BYLAWS OF
ACCESS PHARMACEUTICALS, INC.
ARTICLE I
Offices and Agents
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1. Principal Office. The principal office of the Corporation may
be located within or without the State of Delaware, as designated
by the board of directors. The Corporation may have other offices
and places of business at such places within or without the State
of Delaware as shall be determined by the directors.
2. Registered Office. The registered office of the Corporation
required by the General Corporation Law of Delaware must be
maintained in the State of Delaware, and it may be, but need not
be, identical with the principal office, if located in the state of
Delaware. The address of the registered office of the Corporation
may be changed from time to time as provided by the General
Corporation Law of Delaware.
3. Registered Agent. The Corporation shall maintain a registered
agent in the State of Delaware as required by the General
Corporation Law of Delaware. Such registered agent may be changed
from time to time as provided by the General Corporation Law of
Delaware.
ARTICLE II
Stockholders Meetings
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1. Annual Meetings. Unless otherwise determined by the board of
directors, the annual meeting of the stockholders of the
Corporation shall be held at a reasonable hour on the second
Wednesday of May unless that day be a holiday, in which case said
meeting shall be held on the next business day following that day.
The annual meeting of the stockholders shall be held for the
purpose of electing directors and transacting such other corporate
business as may come before the meeting.
2. Special Meetings. Special meetings of the stockholders of the
Corporation may be called at any time by the chairman of the board
of directors, if any, by the president or by resolution of the
board of directors.
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The notice or call of a special meeting shall
state the purpose or purposes for which the meeting is called.
3. Place of Meeting. The annual meeting of the stockholders of
the Corporation may be held at any place, either within or without
the State of Delaware, as may be designated by the board of
directors. Except as limited by the following sentence, the person
or persons calling any special meeting of the stockholders may
designate any place, within or without the State of Delaware, as
the place for the meeting. If no designation is made or if a
special meeting shall be called other than by the board of
directors, the chairman of the board of directors or the president,
the place of meeting shall be the principal office of the
Corporation. A waiver of notice signed by all stockholders
entitled to vote at a meeting may designate any place for such
meeting.
4. Notice of Meeting. Except as otherwise provided in these
Bylaws or by the laws of the State of Delaware, written or printed
notice stating the place, date and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered either personally or by mail
to each stockholder of record entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date of
the meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation. An affidavit of the secretary,
assistant secretary, if any, or transfer agent of the Corporation
that notice has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
5. Waiver of Notice. Any stockholder, either before, at, or
after any stockholders' meeting, may waive notice of the meeting,
and his waiver shall be deemed the equivalent of giving notice.
Attendance at a stockholders' meeting, either in person or by
proxy, by a person entitled to notice thereof shall constitute a
waiver of notice of the meeting unless he attends for the express
purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting was not
lawfully called or convened.
6. Fixing of Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, to express consent to
corporate action in writing without a meeting, or 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 of directors of the Corporation may
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fix, in advance, a record date, which shall not be more than sixty
(60) nor less than ten (10) days before the date of the meeting;
not more than ten (10) days after the record date for determining
shareholders entitled to express consent is fixed; and not more
than sixty (60) days prior to the date of any other action. If no
record date is fixed: (i) the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be 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 was held; (ii) the record date for determining
stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the board of
directors is necessary, shall be the day on which the first written
consent is delivered to the Corporation at its principal place of
business or such other place as designated by the boards of
directors; (iii) the record date for determining stockholders for
any other purpose shall be at the close of business on the day on
which the board of directors adopts the resolution relating
thereto. A determination of stockholders 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 of directors may
fix a new record date for the adjourned meeting.
7. Voting List. The officer or agent who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, or any adjournment
thereof, arranged in alphabetical order, showing the address of 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, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting, either
at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting or, if not so
specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any
stockholder who is present. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the
stock ledger, the books of the Corporation or to vote in person or
by proxy at any meeting of stockholders.
8. Polls. The date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at a
meeting shall be announced at the meeting. No ballot, proxies or
votes, nor any revocations thereof or changes thereto, shall be
accepted by the inspectors
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after the closing of the polls unless the Court of Chancery upon application
by a stockholder shall determine otherwise.
9. Proxies. Any stockholder entitled to vote at a meeting of the
stockholders, or to express consent or dissent to corporate action
in writing without meeting may authorize another person or persons
to act for him by proxy. No proxy shall be voted or acted upon
after three (3) years from the date of its execution unless the
proxy expressly provides for a longer period. A duly executed
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 proxy may be irrevocable
regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation
generally.
Without limiting the manner in which a stockholder may authorize
another person or persons to act for him by proxy, the following
shall constitute a valid means by which a stockholder may grant
such authority.
A stockholder may execute a writing authorizing another person or
persons to act for him as proxy. Execution may be accomplished by
the stockholder or his authorized officer, director, employee or
agent signing such writing or causing his signature to be affixed
to such writing by any reasonable means including but not limited
to, by facsimile signature.
A stockholder may authorize another person or persons to act for
him as proxy by transmitting or authorizing the transmission of a
telegram, cablegram or other means of electronic transmission to
the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent
duly authorized by the person who will be the holder of the proxy
to receive such transmission, provided that any such telegram,
cablegram or other electronic transmission must either set forth or
be submitted with information from which it can be determined that
the telegram, cablegram or other electronic transmission was
authorized by the stockholder. If it is determined that such
telegrams, cablegrams or other electronic transmission are valid,
the inspectors or, if there are no inspectors, such other persons
making that determination shall specify the information upon which
they relied.
Any copy facsimile telecommunication or other reliable reproduction
of the writing or transmission created pursuant to this Paragraph
9 may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy,
facsimile telecommunication or other
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reproduction shall be a complete reproduction of the entire original writing
or transmission.
10. Voting Rights. Each outstanding share, regardless of class,
shall be entitled to one vote, and each fractional share shall be
entitled to a corresponding fractional vote on each matter
submitted to a vote at a meeting of stockholders except to the
extent that the voting rights of the shares of any class or classes
are limited or denied by the Certificate of Incorporation.
At each election for directors every stockholder entitled to vote
at such election shall have the right to vote in person or by proxy
the number of shares owned by him for as many persons as there are
directors to be elected and for whose election he has a right to
vote, and cumulative voting in the election of such directors shall
be permitted.
Persons holding stock in a fiduciary capacity shall be entitled to
vote the shares so held. Persons whose stock is pledged shall be
entitled to vote, unless in the transfer by the pledgor on the
books of the Corporation he has expressly empowered the pledgee to
vote thereon, in which case only the pledgee, or his proxy, may
represent such stock and vote thereon.
The Corporation's own capital stock belonging to the Corporation or
to another corporation, if a majority of the shares entitled to
vote in the election or 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. Nothing in
this section shall be construed as limiting the right of the
Corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
Shares which have been called for redemption shall not be deemed to
be outstanding shares for the purpose of voting or determining the
total number of shares entitled to vote on any matter on and after
the date on which written notice of redemption has been sent to
holders thereof and a sum sufficient to redeem such shares has been
irrevocably deposited or set aside to pay the redemption price to
the holders of the shares upon surrender of certificates there for.
If shares or other securities having voting power stand of record
in the names of two (2) or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants
by the entirety or otherwise, or if two (2) or more persons have
the same fiduciary relationship respecting the same shares, unless
the secretary of the Corporation is given written notice to the
contrary and is furnished with a
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copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect: (i) if only one (1) votes, his act binds all;
(ii) if more than one (1) votes, the act of the majority so voting
binds all; (iii) if more than one (1) votes, but the vote is evenly
split on any particular matter each faction may vote the securities
in question proportionally, or any person voting the shares, or a
beneficiary, if any, may apply to the Court of Chancery or such
other court as may have jurisdiction to appoint an additional
person to act with the persons so voting the shares, which shall
then be voted as determined by a majority of such persons and the
person appointed by the Court. If the instrument so filed shows
that any such tenancy is held in unequal interests, a majority or
even split for the purpose of this subsection shall be a majority
or even split in interest.
11. Inspectors or Election. Prior to holding any meeting of
stockholders, the Corporation shall appoint one or more inspectors
to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no
inspector or alternate 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 duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
The inspectors shall (i) ascertain the number of shares outstanding
and the voting power of each; (ii) determine the shares represented
at a meeting and the validity of proxies and ballots; (iii) count
all votes and ballots: (iv) determine and retain for a reasonable
period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may
appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information
provided in accordance with Article II, Paragraph 9 of these
Bylaws, any records of the Corporation, except that the inspectors
may consider other reliable information for the limited purpose of
reconciling proxies and ballots submitted by or on behalf of banks,
brokers, their nominees or similar persons which represent more
votes than the holder of a proxy is
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authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the
limited purpose permitted herein, the inspectors at the time they make
their certification shall specify the precise information
considered by them including the person or persons from whom they
obtained the information, when the information was obtained, the
means by which the information was obtained and the basis for the
inspectors' belief that such information is accurate and reliable.
12. Quorum. Except as otherwise provided in the Certificate of
Incorporation, the presence, in person or by proxy, of the holders
of a majority of the shares outstanding and entitled to vote shall
constitute a quorum at meetings of the stockholders. In all
matters, other than the election of directors, the affirmative vote
of a majority of the shares present in person or represented by
proxy at the meeting and actually voting on the subject matter
shall be the act of the stockholders. Directors shall be elected
by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the
election of directors. In the event any stockholders withdraw from
a duly organized meeting at which a quorum was initially present,
the remaining shares represented shall constitute a quorum for the
purpose of continuing to do business, and the affirmative vote of
the majority of the remaining shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the
stockholders unless the vote of a greater number or voting by
classes is required by the General Corporation Law of Delaware or
the Certificate of Incorporation.
13. Adjournments. If less than a quorum of the outstanding shares
entitled to vote is represented at any meeting of the stockholders,
a majority of the shares so represented may adjourn the meeting
from time to time for a period not to exceed thirty (30) days at
any one adjournment, without further notice, provided 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 which might have been transacted at the original
meeting. Any meeting of the stockholders may adjourn from time to
time until its business is completed. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
14. Informal Act by Shareholders. Any action required to be taken
at a meeting of shareholders, or any action which may be taken at
a meeting of shareholders, may be taken without a meeting, without
prior notice and
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without a vote, if a consent or consents in writing setting forth the action
so taken, shall be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon
were present and voted shall be delivered to the Corporation by
said consent or consents delivered at its principal place of
business or such other place as designated by the board of
directors. Delivery made to the Corporation shall be by hand or by
certified or registered mail, return receipt requested.
ARTICLE III
Board of Directors
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1. Number, Qualifications and Term of Office. Except as
otherwise provided in the Certificate of Incorporation or the
General Corporation Law of Delaware, the business and affairs of
the Corporation shall be managed under the direction of a board of
directors consisting of from three to fifteen members. Each
director shall be a natural person of the age of fifteen years or
older, but does not need to be a resident of the state of Delaware
or a stockholder of the Corporation. The board of directors, by
resolution, may increase or decrease the number of directors from
time to time. Except as otherwise provided in these Bylaws or in
the Certificate of Incorporation, the board of directors shall be
divided into three (3) classes as nearly equal in number as
possible. Each director in each class shall be elected at the
appropriate annual meeting of stockholders, as determined by the
Certificate of Incorporation, and shall hold office for a term of
three (3) years and until his successor is elected and qualified or
until his earlier resignation or removal. No decrease in the
number of directors shall have the effect of shortening the term of
any incumbent director.
2. Vacancies and Newly Created Directorships. Vacancies and
newly created directorships resulting from any increase in the
authorized number of directors elected by all of the stockholders
having the right to vote as a single class shall be filled solely
by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. Any directors so chosen
shall hold office until the next election of the class for which
such director shall have been chosen, and until their successors
shall be elected and qualified. No decrease in the number of
directors constituting the board of directors shall shorten the
term of any incumbent director.
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If at any time of filling any vacancy or newly created
directorship, the directors then in office shall constitute less
than a majority of the whole board, the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten
percent (10%) of the total number of shares at the time outstanding
having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors
then in office as aforesaid, which election shall be governed by
Section 211 of the General Corporation Law of Delaware.
Any director may resign at any time by giving written notice to the
president or to the secretary of the Corporation. Such resignation
shall take effect at the future time specified therein; and unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. Any vacancy occurring
on the board of directors created by the resignation of a director,
may be filled by the affirmative vote of a majority of directors
then in office, including those who have so resigned. The vote
thereon shall take effect when such resignation or resignations
shall become effective. A director elected to fill a vacancy shall
be elected for the unexpired term of his predecessor in office.
3. Removal. Any director or the entire board of directors may be
removed in accordance with the provisions of Article VII
Subparagraph D of the Certificate of Incorporation.
4. Compensation. Any director may be paid any one or more of the
following: his expenses, if any, of attendance at meetings; a
fixed sum for attendance at each meeting; or a stated salary as
director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation
therefor. A director shall also be entitled to receive options for
the acquisition of shares of stock of the corporation.
ARTICLE IV
Meetings of the Board
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1. Place of Meetings. The regular or special meetings of the
board of directors or any committee designated by the board may be
held at the principal office of the Corporation or at any other
place within or without the State of Delaware that a majority of
the board of directors or any such
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committee, as the case may be, may designate from time to time by resolution.
2. Regular Meetings. The board of directors shall meet each year
immediately after the annual meeting of the stockholders for the
purpose of electing officers and transacting such other business as
may come before the meeting. The board of directors or any
committee designated by the board may provide, by resolution, for
the holding of additional regular meetings without other notice
than such resolution.
3. Special Meetings. Special meetings of the board of directors
or any committee designated by the board may be called at any time
by the chairman of the board, if any, by the president or by a
majority of the members of the board of directors or any such
committee, as the case may be.
4. Notice of Meetings. Notice of the regular meetings of the
board of directors or any committee designated by the board need
not be given. Except as otherwise provided by these Bylaws or the
laws of the State of Delaware, written notice of each special
meeting of the board of directors or any such committee setting
forth the time and the place of the meeting shall be given to each
director not less than two (2) days prior to the time fixed for the
meeting. Notice of special meetings may be either given
personally, personally by telephone, or by sending a copy of the
notice through the United States mail or by telegram, telex or
telecopy, charges prepaid, to the address of each director
appearing on the books of the Corporation. If mailed, such notice
shall be deemed to be delivered when deposited in the United States
mail so addressed, with postage prepaid thereon. If notice is
given by telegram, telex or telecopy, such notice shall be deemed
to be delivered when the telegram is delivered to the telegraph,
telex or telecopy operator. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board
of directors need be specified in the notice or waiver of notice of
such meeting.
5. Waiver of Notice. A director may in writing waive notice of
any special meeting of the board of directors or any committee,
either before, at, or after the meeting; and his waiver shall be
deemed the equivalent of giving notice. Attendance of a director
at a meeting shall constitute waiver of notice of that meeting
unless he attends for the express purpose of objecting to the
transaction of business because the meeting has not been lawfully
called or convened.
6. Quorum. At meetings of the board of directors or any
committee designated by the board a majority of the number of
directors fixed by
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these Bylaws or a majority of the members of any such committee, as the case
may be, shall be necessary to constitute a quorum for the transaction of
business. If a quorum is present, the act of the majority of directors in
attendance shall be the act of the board of directors or any such committee,
as the case may be, unless the act of a greater number is required
by these Bylaws, the Certificate of Incorporation or the General
Corporation Law of Delaware. One or more directors may participate
in meetings of the board of directors as authorized by Subparagraph
11 of this Article IV by conference telephone, while the remaining
director or directors are physically present at the meeting.
7. Presumption of Assent. A director who is present at a meeting
of the board or committee designated by the board when corporate
action is taken is deemed to have assented to the action taken
unless: (i) he objects at the beginning of such meeting to the
holding of the meeting or the transacting of business at the
meeting; (ii) he contemporaneously requests that his dissent from
the action taken be entered in the minutes of such meeting; or
(iii) he gives written notice of his dissent to the presiding
officer of such meeting before its adjournment or to the secretary
of the Corporation immediately after adjournment of such meeting.
The right of dissent as to a specific action taken in a meeting of
a board or committee thereof is not available to a director who
votes in favor of such action.
8. Reliance on Books of Account or Reports. Any member of the
board of directors or any committee designated by the board of
directors shall, in the performance of his duties, be fully
protected in relying in good faith upon the records of the
Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers, or
employees, or committees of the board of directors, or by any other
person as to matters the members reasonably believes are within
such other persons professional or expert competence and who has
been selected with reasonable care by or on behalf of the
Corporation, or in relying in good faith upon other records of the
Corporation.
9. Committees. The board of directors may, by a resolution
passed by a majority of the whole board designate one (1) or more
committees, each committee to consist of one (1) or more 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 a committee, the member
or members present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
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Any such committee to the extent provided in the resolution of the
board of directors shall have and may exercise all of the powers
and authority of the board of directors 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 which it may
acquire. No such committee shall have the power or authority of
the board of directors to: (i) amend the Certificate of
Incorporation; (ii) adopt an agreement of merger or consolidation;
(iii) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets;
(iv) recommend to the stockholders a dissolution of the Corporation
or a revocation of a dissolution; (v) amend the Bylaws of the
Corporation; (vi) or unless expressly provided for by resolution,
or in the Certificate of Incorporation, declare a dividend,
authorize the issuance of stock or to adopt a certificate of
ownership and merger. To the extent authorized by resolution or
resolutions providing for the issuance of shares of stock, adopted
by the board, a committee may: (i) fix the designations and any of
the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of
the same or any other class or classes of stock of the Corporation;
or (ii) fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series. If
any such delegation of the authority of the board of directors is
made as provided herein, all references to the board of directors
contained in these Bylaws, the Certificate of Incorporation, the
General Corporation Law of Delaware or any other applicable law or
regulation relating to the authority so delegated shall be deemed
to refer to such committee.
10. Informal Action by Directors. Any action required or
permitted to be taken at a meeting of the board of directors or any
committee thereof, may be taken without a meeting if all the
members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee. Such consent
shall have the same force and effect as a unanimous vote of the
directors and may be stated as such in any articles or documents
filed with the Secretary of State of Delaware under the General
Corporation Law of Delaware.
11. Telephonic Meetings. Members of the board of directors or any
committee designated by the board may participate in meeting of
such board or committee by means of a conference telephone or
similar communications equipment by which all persons participating
in the meeting can hear each other at the same time. Participation
in such a meeting shall constitute presence in person at the
meeting.
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ARTICLE V
Officers and Agents
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1. General. The executive officers of the Corporation shall be
elected annually by the board of directors at the first meeting of
the board held after each annual meeting of the stockholders. If
the election of such officers shall not be held at such meeting,
such election shall take place as soon thereafter as a meeting may
conveniently be held. The officers of the Corporation shall
consist of a president, a secretary and a treasurer, or a
secretary/treasurer; in addition, one or more vice presidents, a
chairman of the board of directors and such other officers,
assistant officers, agents and employees that the board of
directors may from time to time deem necessary may be elected by
the board of directors or be appointed in a manner prescribed by
the board.
Two or more offices may be held by the same person. Officers shall
hold office until their successors are elected and qualified,
unless they are sooner removed from office as provided in these
Bylaws. All officers of the Corporation shall be natural persons
of the age of eighteen years or older. Officers of the Corporation
need not be residents of the State of Delaware or directors or
stockholders of the Corporation.
2. General Duties. All officers and agents of the Corporation,
as between themselves and the Corporation, shall have such
authority and shall perform such duties in the management of the
Corporation as may be provided in these Bylaws or as may be
determined by resolution of the board of directors not inconsistent
with these Bylaws. In all cases where the duties of any officer,
agent or employee are not prescribed by the Bylaws or by the board
of directors, such officer, agent or employee shall follow the
orders and instructions of the president.
Any officer shall have the power to execute and deliver on behalf
of and in the name of the Corporation any instrument requiring the
signature of an officer of the Corporation, except as otherwise
provided in these Bylaws or where the execution and delivery
thereof shall be expressly delegated by the board of directors to
some other officer or agent of the Corporation. Unless authorized
to do so by these Bylaws or by the board of directors, no officer,
agent or employee shall have any power or authority to bind the
Corporation in any way, to pledge its credit or to render it liable
pecuniarily for any purpose or in any amount.
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3. Vacancies. When a vacancy occurs in one of the executive
offices by reason of death, resignation or otherwise, it shall be
filled by a resolution of the board of directors. The officer so
selected shall hold office until his successor is chosen and
qualified.
4. Salaries. The board of directors shall fix the salaries of
the officers of the Corporation. The salaries of other agents and
employees of the Corporation may be fixed by the board of
directors, or by any committee designated by the board or by an
officer to whom that function has been delegated by the board. No
officer shall be prevented from receiving such salary by reason of
the fact that he is also a director of the Corporation.
5. Removal. Any officer or agent of this Corporation may be
removed by the board of directors whenever in its judgment the best
interests of the Corporation may be served thereby, but such
removal shall be without prejudice to the contract rights, if any,
of the person so removed. Election or appointment of an officer or
an agent shall not of itself create contract rights.
6. Chairman of the Board. The chairman of the board, if any,
shall preside as chairman at meetings of the stockholders and the
board of directors. He shall, in addition, have such other duties
as the board may prescribe that he perform. At the request of the
president, the chairman of the board may, in the case of the
president's absence or inability to act, temporarily act in his
place. In the case of death of the president or in the case of his
absence or inability to act without having designated the chairman
of the board to act temporarily in his place, the chairman of the
board shall perform the duties of the president, unless the board
of directors, by resolution, provides otherwise. If the chairman
of the board shall be unable to act in place of the president, any
vice president may exercise such powers and perform such duties as
provided in section 8 below.
7. President. The president shall be the chief executive officer
of the Corporation and, subject to the control of the board of
directors, shall have general supervision of the business and
affairs of the Corporation. In the event the position of chairman
of the board shall not be occupied or the chairman shall be absent
or otherwise unable to act, the president shall preside at meetings
of the stockholders and directors and shall discharge the duties of
the presiding officer. At each annual meeting of the stockholders
the president shall give a report of the business of the
Corporation for the preceding fiscal year and shall perform
whatever other duties the board of directors may from time to time
prescribe. The president may sign, with the secretary or any other
proper officer of the
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Corporation thereunto authorized by the board of directors, certificates for
shares of the Corporation, any deeds, mortgages, bonds, contracts, or other
instruments which the board of directors has authorized to be executed,
except in cases where the signing and execution thereof shall be expressly
delegated by the board of directors or by these Bylaws to some
other officer or agent of the Corporation, or shall be required by
law to be otherwise signed or executed.
8. Vice Presidents. Each vice president shall have such powers
and perform such duties as the board of directors may from time to
time prescribe or as the president may from time to time delegate
to him. At the request of the president, in the case of the
president's absence or inability to act, any vice president may
temporarily act in his place. In the case of the death of the
president, or in the case of his absence or inability to act
without having designated a vice president or vice presidents to
act temporarily in his place, the board of directors, by
resolution, may designate a vice president or vice presidents, to
perform the duties of the president. If no such designation shall
be made, the chairman of the board of directors, if any, shall
exercise such powers and perform such duties, as provided in
Section 6 above, but if the Corporation has no chairman of the
board of directors, or if the chairman is unable to act in place of
the president, all the vice presidents may exercise such powers and
perform such duties.
9. Secretary. The secretary shall keep or cause to be kept in
books provided for that purpose the minutes of the meetings of the
stockholders, executive committee, if any, and any other
committees, and of the board of directors; shall see that all
notices are duly given in accordance with the provisions of these
Bylaws and as required by law; shall be custodian of the records
and of the seal of the Corporation and see that the seal is affixed
to all documents, the execution of which on behalf of the
Corporation under its seal is duly authorized and in accordance
with the provisions of these Bylaws; keep a register of the post
office address of each stockholder which shall be furnished to the
secretary by such stockholder, sign with the president certificates
for shares of the Corporation, the issuance of which shall have
been authorized by resolution of the board of directors; have a
general charge of the stock transfer books of the Corporation; and,
in general, shall perform all duties incident to the office of
secretary and such other duties as may, from time to time, be
assigned to him by the board of directors or by the president. In
the absence of the secretary or his inability to act, the assistant
secretaries, if any, shall act with the same powers and shall be
subject to the same restrictions as are applicable to the
secretary.
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10. Treasurer. The treasurer shall have custody of corporate
funds and securities. He shall keep full and accurate accounts of
receipts and disbursements and shall deposit all corporate monies
and other valuable effects in the name and to the credit of the
Corporation in the depository or depositories of the Corporation
selected by the board of directors, and shall render an account of
his transactions as treasurer and of the financial condition of the
Corporation to the president and/or the board of directors upon
request. Such power given to the treasurer to deposit and disburse
funds shall not, however, preclude any other officer or employee of
the Corporation from also depositing and disbursing funds when
authorized to do so by the board of directors. The treasurer
shall, if required by the board of directors, give the Corporation
a bond in such amount and with such surety or sureties as may be
ordered by the board of directors for the faithful performance of
duties of his office. The treasurer shall have such other duties
as may be from time to time prescribed by the board of directors or
the president. In the absence of the treasurer or his inability to
act, the assistant treasurers, if any, shall act with the same
authority and shall be subject to the same restrictions as are
applicable to the treasurer.
11. Delegation of Duties. Whenever an officer is absent, or
whenever, for any reason, the board of directors may deem it
desirable, the board may delegate the powers and duties of an
officer to any other officer or officers or to any director or
directors.
12. Bond of Officers. The board of directors may require any
officer to give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the board of
directors for such terms and conditions as the board of directors
may specify, including without limitation for the faithful
performance of his duties and for the restoration to the
Corporation of all property in his possession or under his control
belong to the Corporation.
13. Loans to Director, Officers, Employees. The Corporation may
lend money to, guarantee the obligations of and otherwise assist
directors, officers and employees of the Corporation, or directors
of another corporation of which the Corporation owns a majority of
the voting stock to the extent of and in compliance with the
General Corporation Laws of Delaware.
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ARTICLE VI
Stock Certificates and the Transfer of Shares
---------------------------------------------
1. Stock Certificates; Uncertificated Shares. The shares of the
Corporation shall be represented by certificates, provided that the
board of directors of the Corporation may provide by resolution or
resolutions that some or all of any or all classes or series of its
stock shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Notwithstanding the
adoption of such a resolution by the board of directors, every
holder of stock represented by certificates and upon request every
holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the Corporation by the
chairman or vice-chairman of the board of directors, or the
president or vice-president, and by the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the
Corporation representing the number of shares registered in
certificate form. Any 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 he were such officer,
transfer agent or registrar at the date of issue.
2. Consideration for Shares. Shares shall be issued for such
consideration as shall be fixed from time to time by the board of
directors. Consideration for shares shall be expressed in dollars,
and shall not be less than the par value or stated value therefor,
as the case may be. The par value for shares, if any, shall be
stated in the Certificate of Incorporation, and the stated value
for shares, if any, shall be fixed from time to time by the board
of directors. Treasury shares may be disposed of by the
Corporation for such consideration expressed in dollars as may be
fixed from time to time by the board. Consideration for shares may
consist, in whole or in part, of money, other property whether
tangible, intangible or both, or in labor or services actually
performed for the Corporation, but the promise of future services
of a subscriber or direct purchaser of shares from the Corporation
shall not constitute payment or part payment for shares.
3. Lost Certificates. The board of directors may direct a new
certificate of stock or uncertificated share in place of any
certificate issued by it, alleged to have been lost, stolen or
destroyed if the owner makes an affidavit or affirmation of that
fact and produces such evidence of loss or
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destruction as the board may require. The board, in its discretion,
may as a condition precedent to the issuance of a new certificate require
the owner to give the Corporation a bond sufficient to indemnify it against
any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of the certificate or the
issuance of such new certificate.
4. Transfer of Shares. Shares of the Corporation shall only be
transferred on its books upon the surrender to the Corporation of
the share certificates duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer and
such documentary stamps as may be required by law. In that event,
the surrendered certificates shall be cancelled, new certificates
issued to the persons entitled to them, and the transaction
recorded on the books or the Corporation.
5. Registered Stockholders. The Corporation shall be entitled to
treat the holder of record of shares as the holder in fact and,
except as otherwise provided by the laws of Delaware, shall not be
bound to recognize any equitable or other claim to or interest in
the shares.
The board of directors may adopt by resolution a procedure whereby
a stockholder may certify in writing to the Corporation that all or
a portion of the shares registered in the name of such stockholder
are held for the account of a specified person or persons. Such
resolution shall set forth: (i) the classification of stockholder
who may certify; (ii) the purpose or purposes for which the
certification may be made; (iii) the form of certification and
information to be contained therein; (iv) if the certification is
with respect to a record date or closing of the stock transfer
books within which the certification must be received by the
Corporation; and (v) such other provisions with respect to the
procedure as are deemed necessary or desirable.
Upon receipt by the Corporation of a certification complying with
the procedure, the persons specified in the certification shall be
deemed, for the purpose or purposes set forth in the certification,
to be the holders of record of the number of shares specified in
place of the stockholder making the certification.
6. Stock Ledger. An appropriate stock journal and ledger shall
be kept by the secretary or such registrars or transfer agents as
the directors by resolution may appoint in which all transactions
in the shares of stock of the Corporation shall be recorded.
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7. Location. The books, accounts and records of the Corporation
may be kept at such place or places within or outside the State of
Delaware as the board of directors may from time to time determine.
8. Inspection. The books, accounts and records of the
Corporation shall be open for inspection by any member of the board
of directors at all times, and open to inspection by the
stockholders at such times, and subject to such regulations as the
board of directors may prescribe, except as otherwise provided by
statute.
ARTICLE VII
Seal and Fiscal Year
--------------------
1. Seal. The Corporation shall have a seal in the form impressed
to the left of this paragraph of the Bylaws.
2. Fiscal Year. The fiscal year of the Corporation shall be
determined by the board of directors and set forth in the minutes
of the directors. Said fiscal year may be changed from time to
time by the board of directors in its discretion.
ARTICLE VIII
Dividends
---------
Dividends shall be declared and paid out of the surplus or net
profits for the fiscal year in which the dividend is declared,
and/or the preceding fiscal year as often and at such times as the
board of directors may determine. If the capital of the
Corporation, computed in accordance with the General Corporation
Law of Delaware, shall have been diminished by depreciation in the
value of its property, or by losses, or otherwise, to an amount
less than the aggregate amount of the capital represented by the
issued and outstanding stock; the board of directors shall not
declare and pay out of net profits any dividends upon any shares of
its capital stock until the deficiency in the amount of capital
represented by issued and outstanding stock shall have been
repaired. No unclaimed dividend shall bear interest against the
Corporation.
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ARTICLE IX
Amendments
----------
Subject to repeal or change by action of the stockholders in
accordance with the Certificate of Incorporation, the board of
directors may amend, supplement or repeal these Bylaws or adopt new
Bylaws, and all such changes shall affect and be binding upon the
holders of all shares heretofore as well as hereafter authorized,
subscribed for or offered.
ARTICLE X
Miscellaneous
-------------
1. Gender. Whenever required by the context, the singular shall
include the plural, the plural the singular, and one gender shall
include all genders.
2. Invalid Provision. The invalidity or unenforceability of any
particular provision of these Bylaws shall not affect the other
provisions herein, and these Bylaws shall be construed in all
respects as if such invalid or unenforceable provision was omitted.
3. Governing Law. These Bylaws shall be governed by and
construed in accordance with the laws of the State of Delaware.
The undersigned assistant secretary of Access Pharmaceuticals,
Inc., hereby certifies that the foregoing Bylaws were adopted by
the Board of Directors of the Corporation effective April 17, 1991
and amended effective September 14, 1995.
/s/ John J. Concannon III
-------------------------
John J. Concannon III
Assistant Secretary