BY-LAWS
OF
GENEREX BIOTECHNOLOGY CORPORATION
ARTICLE I - Stockholders
------------------------
1.1 Place of Meetings. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors (the "Board"), the Chairman of the Board or the
President or, if not so designated, at the registered office of the Corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held at a time fixed by the Board or, if not
so fixed by the Board, by the President. If this date shall fall upon a legal
holiday, then such meeting shall be held on the next succeeding business day at
the same hour.
1.3 Special Meeting. Special meetings of stockholders may be called at any
time by the Board, the Chairman of the Board or the President, and shall be
called by the Board upon the request of the holders of a majority of the
outstanding shares of stock of the Corporation entitled to vote at the meeting.
Business transacted at any special meeting of stockholders shall be limited to
matters relating to the purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to vote at such meeting. The notices of all
meetings shall state the place, date and hour of the meeting. The notice of a
special meeting shall state, in addition, the purpose or purposes for which the
meeting is called.
1.5 Voting List. The officer who has charge of the stock ledger of the
Corporation shall prepare, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open
to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting, at the place where the meeting is to be held or, if such
place is specified in the notice of the meeting at a place within the city which
the meeting is to be held other than the place of the meeting. The list shall
also be produced and kept at the time and place of the meeting during the whole
time of the meeting, and may be inspected by any stockholder who is present.
1.6 Quorum and Required Vote. Except as otherwise provided by law or in the
Certificate of Incorporation, the holders of a majority of the shares of stock
entitled to vote on a particular matter present in person or represented by
proxy shall constitute a quorum for the purpose of considering such matter.
1.7 Voting and Proxies. Each stockholder shall have one vote for each share
of stock entitled to vote and held of record by such stockholder, and a
proportionate vote for each fractional share so held, unless otherwise provided
in the Certificate of Incorporation. Each stockholder of record entitled to vote
at a meeting of the stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such consent or dissent
in person or may authorize another person or persons to vote or act for such
stockholder by proxy in accordance with applicable law.
1.8 Business to be Conducted. At any meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before a meeting of stockholders, such business
must be (a) specified in the notice of the meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (b) otherwise properly
brought before the meeting by or at the direction of the Board of Directors, or
(c) otherwise properly brought before the meeting by a stockholder. For business
to be properly brought before a meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the meeting
(a) a brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting, (b) the name and
address, as they appear on the Corporation's books, of the stockholder proposing
such business, (c) the class and number of shares of the
2
Corporation's capital stock which are beneficially owned by the stockholder,
and (d) any material interest of the stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business shall be
conducted at any meeting of the stockholders except in accordance with the
procedures set forth in this Section 1.8. The Chair of the meeting shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the Bylaws and, in such
event, such business shall not be transacted.
1.9 Nominations for Election as Directors. Only persons who are nominated
in accordance with the procedures set forth in this Section 1.9 shall be
eligible for election as Directors of the Corporation. Nominations of persons
for election to the Board of Directors of the Corporation may be made at a
meeting of stockholders (a) by or at the direction of the Board of Directors, or
(b) by any stockholder of the Corporation entitled to vote for the election of
Directors at the meeting who gives timely notice of his/her/its intention to
make such nomination at the meeting. Such notice shall be made in writing to the
Secretary of the Corporation, and must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice shall set forth (x)
as to each person whom the stockholder proposes to nominate for election or
re-election as a Director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of the Corporation which are
beneficially owned by such person, and (iv) any other information relating to
such person that is required to be disclosed in solicitations of proxies for the
election of directors or otherwise is required pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (including without limitation
such persons' written consent to being named in any proxy statement as a nominee
and to serving as a Director if elected); and (y) as to the stockholder giving
the notice (i) the name and address, as they appear on the Corporation's books,
of such stockholder and (ii) the class and number of shares of the Corporation
which are beneficially owned 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. No person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 1.9. The Chair of the meeting shall, if the facts warrant, determine and
declare to the meeting that a
3
nomination was not made in accordance with the Bylaws and, in such event,
the defective nomination shall be disregarded.
1.10 Applicability of Federal Securities Laws and Regulations. At any time
that the Corporation has a class of equity securities registered under the
Securities Exchange Act of 1934, to the extent that any provision of this
Article 1 shall be in conflict with rules and regulations of the Securities and
Exchange Commission promulgated under such Act with respect to the nomination
and/or election of Directors of the Corporation, or otherwise with respect to
the conduct of business at a meeting of stockholders, such rules and regulations
shall govern and this Article shall be interpreted and limited in its
application, as necessary, to conform with such rules and regulations.
ARTICLE II - Directors
----------------------
2.1 General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board, which may exercise all of the
powers of the Corporation except as may be otherwise provided by law or the
Certificate of Incorporation.
2.2 Number and Term. The initial Board of Directors shall have five (5)
members. Thereafter, except as may be provided in the Certificate of
Incorporation and subject to any resolution of the stockholders, the Board shall
have the authority to determine the number of directors which shall constitute
the Board and the terms of office of directors.
2.3 Nomination by Stockholders. Nominations for election to the Board of
Directors may be made by the Board of Directors or by any stockholder of any
outstanding class of capital stock of the Corporation entitled to vote for the
election of directors in accordance with the procedures set forth in Article I
hereof.
2.4 Regular Meetings. Regular meetings of the Board may be held without
notice at such time and place, either within or without the State of Delaware,
as shall be determined from time to time by the Board.
2.5 Special Meeting. Unless the Board shall otherwise direct, special
meetings of the Board may be held at any time and place, within or without the
State of Delaware, and shall be called at any time by or at the request of the
President and shall be called by or at the written request of one-third of the
directors, or by one director in the event that there is only a single director
in office. Notice, which need not be written, of the time and place of special
meetings shall be given to
4
each director at least twenty-four (24) hours before the time for which the
meeting is scheduled. A notice or waiver of notice of a meeting of the Board
need not specify the purposes of the meeting. Any business may be transacted at
a special meeting.
2.6 Meetings by Telephone Conference Calls. Directors or any members of any
committee designated by the Directors may participate in a meeting of the Board
or 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 participation by such means shall constitute presence in person
at such meeting.
2.7 Quorum. A majority of all the directors in office shall constitute a
quorum at all meetings of the Board.
2.8 Committees. The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not such member or members constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board and subject to the provisions of the General Corporation
Law of the State of Delaware, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation.
ARTICLE III - Officers
----------------------
3.1 Enumeration. The officers of the Corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board may determine.
3.2 Election. Officers shall be elected annually by the Board at its first
meeting following the annual meeting of stockholders.
3.3 Duties and Powers. Except as otherwise provided by the Board, the
officers shall have, exercise and perform the duties and powers usually incident
to their offices and as set forth herein:
5
(i) Chief Executive Officer and President. The President shall be the
chief executive officer of the Corporation unless the Board shall elect a
Chairman and vest in such Chairman the authority of chief executive officer
of the Corporation. The Chief Executive Officer of the Corporation shall,
subject to the direction of the Board, have general charge and supervision of
the business of the Corporation. Unless otherwise provided by the Board, the
President shall preside at all meetings of the stockholders, and if he is a
director, at all meetings of the Board. If the Chairman of the Board of
Directors shall be the chief executive officer of the Corporation, the
President shall perform such duties and possess such powers as the Board of
Directors may from time to time prescribe.
(ii) Vice President. Any Vice President shall perform such duties and
possess such powers as the Board or the President may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
President, the Vice President (or if there shall be more than one, the Vice
President in the order determined by the Board) shall perform the duties of
the President and when so performing shall have all the powers of and be
subject to all the restrictions upon the President.
(iii) Secretary. The Secretary shall perform such duties and shall have
such powers as the Board or the President may from time to time prescribe,
including without limitation the duty and power to give notices of all
meetings of stockholders and special meetings of the Board, to attend all
meetings of stockholders and the Board and keep a record of the proceedings,
to maintain a stock ledger and prepare lists of stockholders and their
addresses as required, to be custodian of corporate records and the corporate
seal and to affix and attest to the same on documents.
(iv) Treasurer. The Treasurer shall perform such duties and shall have
such powers as may from time to time be assigned to him by the Board or the
President, including without limitation the duty and power to keep and be
responsible for all funds and securities of the Corporation, to deposit funds
of the Corporation in depositories selected by the Board, to disburse such
funds as ordered by the Board, to make proper accounts of such funds, and to
render as required by the Board statements of all such transactions and of
the financial condition of the Corporation.
3.4 Salaries. Officers of the Corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from
time to time by the Board.
ARTICLE IV - Transfer of Share Certificates
-------------------------------------------
6
Except as otherwise established by rules and regulations adopted by the
Board and subject to applicable law, shares of stock may be transferred on
the books of the Corporation only by the registered holder or by duly
authorized attorney. Transfers shall be made only on surrender to the
Corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority of the authenticity of
signature as the Corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of
Incorporation or by these By-Laws, the Corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock
for all purposes, including the payment of dividends and the right to vote
with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books
of the Corporation in accordance with the requirements of these By-Laws.
ARTICLE V - Indemnification
---------------------------
5.1 Right to Indemnification. The Corporation shall indemnify any person
who was or is a party or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (collectively, a "proceeding"), by reason of
the fact such person is or was (a) a director or executive officer of the
Corporation or a constituent corporation absorbed in a consolidation or
merger (hereinafter, a "constituent corporation"), or, (b) is or was serving
at the request of the Corporation or a constituent corporation as a director,
officer, partner, employee or agent of another corporation, partnership,
joint venture or other enterprise or entity, or (c) is or was a director or
officer of the Corporation serving at its request as an administrator,
trustee or other fiduciary of one or more of the employee benefit plans, if
any, of the Corporation or another entity which may be in effect from time to
time, against all expenses, liability and loss actually and reasonably
incurred or suffered by such person in connection with such proceeding,
whether or not the indemnified liability arises or arose from any proceeding
by or in the right of the Corporation, to the extent that such person is not
otherwise indemnified and to the extent that such indemnification is not
prohibited by law as it presently exists or may hereafter be amended.
5.2 Advance of Expenses. The Corporation shall advance all expenses
reasonably incurred by a person entitled to indemnification pursuant to
7
Section 5.1 above, in defending a proceeding in advance of the final
disposition of such proceeding, and may, but shall not be obligated to,
advance expenses of other persons entitled to indemnification pursuant to any
other agreement or provision of law.
5.3 Procedure for Determining Permissibility. To determine whether any
indemnification under this Article V is permissible, the Board by a majority
vote of a quorum consisting of directors not parties to such proceeding may,
and on request of a person seeking indemnification shall be required to,
determine in each case whether the applicable standards in any applicable
statute have been met, or such determination shall be made by independent
legal counsel if such quorum is not obtainable, or, even if obtainable, a
majority vote of a quorum of disinterested directors so directs. If a claim
for indemnification under this Article is not paid in full within ninety (90)
days after a written claim therefor has been received by the Corporation, the
claimant may file suit to recover the unpaid amount of such claim, and the
Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification under applicable law. The
reasonable expenses of any person in prosecuting a successful claim for
indemnification hereunder, and the fees and expenses of any independent legal
counsel engaged to determine permissibility of indemnification, shall be
borne by the Corporation. For purposes of this paragraph, "independent legal
counsel" means legal counsel other than that regularly or customarily engaged
by or on behalf of the Corporation.
5.4 Proceedings Initiated by Indemnitee. Notwithstanding any other
provision of this Article V, the Corporation shall be required to indemnify a
person in connection with a proceeding initiated by such person only if the
proceeding was authorized by the Board.
5.5 Indemnification Not Exclusive; Inuring of Benefit. The indemnification
provided by this Article V shall not be deemed exclusive of any other
right to which one seeking indemnification may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested directors or
otherwise, and shall inure to the benefit of the heirs, executors and
administrators of any such person.
5.6 Insurance and Other Indemnification. The Board shall have the power
to (i) authorize the Corporation to purchase and maintain, at the
Corporation's expenses, insurance on behalf of the Corporation and on behalf
of others to the extent that power to do so has not been prohibited by
applicable law, and (ii) give other indemnification to the extent not
prohibited by applicable law.
5.7 Modification or Repeal. Any modification or repeal of any provision
of this Article V shall not adversely affect any right or protection of an
8
Authorized Representative existing hereunder with respect to any act or
omission occurring prior to such modification or repeal.
ARTICLE VI - Amendments
-----------------------
6.1 By the Board of Directors. These By-Laws may be altered, amended or
repealed or new By-Laws may be adopted by the affirmative vote of a majority
of the directors present at any regular or special meeting of the Board at
which a quorum is present.
6.2 By the Stockholders. These By-Laws may be altered, amended or
repealed or new By-Laws may be adopted by the affirmative vote of the holders
of a majority of the shares of the capital stock of the Corporation entitled
to vote at any regular meeting of stockholders, or at any special meeting of
stockholders, provided such change shall have been set forth, or a summary
thereof shall have been provided, in the notice of such special meeting.
9