Exhibit 3.2
AMENDED AND RESTATED ARTICLES OF
INCORPORATION
OF
LIGHT SCIENCES ONCOLOGY, INC.
ARTICLE 1. NAME
The name of this corporation is Light Sciences Oncology, Inc.
ARTICLE 2. SHARES
2.1 AUTHORIZED CAPITAL
The total number of shares which this corporation (hereinafter also
referred to as the "CORPORATION") is authorized to issue is 150,000,000,
consisting of 120,000,000 shares of common stock, par value $0.001 per share
(hereinafter referred to as "COMMON STOCK"), and 30,000,000 shares of preferred
stock, par value $0.001 per share (hereinafter referred to as "PREFERRED
STOCK").
2.2 ISSUANCE OF PREFERRED STOCK IN SERIES
The Preferred Stock may be issued from time to time in one or more series
in any manner permitted by law and the provisions of these Articles of
Incorporation of the Corporation, as determined from time to time by the Board
of Directors and stated in the resolution or resolutions providing for the
issuance thereof, prior to the issuance of any shares thereof. The Board of
Directors shall have the authority to fix and determine and to amend, subject to
the provisions hereof, the designation, preferences, limitations and relative
rights of the shares of any series that is wholly unissued or to be established.
Unless otherwise specifically provided in the resolution establishing any
series, the Board of Directors shall further have the authority, after the
issuance of shares of a series whose number it has designated, to amend the
resolution establishing such series to decrease the number of shares of that
series, but not below the number of shares of such series then outstanding.
ARTICLE 3. PREEMPTIVE RIGHTS
No preemptive rights shall exist with respect to shares of stock or
securities convertible into shares of stock of this Corporation.
ARTICLE 4. CUMULATIVE VOTING
The right to cumulate votes in the election of Directors shall not exist
with respect to shares of stock of this Corporation.
ARTICLE 5. DIRECTORS
The number of Directors of this Corporation shall be determined in the
manner provided by the Bylaws and may be increased or decreased from time to
time in the manner provided therein.
The Board of Directors shall be divided into three classes, with said
classes to be as equal in number as may be possible, with any Director or
Directors in excess of the number divisible by three being assigned to Class 2
and Class 3, as the case may be. Each Class 1 Director shall be elected to serve
until the next ensuing annual meeting of shareholders, each Class 2 Director
shall be elected to serve until the second ensuing annual meeting of
shareholders and each Class 3 Director shall be elected to serve until the third
ensuing annual meeting of shareholders, after which, in each case, Directors in
each class shall be elected to three year terms. Notwithstanding any of the
foregoing provisions of this Article, Directors shall serve until their
successors are elected and qualified or until their earlier death, resignation
or removal from office, or until there is a decrease in the size of the Board of
Directors.
The Directors of this Corporation may be removed only for cause; such
removal shall be by the holders of not less than two-thirds of the shares
entitled to elect the Director or Directors whose removal is sought in the
manner provided by the Bylaws.
Any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes and any newly created directorships
resulting from any increase in the number of directors, shall, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the Directors then in office, even though less than a quorum of the Board of
Directors, and not by the shareholders, unless the Board of Directors determines
by resolution that any such vacancies or newly created directorships may be
filled by the shareholders. A Director elected to fill a vacancy shall serve
only until the next election of Directors by the shareholders.
ARTICLE 6. BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal the
Bylaws of this Corporation, subject to the power of the shareholders to amend or
repeal such Bylaws. The shareholders shall also have the power to amend or
repeal
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the Bylaws of this Corporation and to adopt new Bylaws; provided, however, that,
in addition to any vote of the holders of any class or series of stock of the
corporation required by law or by these Articles of Incorporation, the
affirmative vote of not less than two-thirds of the outstanding shares of the
Corporation entitled to vote in the election of Directors, voting together as a
single class, shall be required to adopt, amend or repeal any provision of the
Bylaws of the corporation.
ARTICLE 7. AMENDMENTS TO ARTICLES OF INCORPORATION
This Corporation reserves the right to amend or repeal any of the
provisions contained in these Articles of Incorporation in any manner now or
hereafter permitted by law, and the rights of the shareholders of this
Corporation are granted subject to this reservation.
7.1. SUPERMAJORITY VOTING
Except as provided in Section 7.2 or Section 7.3, the provisions in the
following Articles may be amended or repealed only upon the affirmative vote of
the holders of not less than two-thirds of the outstanding shares entitled to
vote thereon, and, to the extent, if any, provided by resolution adopted by the
Board of Directors authorizing the issuance of a class or series of Common Stock
or Preferred Stock or required by the provisions of the Washington Business
Corporation Act, the affirmative vote of holders of not less than two-thirds of
the outstanding shares of such class or series, voting as a separate voting
group:
Article 5 ("Directors")
Article 6 ("Bylaws")
Article 7 ("Amendments to Articles of Incorporation")
Article 8 ("Limitation of Director Liability")
Article 9 ("Indemnification")
Article 11 ("Special Voting Requirements")
Article 12 ("Special Meeting of Shareholders")
7.2. MAJORITY VOTING
Notwithstanding the provisions of Section 7.1, and except as provided in
Section 7.3, an amendment or repeal of an Article identified in Section 7.1 that
is approved by a majority of the Continuing Directors (as defined in
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Section 11.1), voting separately and as a subclass of Directors, shall require
the affirmative vote of the holders of not less than a majority of the
outstanding shares entitled to vote thereon and, to the extent, if any, provided
by resolution adopted by the Board authorizing the issuance of a class or series
of Common Stock or Preferred Stock or required by the provisions of the
Washington Business Corporation Act, by the affirmative vote of the holders of
not less than a majority of the outstanding shares of such class or series,
voting as a separate voting group.
7.3. NO SHAREHOLDER VOTE
Notwithstanding the provisions of Section 7.1 or 7.2 hereof, if the
amendment or repeal of any Article not identified in Section 7.1 shall have been
approved by a majority of the Continuing Directors, voting separately and as a
subclass of Directors, and if such amendment or repeal is not otherwise required
to be approved by this Corporation's shareholders pursuant to the provisions of
the Washington Business Corporation Act or of these Articles of Incorporation
other than this Article 7, then no vote of the shareholders of this Corporation
shall be required for approval of such amendment or repeal.
ARTICLE 8. LIMITATION OF DIRECTOR LIABILITY
To the full extent that the Washington Business Corporation Act, as it
exists on the date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of Directors, a Director of this Corporation shall
not be liable to this Corporation or its shareholders for monetary damages for
conduct as a Director. Any amendments to or repeal of this Article 8 shall not
adversely affect any right or protection of a Director of this Corporation for
or with respect to any acts or omissions of such Director occurring prior to
such amendment or repeal.
ARTICLE 9. INDEMNIFICATION
This Corporation shall indemnify any individual made a party to a
proceeding because that individual is or was a director of this Corporation and
shall advance or reimburse the reasonable expenses incurred by such individual
in advance of final disposition of the proceeding, without regard to the
limitations in RCW 23B.08.510 through 23B.08.550 of the Washington Business
Corporation Act, or any other limitation which may hereafter be enacted to the
extent such limitation may be disregarded if authorized by the Articles of
Incorporation, to the full extent and under all circumstances permitted by
applicable law.
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ARTICLE 10. SHAREHOLDER ACTIONS
Any action required or permitted to be taken at a shareholders' meeting may
be taken without a meeting or a vote if either:
(i) the action is taken by written consent of all shareholders entitled to
vote on the action; or
(ii) so long as this Corporation is not a public company (as defined in
Section 23B.01.400 of the Washington Business Corporation Act), the action is
taken by written consent of shareholders holding of record, or otherwise
entitled to vote, in the aggregate not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote on the action were present and voted.
To the extent the Washington Business Corporation Act requires prior notice
of any such action to be given to nonconsenting or nonvoting shareholders, such
notice shall be made prior to the date on which the action becomes effective, as
required by the Washington Business Corporation Act. The form of the notice
shall be sufficient to apprise the nonconsenting or nonvoting shareholder of the
nature of the action to be effected, in a manner approved by the directors of
this Corporation or by the committee or officers to whom the board has delegated
that responsibility.
ARTICLE 11. SPECIAL VOTING REQUIREMENTS
In addition to any affirmative vote required by law, by these Articles of
Incorporation or otherwise, any Significant Transaction (as hereinafter defined)
involving this Corporation shall be subject to approval in the manner set forth
in this Article 11.
11.1. DEFINITIONS
For the purposes of this Article 11:
(a) "SIGNIFICANT TRANSACTION" means (i) a merger, share exchange or
consolidation of this Corporation or any of its Subsidiaries with any
other corporation, partnership, limited liability company or other
entity, (ii) the sale, lease, exchange or other disposition, whether
in one transaction or a series of transactions, by this Corporation or
any of its Subsidiaries of all or substantially all of this
Corporation's assets or any of its Subsidiaries' assets otherwise than
in the usual and regular course of business (but shall not include the
mortgage, pledge or other encumbrance of any or all of the assets of
this Corporation or any of its Subsidiaries whether or not in the
usual and regular course of business),
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(iii) the dissolution of this Corporation or (iv) any agreement,
contract or other arrangement providing for any of the foregoing
transactions..
(b) "CONTINUING DIRECTOR" means any member of the Board of Directors who
was a member of the Board of Directors on _________, 2006 or who is
elected to the Board of Directors after __________, 2006 upon the
recommendation of a majority of the Continuing Directors voting
separately and as a subclass of Directors on such recommendation.
(c) "SUBSIDIARY" means a domestic or foreign corporation, a majority of
the outstanding voting shares of which are owned, directly or
indirectly, by this Corporation.
11.2. VOTE REQUIRED FOR SIGNIFICANT TRANSACTIONS
11.2.1. SUPERMAJORITY VOTE
Except as provided in subsections 11.2.2 and 11.2.3 hereof, the affirmative
vote of the holders of not less than two-thirds of the outstanding shares
entitled to vote thereon and, to the extent, if any, provided by resolution
adopted by the Board of Directors authorizing the issuance of a class or series
of Common Stock or Preferred Stock or required by the provisions of the
Washington Business Corporation Act, the affirmative vote of the holders of not
less than two-thirds of the outstanding shares of such class or series, voting
as a separate voting group, shall be required for the adoption or authorization
of a Significant Transaction.
11.2.2. MAJORITY VOTE
Notwithstanding subsection 11.2.1 hereof, if a Significant Transaction
shall have been approved by a majority of the Continuing Directors, voting
separately and as a subclass of Directors, and if such Significant Transaction
is otherwise required to be approved by this Corporation's shareholders pursuant
to the provisions of the Washington Business Corporation Act or of these
Articles of Incorporation other than this Article 11, then the affirmative vote
of the holders of not less than a majority of the outstanding shares entitled to
vote thereon and, to the extent, if any, provided by resolution adopted by the
Board of Directors authorizing the issuance of a class or series of Common Stock
or Preferred Stock or required by the provisions of the Washington Business
Corporation Act, the affirmative vote of the holders of not less than a majority
of the outstanding shares of such class or series, voting as a separate voting
group, shall be required for the adoption or authorization of such Significant
Transaction.
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11.2.3. NO SHAREHOLDER VOTE
Notwithstanding subsection 11.2.1 or 11.2.2 hereof, if a Significant
Transaction shall have been approved by a majority of the Continuing Directors,
voting separately and as a subclass of Directors, and if such Significant
Transaction is not otherwise required to be approved by this Corporation's
shareholders pursuant to the provisions of the Washington Business Corporation
Act or of these Articles of Incorporation other than this Article 11, then no
vote of the shareholders of this Corporation shall be required for approval of
such Significant Transaction.
ARTICLE 12. SPECIAL MEETING OF SHAREHOLDERS
The Chairman of the Board, the Chief Executive Officer, the President or
the Board of Directors may call special meetings of the shareholders for any
purpose. Further, a special meeting of the shareholders shall be held if the
holders of not less than twenty-five (25%) percent of all the votes entitled to
be cast on any issue proposed to be considered at such special meeting have
dated, signed and delivered to the Secretary of this Corporation, no later than
twenty (20) days prior to the date of such meeting, one or more written demands
for such meeting describing the purpose or purposes for which it is to be held.
Dated: , 2006
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LIGHT SCIENCES ONCOLOGY, INC.
By
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Llew Keltner
President and Chief Executive Officer
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