Exhibit 3.6
CHARTER OF THE
XCEL PHARMACEUTICALS, INC.
COMPENSATION COMMITTEE
ARTICLE I
PURPOSE
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The purpose of the Compensation Committee (the "Committee") of the Board of
Directors (the "Board") of Xcel Pharmaceuticals, Inc. a Delaware corporation
(the "Company"), is:
. to review the performance and establish the compensation of the
Company's executive officers;
. to recommend guidelines for the review of the performance and the
establishment of compensation and benefit policies for all other
employees;
. to establish the compensation for members of the Board;
. to adopt, approve and administer the Company's compensation plans,
programs and arrangements for officers and other employees and
consultants of the Company and its subsidiaries;
. to approve the grant or payment of stock options or other awards under
any such plans, programs or arrangements; and
. to conduct those reviews, investigations and surveys the Committee
considers appropriate and necessary in the exercise of its duties.
ARTICLE II
COMMITTEE MEMBERS
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2.1 Number of Committee Members. The authorized number of members of the
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Committee shall be three (3) of which not less than two (2) members of the
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Committee shall be non-employee Directors. The number of Committee members may
be changed by a duly adopted resolution of the Board. The Board may designate
one or more non-employee Directors as alternate Committee members, who may
replace any absent member at any meeting of the Committee.
2.2 Qualifications of Committee Members. Except as provided in Section 2.1
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above, the Committee members may not be officers or otherwise employed by the
Company, its parent or a subsidiary. Additionally, Committee members may not
receive compensation, directly or indirectly, from the Company, its parent or a
subsidiary for services rendered in any capacity
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other than as a Director, or have an interest in any transaction or be engaged
in a business relationship with the Company for which proxy disclosure is
required.
2.3 Appointment and Term of Office of Committee Members. Committee members
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shall be appointed by the Board to hold office until their resignation or until
replaced by a resolution of the Board. Each Committee member, including a member
elected to fill a vacancy, shall hold office until the expiration of the term
for which elected and until a successor has been elected and qualified, except
in the case of the death, resignation, or removal of such a member.
2.4 Removal. The entire Committee or any individual Committee member may be
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removed from office without cause by the affirmative vote of a majority of the
Board.
2.5 Resignation and Vacancies. Any Committee member may resign effective
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upon giving oral or written notice to the Chairman of the Board, the Secretary
or the Board, unless the notice specifies a later time for the effectiveness of
such resignation. If the resignation of a Committee member is effective at a
future time, the Board may elect a successor to take office when the resignation
becomes effective.
Vacancies on the Committee shall be filled by the Board. Each Committee
member so elected shall hold office until a successor has been elected and
qualified by the Board, or until his or her death, resignation or removal.
A vacancy or vacancies in the Committee shall be deemed to exist (i) in the
event of the death, resignation or removal of any Committee member, (ii) if the
Board by resolution declares vacant the office of a Committee member who has
been declared of unsound mind by an order of court or convicted of a felony or
(iii) if the authorized number of Committee members is increased.
ARTICLE III
COMMITTEE MEETINGS
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3.1 Place of Meetings; Meetings by Telephone. Regular meetings of the
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Committee may be held at any place within or outside the State of California
that has been designated from time to time by the Chairman of the Committee. In
the absence of such a designation, regular meetings shall be held at the
principal executive office of the Company. Special meetings of the Committee may
be held at any place within or outside the State of California that has been
designated in the notice of the meeting or, if not stated in the notice or if
there is no notice, at the principal executive office of the Company.
Members of the Committee may participate in a meeting through the use of
conference telephone or similar communications equipment, so long as all
Committee members participating in such meeting can hear one another.
Participation in a meeting pursuant to this paragraph constitutes presence in
person at such meeting.
3.2 Regular Meetings. Regular meetings of the Committee may be held without
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notice if the time and place of such meetings are fixed by resolution of the
Board or by resolution of the Committee.
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3.3 Special Meetings; Notice. Subject to the provisions of the following
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paragraph, special meetings of the Committee for any purpose or purposes may be
called at any time by the Chairman of the Committee, by the Board or by two (2)
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Committee members.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
telegram, charges prepaid or by facsimile or electronic mail, addressed to each
Committee member at that member's address as it is shown on the records of the
Company. If the notice is mailed, it shall be deposited in the United States
mail at least four (4) days before the time of the holding of the meeting. If
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the notice is delivered personally or by telephone or by facsimile, telegram or
electronic mail, it shall be delivered personally or by telephone, facsimile or
electronic mail, or to the telegraph company at least forty-eight (48) hours
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before the time of the holding of the meeting. Any oral notice given personally
or by telephone may be communicated either to the Committee member or to a
person at the office of the member who the person giving the notice has reason
to believe will promptly communicate it to the member. The notice need not
specify the purpose of the meeting.
3.4 Quorum. A majority of the authorized number of Committee members shall
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constitute a quorum for the transaction of business, except to adjourn as
provided in Section 3.6 of this Charter. Every act or decision done or made by a
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majority of the members present at a meeting duly held at which a quorum is
present is the act of the Committee, subject to certain provisions of the
Delaware General Corporation Law, the Certificate of Incorporation and other
applicable law.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of Committee members, if any action
taken is approved by at least a majority of the required quorum for such
meeting.
3.5 Waiver of Notice. Notice of a meeting need not be given to any
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Committee member who signs a waiver of notice or a consent to holding the
meeting or an approval of the minutes thereof, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such member. All such waivers, consents, and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. A waiver of notice need not specify the purpose of any
regular or special meeting of the Committee.
3.6 Adjournment. A majority of the Committee members present, whether or
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not a quorum is present, may adjourn any meeting to another time and place.
3.7 Notice of Adjournment. If the meeting is adjourned for more than
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twenty-four (24) hours, notice of any adjournment to another time and place
shall be given prior to the time of the reconvened meeting to the Committee
members who were not present at the time of the adjournment.
3.8 Committee Action by Written Consent Without a Meeting. Any action
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required or permitted to be taken by the Committee may be taken without a
meeting, if all Committee members individually or collectively consent in
writing to such action. Such written consent or
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consents shall be filed with the minutes of the proceedings of the Committee.
Such action by written consent shall have the same force and effect as a
unanimous vote of the Committee.
ARTICLE IV
COMMITTEE MEMBERS
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4.1 Chairman of the Committee. The Chairman of the Committee, if such an
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officer be elected, shall, if present, preside at meetings of the Committee and
exercise and perform such other powers and duties as may from time to time be
assigned by the Board or as may be prescribed by this Charter. The Chairman of
the Committee shall be elected by resolution of the Board. In the absence or
disability of the Chairman of the Committee, the Board shall appoint an
alternative Chairman to preside at the Committee meetings.
4.2 Secretary. The Secretary shall keep or cause to be kept, at the
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principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of the Committee. The
minutes shall show the time and place of each meeting, whether regular or
special (and, if special, how authorized and the notice given), the names of
those present and the proceedings thereof.
The Secretary shall give, or cause to be given, notice of all meetings of
the Committee required to be given by law, this Charter or by the Company's
Bylaws.
ARTICLE V
RECORDS AND REPORTS
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5.1 Maintenance and Inspection of Charter. The Company shall keep at its
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principal executive office or, if its principal executive office is not in the
State of California, at its principal business office in California, the
original or a copy of this Charter as amended to date, which shall be open to
inspection by the stockholders at all reasonable times during office hours.
5.2 Minutes and Reports. The Committee shall keep regular minutes of its
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proceedings, which shall be filed with the Secretary of the Company. All action
by the Committee shall be reported to the Board at the next meeting thereof,
and, insofar as rights of third parties shall not be affected thereby, shall be
subject to revision and alteration by the Board.
5.3 Maintenance and Inspection of Minutes. The records and the minutes of
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proceedings of the Committee shall be kept at such place or places as are
designated by the Board or, in absence of such designation, at the principal
executive office of the Company. The minutes shall be kept in written form, and
the accounting books and records shall be kept either in written form or in any
other form capable of being converted into written form.
The minutes and records shall be open to inspection upon the written demand
on the Company of any stockholder or holder of a voting trust certificate at any
reasonable time during usual business hours, for a purpose reasonably related to
such holder's interests as a stockholder or as the holder of a voting trust
certificate. Such inspection by a stockholder or holder of a voting trust
certificate may be made in person or by an agent or attorney and the right of
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inspection includes the right to copy and make extracts. Such rights of
inspection shall extend to the records of each subsidiary of the Company.
ARTICLE VI
GENERAL MATTERS
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6.1 Construction; Definitions. Unless the context requires otherwise, the
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general provisions, rules of construction, and definitions in the Delaware
General Corporation Law shall govern the construction of this Charter. Without
limiting the generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both a corporation and a natural person.
ARTICLE VII
AMENDMENTS
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7.1 Amendment by Board. This Charter and any provision contained herein may
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be amended or repealed by the Board.
7.2 Record of Amendments. Whenever an amendment or a new Charter is
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adopted, it shall be copied in the book of minutes with the original Charter. If
any provision of this Charter is repealed, the fact of repeal, with the date of
the meeting at which the repeal was enacted or written consent was filed, shall
be stated in said book.
ARTICLE VIII
INTERPRETATION
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Reference in this Charter to any provision of the Delaware General
Corporation Law shall be deemed to include all amendments thereof.
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SECRETARY'S CERTIFICATE OF ADOPTION OF THE CHARTER
OF THE
XCEL PHARMACEUTICALS, INC.
COMPENSATION COMMITTEE
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of Xcel
Pharmaceuticals, Inc., a Delaware corporation.
2. That the foregoing Charter constitutes the Charter of Xcel
Pharmaceuticals, Inc. Compensation Committee as adopted by the Directors of Xcel
Pharmaceuticals, Inc., as of March 29, 2001.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 30th day of
March, 2001.
/s/ Michael T. Borer
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Michael T. Borer
Secretary
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