive officers, please see
“—Agreements” below.
Richard L. Eberly
Effective as of March 16, 2020, we entered into an employment agreement with Richard L. Eberly to serve as our Chief Executive Officer
and President. The employment agreement provides for our at-will employment of Mr. Eberly as our Chief Executive Officer and President for an initial term commencing March 16, 2020 and expiring December 31, 2021. The term will extend
automatically for additional calendar years as of each January 1 (commencing January 1, 2022), unless either party delivers, by no later than the immediately preceding October 1 (initially October 1, 2021), a written notice to the
other party that the term will not be extended. Under the terms of the employment agreement, we will pay Mr. Eberly an annual base salary of $400,000, which amount is subject to annual review by the compensation committee and may be
increased, but not decreased. In accordance with the terms of the employment agreement, we granted to Mr. Eberly
on March 16, 2020 a restricted stock unit, or RSU, award to acquire, without payment of any purchase price, up to 233,589 shares of common stock. Subject to Mr. Eberly’s continued service with us, the RSU award will vest in three
equal installments as of March 16 of each of 2021, 2022 and 2023, except that vesting will accelerate in full upon the occurrence of a Change in Control or upon his death or Permanent Disability (each such capitalized term as defined
in the employment agreement). If Mr. Eberly’s employment is terminated or not renewed by us without Cause or by Mr. Eberly for Good Reason (each such capitalized term as defined in the employment agreement), the RSU award will vest
in full and, in addition, we will be required to pay to Mr. Eberly an amount equal to his base salary and a pro rata bonus amount, each with respect to the year in which the termination occurs.
Mr. Eberly’s employment agreement also contemplates that the board will nominate Mr. Eberly for election as a director at our 2020 Annual
Meeting of Stockholders.
Gail S. Page
Effective January 9, 2020 and amended on June 16, 2020, we entered into a letter agreement, or the Interim CEO Agreement, with Gail S. Page with respect to her appointment
to serve as our Interim Chief Executive Officer. The Interim CEO Agreement provided for the at-will employment of Ms. Page as our Interim Chief Executive Officer for a term that expired on March 16, 2020, when Richard L. Eberly began
serving as our Chief Executive Officer and President. Under the terms of the Interim CEO Agreement, we agreed to pay Ms. Page a base salary at an annualized rate of $460,000 during the term of her service and we granted to her, under
our 2019 Omnibus Incentive Plan, a total of 30,864 restricted shares of common stock, which shares vested when Mr. Eberly began serving as our Chief Executive Officer and President. Ms. Page also received a bonus of $150,000 for her
performance, including her assistance in identifying and recruiting Mr. Eberly as Chief Executive Officer without our having to retain an executive search firm. In addition, in the Interim CEO Agreement Ms. Page agreed to make herself
reasonably available to consult with our representatives on transition matters for a period extending through June 14, 2020 following the end of the term of the Interim CEO Agreement, for which she received transition service fees
totaling approximately $113,000.
Effective June 15, 2020, we entered into a letter agreement, or the Executive Chair Agreement, with Ms. Page with respect to her service as the Executive Chair of
the board of directors. The Executive Chair Agreement provides that, subject to her reelection to the board at our 2020 Annual Meeting of Stockholders, Ms. Page will serve as our Executive Chair for a term continuing up to the time of
our 2021 Annual Meeting of Stockholders. As Executive Chair, Ms. Page will have all of the duties, responsibilities and authority commensurate with the position of Chair of the Board. For at least the period extending through December
31, 2020, she also will (a) to the extent specifically requested by Mr. Eberly, as Chief Executive Officer and President, advise Mr. Eberly on a strategic level with respect to operations and finance and advise other members of the
Company’s management as Mr. Eberly specifies and (b) serve as mentor to Mr. Eberly by providing advice, counseling and supervision when and as he may specifically request. Under the terms of the Executive Chair Agreement, in December
2020 the Compensation Committee will discuss and mutually evaluate with Ms. Page and Mr. Eberly the nature and extent of the duties, responsibilities and authority that Ms. Page will have as Executive Chair after January 1, 2020. The
Executive Chair Agreement provides that Ms. Page’s duties and responsibilities as Executive Chair are to consist exclusively of actions taken to help the Board to fulfill its duties and responsibilities, and are not to include any
duties or responsibilities associated with the position of chief executive officer of any other management position. Under the Executive Chair Agreement, the Company will pay Ms. Page a cash retainer at an annualized rate of $175,000
for her commitment of one-half of her working time. She will not receive any equity award solely in connection with her service as Executive Chair.
Neil A. Goldman
Effective as of December 18, 2017 and as amended on January 21, 2019, we entered into an employment agreement with Neil A. Goldman to serve as
our Chief Financial Officer and Executive Vice President. In the event Mr. Goldman’s employment is terminated by reason of “disability” or for “cause,” each as defined in Mr. Goldman’s employment agreement, or due to Mr. Goldman’s
resignation or voluntary termination, all compensation, including his base salary, his right to receive a performance bonus, and benefits, and the vesting of any unvested equity awards, will cease as of his termination date, and Mr.
Goldman will receive no severance benefits. If we terminate Mr. Goldman’s employment without cause or Mr. Goldman terminates his employment for a “reasonable basis”, as defined in his employment agreement (which includes involuntary
termination within a six-month period upon a “Change of Control”), then we will be required to pay Mr. Goldman his base salary and our monthly share of health insurance premiums for a period of twelve months as severance, and all of his
unvested equity awards will vest immediately. Mr. Goldman’s employment agreement also contains provisions prohibiting Mr. Goldman from (i) soliciting our employees for a period of twenty-four months following his termination, (ii)
soliciting our customers, agents, or other sources of distribution of our business for a period of twelve months following his termination, and (iii) except where termination is involuntary upon a “Change in Control”, for a period of
twelve months following termination of Mr. Goldman’s employment agreement (or for a period of six months after termination if Mr. Goldman is not entitled to severance under his employment agreement), competing with us. Mr. Goldman’s
employment agreement continued in effect through December 31, 2019, and commencing on January 1, 2020 and each January 1 thereafter, the term will be automatically extended for one additional year.
Javan Esfandiari
Effective as of March 5, 2016 and as amended on March 20, 2019, we entered into an employment agreement with Javan Esfandiari to continue as our Chief Scientific
& Technology Officer and Executive Vice President for an additional term through December 31, 2021. In the event Mr. Esfandiari’s employment is terminated by reason of “disability” or for “cause,” each as defined in Mr. Esfandiari’s
employment agreement, or due to Mr. Esfandiari’s resignation or voluntary termination, all compensation, including his base salary, his right to receive a performance bonus, and benefits, and the vesting of any unvested equity awards,
will cease as of his termination date, and Mr. Esfandiari will receive no severance benefits. If Mr. Esfandiari’s employment agreement is terminated by us without cause, or if Mr. Esfandiari terminates his employment agreement for a
“reasonable basis”, as defined in his employment agreement, including within 12 months of a change in control, we will be required to pay his base salary and our monthly share of health insurance premiums for a period of twelve months
as severance, and all of his unvested equity awards will vest immediately. Mr. Esfandiari’s employment agreement also contains provisions prohibiting Mr. Esfandiari from (i) soliciting our employees for a period of 24 months following
his termination, (ii) soliciting our customers, agents, or other sources of distribution of our business for a period of twelve months following his termination, and (iii) except where termination is involuntary upon a “Change in
Control”, for a period of twelve months following his termination, competing with us.
John J. Sperzel III
Effective as of March 13, 2017, we entered into an employment agreement with John J. Sperzel III, which we refer to as the Sperzel Employment
Agreement, to serve as Chief Executive Officer for a term of three years. Under the Sperzel Employment Agreement:
|
•
|
if Mr. Sperzel’s employment were to be terminated by reason of “disability” or for “cause,” each as defined in the employment agreement, all compensation, including his base
salary, his right to receive a performance bonus, and the vesting of any unvested equity awards, would cease as of his termination date and he would receive no severance benefits; and
|
|
•
|
we would be required to pay Mr. Sperzel severance benefits that included continued base salary for twelve months, a pro rata annual bonus (based on actual performance),
continued payment of our monthly share of health insurance premiums for twelve months, and accelerated vesting of his outstanding equity awards if:
|
|
•
|
Mr. Sperzel’s employment were to be terminated by us without “cause” or by Mr. Sperzel for a “reasonable basis” (each as in Sperzel Employment Agreement, which included
involuntary termination within a six-month period upon a defined change of control of Chembio); or
|
|
•
|
we and Mr. Sperzel did not enter into a new employment agreement prior to expiration of the Sperzel Employment Agreement for any reason.
|
The Sperzel’s Employment Agreement contained provisions prohibiting Mr. Sperzel from (i) soliciting our employees for a period of two years
following his termination, (ii) soliciting our customers, agents and other sources of distribution for a period of one year following his termination, and (iii) except where termination is involuntary upon a defined change in control,
competing with us during the period in which he is entitled to severance, or for a period of six months if he is not entitled to severance payments under his employment agreement.
Effective as of January 7, 2020, we entered into a Separation and Release Agreement with Mr. Sperzel, which we refer to as the Separation Agreement, under which
Mr. Sperzel’s resignation was deemed effective as of 5 p.m. (Eastern time) on January 3, 2020. The Separation Agreement provided for our payment to Mr. Sperzel of unpaid base salary and unreimbursed business expenses through his
separation date, together with a severance payment of $1,000,000 payable over twelve months, as would have been required under the Sperzel Employment Agreement as the result of a replacement employment agreement with Mr. Sperzel not
being executed. In consideration for the severance payment, Mr. Sperzel agreed to: (a) release claims in favor of our company and our subsidiaries and affiliated companies; (b) consult with us on transition matters for ninety days; (c)
comply with various restrictive covenants, including a perpetual nondisparagrement covenant, a perpetual confidentiality covenant, a covenant not to solicit our employees for two years, a covenant not to interfere with our customers and
business partners for one year, and a covenant not to compete with our business activities for one year; and (d) assist us in connection with any litigation or other disputes. As described in the preceding paragraph, under the Sperzel
Employment Agreement, we were obligated to pay certain severance benefits to Mr. Sperzel if we did not enter into a new employment agreement with him by March 13, 2020. Those severance benefits under the Sperzel Employment Agreement
included continued base salary for twelve months, a pro rata annual bonus (based on actual performance), continued payment of our monthly share of health insurance premiums for twelve months, and accelerated vesting of his outstanding
equity awards. Under the Separation Agreement, Mr. Sperzel agreed that none of his 440,631 restricted shares of common stock and none of his unvested options to acquire 8,333 shares of common stock would accelerate, notwithstanding the
terms of the Sperzel Employment Agreement.
Equity Compensation Plan Information
The following table provides information as of December 31, 2019 with respect to shares of common stock that may be issued under equity plans
and standalone option grants:
COMMON STOCK ISSUABLE UNDER EQUITY PLANS
Plan Category
|
|
Number of
Securities to be
Issued Upon
Exercise of
Outstanding
Options, Warrants
and Rights
|
|
Weighted Average
Exercise Price of
Outstanding
Options, Warrants
|
|
Number of
Securities to be
Issued Upon
Exercise of
Outstanding
Restricted Stock
Units
|
|
Weighted Average
Exercise Price of
Outstanding
Options, Warrants
and Rights
|
|
Number of Securities
Remaining Available for
Future Issuance Under
Equity Compensation
Plans
|
Equity compensation plans approved by stockholders(1)
|
|
642,625
|
|
$5.79
|
|
13,817
|
|
$9.65
|
|
2,173,667
|
Equity compensation plans not approved by stockholders
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
Totals
|
|
642,625
|
|
|
|
13,817
|
|
|
|
2,173,667
|
(1)
|
“Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights” consists of 99,132 shares under the 2008 Stock Incentive Plan, 336,625 shares under
the 2014 Stock Incentive Plan, and 206,868 shares issued outside of those plans. “Number of Securities to be Issued Upon Exercise of Outstanding Restricted Stock Unit” consists of 13,817 shares under the 2014 Stock Incentive
Plan. “Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans” consists of 2,173,667 shares available under the 2019 Omnibus Incentive Plan.
|
Principal Independent Auditor Fees
The following table sets forth the aggregate fees billed to us by BDO for professional services rendered for the fiscal years ended December
31, 2019 and 2018:
|
2019
|
2018
|
Audit Fees(1)
|
$442,500
|
$548,863
|
Audit-related Fees(2)
|
83,500
|
87,780
|
Tax Fees(3)
|
15,375
|
21,000
|
All Other Fees
|
$541,375
|
$657,643
|
(1)
|
Includes services relating to the audit of annual consolidated financial statements, review of quarterly consolidated financial statements, statutory audits, comfort letters,
and consents and review of documentation filed with SEC-registered and other securities offerings.
|
(2)
|
Includes services related to assistance with general accounting matters, work performed on acquisitions and divestitures, employee benefit plan audits and assistance with
statutory audit matters.
|
(3)
|
Includes services for tax compliance, tax advice and tax planning.
|
Audit Committee Pre-Approval Policies and
Procedures
The audit committee approves in advance all audit and non-audit services performed by the independent registered public accounting firm. There
are no other specific policies or procedures relating to the pre-approval of services performed by the independent registered public accounting firm.
Report of Audit Committee
The Audit Committee of the Board of Directors consists entirely of members who meet the independence requirements of Nasdaq and the rules and regulations of the SEC, as determined by the board of
directors. The Audit Committee is responsible for providing independent, objective oversight of the financial reporting processes and internal controls of Chembio Diagnostics, Inc., or Chembio. The Audit Committee operates under a
written charter approved by the board. A copy of the current charter is available on Chembio’s website at chembiodiagnosticsinc.gcs-web.com/static-files/9834f839-d259-45c5-8b25-f6fce52b724a.
Management is responsible for Chembio’s system of internal control and financial reporting processes, for the preparation of consolidated
financial statements in accordance with U.S. generally accepted accounting principles and for the annual report on Chembio’s internal control over financial reporting. The independent auditor is responsible for performing an independent
audit of Chembio s consolidated financial statements in accordance with the standards of the Public Company Accounting Oversight Board, or PCAOB, and for issuing a report on the financial statements and the effectiveness of Chembio’s
internal control over financial reporting. The Audit Committee’s responsibility is to monitor and oversee these processes. Audit Committee members do not serve as professional accountants or auditors for Chembio, and their functions are
not intended to duplicate or certify the activities of Chembio’s management or independent auditor.
Consistent with its monitoring and oversight responsibilities, the Audit Committee met with management and BDO USA, LLP, or BDO, the former
independent auditor of Chembio, to review and discuss the December 31, 2019 audited consolidated financial statements. Management represented that Chembio had prepared the consolidated financial statements in accordance with U.S.
generally accepted accounting principles. The Audit Committee discussed with BDO the matters required by the PCAOB in accordance with Auditing Standard No. 1301, “Communications with Audit Committees.”
The Audit Committee received from BDO the written communication that is required by PCAOB Rule 3526, “Communication with Audit Committees Concerning Independence,”
and the Audit Committee discussed with BDO that firm’s independence. The Audit Committee also considered whether BDO’s provision of non-audit services and the audit and non-audit fees paid to BDO were compatible with maintaining that
firm’s independence. On the basis of these reviews, the Audit Committee determined that BDO has the requisite independence.
Management completed the documentation, testing and evaluation of Chembio’s system of internal control over financial reporting as of December 31, 2019 as required by Section 404 of the
Sarbanes-Oxley Act of 2002. The Audit Committee received periodic updates from management and BDO at Audit Committee meetings throughout the year and provided oversight of the process. Prior to filing Chembio’s Annual Report on Form
10-K for the fiscal year ended December 31, 2019, or the Form 10-K, with the SEC, the Audit Committee also reviewed management’s report on the effectiveness of Chembio’s internal control over financial reporting contained in the Form
10-K, as well as the Report of Independent Registered Public Accounting Firm provided by BDO and also included in the Form 10‑K. BDO’s report included in the Form 10-K related to its audit of Chembio’s consolidated financial
statements and the effectiveness of Chembio’s internal control over financial reporting.
Based upon the Audit Committee’s discussions with management and BDO and the Audit Committee’s review of the information provided by, and the representations of, management and BDO, the Audit
Committee recommended to the Board of Directors that the audited consolidated financial statements as of and for the year ended December 31, 2019 be included in Chembio’s Annual Report on Form 10-K for the year ended December 31,
2019. The Audit Committee selected Ernst & Young LLP as Chembio’s independent auditor for the fiscal year ending December 31, 2020, and recommended that the selection be submitted for ratification by the stockholders of Chembio.
Audit Committee
John G. Potthoff, Chair
Katherine L. Davis
Mary Lake Polan
Stockholder Proposals for 2021 Annual Meeting
In order for stockholder proposals for the 2021 Annual Meeting of Stockholders to be eligible for inclusion in the proxy statement and the
form of proxy card for that meeting, we must receive the proposals at our corporate headquarters, 555 Wireless Boulevard, Hauppauge, New York 11788, directed to the attention of our Secretary, no later than February 16, 2021, which is
120 calendar days prior to the anniversary of the date of the initial release of this Proxy Statement to our stockholders. If the date of the 2021 Annual Meeting of Stockholders is changed by more than 30 days from the anniversary of
the date of the 2020 Annual Meeting of Stockholders, however, the deadline will be a reasonable time before we begin to print and send our proxy materials for the 2021 Annual Meeting of Stockholders. In addition, all proposals will need
to comply with Rule 14a-8 of the Securities Exchange Act, which sets forth the requirements for the inclusion of stockholder proposals in our sponsored proxy materials.
Notice of any director nomination or other stockholder proposals before the 2021 Annual Meeting of Stockholders, but that are not intended to be included in the proxy statement and form of proxy
relating to the 2021 Annual Meeting of Stockholders, must be delivered to our corporate headquarters, 555 Wireless Boulevard, Hauppauge, New York 11788, directed to the attention of our Secretary, no earlier than March 30, 2020 and no
later than April 29, 2020. If the 2021 Annual Meeting of Stockholders is held before June 28, 2021 or after October 6, 2021, however, proposals must be delivered no earlier than 120 days before the date of the 2021 Annual Meeting of
Stockholders and no later than the later of 90 days before the date of the 2021 Annual Meeting of Stockholders and the tenth day following the day on which we first publicly announce the date of the 2021 Annual Meeting of
Stockholders. In addition, your notice must set forth the information required by our bylaws with respect to each director nomination or other proposal that you intend to present at the 2021 annual meeting of stockholders. A copy of
our current Nevada Bylaws is available at sec.gov/Archives/edgar/data/1092662/000114036118038547/ex3_2.htm, and a copy of the Delaware Bylaws, which will apply if Proposal 2 is approved and
the Reincorporation is effected, is included as Appendix D to this Proxy Statement.
Delivery of Documents to Security Holders Sharing an
Address
SEC rules permit us to deliver one Notice of Internet Availability to two or more stockholders who share an address, unless we have received
contrary instructions from one or more of the stockholders. This delivery method, which is known as “householding,” can reduce our expenses for printing and mailing. Any stockholder of record at a shared address to which a single copy
of the Notice of Internet Availability was delivered may request a separate Notice of Internet Availability, or a separate copy of the 2020 Annual Report and this Proxy Statement, by calling Alliance Advisors at +1.877.777.2857, or
sending a letter to Shareholder Services at Chembio Diagnostics, Inc., 555 Wireless Boulevard, Hauppauge, New York 11788, to the attention of our Secretary. Stockholders of record who wish to receive separate copies of these documents
in the future may also contact us as stated above. Stockholders of record who share an address and receive two or more copies of the Notice of Internet Availability may contact us as stated above to request delivery of a single copy. A
stockholder who holds shares in “street name” and who wishes to obtain copies of proxy materials should follow the instructions on the stockholder’s voting instruction form or should contact the holder of record.
We will pay all expenses of preparing, printing and mailing, and making available over the Internet, the Annual Meeting proxy materials, as well as all other expenses of soliciting proxies for the
Annual Meeting on behalf of the board of directors. Certain of our directors, officers and employees, who will receive no compensation in addition to their regular salary or other compensation, may solicit proxies by personal
interview, mail, telephone, facsimile, email, Internet or other means of electronic transmission.
Appendix A
of
CHEMBIO DIAGNOSTICS, INC.,
A Nevada Corporation,
into
CHEMBIO DIAGNOSTICS, INC.
A Delaware Corporation
This Plan of Conversion has been adopted by Chembio
Diagnostics, Inc., a Nevada corporation (the “Company”), as of , 2020 ( the “Plan”).
Whereas, the Company is a corporation organized and
existing under the laws of the State of Nevada;
Whereas, the Board of Directors of the Company (the “Board”) has determined that it would be advisable and in the best interests of the Company and its stockholders for the Company to convert from a Nevada corporation to a Delaware corporation (the “Conversion”) pursuant to Section 265 of the General Corporation Law of the State of Delaware (the “DGCL”) and Sections 92A.120 and 92A.250 of the Nevada
Revised Statutes (the “NRS”);
Whereas, the form, terms and provisions of this Plan
have been authorized, approved and adopted by the Board;
Whereas, the Board has submitted this Plan to the
stockholders of the Company for approval; and
Whereas, this Plan has been authorized, approved and
adopted by the holders of a majority of the voting power of the stockholders of the Company.
Now, Therefore, the Company hereby adopts this Plan as
follows:
(a) Conversion.
On the Effective Time (as defined below), the Company shall be converted from a Nevada corporation to a Delaware corporation pursuant to Section 265 of the DGCL and Sections 92A.120 and 92A.250 of the NRS and the Company, as
converted to a Delaware corporation (the “Converted Entity”), shall thereafter be subject to all of the provisions of the DGCL, except that notwithstanding Section 106 of the DGCL, the
existence of the Converted Entity shall be deemed to have commenced on the date the Company commenced its existence in the State of Nevada.
(b) Succession.
On the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its stockholders, the Converted Entity shall, for all purposes of the laws of the State of Delaware, be deemed to be the
same entity as the Company existing immediately prior to the Effective Time. Upon the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its stockholders, for all purposes of the
laws of the State of Delaware, all of the rights, privileges and powers of the Company existing immediately prior to the Effective Time, and all property, real, personal and mixed, and all debts due to the Company existing
immediately prior to the Effective Time, as well as all other things and causes of action belonging to the Company existing immediately prior to the Effective Time, shall remain vested in the Converted Entity and shall be the
property of the Converted Entity, and the title to any real property vested by deed or otherwise in the Company existing immediately prior to the Effective Time shall not revert or be in any way impaired by reason of the Conversion;
but all rights of creditors and all liens upon any property of the Company existing immediately prior to the Effective Time shall be preserved unimpaired, and all debts, liabilities and duties of the Company existing immediately
prior to the Effective Time shall remain attached to the Converted Entity upon the Effective Time, and may be enforced against the Converted Entity to the same extent as if said debts, liabilities and duties had originally been
incurred or contracted by the Converted Entity in its capacity as a corporation of the State of Delaware. The rights, privileges, powers and interests in property of the Company existing immediately prior to the Effective Time, as
well as the debts, liabilities and duties of the Company existing immediately prior to the Effective Time, shall not be deemed, as a consequence of the Conversion, to have been transferred to the Converted Entity upon the Effective
Time for any purpose of the laws of the State of Delaware. The Conversion shall not be deemed to affect any obligations or liabilities of the Company incurred prior to the Conversion or the personal liability of any person incurred
prior to the Conversion.
(c) Name of
Converted Entity. The name of the Converted Entity shall be “Chembio Diagnostics, Inc.”
2. Filings. As promptly as practicable following the adoption of this Plan by the Board and the stockholders of the Company, the Company shall cause the Conversion to be effective by:
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(a)
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executing and filing (or causing the execution and filing of) Articles of Conversion pursuant to Section 92A.205 of the NRS, substantially in the form of Exhibit A hereto (the “Nevada Articles of Conversion”), with the Secretary of State of the State of Nevada;
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(b)
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executing and filing (or causing the execution and filing of) a Certificate of Conversion pursuant to Sections 103 and 265 of the DGCL, substantially in the form of Exhibit B hereto (the “Delaware Certificate of Conversion”), with the Secretary of State of the State of Delaware; and
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(c)
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executing and filing (or causing the execution and filing of) a Certificate of Incorporation of the Converted Entity, substantially in the form of Exhibit
C hereto (the “Delaware Charter”), with the Secretary of State of the State of Delaware.
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3. Effective
Time. The Conversion shall become effective upon the last to occur of the filing of the Nevada Articles of Conversion, the Delaware Certificate of Conversion and the Delaware Charter
(the time of the effectiveness of the Conversion, the “Effective Time”).
4. Effect
of Conversion.
(a) Effect on Common
Stock. On the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its stockholders, each share of Common Stock, $0.01 par value per share, of the Company (“Company Common Stock”) that is issued and outstanding immediately prior to the Effective Time shall convert into one validly issued, fully paid and nonassessable share of Common Stock, $0.0001
par value per share, of the Converted Entity (“Converted Entity Common Stock”).
(b) Effect on
Outstanding Stock Options. On the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its stockholders, each option to acquire shares of Company Common Stock outstanding
immediately prior to the Effective Time shall convert into an equivalent option to acquire, upon the same terms and conditions (including the vesting schedule and exercise price per share applicable to each such option) as were in
effect immediately prior to the Effective Time, the same number of shares of Converted Entity Common Stock.
(c) Effect of
Conversion on Shares of Restricted Stock. On the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its stockholders, each restricted share of Company Common Stock
outstanding immediately prior to the Effective Time shall convert into an equivalent restricted share of Converted Entity Common Stock with the same terms and conditions (including the vesting schedule applicable to each such share)
as were in effect immediately prior to the Effective Time.
(d) Effect of
Conversion on Restricted Stock Units and Other Rights. On the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its stockholders, each restricted stock unit or other right
to acquire shares of Company Common Stock outstanding immediately prior to the Effective Time shall convert into an equivalent restricted stock unit or other right to acquire, upon the same terms and conditions (including the
vesting schedule and exercise price per share applicable to each such right) as were in effect immediately prior to the Effective Time, the same number of shares of Converted Entity Common Stock.
(e) Effect on Stock
Certificates. All of the outstanding certificates representing shares of Company Common Stock or Company Preferred Stock immediately prior to the Effective Time shall be deemed for all purposes to continue to evidence
ownership of and to represent the same number of shares of Converted Entity Common Stock.
(f) Effect on
Employee Benefit, Equity Incentive or Other Similar Plans. On the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its stockholders, each employee benefit plan, equity
incentive plan or other similar plan to which the Company is a party shall continue to be a plan of the Converted Entity. To the extent that any such plan provides for the issuance of Company Common Stock, upon the Effective Time,
such plan shall be deemed to provide for the issuance of Converted Entity Common Stock.
(g) Effect of
Conversion on Directors and Officers. On the Effective Time, by virtue of the Conversion and without any further action on the part of the Company or its stockholders, the members of the Board and the officers of the Company
holding their respective offices in the Company existing immediately prior to the Effective Time shall continue in their respective offices as members of the Board of Directors and officers, respectively, of the Converted Entity.
(h) Tax Reporting.
The Conversion is intended to constitute a tax-free reorganization qualifying under Section 368(a) of the Internal Revenue Code of 1986, as amended.
5. Further
Assurances. If, at any time after the Effective Time, the Converted Entity shall determine or be advised that any deeds, bills of sale, assignments, agreements, documents or assurances or any other acts or things are
necessary, desirable or proper, consistent with the terms of this Plan, (a) to vest, perfect or confirm, of record or otherwise, in the Converted Entity its right, title or interest in, to or under any of the rights, privileges,
immunities, powers, purposes, franchises, properties or assets of the Company existing immediately prior to the Effective Time, or (b) to otherwise carry out the purposes of this Plan, the Converted Entity and its officers and
directors (or their designees), are hereby authorized to solicit in the name of the Converted Entity any third-party consents or other documents required to be delivered by any third party, to execute and deliver, in the name and on
behalf of the Converted Entity, all such deeds, bills of sale, assignments, agreements, documents and assurances and do, in the name and on behalf of the Converted Entity, all such other acts and things necessary, desirable or
proper to vest, perfect or confirm its right, title or interest in, to or under any of the rights, privileges, immunities, powers, purposes, franchises, properties or assets of the Company existing immediately prior to the Effective
Time and otherwise to carry out the purposes of this Plan.
6. Bylaws.
On the Effective Time, the bylaws of the Converted Entity shall be the Bylaws of Chembio Diagnostics, Inc., substantially in the form of Exhibit D hereto.
7. Termination.
At any time before the Effective Date, this Plan may be terminated and the Conversion may be abandoned by the Board, notwithstanding the approval of this Plan by the stockholders of the Company or the consummation of the Conversion
may be deferred for a reasonable period of time if, in the opinion of the Board, such action would be in the best interests of the Company. In the event of termination of this Plan, this Plan shall become void and of no effect and
there shall be no liability on the part of the Company, the Board or the Company’s stockholders with respect thereto, except that the Company shall pay all expenses incurred in connection with the Conversion or in respect of this
Plan or relating thereto.
8. Miscellaneous.
(a) After the
Effective Time, a copy of this Plan will be kept on file at the offices of the Converted Entity, and any stockholder of the Converted Entity (or former stockholder of the Company) may request a copy of this Plan at no charge at any
time.
(b) This Plan shall
not confer any rights or remedies upon any person other than as expressly provided herein.
(c) Whenever possible,
each provision of this Plan will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Plan is held to be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Plan.
(d) For the purposes
of this Plan (i) the titles used in this Plan are used for convenience only and are not to be considered in construing or interpreting this Plan, (ii) the word “including” as used in this Plan shall not be construed so as to exclude
any other thing not referred to or described, (iii) the word “or” is not exclusive, and (iv) the Exhibits attached to this Plan are incorporated in and made a part of this Plan as if set forth herein.
In Witness Whereof, the undersigned hereby causes this
Plan to be duly executed as of the date and year first above written.
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Chembio Diagnostics, Inc.
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By:
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Richard L. Eberly
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Chief Executive Officer and President
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Appendix B
STATE OF DELAWARE
CERTIFICATE OF CONVERSION
FROM A NON-DELAWARE CORPORATION
TO A DELAWARE CORPORATION
PURSUANT TO SECTION 265 OF THE
DELAWARE GENERAL CORPORATION LAW
1.)
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The jurisdiction where the Non-Delaware Corporation first formed is Nevada.
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2.)
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The jurisdiction immediately prior to filing this Certificate is Nevada.
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3.)
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The date the Non-Delaware Corporation first formed is May 14, 1999.
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4.)
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The name of the Non-Delaware Corporation immediately prior to filing this Certificate is Chembio Diagnostics, Inc.
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5.)
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The name of the Corporation as set forth in the Certificate of Incorporation is Chembio Diagnostics, Inc.
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IN WITNESS WHEREOF, the undersigned being duly authorized to sign on behalf of the converting Non-Delaware Corporation has executed this Certificate on the day of
, A.D. 2020.
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By:
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Name:
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Richard L. Eberly
Print or Type
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Title:
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CEO and President
Print or Type
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Appendix C
Certificate of Incorporation
of
CHEMBIO DIAGNOSTICS, INC.
First: The name of the corporation is Chembio Diagnostics,
Inc. (the “Corporation”).
Second: The address of the Corporation’s registered office in the
State of Delaware is 251 Little Falls Drive, Wilmington, County of New Castle, Delaware 19808. The registered agent at such address is Corporation Service Company.
Third: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the Delaware General Corporation Law (the “DGCL”).
Fourth: The total
number of shares of stock that the Corporation shall have authority to issue shall be 110,000,000 shares, consisting of 100,000,000 shares of Common Stock, par value $0.0001 per share (“Common Stock”),
and 10,000,000 shares of Preferred Stock, par value $0.0001 per share (“Preferred Stock”). Subject to the rights of the holders of any series of Preferred Stock then outstanding, the number
of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of
the Corporation entitled to vote thereon, irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of holders of Common Stock or Preferred Stock voting separately as a class shall be required therefor.
1. General. All shares of Common Stock will be identical and
will entitle the holders thereof to the same rights, powers and preferences. The rights, powers and preferences of the holders of Common Stock are subject to and qualified by the rights, powers and preferences of holders of
Preferred Stock.
2. Dividends. Dividends may be declared and paid on Common
Stock from funds lawfully available therefor as and when determined by the Board of Directors of the Corporation (the “Board”) and subject to any preferential dividend rights of any
then-outstanding Preferred Stock.
3. Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation, whether voluntary or involuntary, each issued and outstanding share of Common Stock shall entitle the holder thereof to receive an equal portion of the net
assets of the Corporation available for distribution to the holders of Common Stock, subject to any preferential rights of any then-outstanding Preferred Stock.
4. Voting Rights. Except as otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held of record by such holder on the books of the Corporation for the election of directors and on all matters
submitted to a vote of stockholders of the Corporation. Except as otherwise required by law or provided herein, holders of Common Stock shall vote together with holders of Preferred Stock as a single class, subject to any special or
preferential voting rights of any then-outstanding Preferred Stock. There shall be no cumulative voting.
1. Issuance of Series. Preferred Stock may be issued in one or more series at such time or times and for such consideration or considerations as
the Board may determine. Each series shall be so designated as to distinguish the shares thereof from the shares of all other series and classes. Except as otherwise provided in this Certificate of Incorporation or by applicable law,
different series of Preferred Stock shall not be construed to constitute different classes of shares for the purpose of voting by classes.
2. Authorization of Series. The Board is expressly authorized to provide for the issuance of all or any shares of the undesignated Preferred
Stock in one or more series, each with such designations, preferences, voting powers (or special, preferential or no voting powers), relative, participating, optional or other special rights and such qualifications, limitations or
restrictions thereof as shall be stated in the resolution or resolutions adopted by the Board to create such series, and a certificate of said resolution or resolutions (a “Certificate of Designation”)
shall be filed in accordance with the DGCL. The authority of the Board with respect to each such series shall include the right to provide that the shares of each such series may be: (a) subject to redemption at such time or times and
at such price or prices; (b) entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable
on any other class or classes or any other series; (c) entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation; (d) convertible into, or exchangeable for, shares of any other class
or classes of stock, or of any other series of the same or any other class or classes of stock of the Corporation at such price or prices or at such rates of exchange and with such adjustments, if any; (e) entitled to the benefit of
such limitations, if any, on the issuance of additional shares of such series or shares of any other series of Preferred Stock; or (f) entitled to such other preferences, powers, qualifications and rights, all as the Board may deem
advisable and as are not inconsistent with law and the provisions of this Certificate of Incorporation.
Fifth:
1. Number of Directors. The number of directors of the Corporation shall be determined exclusively by resolution adopted by a majority of the
Entire Board. For purposes of this Certificate of Incorporation, the term “Entire Board” means the total number of authorized directors whether or not there exists any vacancies in previously
authorized directorships.
2. Election of Directors. Unless required by the Bylaws of the Corporation (as amended from time to time, the “Bylaws”),
the election of the Board need not be by written ballot.
3. Vacancies and Newly Created Directorships. Any vacancy in the Board, however occurring, and any newly created directorship resulting from an
enlargement of the Board, may be filled only by vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director.
Sixth: The following provisions are included for the management of the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its Board and stockholders:
1. General. The business and affairs of the Corporation shall
be managed by or under the direction of the Board.
2. Bylaws. The Board is expressly authorized to adopt, amend or
repeal the Bylaws. The stockholders shall also have the power to adopt, amend or repeal the Bylaws, provided that, in addition to any vote of the holders of any class or series of stock of
the Corporation required by law, a Certificate of Designation or this Certificate of Incorporation, the amendment of the Bylaws by the Corporation’s stockholders shall require the affirmative vote of the holders of at least
two-thirds of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
3. Books. The books of the Corporation may be kept at such
place within or without the State of Delaware as the Bylaws may provide or as may be designated from time to time by the Board.
Seventh: Subject to
the rights of holders of any series of Preferred Stock, no action shall be taken by the stockholders of the Corporation except at a duly called annual or special meeting of stockholders of the Corporation called in accordance with
the Bylaws and no action shall be taken by the stockholders by written consent or electronic transmission. Special meetings of stockholders may be called only on the order of a majority of the Entire Board, the Chair of the Board,
the Chief Executive Officer or the President (in the absence of the Chief Executive Officer). Advance notice of stockholder nominations for the election of directors of the Corporation and of business to be brought by stockholders
before any meeting of stockholders of the Corporation shall be given in the manner provided in the Bylaws. Business transacted at special meetings of stockholders shall be confined to the purpose or purposes stated in the notice of
meeting.
Eighth: The
Corporation shall indemnify, and advance expenses to, its officers and directors in the manner provided in the Bylaws.
Ninth: No director
of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, for any act or omission, except that a director may be liable (a) for breach of
the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL, or (d) for
any transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the
directors shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. The elimination and limitation of liability provided herein shall continue after a director has ceased to occupy such position as
to acts or omissions occurring during such director’s term or terms of office. Any amendment, repeal or modification of this Article Ninth shall not adversely affect any
right of protection of a director of the Corporation existing at the time of such repeal or modification.
1. Exclusive Forum for Internal Corporate Claims. Unless the
Corporation consents in writing to the selection of an alternative forum, the Court of Chancery in the State of Delaware shall be the sole and exclusive forum for all “internal corporate claims.” “Internal corporate claims” means
claims, including claims in the right of the Corporation, (i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity or (ii) as to which Title 8 of the Delaware Code
confers jurisdiction upon the Court of Chancery, except for, as to each of (i) through (ii) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the
Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum
other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction; provided, however, if (and only if) the Court of Chancery declines to accept jurisdiction over a particular matter, the
U.S. District Court for the District of Delaware shall be the sole and exclusive forum for all internal corporate claims unless the Corporation consents in writing to the selection of an alternative forum; provided, however, if (and
only if) the U.S. District Court for the District of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware (Complex Commercial Litigation Division) shall be the sole and
exclusive forum for all internal corporate claims unless the Corporation consents in writing to the selection of an alternative forum.
2. Exclusive Forum for Claims Under Securities Act of 1933.
Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of
action arising under the Securities Act of 1933.
3. Severability; Notice and Consent. If any provision or
provisions of this Article Tenth shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever,
then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article Tenth
(including each portion of any sentence of this Article Tenth containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be
invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby. Any person or entity purchasing or otherwise acquiring any
interest in any security of the Corporation shall be deemed to have notice of and consented to this Article Tenth.
Eleventh: The Corporation reserves the
right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to
this reservation, provided that, notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote,
but in addition to any vote of the holders of any class or series of the stock of the Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least two-thirds of the voting
power of the outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal, or adopt any provision of this
Certificate of Incorporation inconsistent with Article Fifth, Article Sixth, Article Seventh, Article Ninth, Article Tenth or this Article
Eleventh.
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Richard L. Eberly
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Chief Executive Officer and President
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Dated: , 2020
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Appendix D
Bylaws
of
CHEMBIO DIAGNOSTICS, INC.
(Adopted as of , 2020)
Table of Contents
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Page
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ARTICLE I Meetings of Stockholders
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1
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Section 1.1.
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Annual Meetings
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1
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Section 1.2.
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Special Meetings
|
1
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Section 1.3.
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Notice of Meetings
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1
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Section 1.4.
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Adjournments
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1
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Section 1.5.
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Quorum
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1
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Section 1.6.
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Organization
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2
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Section 1.7.
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Voting; Proxies
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2
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Section 1.8.
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Fixing Date for Determination of Stockholders of Record
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2
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Section 1.9.
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List of Stockholders Entitled to Vote
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3
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Section 1.10.
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Informed Action of Stockholders
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3
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Section 1.11.
|
Inspectors of Election
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3
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Section 1.12.
|
Conduct of Meetings
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4
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Section 1.13.
|
Notice of Stockholder Business and Nominations
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4
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ARTICLE II Board
|
8
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Section 2.1.
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Number; Qualifications
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8
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Section 2.2.
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Election; Resignation; Vacancies
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8
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Section 2.3.
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Regular Meetings
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8
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Section 2.4.
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Special Meetings
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8
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Section 2.5.
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Telephonic Meetings Permitted
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8
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Section 2.6.
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Quorum; Vote Required for Action
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8
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Section 2.7.
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Organization
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9
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Section 2.8.
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Action by Unanimous Consent of Directors
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9
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Section 2.9.
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Chair and Vice Chair of the Board
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9
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ARTICLE III Committees
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9
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Section 3.1.
|
Committees
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9
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Section 3.2.
|
Committee Rules
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9
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ARTICLE IV Officers
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9
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Section 4.1.
|
Officers
|
9
|
|
Section 4.2.
|
Removal, Resignation and Vacancies
|
10
|
|
Section 4.3.
|
Chief Executive Officer
|
10
|
|
Section 4.4.
|
President
|
10
|
|
Section 4.5.
|
Chief Operating Officer
|
10
|
|
Section 4.6.
|
Chief Financial Officer
|
10
|
|
Section 4.7.
|
Vice Presidents
|
10
|
|
Section 4.8.
|
Treasurer
|
11
|
|
Section 4.9.
|
Secretary
|
11
|
|
Section 4.10.
|
Additional Matters
|
11
|
|
Section 4.11.
|
Execution of Contracts and Instruments
|
11
|
|
|
|
|
ARTICLE V Stock
|
12
|
|
|
|
|
Section 5.1.
|
Certificates
|
12
|
|
Section 5.2.
|
Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates
|
12
|
|
|
|
|
ARTICLE VI Indemnification and Advancement of Expenses
|
12
|
|
Section 6.1.
|
Right to Indemnification
|
12
|
|
Section 6.2.
|
Prepayment of Expenses
|
12
|
|
Section 6.3.
|
Claims
|
12
|
|
Section 6.4.
|
Nonexclusivity of Rights
|
13
|
|
Section 6.5.
|
Other Sources
|
13
|
|
Section 6.6.
|
Amendment or Repeal
|
13
|
|
Section 6.7.
|
Other Indemnification and Advancement of Expenses
|
13
|
|
|
|
|
ARTICLE VII Miscellaneous
|
13
|
|
|
|
|
Section 7.1.
|
Fiscal Year
|
13
|
|
Section 7.2.
|
Seal
|
13
|
|
Section 7.3.
|
Method of Notice
|
13
|
|
Section 7.4.
|
Waiver of Notice
|
14
|
|
Section 7.5.
|
Form of Records
|
14
|
|
Section 7.6.
|
Amendment of Bylaws
|
14
|
|
Section 7.7.
|
Registered Stockholders
|
14
|
|
Section 7.8.
|
Facsimile Signature
|
14
|
|
Section 7.9.
|
Interpretation
|
14
|
ARTICLE I
Meetings of
Stockholders
Section
1.1. Annual Meetings. If required by applicable law, an annual meeting of
stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors (the “Board”) of Chembio
Diagnostics, Inc., a Delaware corporation (the “Corporation”) from time to time. Any other proper business may be transacted at the annual meeting.
Section
1.2. Special Meetings. Special meetings of stockholders for any purpose or
purposes, unless otherwise prescribed by statute or by the Corporation’s certificate of incorporation, as amended, restated, supplemented or otherwise modified (the “Certificate of Incorporation”), may be called at any time by the
order of a majority of the Entire Board, the Chair of the Board, the Chief Executive Officer or the President (in the absence of a Chief Executive Officer), but such special meetings may not be called by any other person or persons.
Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. For purposes of these bylaws, the term “Entire Board” shall mean the total number of authorized directors whether or
not there exist any vacancies in previously authorized directorships.
Section
1.3. Notice of Meetings. Whenever stockholders are required or permitted to
take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed
to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting)
and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, the notice of any meeting shall be given not less
than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at the meeting as of the record date for determining the stockholders entitled to notice of the meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.
Section
1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn
from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty days, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for
determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned
meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting.
Section 1.5. 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 of the holders of not less than one-third in voting power of the 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, then either (a) the chairperson of the meeting or (b) the stockholders so present (in person or by proxy) and entitled to vote may adjourn the meeting from time to time in the manner provided in Section 1.4 of these Bylaws until a quorum
shall attend. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by
the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any subsidiary of the Corporation to vote stock, including
its own stock, held by it in a fiduciary capacity.
Section
1.6. Organization. Meetings of stockholders shall be presided over by the Chair
of the Board or, in his or her absence, by the Chief Executive Officer or, in his or her absence, by the President or, in his or her absence, by a Vice President or, in the absence of all of the foregoing persons, by a chairperson
designated by the Board or, in the absence of such designation, by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any
person to act as secretary of the meeting.
Section
1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of
the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder that has voting power upon the matter in question.
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of
stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present, a plurality of the votes cast shall be sufficient to elect. All other elections and questions
presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock exchange applicable to the
Corporation, or applicable law or pursuant to any regulation applicable to the Corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the Corporation
that are present in person or by proxy and entitled to vote thereon.
Section
1.8. Fixing Date for Determination of Stockholders of Record.
(a)
In order that the Corporation may determine the stockholders
entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board,
and which record date shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the
stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record
date is fixed by the Board, 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. 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 determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an
earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In
order that the Corporation may determine the stockholders 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 a record date, which shall not be more than sixty days prior to such other action. If no such record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Section 1.9. List
of Stockholders Entitled to Vote. 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 (provided, however, if the
record date for determining the stockholders entitled to vote is less than ten days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), 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 at least ten days prior to the meeting (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (b) during ordinary
business hours at the principal place of business of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the
meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law,
the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.
Section 1.10. Informed
Action of Stockholders. No action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these Bylaws, and no action shall be taken by the stockholders by written
consent or electronic transmission.
Section
1.11. Inspectors of Election. The Corporation shall, in
advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Corporation may
designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (a) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of
each such share, (b) determine the shares of capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the inspectors, and (e) certify their determination of the number of shares of
capital stock of the Corporation represented at the
meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any
meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.
Section 1.12. Conduct
of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The
Board may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the
person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the presiding person of the meeting, may include the
following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in
the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (d) restrictions on entry to the meeting after
the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that
may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so
determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the
person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
Section 1.13. Notice
of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of the Corporation and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only (A) pursuant to
the Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or any committee thereof or (C) by any stockholder of the Corporation who was a stockholder of record of the Corporation at the
time the notice provided for in this Section 1.13 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 1.13.
(ii) For any nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of paragraph (a)(i) of this Section 1.13, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation and any such proposed business (other than the nominations of persons for election to the Board) must constitute a proper matter for stockholder action. To be timely, a
stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth day, nor earlier than the close of business on the one hundred
twentieth day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that no annual meeting was held in the previous year or if the date of the annual meeting is more than thirty
days before or more than seventy days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth day prior to such annual meeting and not later
than the close of business on the later of the ninetieth day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation). In no event
shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall
set forth: (A) as to each person whom the stockholder proposes to nominate for election as a director (I) 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 is otherwise required, in each case pursuant to and in accordance with Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated
thereunder and (II) such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (B) as to any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a
proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (I) the name and address of such stockholder,
as they appear on the Corporation’s books, and of such beneficial owner, (II) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and such
beneficial owner, (III) a description of any agreement, arrangement or understanding with respect to the nomination or proposal between or among such stockholder and/or such beneficial owner, any of their respective affiliates or
associates, and any others acting in concert with any of the foregoing, including, in the case of a nomination, the nominee, (IV) a description of any agreement, arrangement or understanding (including any derivative or short
positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the stockholder’s notice
by, or on behalf of, such stockholder and such beneficial owners, whether or not such instrument or right shall be subject to settlement in underlying shares of capital stock of the Corporation, the effect or intent of which is to
mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner, with respect to securities of the Corporation, (V) a representation that
the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, (VI) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group that intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock
required to approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies or votes from stockholders in support of such proposal or nomination, and (VII) any other information relating to such
stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of
directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder. The foregoing notice requirements of this Section 1.13 shall be
deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder has notified the Corporation of his, her or its intention to present a proposal at an annual meeting in compliance with applicable
rules and regulations promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation
may require any proposed nominee to furnish such other information as the Corporation may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation.
(iii) Notwithstanding
anything in the second sentence of paragraph (a)(ii) of this Section 1.13 to the contrary, in the event that the number of directors to be elected to the Board of the Corporation at the annual meeting is increased effective
after the time period for which nominations would otherwise be due under paragraph (a)(ii) of this Section 1.13 and there is no public announcement by the Corporation naming the nominees for the additional directorships at
least one hundred days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 1.13 shall also be considered timely, but only with respect to nominees for the
additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is
first made by the Corporation.
(b) Special
Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election
to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (i) by or at the direction of the Board or any committee thereof or (ii) provided
that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 1.13 is delivered to the
Secretary of the Corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 1.13. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s)
as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (a)(ii) of this Section 1.13 shall be delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the one hundred twentieth day prior to such special meeting and not later than the close of business on the later of the ninetieth day prior to such special meeting or the tenth day
following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(c) General.
(i) Except
as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 1.13 shall be eligible
to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 1.13. Except as otherwise provided by law, the chairperson of the meeting shall have the power and duty (A) to determine whether a nomination or any business proposed
to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 1.13 (including whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group that solicited) or did not so solicit, as the case may be, proxies or votes in support of such stockholder’s nominee or proposal in compliance with such stockholder’s
representation as required by clause (a)(ii)(C)(VI) of this Section 1.13) and (B) if any proposed nomination or business was not made or proposed in compliance with this Section 1.13, to declare that such nomination
shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 1.13, unless otherwise required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 1.13, to be considered a qualified representative of the stockholder, a person must be
a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at
the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(ii) For
purposes of this Section 1.13, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or other national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
(iii) Notwithstanding the foregoing provisions of this Section 1.13, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder
with respect to the matters set forth in this Section 1.13; provided however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not
limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 1.13 (including paragraphs (a)(i)(C) and (b) hereof), and compliance with paragraphs (a)(i)(C)
and (b) of this Section 1.13 shall be the exclusive means for a stockholder to make nominations or submit other business (other than, as provided in the penultimate sentence of (a)(ii), business other than nominations
brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time). Nothing in this Section 1.13 shall be deemed to affect any rights (A) of stockholders to request inclusion
of proposals or nominations in the Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act or (B) of the holders of any series of Preferred Stock to elect directors pursuant to
any applicable provisions of the Certificate of Incorporation.
ARTICLE II
Board
Section 2.1. Number;
Qualifications. Subject to the Certificate of Incorporation, the Board shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Entire Board. Directors need not be
stockholders.
Section 2.2. Removal;
Resignation; Vacancies. Any or all of the directors may be removed at any time, with or without cause, by the affirmative vote of the holders of at least two-thirds of the outstanding shares of Common Stock of the Corporation
entitled to vote at a meeting for the election of directors. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. Such resignation shall take effect when such notice is
given unless the notice specifies (a) a later effective date, or (b) an effective date determined upon the happening of an event or events, such as the failure to receive the required vote for reelection as a director and the
acceptance of such resignation by the Board. Unless otherwise specified in the notice of resignation, the acceptance of such resignation shall not be necessary to make it effective. Unless otherwise provided by law or the
Certificate of Incorporation, any newly created directorship or any vacancy occurring in the Board for any cause may be filled only by a majority of the remaining members of the Board, although such majority is less than a quorum,
and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.
Section 2.3. Regular
Meetings. Regular meetings of the Board may be held at such places within or without the State of Delaware and at such times as the Board may from time to time determine.
Section 2.4. Special
Meetings. Special meetings of the Board may be held at any time or place within or without the State of Delaware whenever called by the Chief Executive Officer, the Secretary or by any two members of the Board. Notice of the
place, date and time of each special meeting of the Board shall be given by the person or persons calling the meeting to each director either by first class United States mail at least three days before such special meeting, or by
overnight mail, courier service, electronic transmission, or hand delivery at least forty-eight hours before the special meeting or such shorter period as is reasonable under the circumstances. Unless otherwise indicated in the
notice thereof, any and all business may be transacted at a special meeting.
Section 2.5. Telephonic
Meetings Permitted. Members of the Board, or any committee designated by the Board, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 2.5 shall constitute presence in person at such meeting.
Section
2.6.
Quorum; Vote Required for Action. At all
meetings of the Board the directors entitled to cast a majority of the votes of the Entire Board shall constitute a quorum for the transaction of business. Except in cases in which the Certificate of Incorporation, these Bylaws or
applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board.
Section 2.7. Organization.
Meetings of the Board shall be presided over by the Chair of the Board or, in his or her absence, by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence, the
chairperson at the meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Action
by Unanimous Consent of Directors. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, 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 such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes
of proceedings of the board or committee in accordance with applicable law.
Section 2.9. Chair
and Vice Chair of the Board. The Board may elect one or more of its members to serve as Chair of the Board or as Vice Chair of the Board and may fill any vacancy in such position at such time and in such manner as the Board
shall determine. The Chair of the Board, if any, shall preside at all meetings of the Board at which he or she is present and shall perform such duties and possess such powers as are designated by the Board. If the Board appoints a
Vice Chair of the Board, he or she shall, in the absence or disability of the Chair of the Board perform the duties and exercise the powers of the Chair of the Board and shall perform such other duties and possess such other powers
as may from time to time be designated by the Board. The fact that a person serves as either Chair of the Board or Vice Chair of the Board shall not make such person considered an officer of the Corporation.
ARTICLE III
Committees
Section 3.1. Committees.
The Board may 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
he, she or they 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
provided in the resolution of 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 that may require it.
Section 3.2. Committee
Rules. Unless the Board otherwise provides, each committee designated by the Board may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the
same manner as the Board conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
Officers
Section
4.1.
Officers. The officers of the Corporation
shall consist of a Chief Executive Officer, a President, a Chief Financial Officer, a Treasurer, a Secretary, and such other officers as the Board may from time to time determine, which may include and one or more Vice Presidents,
Assistant Treasurers and Assistant Secretaries. Each of the Corporation’s officers shall be elected by the Board, each to have such authority, functions or duties as set forth in these Bylaws or as determined by the Board. Each
officer shall be chosen by the Board and shall hold office for such term as may be prescribed by the Board and until such person’s successor shall have been duly chosen and qualified, or until such person’s earlier death,
disqualification, resignation or removal.
Section 4.2. Removal,
Resignation and Vacancies. Any officer of the Corporation may be removed, with or without cause, by the Board, without prejudice to the rights, if any, of such officer under any contract to which it is a party. Any officer may
resign at any time upon written notice to the Corporation, without prejudice to any rights of the Corporation under any contract to which such officer is a party. If any vacancy occurs in any office of the Corporation, the Board may
elect a successor to fill such vacancy for the remainder of the unexpired term and until a successor shall have been duly chosen and qualified.
Section 4.3. Chief
Executive Officer. The Chief Executive Officer shall have general supervision and direction of the business and affairs of the Corporation and shall be responsible for corporate policy and strategy, and shall report directly
to the Chair of the Board. Unless otherwise provided in these Bylaws, all other officers of the Corporation shall report directly to the Chief Executive Officer or as otherwise determined by the Chief Executive Officer. The Chief
Executive Officer shall, if present and in the absence of the Chair of the Board, preside at meetings of the stockholders. In the absence of a separately appointed President, the Chief Executive Officer shall be the President.
Section 4.4. President.
The President shall be the chief operating officer of the Corporation, with general responsibility for the management and control of the operations of the Corporation. The President shall have the power to affix the signature of the
Corporation to all contracts that have been authorized by the Board or the Chief Executive Officer. The President shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other
duties as such officer may agree with the Chief Executive Officer or as the Board may from time to time determine. In the absence of a separately appointed President, the Chief Executive Officer shall be the President.
Section 4.5. Chief
Operating Officer. The Chief Operating Officer shall exercise all the powers and perform the duties of the office of the chief operating officer of the Corporation, with general responsibility for the management and control of the
operations of the Corporation. The Chief Operating Officer shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other duties as such officer may agree with the Chief Executive
Officer or as the Board may from time to time determine.
Section 4.6. Chief
Financial Officer. The Chief Financial Officer shall exercise all the powers and perform the duties of the office of the chief financial officer and in general have overall supervision of the financial operations of the
Corporation and 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. The Chief Financial Officer shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such
other duties as such officer may agree with the Chief Executive Officer or as the Board may from time to time determine. In the absence of a separately appointed Treasurer, the Chief Financial Officer shall be the Treasurer.
Section
4.7.
Vice Presidents. Each Vice President shall
have such powers and duties as shall be prescribed by his or her superior officer or the Chief Executive Officer. A Vice President shall, when requested, counsel with and advise the other officers of the Corporation and shall
perform such other duties as such officer may agree with the Chief Executive Officer or as the Board may from time to time determine.
Section 4.8. Treasurer.
The Treasurer shall supervise and be responsible for all the funds and securities of the Corporation, the deposit of all moneys and other valuables to the credit of the Corporation in depositories of the Corporation, borrowings and
compliance with the provisions of all indentures, agreements and instruments governing such borrowings to which the Corporation is a party, the disbursement of funds of the Corporation and the investment of its funds, and in general
shall perform all of the duties incident to the office of the Treasurer. The Treasurer shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other duties as such officer may
agree with the Chief Executive Officer or as the Board may from time to time determine.
Section 4.9. Secretary.
The powers and duties of the Secretary are to: (a) act as secretary at all meetings of the Board, of the committees of the Board and of the stockholders and to record the proceedings of such meetings in a book or books to be kept
for that purpose; (b) see that all notices required to be given by the Corporation are duly given and served; (c) act as custodian of the seal of the Corporation and affix the seal or cause it to be affixed to all certificates of
stock of the Corporation and to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws; (d) have charge of the books, records and papers
of the Corporation and see that the reports, statements and other documents required by law to be kept and filed are properly kept and filed; and (e) perform all of the duties incident to the office of Secretary. The Secretary
shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other duties as such officer may agree with the Chief Executive Officer or as the Board may from time to time determine.
Section 4.10. Additional
Matters. The Chief Executive Officer and the Chief Financial Officer shall have the authority to designate employees of the Corporation to have the title of Vice President, Assistant Vice President, Assistant Treasurer or
Assistant Secretary. Any employee so designated shall have the powers and duties determined by the officer making such designation. The persons upon whom such titles are conferred shall not be deemed officers of the Corporation
unless elected by the Board.
Section
4.11. Execution of Contracts and Instruments. All
contracts, deeds, mortgages, bonds, certificates, checks, drafts, bills of exchange, notes and other instruments or documents to be executed by or in the name of the Corporation shall be signed on the corporation’s behalf by such
officer or officers, or other person or persons, as may be so authorized (a) by the Board or (b) subject to any limitations the Board may impose, by the Chief Executive Officer. Such authority may be general or confined to specific
instances and, if the Board or Chief Executive Officer (whichever grants authority) so authorizes or otherwise directs, may be delegated by the authorized officers to other persons. Unless otherwise provided in such resolution, any
resolution of the Board or a committee thereof authorizing the Corporation to enter into any such instruments or documents or authorizing their execution by or on behalf of the Corporation shall be deemed to authorize the execution
thereof on its behalf by the Chief Executive Officer, the President, the Chief Financial Officer or any Vice President (an “Authorized Officer”). Furthermore, each Authorized Officer shall be authorized to enter into any contract or
execute any instrument in the name of and on behalf of the Corporation in matters arising in the ordinary course of the Corporation’s business and to the extent incident to the normal performance of such Authorized Officer’s duties.
ARTICLE V
Stock
Section 5.1. Certificates.
The shares of the Corporation may be certificated or uncertificated in accordance with the Delaware General Corporation Law, and shall be entered in the books of the Corporation and registered as they are issued. The issue of shares
in uncertificated form shall not affect shares represented by a certificate until the certificate is surrendered to the Corporation. Any certificates representing shares of the Corporation’s stock shall be in such form as may be
prescribed by law and by the Board, certifying the number and class of shares owned by such stockholder in the Corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by any two
authorized officers of the Corporation certifying the number of shares owned by such holder in the Corporation. Any of or all 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 such person were such officer, transfer agent, or registrar at the date of issue.
Section 5.2. Lost,
Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue (a) a new certificate of stock or (b) uncertificated shares 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 owner’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.
ARTICLE VI
Indemnification and
Advancement of Expenses
Section 6.1. Right
to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or
is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’
fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3 of these Bylaws, the Corporation shall be required to indemnify a Covered Person in connection
with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of the Corporation.
Section 6.2. Prepayment
of Expenses. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final
disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all
amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.
Section
6.3. Claims. If a claim for indemnification (following the
final disposition of such proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the Corporation, the
Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such
action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
Section 6.4. Nonexclusivity
of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 6.5. Other
Sources. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise
or non-profit enterprise.
Section 6.6. Amendment
or Repeal. Any right tdemnification or to advancement of expenses of any Covered Person arising hereunder shall not be eliminated or impaired by an amendment to or repeal of these Bylaws after the occurrence of the act or
omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought.
Section 6.7. Other
Indemnification and Advancement of Expenses. This Article VI shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than
Covered Persons when and as authorized by appropriate corporate action.
ARTICLE VII
Miscellaneous
Section 7.1. Fiscal
Year. The fiscal year of the Corporation shall be determined by resolution of the Board.
Section 7.2. Seal.
The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board.
Section
7.3.
Method of Notice. Whenever notice is
required by law, the Certificate of Incorporation or these Bylaws to be given by the Corporation to any director, committee member or stockholder, without limiting the manner by which notice otherwise may be given, any notice to
stockholders, directors, officers or agents given by the Corporation may be given in writing directed to such recipient’s mailing address (or by electronic transmission directed to the recipient’s electronic mail address, as
applicable) as it appears on the records of the Corporation and shall be deemed given (a) if mailed, when notice is deposited in the U.S. mail, postage prepaid, (b) if delivered by courier service, upon the earlier of when the
notice is received or left at such recipient’s address or (c) if given by electronic mail, when directed to such recipient’s electronic mail address. Notice to a stockholder may not be given by electronic mail if the stockholder has
previously notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or if such notice is prohibited by law. A notice to stockholders by electronic mail must include a
prominent legend that the communication is an important notice regarding the Corporation.
Section 7.4. Waiver
of Notice. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
such notice, or a waiver by electronic transmission by the person entitled to such 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 when 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.
Section 7.5. Form
of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information
storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.
Section 7.6. Amendment
of Bylaws. Subject to any additional votes or voting thresholds set forth in the Certificate of Incorporation, these Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the stockholders or by the Board.
Section 7.7. Registered
Stockholders. 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 not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
Section 7.8. Facsimile Signature. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board or a committee thereof.
Section 7.9. Interpretation. For purposes of these Bylaws:
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(a)
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headings used in these Bylaws are for convenience of reference only and shall not, for any purpose, be deemed a part of these Bylaws;
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(b)
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the word “day” refers to a calendar day;
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(c)
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the words “include,” “included,”
“includes” and “including” as used herein shall not be construed so as to exclude any other thing not referred to or described;
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(d)
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the word “or” is not exclusive; and
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(e)
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the definition given for any term in these Bylaws shall apply equally to both the singular and plural forms of the term defined.
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Appendix E
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BARBARA K. CEGAVSKE
Secretary of State
202 North Carson Street
Carson City, Nevada 89701-4201
(775) 684-5708
Website: www.nvsos.gov
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Articles of Conversion
(PURSUANT TO NRS 92A.205)
Page 1
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USE BLACK INK ONLY - DO NOT HIGHLIGHT
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ABOVE SPACE IS FOR OFFICE
USE ONLY
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PLEASE NOTE: The
charter document for the resulting entity must be submitted/filed simultaneously with the articles of conversion.
Articles of Conversion
(Pursuant to NRS
92A.205)
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1.
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Name and jurisdiction of organization of constituent entity and resulting entity:
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Chembio Diagnostics, Inc.
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Name of constituent entity
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Nevada
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Corporation
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Jurisdiction
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Entity type *
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and,
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Chembio Diagnostics, Inc.
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Name of resulting entity
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Delaware
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Corporation
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Jurisdiction
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Entity type *
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2.
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A plan of conversion has been adopted by the constituent entity in compliance with the law of the jurisdiction governing the constituent entity
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3.
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Location of plan of conversion: (check one)
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☐
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The entire plan of conversion is attached to these articles.
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☑
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The complete executed plan of conversion is on file at the registered office or principal place of business of the resulting entity.
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☐
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The complete executed plan of conversion for the resulting domestic limited partnership is on file at the records office required by NRS 88.330.
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* corporation, limited partnership,
limited-liability limited partnership, limited-liability company or business trust .
This form must be accompanied by appropriate fees.
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Nevada Secretary of State 92A Conversion Page 1
Revised: 1-5-15
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BARBARA K. CEGAVSKE
Secretary of State
202 North Carson Street
Carson City, Nevada 89701-4201
(775) 684-5708
Website: www.nvsos.gov
|
Articles of Conversion
(PURSUANT TO NRS 92A.205)
Page 2
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USE BLACK INK ONLY - DO NOT HIGHLIGHT
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ABOVE SPACE IS FOR OFFICE USE ONLY
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4.
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Forwarding address where copies of process may be sent by the Secretary of State of Nevada (if a foreign entity is the resulting entity in the conversion):
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Attn: Neil A. Goldman
c/o: Chembio Diagnostics, Inc.
555 Wireless Boulevard
Hauppaugge, New York 11788
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5.
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Effective date and time of filing: (optional) (must not be later than 90 days after the certificate is filed)
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6.
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Signatures - must be signed by:
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1. If constituent entity is a Nevada entity: an officer of each Nevada corporation; all general partners of each
Nevada limited partnership or limited-liability limited partnership; a manager of each Nevada limited-liability
company with managers or one member if there are no managers; a trustee of each Nevada business trust;
a managing partner of a Nevada limited-liability partnership (a.k.a. general partnership governed by NRS
chapter 87).
2. If constituent entity is a foreign entity: must be signed by the constituent entity in the manner provided by
the law governing it.
Chembio Diagnostics, Inc.
Name of constituent entity
X _______________________CEO and
President
Signature Title Date
* Pursuant to NRS 92A.205(4) if the conversion takes effect on a later date specified in the articles of conversion pursuant to NRS 92A.240, the
constituent document filed with the Secretary of State pursuant to paragraph (b) subsection 1 must state the name and the jurisdiction of the constituent entity and that the existence of the resulting entity does not begin until the
later date.
This statement must be included within the resulting entity’s articles.
FILING FEE: $350.00
IMPORTANT: Failure to include any of the above information and submit with the proper fees may cause this filing to be rejected.
This form must be accompanied by appropriate fees.
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Nevada Secretary of State 92A Conversion Page 2
Revised: 1-5-15
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