EXHIBIT 3.2
SECOND AMENDED AND RESTATED
BYLAWS
OF
NORTHWEST BIOTHERAPEUTICS, INC.
Adopted
January 26, 2005
TABLE OF CONTENTS
PAGE
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ARTICLE I Offices and Records................................................... 1
Section 1.1 Registered Office and Agent........................................... 1
Section 1.2 Other Offices......................................................... 1
Section 1.3 Books and Records..................................................... 1
ARTICLE II Meetings of Stockholders.............................................. 1
Section 2.1 Annual Meetings....................................................... 1
Section 2.2 Special Meetings...................................................... 2
Section 2.3 Place of Meetings..................................................... 2
Section 2.4 Notice of Meetings.................................................... 2
Section 2.5 Voting List........................................................... 3
Section 2.6 Quorum and Adjournment................................................ 3
Section 2.7 Adjourned Meetings.................................................... 3
Section 2.8 Voting................................................................ 3
Section 2.9 Proxies............................................................... 4
Section 2.10 Record Date........................................................... 5
Section 2.11 Conduct of Meetings; Agenda........................................... 5
Section 2.12 Inspectors of Election; Opening and Closing of Polls.................. 5
Section 2.13 Procedures for Bringing Business before Annual Meetings............... 6
Section 2.14 Action without Meeting................................................ 8
ARTICLE III Board of Directors -- Powers, Number, Classification, Nominations,
Classification, Resignations, Removal, Vacancies and Compensation..... 8
Section 3.1 Management............................................................ 8
Section 3.2 Number and Qualification.............................................. 8
Section 3.3 Classes of Directors.................................................. 8
Section 3.4 Election; Term of Office.............................................. 8
Section 3.5 Allocation of Directors Among Classes in the Event of Increases or
Decreases in the Number of Directors.................................. 9
Section 3.6 Nominations........................................................... 9
Section 3.7 Resignations.......................................................... 11
Section 3.8 Removal............................................................... 11
Section 3.9 Vacancies............................................................. 11
Section 3.10 Subject to Rights of Holders of Preferred Stock....................... 12
Section 3.11 Compensation.......................................................... 12
ARTICLE IV Board of Directors -- Meetings and Actions............................ 12
Section 4.1 Place of Meetings..................................................... 12
Section 4.2 Regular Meetings...................................................... 12
Section 4.3 Special Meetings...................................................... 12
Section 4.4 Quorum; Voting........................................................ 13
i
Section 4.5 Conduct of Meetings................................................... 13
Section 4.6 Presumption of Assent................................................. 13
Section 4.7 Action without M...................................................... 13
Section 4.8 Telephonic Meetings................................................... 13
ARTICLE V Committees of the Board of Directors.................................. 14
Section 5.1 Executive Committee................................................... 14
Section 5.2 Other Committees...................................................... 14
Section 5.3 Term.................................................................. 14
Section 5.4 Committee Changes; Removal............................................ 14
Section 5.5 Alternate Members..................................................... 14
Section 5.6 Rules and Procedures.................................................. 15
Section 5.7 Presumption of Assent................................................. 15
Section 5.8 Action without Meeting................................................ 15
Section 5.9 Telephonic Meetings................................................... 15
Section 5.10 Resignations.......................................................... 16
Section 5.11 Limitations on Authority.............................................. 16
ARTICLE VI Officers.............................................................. 16
Section 6.1 Number; Titles; Qualification; Term of Office......................... 16
Section 6.2 Election.............................................................. 17
Section 6.3 Removal............................................................... 17
Section 6.4 Resignations.......................................................... 17
Section 6.5 Vacancies............................................................. 17
Section 6.6 Salaries.............................................................. 17
Section 6.7 Chairman of the Board................................................. 17
Section 6.8 Chief Executive Officer............................................... 18
Section 6.9 President............................................................. 18
Section 6.10 Chief Scientific Officer.............................................. 18
Section 6.11 Vice Presidents....................................................... 18
Section 6.12 Treasurer............................................................. 19
Section 6.13 Assistant Treasurers.................................................. 19
Section 6.14 Secretary............................................................. 19
Section 6.15 Assistant Secretaries................................................. 19
ARTICLE VII Stock................................................................. 20
Section 7.1 Certificates.......................................................... 20
Section 7.2 Signatures on Certificates............................................ 20
Section 7.3 Legends............................................................... 20
Section 7.4 Lost, Stolen or Destroyed Certificates................................ 20
Section 7.5 Transfers of Shares................................................... 21
Section 7.6 Registered Stockholders............................................... 21
Section 7.7 Regulations........................................................... 21
Section 7.8 Stock Options, Warrants, etc.......................................... 21
ARTICLE VIII Indemnification....................................................... 21
Section 8.1 Third Party Actions................................................... 21
Section 8.2 Actions By or in the Right of the Corporation......................... 22
Section 8.3 Expenses.............................................................. 23
Section 8.4 Non-exclusivity....................................................... 23
Section 8.5 Enforceability........................................................ 23
Section 8.6 Insurance............................................................. 23
Section 8.7 Survival.............................................................. 24
Section 8.8 Amendment............................................................. 24
Section 8.9 Definitions........................................................... 24
ARTICLE IX Notices and Waivers................................................... 24
Section 9.1 Methods of Giving Notices............................................. 24
Section 9.2 Waiver of Notice...................................................... 25
ARTICLE X Miscellaneous Provisions.............................................. 25
Section 10.1 Dividends............................................................. 25
Section 10.2 Reserves.............................................................. 25
Section 10.3 Checks................................................................ 25
Section 10.4 Corporate Contracts and Instruments................................... 25
Section 10.5 Attestation........................................................... 26
Section 10.6 Securities of Other Corporations...................................... 26
Section 10.7 Fiscal Year........................................................... 26
Section 10.8 Seal.................................................................. 26
Section 10.9 Invalid Provisions.................................................... 26
Section 10.10 Headings.............................................................. 26
Section 10.11 References/Gender/Number.............................................. 26
Section 10.12 Amendments............................................................ 26
CERTIFICATE OF SECRETARY.................................................................. 27
AMENDED AND RESTATED
BYLAWS
OF
NORTHWEST BIOTHERAPEUTICS, INC.
PREAMBLE
These Bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware ("DGCL") and the Certificate of Incorporation
("Certificate of Incorporation") of Northwest Biotherapeutics, Inc.
("Corporation"). In the event of a direct conflict between the provisions of
these Bylaws and the mandatory provisions of the DGCL or the provisions of the
Certificate of Incorporation, such provisions of the DGCL and the Certificate of
Incorporation, as the case may be, will be controlling.
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1 REGISTERED OFFICE AND AGENT. The registered office and
registered agent of the Corporation shall be as designated from time to time by
the appropriate filing by the Corporation in the office of the Secretary of
State of the State of Delaware.
SECTION 1.2 OTHER OFFICES. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of
Directors of the Corporation ("Board of Directors") may from time to time
determine or the business of the Corporation may require.
SECTION 1.3 BOOKS AND RECORDS. The books and records of the Corporation
may be kept at the Corporation's principal executive office or at such other
locations as may from time to time be designated by the Board of Directors.
Consents and notices may be received in the form of electronic communications
provided that they are reproduced in paper form and delivered to the
Corporation's principal executive office unless otherwise provided in the
Certificate of Formation or the DGCL. The use of reproductions of consents
including, but not limited to copies, faxes, and other reliable reproductions,
may be used in lieu of the original writing for any and all purposes for which
the original writing could be used, provided the reproduction is a complete
reproduction of the entire original writing pursuant to the DGCL.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1 ANNUAL MEETINGS. An annual meeting of the Corporation's
stockholders (the "Stockholders") shall be held each calendar year for the
purposes of (i) electing directors as provided in Article III and (ii)
transacting such other business as may properly be brought before
the meeting. Each annual meeting shall be held on such date (no later than 13
months after the date of the last annual meeting of Stockholders) and at such
time as shall be designated by the Board of Directors and stated in the notice
or waivers of notice of such meeting.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of the Stockholders, for
any purpose or purposes, may be called at any time by the Chairman of the Board
(if any) or the Chief Executive Officer and shall be called by the Secretary at
the written request, or by resolution adopted by the affirmative vote of a
majority of the Corporation's directors, which request or resolution shall fix
the date, time and place, and state the purpose or purposes, of the proposed
meeting. Except as provided by applicable law, these Bylaws, or the Certificate
of Incorporation, Stockholders shall not be entitled to call a special meeting
of Stockholders or to require the Board of Directors or any officer to call such
a meeting or to propose business at such a meeting. Business transacted at any
special meeting of Stockholders shall be limited to the purposes stated in the
notice or waivers of notice of such meeting.
SECTION 2.3 PLACE OF MEETINGS. The Board of Directors may designate the
place of meeting (either within or without the State of Delaware) for any
meeting of Stockholders. If no designation is made by the Board of Directors,
the place of meeting shall be held at the principal executive office of the
Corporation.
SECTION 2.4 NOTICE OF MEETINGS. (a) Written or electronic notice of each
meeting of Stockholders shall be delivered to each Stockholder of record
entitled to vote thereat, which notice shall (i) state the place, date and time
of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called and (ii) be given not less than 10 nor more than
60 days before the date of the meeting.
(b) Each notice of a meeting of Stockholders shall be given as
provided in Section 9.1, except that if no address appears on the Corporation's
books or stock transfer records with respect to any Stockholder, notice to such
Stockholder shall be deemed to have been given if sent by first-class mail or
telecommunication to the Corporation's principal executive office or if
published at least once in a newspaper of general circulation in the county
where such principal executive office is located.
(c) If any notice addressed to a Stockholder at the address of such
Stockholder appearing on the books of the Corporation is returned to the
Corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the Stockholder
at such address, all further notices to such Stockholder at such address shall
be deemed to have been duly given without further mailing if the same shall be
available to such Stockholder upon written demand of such Stockholder at the
principal executive office of the Corporation for a period of one year from the
date of the giving of such notice.
(d) Any previously scheduled meeting of the Stockholders may be
postponed by resolution of the Board of Directors upon public notice given prior
to the time previously scheduled for such meeting.
SECTION 2.5 VOTING LIST. At least 10 days before each meeting of
Stockholders, the Secretary or other officer or agent of the Corporation who has
charge of the Corporation's stock ledger shall prepare a complete list of the
Stockholders entitled to vote at such meeting, arranged in alphabetical order
and showing, with respect to each Stockholder, his address and the number of
shares registered in his name. 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 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 or waivers of 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 open 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 of the
Corporation shall be the only evidence as to who are the Stockholders entitled
to examine any list required by this Section 2.5 or to vote at any meeting of
Stockholders.
SECTION 2.6 QUORUM AND ADJOURNMENT. The holders of a majority of the
voting power of the outstanding shares of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), present in person
or by proxy, shall constitute a quorum at any meeting of Stockholders, except as
otherwise provided by applicable law, the Certificate of Incorporation, or these
Bylaws. If a quorum is present at any meeting of Stockholders, such quorum shall
not be broken by the withdrawal of enough Stockholders to leave less than a
quorum and the remaining Stockholders may continue to transact business until
adjournment. If a quorum shall not be present at any meeting of Stockholders,
the holders of a majority of the voting stock represented at such meeting or, if
no Stockholder entitled to vote is present at such meeting, any officer of the
Corporation may adjourn such meeting from time to time until a quorum shall be
present. Notwithstanding anything in these Bylaws to the contrary, the chairman
of any meeting of Stockholders shall have the right, acting in his sole
discretion, to adjourn such meeting from time to time.
SECTION 2.7 ADJOURNED MEETINGS. When a meeting of Stockholders is
adjourned to another time or place, unless otherwise provided by these Bylaws,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken; provided,
however, if an adjournment is for more than 30 days or if after an adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each Stockholder entitled to vote thereat. At any
adjourned meeting at which a quorum shall be present in person or by proxy, the
Stockholders entitled to vote thereat may transact any business which might have
been transacted at the meeting as originally noticed.
SECTION 2.8 VOTING. (a) Election of directors at all meetings of
Stockholders at which directors are to be elected shall be by written ballot or
electronic communications and, except as otherwise provided in the Certificate
of Incorporation, a plurality of the votes cast thereat shall elect. Except as
otherwise provided by applicable law, the Certificate of Incorporation or these
Bylaws, all matters other than the election of directors submitted to the
Stockholders at any meeting shall be decided by a majority of the votes cast
with respect to such matter. Except as otherwise provided in the Certificate of
Incorporation or by applicable law, (i) no Stockholder shall have any right of
cumulative voting and (ii) each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
Stockholders.
(b) Shares standing in the name of another corporation (whether
domestic or foreign) may be voted by such officer, agent or proxy as the bylaws
of such corporation may prescribe or, in the absence of such provision, as the
board of directors of such corporation may determine. Shares standing in the
name of a deceased person may be voted by the executor or administrator of such
deceased person, either in person or by proxy. Shares standing in the name of a
guardian, conservator, or trustee may be voted by such fiduciary, either in
person or by proxy, but no fiduciary shall be entitled to vote shares held in
such fiduciary capacity without a transfer of such shares into the name of such
fiduciary. Shares standing in the name of a receiver may be voted by such
receiver. A Stockholder whose shares are pledged shall be entitled to vote such
shares, 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 the stock and vote thereon.
(c) If shares or other securities having voting power stand of
record in the name of two or more persons (whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise) or if two or more persons have the same fiduciary relationship
respecting the same shares, unless the Secretary is given written notice to the
contrary and is furnished with a 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 votes, his act binds all;
(ii) if more than one votes, the act of the majority so voting binds
all; and
(iii) if more than one votes but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionately or any person voting the shares, or a beneficiary, (if
any) may apply to the Delaware Court of Chancery or such other court as
may have jurisdiction to appoint an additional person to act with the
person so voting the shares, which shall then be voted as determined by a
majority such persons and the person so 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 the paragraph (c) shall
be a majority or even-split in interest.
SECTION 2.9 PROXIES. (a) At any meeting of Stockholders, each Stockholder
having the right to vote thereat may be represented and vote either in person or
by proxy executed in writing by such Stockholder or by his duly authorized
attorney-in-fact. Each such proxy shall be filed with the Secretary of the
Corporation at or before the beginning of each meeting at which such proxy is to
be voted. Unless otherwise provided therein, no proxy shall be valid after three
years from the date of its execution. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by applicable law.
(b) A proxy shall be deemed signed if the Stockholder's name is
placed on the proxy (whether by manual signature, telegraphic transmission or
otherwise) by the Stockholder or his attorney-in-fact. In the event any proxy
shall designate two or more persons to act as proxies, a majority of such
persons present at the meeting (or, if only one shall be present, then that one)
shall have and may exercise all the powers conferred by the proxy upon all the
persons so designated unless the proxy shall otherwise provide.
(c) Except as otherwise provided by applicable law, by the
Certificate of Incorporation or by these Bylaws, the Board of Directors may, in
advance of any meeting of Stockholders, prescribe additional regulations
concerning the manner of execution and filing of proxies (and the validation of
same) which may be voted at such meeting.
SECTION 2.10 RECORD DATE. For the purpose of determining the Stockholders
entitled to notice of or to vote at any meeting of Stockholders (or any
adjournment thereof) or to receive payment of any dividend or other distribution
or allotment of any rights or 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 may fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted by
the Board of Directors or be more than 60 nor less than 10 days prior to the
date of such meeting nor more than 60 days prior to 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 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 and (ii) 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 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 of Directors may fix a new record date for the adjourned meeting.
SECTION 2.11 CONDUCT OF MEETINGS; AGENDA. (a) Meetings of the Stockholders
shall be presided over by the officer of the Corporation whose duties under
these Bylaws require him to do so; provided, however, if no such officer of the
Corporation shall be present at any meeting of Stockholders, such meeting shall
be presided over by a chairman to be chosen by a majority of the Stockholders
entitled to vote at the meeting who are present in person or by proxy. At each
meeting of Stockholders, the officer of the Corporation whose duties under these
Bylaws require him to do so shall act as secretary of the meeting; provided,
however, if no such officer of the Corporation shall be present at any meeting
of Stockholders, the chairman of such meeting shall appoint a secretary. The
order of business at each meeting of Stockholders shall be as determined by the
chairman of the meeting, including such regulation of the manner of voting and
the conduct of discussion as seems to him in order.
(b) The Board of Directors may, in advance of any meeting of
Stockholders, adopt an agenda for such meeting, adherence to which the chairman
of the meeting may enforce.
SECTION 2.12 INSPECTORS OF ELECTION; OPENING AND CLOSING OF POLLS.
(a) Before any meeting of Stockholders, the Board of Directors may, and if
required by law shall, appoint one or
more persons to act as inspectors of election at such meeting or any adjournment
thereof. If any person appointed as inspector fails to appear or fails or
refuses to act, the chairman of the meeting may, and if required by law or
requested by any Stockholder entitled to vote or his proxy shall, appoint a
substitute inspector. If no inspectors are appointed by the Board of Directors,
the chairman of the meeting may, and if required by law or requested by any
Stockholder entitled to vote or his proxy shall, appoint one or more inspectors
at the meeting. Notwithstanding the foregoing, inspectors shall be appointed
consistent with the mandatory provisions of Section 231 of the DGCL.
(b) Inspectors may include individuals who serve the Corporation in
other capacities (including as officers, employees, agents or representatives);
provided, however, that no director or candidate for the office of director
shall act as an inspector. Inspectors need not be Stockholders.
(c) The inspectors shall (i) determine the number of shares of
capital stock of the Corporation outstanding and the voting power of each, the
number of shares represented at the meeting, the existence of a quorum and the
validity and effect of proxies and (ii) receive votes or ballots, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes and ballots, determine the results and do
such acts as are proper to conduct the election or vote with fairness to all
Stockholders. On request of the chairman of the meeting, the inspectors shall
make a report in writing of any challenge, request or matter determined by them
and shall execute a certificate of any fact found by them. The inspectors shall
have such other duties as may be prescribed by Section 231 of the DGCL.
(d) The chairman of the meeting may, and if required by the DGCL
shall, fix and announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the Stockholders will vote at
the meeting.
SECTION 2.13 PROCEDURES FOR BRINGING BUSINESS BEFORE ANNUAL MEETINGS. (a)
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at an annual meeting of Stockholders except in accordance with the
procedures hereinafter set forth in this Section 2.13; provided, however, that
nothing in this Section 2.13 shall be deemed to preclude discussion by any
Stockholder of any business properly brought before any annual meeting of
Stockholders in accordance with such procedures.
(b) At any annual meeting of Stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (ii) otherwise properly brought before the meeting by or
at the direction of the Board of Directors or (iii) properly brought before the
meeting by a Stockholder. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a Stockholder, the
Stockholder must have given timely notice thereof in writing to the Secretary.
To be timely, a Stockholder's notice must be delivered to or mailed and received
at the principal executive office of the Corporation not less than 120 days nor
more than 150 days in advance of the first anniversary of the date of the
Corporation's proxy statement released to Stockholders in connection with the
previous year's annual meeting of Stockholders; provided, however, that if no
annual meeting was held in the previous year or the date of the annual meeting
of Stockholders has been changed by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, the notice must
be received by the Corporation at least 80 days prior to the date the
Corporation intends to distribute its proxy statement with respect to such
meeting. Any meeting of Stockholders which is adjourned and will reconvene
within 30 days after the meeting date as originally noticed shall, for purposes
of any Stockholder's notice contemplated by this paragraph (b), be deemed to be
a continuation of the original meeting, and no business may be brought before
such adjourned meeting by any Stockholder unless timely notice of such business
was given to the Secretary of the Corporation for the meeting as originally
noticed.
(c) Each notice given by a Stockholder as contemplated by paragraph
(b) above shall set forth, as to each matter the Stockholder proposes to bring
before the annual meeting, (i) the nature of the proposed business with
reasonable particularity, including the exact text of any proposal to be
presented for adoption and any supporting statement, which proposal and
supporting statement shall not in the aggregate exceed 500 words, and his
reasons for conducting such business at the annual meeting, (ii) any material
interest of the Stockholder in such business, (iii) the name, principal
occupation and record address of the Stockholder, (iv) the class and number of
shares of the Corporation which are held of record or beneficially owned by the
Stockholder, (v) the dates upon which the Stockholder acquired such shares of
stock and documentary support for any claims of beneficial ownership and (vi)
such other matters as may be required by the Certificate of Incorporation.
(d) The foregoing right of a Stockholder to propose business for
consideration at an annual meeting of Stockholders shall be subject to such
conditions, restrictions and limitations as may be imposed by the Certificate of
Incorporation. Nothing in this Section 2.13 shall entitle any Stockholder to
propose business for consideration at any special meeting of Stockholders.
(e) The chairman of any meeting of Stockholders shall determine
whether business has been properly brought before the meeting and, if the facts
so warrant, may refuse to transact any business at such meeting which has not
been properly brought before the meeting.
(f) Notwithstanding any other provision of these Bylaws, the
Corporation shall be under no obligation to include any Stockholder proposal in
its proxy statement or otherwise present any such proposal to Stockholders at a
meeting of Stockholders if the Board of Directors reasonably believes that the
proponents thereof have not complied with Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder, and the Corporation shall not be required to
include in its proxy statement to Stockholders any Stockholder proposal not
required to be included in its proxy statement to Stockholders in accordance
with the Exchange Act and such rules or regulations.
(g) Nothing in this Section 2.13 shall be deemed to affect any
rights of Stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 of the Exchange Act.
(h) Reference is made to Section 3.4 for procedures relating to the
nomination of any person for election or reelection as a director of the
Corporation.
SECTION 2.14 ACTION WITHOUT MEETING. No action shall be taken by
Stockholders except at a meeting of Stockholders. Stockholders may not act by
written consent in lieu of a meeting.
ARTICLE III
BOARD OF DIRECTORS -- POWERS, NUMBER, CLASSIFICATION, NOMINATIONS, RESIGNATIONS,
REMOVAL, VACANCIES AND COMPENSATION
SECTION 3.1 MANAGEMENT. The business and property of the Corporation shall
be managed by and under the direction of the Board of Directors. In addition to
the powers and authorities expressly conferred upon the Board of Directors by
these Bylaws, the Board of Directors may exercise all the powers of the
Corporation and do all such lawful acts and things as are not by law, by the
Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the Stockholders.
SECTION 3.2 NUMBER AND QUALIFICATION. The number of directors shall be
fixed from time to time exclusively pursuant to resolution adopted by a majority
of the Corporation's directors, but shall consist of not less than one nor more
than seven directors, subject, however, to increases above seven members as may
be required in order to permit the holders of any series of preferred stock of
the Corporation to elect directors under specified circumstances. The directors
need not be Stockholders or residents of the State of Delaware. Each director
must have attained 21 years of age.
SECTION 3.3 CLASSES OF DIRECTORS. The Board of Directors shall be divided
into three classes designated as Class I, Class II and Class III, respectively,
all as nearly equal in number as possible, with each director then in office
receiving the classification to be determined with respect to such director by
the Board of Directors.
SECTION 3.4 ELECTION; TERM OF OFFICE. (a) The initial term of office of
Class I directors shall expire at the annual meeting of the Corporation's
Stockholders in 2002. The initial term of office of Class II directors shall
expire at the annual meeting of Stockholders in 2003. The initial term of office
of Class III directors shall expire at the annual meeting of Stockholders in
2004. Subject to Sections 3.9 and 3.10, each director elected at an annual
meeting of Stockholders to succeed a director whose term is expiring shall hold
office until the third annual meeting of Stockholders after his election and
until his successor is elected and qualified or until his earlier death,
resignation or removal.
(b) Directors shall be elected by Stockholders only at annual
meetings of Stockholders, except that if any such annual meeting is not held or
if any director to be elected thereat is not elected, such director may be
elected at any special meeting of Stockholders held for that purpose.
(c) No decrease in the number of directors constituting the Board of
Directors shall have the effect of shortening the term of any incumbent
director.
SECTION 3.5. ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF
INCREASES OR DECREASES IN THE NUMBER OF DIRECTORS. In the event of any increase
or decrease in the authorized number of directors, (i) each director then
serving as such shall nevertheless continue as a director of the class of which
he is a member and (ii) the newly created or eliminated directorships resulting
from such increase or decrease shall be apportioned by the Board of Directors
among the three classes of directors so as to ensure that no one class has more
than one director more than any other class. To the extent possible, consistent
with the foregoing rule, any newly created directorships shall be added to those
classes whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of office are to expire at the earliest dates
following such allocation, unless otherwise provided from time to time by
resolution adopted by the Board of Directors.
SECTION 3.6 NOMINATIONS. (a) Notwithstanding anything in these Bylaws to
the contrary, only persons who are nominated in accordance with the procedures
hereinafter set forth in this Section 3.6 shall be eligible for election as
directors of the Corporation.
(b) Nominations of persons for election to the Board of Directors at
a meeting of Stockholders may be made only (i) by or at the direction of the
Board of Directors or (ii) by any Stockholder entitled to vote for the election
of directors at the meeting who satisfies the eligibility requirements (if any)
set forth in the Certificate of Incorporation and who complies with the notice
procedures set forth in this Section 3.6 and in the Certificate of
Incorporation; provided, however, Stockholders may not nominate persons for
election to the Board of Directors at any special meeting of Stockholders unless
the business to be transacted at such special meeting, as set forth in the
notice of such meeting, includes the election of directors. Nominations by
Stockholders shall be made pursuant to timely notice in writing to the
Secretary. To be timely, a Stockholder's notice given in the context of an
annual meeting of Stockholders shall be delivered to or mailed and received at
the principal executive office of the Corporation not less than 120 days nor
more than 150 days in advance of the first anniversary of the date of the
Corporation's proxy statement released to Stockholders in connection with the
previous year's annual meeting of Stockholders; provided, however, that if no
annual meeting was held in the previous year or the date of the annual meeting
of Stockholders has been changed by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, the notice must
be received by the Corporation at least 80 days prior to the date the
Corporation intends to distribute its proxy statement with respect to such
meeting. To be timely, a Stockholder's notice given in the context of a special
meeting of Stockholders shall be delivered to or mailed and received at the
principal executive office of the Corporation not earlier than the ninetieth day
prior to such special meeting and not later than the close of business on the
later of the seventieth 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 of Directors to be
elected at such special meeting. For purposes of the foregoing, "public
announcement" means the disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable 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. Any meeting
of Stockholders which is adjourned and will reconvene within 30 days after the
meeting date as originally noticed shall, for purposes of any notice
contemplated by this paragraph (b), be deemed to be a continuation of the
original meeting and no nominations by a Stockholder of persons to be elected
directors of the Corporation may be made at any such reconvened meeting other
than pursuant to a notice that was timely for the meeting on the date originally
noticed.
(c) Each notice given by a Stockholder as contemplated by paragraph
(b) above shall set forth the following information, in addition to any other
information or matters required by the Certificate of Incorporation:
(i) as to each person whom the Stockholder proposes to nominate for
election or re-election as a director, (A) the exact name of such person,
(B) such person's age, principal occupation, business address and
telephone number and residence address and telephone number, (C) the
number of shares (if any) of each class of stock of the Corporation owned
directly or indirectly by such person and (D) all other information
relating to such person that is required to be disclosed in solicitations
of proxies for election of directors pursuant to Regulation 14A under the
Exchange Act or any successor regulation thereto (including such person's
notarized written acceptance of such nomination, consent to being named in
the proxy statement as a nominee and statement of intention to serve as a
director if elected);
(ii) as to the Stockholder giving the notice, (A) his name and
address, as they appear on the Corporation's books, (B) his principal
occupation, business address and telephone number and residence address
and telephone number, (C) the class and number of shares of the
Corporation which are held of record or beneficially owned by him and (D)
the dates upon which he acquired such shares of stock and documentary
support for any claims of beneficial ownership; and
(iii) a description of all arrangements or understandings between
the Stockholder giving the notice and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination
or nominations are to be made by such Stockholder.
At the request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
Corporation that information required to be set forth in a Stockholder's notice
of nomination which pertains to the nominee.
(d) The foregoing right of a Stockholder to nominate a person for
election or reelection to the Board of Directors shall be subject to such
conditions, restrictions and limitations as may be imposed by the Certificate of
Incorporation.
(e) Nothing in this Section 3.6 shall be deemed to affect any rights
of Stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 of the Exchange Act.
(f) The chairman of a meeting of Stockholders shall have the power
and duty to determine whether a nomination was made in accordance with the
procedures set forth in this Section 3.6 and, if any nomination is not in
compliance with this Section 3.6, to declare that such defective nomination
shall be disregarded.
SECTION 3.7 RESIGNATIONS. Any director may resign at any time by giving
notice, either written or by electronic communications, to the Board of
Directors or the Secretary. Such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein. Acceptance of
such resignation shall not be necessary to make it effective. When one or more
directors shall resign from the Board of Directors, effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office for the unexpired
portion of the term of the director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
SECTION 3.8 REMOVAL. No director may be removed before the expiration of
his term of office except for cause and then only by the affirmative vote of the
holders of not less than a majority of the voting power of all outstanding
Voting Stock, voting together as a single class. The Board of Directors may not
remove any director, and no recommendation by the Board of Directors that a
director be removed may be made to the Stockholders unless such recommendation
is set forth in a resolution adopted by the affirmative vote of not less than
66-2/3% of the directors.
SECTION 3.9 VACANCIES. (a) In case any vacancy shall occur on the Board of
Directors because of death, resignation or removal, such vacancy may be filled
by a majority of the directors remaining in office (though less than a quorum)
or by the sole remaining director. The director so appointed shall serve for the
unexpired term of his predecessor or until his successor is elected and
qualified or until his earlier death, resignation or removal. If there are no
directors then in office, an election of directors may be held in the manner
provided by applicable law.
(b) Any newly-created directorship resulting from any increase in
the number of authorized directors may be filled by a majority of the directors
then in office (though less than a quorum), or by the sole remaining director.
The director so appointed shall be assigned to such class of directors as such
majority of directors, or the sole remaining director, as the case may be, shall
determine; provided however, that newly-created directorships shall be
apportioned among the classes of directors so that all classes will be as nearly
equal in number as possible. Each director so appointed shall hold office until
his successor is elected and qualified or until his earlier death, resignation
or removal.
(c) Except as expressly provided in these Bylaws or the Certificate
of Incorporation or as otherwise provided by law, Stockholders shall not have
any right to fill vacancies on the Board of Directors, including newly-created
directorships.
(d) If, as a result of a disaster or emergency (as determined in
good faith by the then remaining directors), it becomes impossible to ascertain
whether or not vacancies exist on the Board of Directors, and a person is, or
persons are, elected by the directors, who in good faith believe themselves to
be a majority of the remaining directors, or the sole remaining director, to
fill a vacancy or vacancies that such remaining directors in good faith believe
exists, then the acts of such person or persons who are so elected as directors
shall be valid and binding upon the Corporation and the Stockholders, although
it may subsequently develop that at the time of the election (i) there was in
fact no vacancy or vacancies existing on the Board of Directors or (ii) the
directors, or the sole remaining director, who so elected such person or persons
did not in fact constitute a majority of the remaining directors.
SECTION 3.10 SUBJECT TO RIGHTS OF HOLDERS OF PREFERRED STOCK.
Notwithstanding the foregoing provisions of this Article III, if the resolutions
of the Board of Directors creating any series of preferred stock of the
Corporation entitle the holders of such preferred stock, voting separately by
series, to elect additional directors under specified circumstances, then all
provisions of such resolutions relating to the nomination, election, term of
office, removal, filling of vacancies and other features of such directorships
shall, as to such directorships, govern and control over any conflicting
provisions of this Article III.
SECTION 3.11 COMPENSATION. The Board of Directors shall have the authority
to fix, and from time to time to change, the compensation of directors. Each
director shall be entitled to reimbursement from the Corporation for his
reasonable expenses incurred in attending meetings of the Board of Directors (or
any committee thereof) and meetings of the Stockholders. Nothing contained in
these Bylaws shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
ARTICLE IV
BOARD OF DIRECTORS -- MEETINGS AND ACTIONS
SECTION 4.1 PLACE OF MEETINGS. The directors may hold their meetings and
have one or more offices, and keep the books of the Corporation, in such place
or places, within or without the State of Delaware, as the Board of Directors
may from time to time determine.
SECTION 4.2 REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and place, within or without the State
of Delaware, as shall from time to time be determined by the Board of Directors.
Except as otherwise provided by applicable law, any business may be transacted
at any regular meeting of the Board of Directors.
SECTION 4.3 SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be called by the Secretary at the request of the Chairman of the Board (if
any) or the Chief Executive Officer on not less than 24 hours' notice to each
director, specifying the time, place and purpose of the meeting. Special
meetings shall be called by the Secretary on like notice at the request, in
writing or by electronic communication, of any two directors, which request
shall state the purpose of the meeting.
SECTION 4.4 QUORUM; VOTING. (a) At all meetings of the Board of Directors,
a majority of the directors shall be necessary and sufficient to constitute a
quorum for the transaction of business. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time (without notice other than announcement at the
meeting) until a quorum shall be present. A meeting of the Board of Directors at
which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors; provided, however, that no action
of the remaining directors shall constitute the act of the Board of Directors
unless the action is approved by at least a majority of the required quorum for
the meeting or such greater number of directors as shall be required by
applicable law, by the Certificate of Incorporation or by these Bylaws.
(b) The act of a majority of the directors present at any meeting of
the Board of Directors at which there is a quorum shall be the act of the Board
of Directors unless, by express provision of law, the Certificate of
Incorporation, or these Bylaws, a different vote is required, in which case such
express provision shall govern and control.
SECTION 4.5 CONDUCT OF MEETINGS. At meetings of the Board of Directors,
business shall be transacted in such order as shall be determined by the
chairman of the meeting unless the Board of Directors shall otherwise determine
the order of business. The Board of Directors shall keep regular minutes of its
proceedings which shall be placed in the minute book of the Corporation.
SECTION 4.6 PRESUMPTION OF ASSENT. A director who is present at a meeting
of the Board of Directors at which action on any corporate matter is taken shall
be presumed to have assented to such action unless his dissent shall be entered
in the minutes of the meeting or unless he shall file his dissent, either in
writing or by electronic communication, to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary immediately after the
adjournment of the meeting. Such right to dissent shall not apply to any
director who voted in favor of such action.
SECTION 4.7 ACTION WITHOUT MEETING. Unless otherwise provided in the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if all directors consent thereto in writing. All such written consents
shall be filed with the minutes of proceedings of the Board of Directors.
SECTION 4.8 TELEPHONIC MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of the Board of Directors
may participate in a meeting of the Board of Directors by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
ARTICLE V
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 5.1 EXECUTIVE COMMITTEE. (a) The Board of Directors may, by
resolution adopted by the affirmative vote of a majority of the directors,
designate an Executive Committee which, during the intervals between meetings of
the Board of Directors and subject to Section 5.11, shall have and may exercise,
in such manner as it shall deem to be in the best interests of the Corporation,
all of the powers of the Board of Directors in the management or direction of
the business and affairs of the Corporation, except as reserved to the Board of
Directors or as delegated by the Board of Directors to another committee of the
Board of Directors or as may be prohibited by law. The Executive Committee shall
consist of not less than two directors, the exact number to be determined from
time to time by the affirmative vote of a majority of the directors. None of the
members of the Executive Committee need be an officer of the Corporation.
(b) Meetings of the Executive Committee may be called at any time by
the Chairman of the Board (if any) or the Chief Executive Officer on not less
than one day's notice to each member given verbally or in writing, which notice
shall specify the time, place and purpose of the meeting.
SECTION 5.2 OTHER COMMITTEES. The Board of Directors may, by resolution
adopted by a majority of the directors, establish additional standing or special
committees of the Board of Directors, each of which shall consist of two or more
directors (the exact number to be determined from time to time by the Board of
Directors) and, subject to Section 5.11, shall have such powers and functions as
may be delegated to it by the Board of Directors. No member of any such
additional committee need be an officer of the Corporation.
SECTION 5.3 TERM. Each member of a committee of the Board of Directors
shall serve as such until the earliest of (i) his death, (ii) the expiration of
his term as a director, (iii) his resignation as a member of such committee or
as a director and (iv) his removal as a member of such committee or as a
director.
SECTION 5.4 COMMITTEE CHANGES; REMOVAL. The Board of Directors shall have
the power at any time to fill vacancies in, to change the membership of, and to
abolish any committee of the Board of Directors; provided, however, that no such
action shall be taken in respect of the Executive Committee unless approved by a
majority of the directors.
SECTION 5.5 ALTERNATE MEMBERS. The Board of Directors 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. If no alternate members
have been so appointed or each such alternate committee member is absent or
disqualified, the committee member or members thereof 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 absent or disqualified member.
SECTION 5.6 RULES AND PROCEDURES. (a) The Board of Directors may designate
one member of each committee as chairman of such committee; provided, however,
that, except as provided in the following sentence, no person shall be
designated as chairman of the Executive Committee unless approved by a majority
of the directors. If a chairman is not so designated for any committee, the
members thereof shall designate a chairman.
(b) Each committee shall adopt its own rules (not inconsistent with
these Bylaws or with any specific direction as to the conduct of its affairs as
shall have been given by the Board of Directors) governing the time, place and
method of holding its meetings and the conduct of its proceedings and shall meet
as provided by such rules.
(c) If a committee is comprised of an odd number of members, a
quorum shall consist of a majority of that number. If a committee is comprised
of an even number of members, a quorum shall consist of one-half of that number.
If a committee is comprised of two members, a quorum shall consist of both
members. If a quorum is not present at a meeting of any committee, a majority of
the members present may adjourn the meeting from time to time, without notice
other than an announcement at the meeting, until a quorum is present. The act of
a majority of the members present at any meeting at which a quorum is in
attendance shall be the act of a committee, unless the act of a greater number
is required by law, the Certificate of Incorporation, these Bylaws or the
committee's rules as adopted in Section 5.6(b).
(d) Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when requested.
(e) Unless otherwise provided by these Bylaws or by the rules
adopted by any committee, notice of the time and place of each meeting of such
committee shall be given to each member of such committee as provided in these
Bylaws with respect to notices of special meetings of the Board of Directors.
SECTION 5.7 PRESUMPTION OF ASSENT. A member of a committee of the Board of
Directors who is present at a meeting of such committee at which action on any
corporate matter is taken shall be presumed to have assented to such action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his dissent, in writing or by electronic communication, to such
action with the person acting as secretary of the meeting before the adjournment
thereof or shall forward any dissent by certified or registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to any member who voted in favor of such
action.
SECTION 5.8 ACTION WITHOUT MEETING. Unless otherwise provided in the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of a committee of the Board of Directors may be taken
without a meeting if all members of such committee consent thereto in writing or
by electronic communication. All such consents shall be filed with the minutes
of proceedings of such committee.
SECTION 5.9 TELEPHONIC MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of any committee of the
Board of Directors may
participate in a meeting of such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 5.10 RESIGNATIONS. Any committee member may resign at any time by
giving notice, in writing or by electronic communication, to the Board of
Directors or the Secretary. Such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein. Acceptance of
such resignation shall not be necessary to make it effective.
SECTION 5.11 LIMITATIONS ON AUTHORITY. Unless otherwise provided in the
Certificate of Incorporation, no committee of the Board of Directors shall have
the power or authority to (i) authorize an amendment to the Certificate of
Incorporation, (ii) adopt an agreement of merger or consolidation, recommend to
the Stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, (iii) recommend to the Stockholders a
dissolution of the Corporation or a revocation of a dissolution, (iv) amend
these Bylaws, (v) declare a dividend or other distribution on, or authorize the
issuance, purchase or redemption of, securities of the Corporation, (vi) elect
any officer of the Corporation or (vii) approve any material transaction between
the Corporation and one or more of its directors, officers or employees or
between the Corporation and any corporation, partnership, association or other
organization in which one or more of its directors, officers or employees are
directors or officers or have a financial interest; provided, however, that the
Executive Committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of preferred stock adopted by
the Board of Directors as provided in the Certificate of Incorporation, 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 of stock of the Corporation or fix the number of
shares of any series of stock or authorize the decrease or increase of the
shares of any such series.
ARTICLE VI
OFFICERS
SECTION 6.1 NUMBER; TITLES; QUALIFICATION; TERM OF OFFICE. (a) The
officers of the Corporation shall be a Chief Executive Officer, a President, a
Chief Scientific Officer, a Secretary and a Treasurer. The Board of Directors
from time to time may also elect such other officers (including, without
limitation, a Chairman of the Board, Chief Financial Officer and one or more
Vice Presidents) as the Board of Directors deems appropriate or necessary. Each
officer shall hold office until his successor shall have been duly elected and
shall have been qualified or until his earlier death, resignation or removal.
Any two or more offices may be held by the same person, but no officer shall
execute any instrument in more than one capacity if such instrument is required
by law or any act of the Corporation to be executed or countersigned by two or
more officers. None of the officers need be a Stockholder or a resident of the
State of Delaware. No officer (other than the Chairman of the Board, if any)
need be a director.
(b) The Board of Directors may delegate to the Chairman of the Board
(if any) and/or the Chief Executive Officer the power to appoint one or more
employees of the Corporation as divisional or departmental vice presidents and
fix their duties as such appointees. However, no such divisional or departmental
vice presidents shall be considered an officer of the Corporation, the officers
of the Corporation being limited to those officers elected by the Board of
Directors.
SECTION 6.2 ELECTION. At the first meeting of the Board of Directors after
each annual meeting of Stockholders at which a quorum shall be present, the
Board of Directors shall elect the officers of the Corporation.
SECTION 6.3 REMOVAL. Any officer may be removed, either with or without
cause, by the Board of Directors; provided, however, that (i) the Chairman of
the Board (if any) and the Chief Executive Officer may be removed only by the
affirmative vote of a majority of the directors and (ii) the removal of any
officer shall be without prejudice to the contract rights, if any, of such
officer. Election or appointment of an officer shall not of itself create
contract rights.
SECTION 6.4 RESIGNATIONS. Any officer may resign at any time by giving
notice, in writing or by electronic communication, to the Board of Directors,
the Chairman of the Board (if any) or the Chief Executive Officer. Any such
resignation shall take effect on receipt of such notice or at any later time
specified therein. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any such resignation is
without prejudice to the rights, if any, of the Corporation under any contract
to which the officer is a party.
SECTION 6.5 VACANCIES. If a vacancy shall occur in any office because of
death, resignation, removal, disqualification or any other cause, the Board of
Directors may elect or appoint a successor to fill such vacancy for the
remainder of the term.
SECTION 6.6 SALARIES. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors or pursuant to its direction, and no
officer shall be prevented from receiving such salary by reason of the fact that
he is also a director of the Corporation.
SECTION 6.7 CHAIRMAN OF THE BOARD. The Chairman of the Board (if any)
shall have all powers and shall perform all duties incident to the office of
Chairman of the Board and such other powers and duties as may be prescribed by
the Board of Directors or these Bylaws. The Chairman of the Board, if present,
shall preside at all meetings of the Board of Directors and of the Stockholders.
During the time of any vacancy in the office of Chief Executive Officer or in
the event of the absence or disability of the Chief Executive Officer, the
Chairman of the Board shall have the duties and powers of the Chief Executive
Officer unless otherwise determined by the Board of Directors. In no event shall
any third party having dealings with the Corporation be bound to inquire as to
any facts required by the terms of this Section 6.7 for the exercise by the
Chairman of the Board of the powers of the Chief Executive Officer.
SECTION 6.8 CHIEF EXECUTIVE OFFICER. (a) The Chief Executive Officer shall
be the chief executive officer of the Corporation and, subject to the
supervision, direction and control of the Board of Directors, shall have general
supervision, direction and control of the business and officers of the
Corporation with all such powers as may be reasonably incident to such
responsibilities. He shall have the general powers and duties of management
usually vested in the chief executive officer of a corporation.
(b) During the time of any vacancy in the office of the Chairman of
the Board or in the event of the absence or disability of the Chairman of the
Board, the Chief Executive Officer shall have the duties and powers of the
Chairman of the Board unless otherwise determined by the Board of Directors.
During the time of any vacancy in the office of President or in the event of the
absence or disability of the President, the Chief Executive Officer shall have
the duties and powers of the President unless otherwise determined by the Board
of Directors. In no event shall any third party having any dealings with the
Corporation be bound to inquire as to any facts required by the terms of this
Section 6.8 for the exercise by the Chief Executive Officer of the powers of the
Chairman of the Board or the President.
SECTION 6.9 PRESIDENT. (a) The President shall be the chief operating
officer of the Corporation and, subject to the supervision, direction and
control of the Chief Executive Officer and the Board of Directors, shall manage
the day-to-day operations of the Corporation. He shall have the general powers
and duties of management usually vested in the chief operating officer of a
corporation and such other powers and duties as may be assigned to him by the
Board of Directors, the Chief Executive Officer or these Bylaws.
(b) During the time of any vacancy in the offices of the Chairman of
the Board and Chief Executive Officer or in the event of the absence or
disability of the Chairman of the Board and the Chief Executive Officer, the
President shall have the duties and powers of the Chief Executive Officer unless
otherwise determined by the Board of Directors. In no event shall any third
party having any dealings with the Corporation be bound to inquire as to any
facts required by the terms of this Section 6.9 for the exercise by the
President of the powers the Chief Executive Officer.
SECTION 6.10 CHIEF SCIENTIFIC OFFICER. The Chief Scientific Officer shall
be the chief scientific officer of the Corporation and, subject to the
supervision, direction and control of the Board of Directors and President,
shall have general supervision, direction and control of the Corporation's
scientific endeavors with all such powers as may be reasonably incident to such
responsibilities. He shall have the general powers and duties of management
usually vested in the chief scientific officer of a corporation.
SECTION 6.11 VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents, if any, in order of their rank as fixed by the
Board of Directors, or if not ranked, the Vice President designated by the
President, shall perform all the duties of the President as chief operating
officer of the Corporation, and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the President as chief operating
officer of the Corporation. In no event shall any third party having dealings
with the Corporation be bound to inquire as to any facts required by the terms
of this Section 6.11 for the exercise by any Vice President of the
powers of the President as chief operating officer of the Corporation. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be assigned to them by the Board of Directors, the Chief
Executive Officer or the President.
SECTION 6.12 TREASURER. The Treasurer shall (i) have custody of the
Corporation's funds and securities, (ii) keep full and accurate account of
receipts and disbursements, (iii) deposit all monies and valuable effects in the
name and to the credit of the Corporation in such depository or depositories as
may be designated by the Board of Directors and (iv) perform such other duties
as may be prescribed by the Board of Directors or the Chief Executive Officer.
SECTION 6.13 ASSISTANT TREASURERS. Each Assistant Treasurer shall have
such powers and duties as may be assigned to him by the Board of Directors, the
Chief Executive Officer or the President. In case of the absence or disability
of the Treasurer, the Assistant Treasurer designated by the President (or, in
the absence of such designation, the Treasurer) shall perform the duties and
exercise the powers of the Treasurer during the period of such absence or
disability. In no event shall any third party having dealings with the
Corporation be bound to inquire as to any facts required by the terms of this
Section 6.13 for the exercise by any Assistant Treasurer of the powers of the
Treasurer under these Bylaws.
SECTION 6.14 SECRETARY. (a) The Secretary shall keep or cause to be kept,
at the principal office of the Corporation or such other place as the Board of
Directors may order, a book of minutes of all meetings and actions of the Board
of Directors, committees of the Board of Directors and Stockholders, with the
time and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at meetings of
the Board of Directors and committees thereof, the number of shares present or
represented at Stockholders' meetings and the proceedings thereof.
(b) The Secretary shall keep, or cause to be kept, at the principal
office of the Corporation or at the office of the Corporation's transfer agent
or registrar, a share register, or a duplicate share register, showing the names
of all Stockholders and their addresses, the number and classes of shares held
by each, the number and date of certificates issued for the same and the number
and date of cancellation of every certificate surrendered for cancellation.
(c) The Secretary shall give, or cause to be given, notice of all
meetings of the Stockholders and of the Board of Directors required by these
Bylaws or by law to be given, and he shall keep the seal of the Corporation, if
one be adopted, in safe custody, and shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors, the Chairman
of the Board (if any), the Chief Executive Officer, the President or these
Bylaws.
(d) The Secretary may affix the seal of the Corporation, if one be
adopted, to contracts of the Corporation.
SECTION 6.15 ASSISTANT SECRETARIES. Each Assistant Secretary shall have
such powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board (if any), the Chief Executive Officer or the President. In
case of the absence or disability of the Secretary, the Assistant Secretary
designated by the President (or, in the absence of such
designation, the Secretary) shall perform the duties and exercise the powers of
the Secretary during the period of such absence or disability. In no event shall
any third party having dealings with the Corporation be bound to inquire as to
any facts required by the terms of this Section 6.15 for the exercise by any
Assistant Secretary of the powers of the Secretary under these Bylaws.
ARTICLE VII
STOCK
SECTION 7.1 CERTIFICATES. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the Board of
Directors. The certificates shall be signed (i) by the Chairman of the Board (if
any), the Chief Executive Officer, the President or a Vice President and (ii) by
the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer.
SECTION 7.2 SIGNATURES ON CERTIFICATES. Any or all of the signatures on
the certificates may be a facsimile and the seal of the Corporation (or a
facsimile thereof), if one has been adopted, may be affixed thereto. 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, such
certificate 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.
SECTION 7.3 LEGENDS. The Board of Directors shall have the power and
authority to provide that certificates representing shares of stock of the
Corporation bear such legends and statements (including, without limitation,
statements relating to the powers, designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions of the shares represented by such certificates) as the Board of
Directors deems appropriate in connection with the requirements of federal or
state securities laws or other applicable laws.
SECTION 7.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors, the Secretary and the Treasurer each may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, in each case upon the making of an affidavit of that fact by the
owner of such certificate, or his legal representative. When authorizing such
issue of a new certificate or certificates, the Board of Directors, the
Secretary or the Treasurer, as the case may be, may, in its or his discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as the Board of Directors,
the Secretary or the Treasurer, as the case may be, shall require and/or to
furnish the Corporation a bond in such form and substance and with such surety
as the Board of Directors, the Secretary or the Treasurer, as the case may be,
may direct as indemnity against any claim, or expense resulting from any claim,
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
SECTION 7.5 TRANSFERS OF SHARES. Shares of stock of the Corporation shall
be transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation, or the transfer agent of the Corporation, of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Corporation or its transfer
agent shall issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon the Corporation's books.
SECTION 7.6 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
treat the holder of record of any share of stock of the Corporation as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim or interest in such share on the part of any other
person, whether or not the Corporation shall have express or other notice
thereof, except as expressly provided by the laws of the State of Delaware.
SECTION 7.7 REGULATIONS. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of stock of the Corporation. The Board of Directors may
(i) appoint and remove transfer agents and registrars of transfers and (ii)
require all stock certificates to bear the signature of any such transfer agent
and/or any such registrar of transfers.
SECTION 7.8 STOCK OPTIONS, WARRANTS, ETC. Unless otherwise expressly
prohibited in the resolutions of the Board of Directors creating any class or
series of preferred stock of the Corporation, the Board of Directors shall have
the power and authority to create and issue (whether or not in connection with
the issue and sale of any stock or other securities of the Corporation)
warrants, rights or options entitling the holders thereof to purchase from the
Corporation any shares of capital stock of the Corporation of any class or
series or any other securities of the Corporation for such consideration and to
such persons, firms or corporations as the Board of Directors, in its sole
discretion, may determine, setting aside from the authorized but unissued stock
of the Corporation the requisite number of shares for issuance upon the exercise
of such warrants, rights or options. Such warrants, rights and options shall be
evidenced by one or more instruments approved by the Board of Directors. The
Board of Directors shall be empowered to set the exercise price, duration, time
for exercise and other terms of such warrants, rights and operations; provided,
however, that the consideration to be received for any shares of capital stock
subject thereto shall not be less than the par value thereof.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 THIRD PARTY ACTIONS. The Corporation (i) shall, to the maximum
extent permitted from time to time under the laws of the State of Delaware,
indemnify every person who is or was a party or is or was threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation), by reason of the fact that such person
is or was a director or officer of the Corporation or any of its direct or
indirect subsidiaries or is or was serving at the request of the Corporation or
any of its direct or indirect subsidiaries as a director, officer or fiduciary
of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, and (ii) may, to the maximum extent permitted from time to
time under the laws of the State of Delaware, indemnify every person who is or
was a party or is or was threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that such person is or was an employee or
agent of the Corporation or any of its direct or indirect subsidiaries or is or
was serving at the request of the Corporation or any of its direct or indirect
subsidiaries as an employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including counsel fees), judgments, fines and amounts paid or owed in
settlement, actually and reasonably incurred by such person or rendered or
levied against such person in connection with such action, suit or proceeding,
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, in itself, create a presumption that the
person did not act in good faith and in a manner which such person reasonably
believed to be in or not opposed to the best interests of the Corporation or,
with respect to any criminal action or proceeding, that the person had
reasonable cause to believe that his conduct was unlawful. Any person seeking
indemnification under this Section 8.1 shall be deemed to have met the standard
of conduct required for such indemnification unless the contrary is established.
SECTION 8.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation
(i) shall, to the maximum extent permitted from time to time under the laws of
the State of Delaware, indemnify every person who is or was a party or who is or
was threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director or officer of the
Corporation or any of its direct or indirect subsidiaries or is or was serving
at the request of the Corporation or any of its direct or indirect subsidiaries
as a director, officer or fiduciary of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, and (ii) may, to the
maximum extent permitted from time to time under the laws of the State of
Delaware, indemnify every person who is or was a party or who is or was
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was an employee or agent of the
Corporation or any of its direct or indirect subsidiaries or is or was serving
at the request of the Corporation or any of its direct or indirect subsidiaries
as an employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees) actually and reasonably incurred by such person in connection with
the defense or settlement or such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation; provided, however, that no
indemnification shall be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnification.
SECTION 8.3 EXPENSES. Expenses incurred by a director or officer of the
Corporation or any of its direct or indirect subsidiaries in defending a civil
or criminal action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article VIII. Such expenses
incurred by other employees and agents of the Corporation and other persons
eligible for indemnification under this Article VIII may be paid upon such terms
and conditions, if any, as the Board of Directors deems appropriate.
SECTION 8.4 NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any provision of law, the
Certificate of Incorporation, the certificate of incorporation or bylaws or
other governing documents of any direct or indirect subsidiary of the
Corporation, under any agreement, vote of Stockholders or disinterested
directors or under any policy or policies of insurance maintained by the
Corporation on behalf of any person or otherwise, both as to action in his
official capacity and as to action in another capacity while holding any of the
positions or having any of the relationships referred to in this Article VIII.
SECTION 8.5 ENFORCEABILITY. The provisions of this Article VIII (i) are
for the benefit of, and may be enforced directly by, each director or officer of
the Corporation the same as if set forth in their entirety in a written
instrument executed and delivered by the Corporation and such director or
officer and (ii) constitute a continuing offer to all present and future
directors and officers of the Corporation. The Corporation, by its adoption of
these Bylaws, (A) acknowledges and agrees that each present and future director
and officer of the Corporation has relied upon and will continue to rely upon
the provisions of this Article VIII in becoming, and serving as, a director or
officer of the Corporation or, if requested by the Corporation, a director,
officer or fiduciary or the like of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, (B) waives reliance
upon, and all notices of acceptance of, such provisions by such directors and
officers and (C) acknowledges and agrees that no present or future director or
officer of the Corporation shall be prejudiced in his right to enforce directly
the provisions of this Article VIII in accordance with their terms by any act or
failure to act on the part of the Corporation.
SECTION 8.6 INSURANCE. The Board of Directors may authorize, by a vote of
the majority of the directors, the Corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article VIII.
SECTION 8.7 SURVIVAL. The provisions of this Article VIII shall continue
as to any person who has ceased to be a director or officer of the Corporation
and shall inure to the benefit of the estate, executors, administrators, heirs,
legatees and devisees of any person entitled to indemnification under this
Article VIII.
SECTION 8.8 AMENDMENT. No amendment, modification or repeal of this
Article VIII or any provision hereof shall in any manner terminate, reduce or
impair the right of any past, present or future director or officer of the
Corporation to be indemnified by the Corporation, nor the obligation of the
Corporation to indemnify any such director or officer, under and in accordance
with the provisions of this Article VIII as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising, in whole or in
part, from a state of facts extant on the date of, or relating to matters
occurring prior to, such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.
SECTION 8.9 DEFINITIONS. For purposes of this Article VIII, (i) reference
to any person shall include the estate, executors, administrators, heirs,
legatees and devisees of such person, (ii) "employee benefit plan" and
"fiduciary" shall be deemed to include, but not be limited to, the meaning set
forth in Section 1002, subsections 3(3) and 21(A), respectively, of the Employee
Retirement Income Security Act of 1974, as amended, (iii) references to the
judgments, fines and amounts paid or owed in settlement or rendered or levied
shall be deemed to encompass and include excise taxes required to be paid
pursuant to applicable law in respect of any transaction involving an employee
benefit plan and (iv) references to the Corporation shall be deemed to include
any predecessor corporation or entity and any constituent corporation or entity
absorbed in a merger, consolidation or other reorganization of or by the
Corporation which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, employees, agents and
fiduciaries so that any person who was a director, officer, employee, agent or
fiduciary of such predecessor or constituent corporation or entity, or served at
the request of such predecessor or constituent corporation or entity as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this Article VIII with
respect to the Corporation as such person would have with respect to such
predecessor or constituent corporation or entity if its separate existence had
continued.
ARTICLE IX
NOTICES AND WAIVERS
SECTION 9.1 METHODS OF GIVING NOTICES. Whenever, by applicable law, the
Certificate of Incorporation or these Bylaws, notice is required to be given to
any Stockholder, any director or any member of a committee of the Board of
Directors and no provision is made as to how such notice shall be given,
personal notice shall not be required and such notice may be given (i) in
writing, by mail, postage prepaid, addressed to such Stockholder, director or
committee member at his address as it appears on the books or (in the case of a
Stockholder) the stock transfer records of the Corporation or (ii) by any other
method permitted by law (including, but not limited to, overnight courier
service, telegram, telex or telecopier). Any notice required or
permitted to be given by mail shall be deemed to be delivered and given at the
time when the same is deposited in the United States mail as aforesaid. Any
notice required or permitted to be given by overnight courier service shall be
deemed to be delivered and given one business day after delivery to such service
with all charges prepaid and addressed as aforesaid. Any notice required or
permitted to be given by telegram, telex or telecopy shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
SECTION 9.2 WAIVER OF NOTICE. Whenever any notice is required to be given
to any Stockholder, director or member of a committee of the Board of Directors
by applicable law, the Certificate of Incorporation, or these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a Stockholder (whether in person or by
proxy), director or committee member at a meeting shall constitute a waiver of
notice of such meeting, except where such person attends for the express purpose
of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 DIVIDENDS. Subject to applicable law and the provisions of
the Certificate of Incorporation, dividends may be declared by the Board of
Directors at any meeting and may be paid in cash, in property or in shares of
the Corporation's capital stock. Any such declaration shall be at the discretion
of the Board of Directors. A director shall be fully protected in relying in
good faith upon the books of account of the Corporation or statements prepared
by any of its officers as to the value and amount of the assets, liabilities or
net profits of the Corporation or any other facts pertinent to the existence and
amount of surplus or other funds from which dividends might properly be
declared.
SECTION 10.2 RESERVES. There may be created by the Board of Directors, out
of funds of the Corporation legally available therefor, such reserve or reserves
as the Board of Directors from time to time, in its absolute discretion,
considers proper to provide for contingencies, to equalize dividends or to
repair or maintain any property of the Corporation, or for such other purpose as
the Board of Directors shall consider beneficial to the Corporation, and the
Board of Directors may thereafter modify or abolish any such reserve in its
absolute discretion.
SECTION 10.3 CHECKS. All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness, issued in the name of or
payable to the Corporation shall be signed by such officer or officers or by
such employees or agents of the Corporation as may be designated from time to
time by the Board of Directors.
SECTION 10.4 CORPORATE CONTRACTS AND INSTRUMENTS. Subject always to the
specific directions of the Board of Directors, the Chairman of the Board (if
any), the President, any Vice President, the Secretary or the Treasurer may
enter into contracts and execute instruments in the name and on behalf of the
Corporation. The Board of Directors and, subject to the specific directions of
the Board of Directors, the Chairman of the Board (if any) or the President may
authorize one or more officers, employees or agents of the Corporation to enter
into any contract or execute any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
SECTION 10.5 ATTESTATION. With respect to any deed, deed of trust,
mortgage or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary or an Assistant Secretary of the Corporation shall not be necessary to
constitute such deed, deed of trust, mortgage or other instrument a valid and
binding obligation of the Corporation unless the resolutions, if any, of the
Board of Directors authorizing such execution expressly state that such
attestation is necessary.
SECTION 10.6 SECURITIES OF OTHER CORPORATIONS. The Chairman of the Board,
the Chief Executive Officer, the President or any Vice President of the
Corporation shall have the power and authority to transfer, endorse for
transfer, vote, consent or take any other action with respect to any securities
of another issuer which may be held or owned by the Corporation and to make,
execute and deliver any waiver, proxy or consent with respect to any such
securities.
SECTION 10.7 FISCAL YEAR. The fiscal year of the Corporation shall be
January 1 through December 31, unless otherwise fixed by the Board of Directors.
SECTION 10.8 SEAL. The seal of the Corporation, if any, shall be such as
from time to time may be approved by the Board of Directors.
SECTION 10.9 INVALID PROVISIONS. If any part of these Bylaws shall be
invalid or inoperative for any reason, the remaining parts, so far as is
possible and reasonable, shall remain valid and operative.
SECTION 10.10 HEADINGS. The headings used in these Bylaws have been
inserted for administrative convenience only and shall not limit or otherwise
affect any of the provisions of these Bylaws.
SECTION 10.11 REFERENCES/GENDER/NUMBER. Whenever in these Bylaws the
singular number is used, the same shall include the plural where appropriate.
Words of any gender used in these Bylaws shall include the other gender where
appropriate. In these Bylaws, unless a contrary intention appears, all
references to Articles and Sections shall be deemed to be references to the
Articles and Sections of these Bylaws.
SECTION 10.12 AMENDMENTS. These Bylaws may be altered, amended or repealed
or new bylaws may be adopted by the affirmative vote of a majority of the
directors; provided, however, that no such action shall be taken at any special
meeting of the Board of Directors unless notice of such action is contained in
the notice of such special meeting. These Bylaws may not be altered, amended or
rescinded, nor may new bylaws be adopted, by the Stockholders except by the
affirmative vote of the holders of not less than 66-2/3% of the voting power of
all outstanding Voting Stock, voting together as a single class. Each
alteration, amendment or repeal of these Bylaws shall be subject in all respects
to Section 8.7.
CERTIFICATE OF SECRETARY
I, Alton L. Boynton, the duly appointed Secretary of Northwest
Biotherapeutics, Inc., hereby certify that the foregoing Bylaws constitute the
bylaws of Northwest Biotherapeutics, Inc. as adopted by the Board of Directors
on January 26, 2005.
/s/ Alton Boynton
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Alton L. Boynton, Secretary