UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 17, 2005
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E-Z-EM, INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-11479 11-1999504
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
1111 Marcus Avenue, Lake Success, New York 11042
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 333-8230
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(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
On January 17, 2005, the Board of Directors (the "Board") of E-Z-EM,
Inc., a Delaware corporation (the "Company") unanimously adopted Amended and
Restated By-Laws for the Company (the "By-Laws") which amend, restate and
replace in their entirety the Company's prior By-Laws. Following is a summary
of the material provisions of the Amended and Restated By-Laws. This summary
is qualified in its entirety by reference to the full text of the Amended and
Restated By-Laws, a copy of which is filed as Exhibit 3.2 to this Current
Report on Form 8-K and incorporated herein by reference.
General
o Offices. The registered office of the Company shall be in Wilmington,
Delaware. The Company may also have other offices as the Board may
determine.
Stockholders
o Annual Meetings of Stockholders. The Annual Meeting of the
Stockholders to elect the directors as well as any other meetings
shall be held in the place and at the time decided by the Board of
Directors. Only business specified in the notice of meeting or
properly brought before the Annual Meeting by the Board or by any
stockholder may be addressed.
o Special Meetings of Stockholders. Special Meetings of the
Stockholders may be called by either the Chairman, the President, any
Vice-President, the Secretary, or any Assistant Secretary and shall
be called by such officer at the request in writing of the Board or a
committee of the Board which has been delegated such authority.
Special Meetings may no longer be called by the holders of a majority
of the outstanding shares of stock of the Company entitled to vote at
the meeting or by either of the founders of the Company. Any request
for a Special Meeting shall state the purpose of the meeting and only
such purposes shall be addressed at such meeting.
o Advance Notice Requirements. The nomination of persons for election
to the Board may be made at any Annual Meeting, or at any Special
Meeting called for the purpose of electing directors, by either the
Board or by a stockholder who complies with the appropriate notice
procedures. To be timely a stockholder's notice must be mailed not
less than 90 days nor more than 120 days prior to the anniversary
date of the immediately preceding Annual Meeting.
o Notice of Stockholder Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, written notice of the
meeting must be given not less than 10 nor more than 60 days before
the date of the meeting.
o Quorum. The holders of a majority of the Company's capital stock
shall constitute a quorum at all meetings. Any question brought
before the stockholders, other than the election of directors, shall
be decided by a majority of the votes present in person or
represented by proxy at a meeting. Stockholders may act by written
consent in lieu of a meeting provided such consent is signed by the
holders of outstanding stock having not less than the minimum number
of votes that would be necessary to take such action at a meeting at
which all shares entitled to vote were present.
Board of Directors
o Board Composition. The Board shall consist of not less than 1 nor
more than 15 directors, the exact number of which shall be fixed by
the Board. The Board shall be divided into three classes, with each
class serving a staggered three-year term. Only one class of
directors stands for election each year. Board members shall be
elected by a plurality of the votes cast at each Annual Meeting.
o Vacancies. Vacancies shall be filled by the vote of a majority of the
directors then in office, even though less than a quorum, or by the
sole remaining director. The directors shall manage the business and
affairs of the Company.
o Board Meetings. The Board may hold meetings at such times and places
as the Board determines. Special meetings of the Board may be called
by the Chairman, the President or by the Chairman at the request of a
majority of the Board.
o Resignation; Removal. Any director may resign at any time by giving
notice in writing. Directors may be removed from office at any time,
but only for cause, and only by the affirmative vote of the holders of
at least a majority in voting power of the capital stock of the
Company entitled to vote in the election of directors. The requirement
under the Company's previous By-Laws of an 80% stockholder vote for
directors to be removed for cause has been eliminated in the Amended
and Restated By-Laws.
o Quorum. A majority of the entire Board shall constitute a quorum.
o Board Action. The Board may act by unanimous written consent to take
any action required or permitted to be taken at any meeting of the
Board. Directors may participate in meetings by telephone.
o Committees. The Board may designate one or more committees and grant
to such committees any and all powers and authority of the Board.
o Compensation. Directors may be paid expenses for attending meetings
of the Board and may receive a fixed sum for attendance at each
meeting of the Board, payable in cash or securities.
o Interested Transactions. No contract or transaction between the
Company and one or more of the directors or officers or any other
entity in which one or more of the directors or officers are
directors or officers or have a financial interest, shall be void
solely for such reason.
Officers
o Appointment. The Board may choose officers at its discretion.
o Officers. The Company shall have a President, Secretary and Chief
Financial Officer. The Board may also choose one or more Vice
Presidents, Assistant Secretaries and other officers. The Board shall
elect officers and may remove officers at any time. The Amended and
Restated By-Laws set forth certain basic powers and duties of each of
the Company's officers.
o Compensation. The salaries of all officers shall be fixed by the
Board.
Capital Stock
o Certificates. Every holder of stock is entitled to a certificate
certifying the number of shares held by such stockholder. Stock may
be transferred only by the person named in the certificate or by such
person's attorney and upon the surrender of the certificate properly
endorsed for transfer and payment of all necessary transfer taxes.
o Record Date. The Board may fix dividend record dates to determine the
stockholders entitled to receive payment of a dividend or
distribution. Any stockholder wishing to engage in a consent
solicitation must first request that the Board set a record date for
the solicitation. Upon receiving such a request, the Board must
respond within ten (10) days of such request and may set a record
date for such solicitation that is up to ten (10) days after the date
of its response.
o Transfer Agent and Registrar. The Company may maintain one or more
transfer agents or agencies and registry offices or agencies at such
place as may be determined by the Board.
Indemnification
o Indemnification. The Amended and Restated By-Laws provide
indemnification to persons that are or were directors, directors
emeritus or officers of the Company to the fullest extent permitted
by Delaware law.
o Advancement. The Company shall advance expenses incurred by a
director or officer in defending any civil, criminal, administrative
or investigative action, suit or proceeding in advance of a final
disposition.
o Insurance. The Company may purchase insurance on behalf of any person
who is or was a director or officer.
Amendments
o Power to Amend. The Amended and Restated By-Laws may be altered,
amended or repealed in whole or in part, by the stockholders or by
the Board.
o Requirements. All such amendments must be approved by either the
holders of a majority of the outstanding stock entitled to vote or by
a majority of the entire Board then in office.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits
Exhibit No. Description
3.2 Amended and Restated By-Laws of E-Z-EM, Inc. effective as of
January 17, 2005.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
E-Z-EM, INC.
Date: January 21, 2005
By: /s/ Peter J. Graham
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Peter J. Graham
Vice President - General Counsel and
Secretary
Exhibit Index
Exhibit No. Description
3.2 Amended and Restated By-Laws of E-Z-EM, Inc. effective as of
January 17, 2005.