BYLAWS
OF
CANCER THERAPEUTICS, INC.
Adopted by Resolution on August 12, 2004
BYLAWS
OF
Cancer Therapeutics, Inc.
ARTICLE I
Shareholders
Section 1.1. Annual Meetings. An annual meeting of shareholders shall be
held for the election of directors on such date, and at such time and place as
the Board of Directors may, from time to time, determine. Any other proper
business may be transacted at an annual meeting. If the annual meeting is not
held on the date designated, it may be held as soon thereafter as convenient and
shall be called the annual meeting.
Section 1.2. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by the General Corporation
Law of the State of Delaware, may be called by the President or the Board of
Directors. The shareholders do not have the authority to call a special meeting
of the shareholders.
Section 1.3. Shareholder Proposals/Nominees.
a. Shareholder Proposals. Shareholders seeking to place
shareholder proposals on the agenda for a shareholders' meeting must (i) notify
the Corporation of such proposal not less than 30 nor more than 60 days prior to
the date of the meeting; provided, however, that if the Corporation provides
shareholders with less than 40 days advance notice of the date of the meeting,
the shareholder notice must be given no later than the close of business on the
10th day following the day the Corporation's notice was mailed or publicly
disclosed. Such notice must provide the Corporation with adequate information
regarding the proposal.
b. Shareholder Director Nominees. Shareholders director
nominations must (i) be in writing and contain adequate information about the
nominee; and (ii) be received by the secretary of the Corporation not less than
30 nor more than 60 days prior to the date of the meeting at which Directors
will be elected; provided, however, that if the Corporation provides
shareholders with less than 40 days advance notice of the date of the meeting,
the shareholder notice must be given no later than the close of business on the
10th day following the day the Corporation's notice was mailed or publicly
disclosed.
Section 1.4. Notice of Meetings. Whenever shareholders are required or
permitted to take any action at a meeting, a written notice of the meeting will
be given that states the place, date and hour of the meeting, and in the case of
a special meeting, the purpose(s) for which the meeting is called. Unless
otherwise provided by law, the Certificate of Incorporation or these Bylaws, the
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written notice of any meeting will be given not less than ten nor more than
sixty days before the date of the meeting to each shareholder entitled to vote
at such meeting. If mailed, such notice will be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
shareholder at his or her address as it appears in the records of the
Corporation.
Section 1.5. Waiver of Notice. A shareholder may waive notice of any
meeting; provided that a shareholder's attendance at a meeting shall constitute
waiver of notice of such meeting, except when the shareholder attends a meeting
for the express purpose of objecting to the transaction of any business to be
transacted at the meeting, and not for the purpose of objecting to the purpose
of the meeting.
Section 1.6. Adjournments. Any meeting of shareholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business that might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, pursuant to Section 1.3, notice of the adjourned meeting will be given
to each shareholder of record entitled to vote at the meeting.
Section 1.7. Record Date.
a. Determination of Record Date. For purposes of determining
the number and identity of shareholders for any purpose, the Board of Directors
may fix a date in advance as the record date for any such determination of
shareholders, provided that the record date may not precede the date of the
resolution fixing the record date. The record date may not be more than sixty
days prior to the date that the particular action requiring the determination of
shareholders is to occur. If to determine the shareholders entitled to notice
of, or to vote at, a meeting of shareholders, the record date may not be fewer
than ten days prior to the meeting. The record date for determining shareholders
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
shareholders of record entitled to notice of, or to vote at, a meeting of
shareholders will apply to any adjournment of the meeting; provided that the
Board of Directors may fix a new record date for the adjourned meeting.
b. Failure to Fix Record Date. If the stock transfer books are
not closed and no record date is fixed for the determination of shareholders
entitled to notice or to vote, or to receive payment of a dividend, the date on
which the notice is mailed or the Board of Directors resolution declaring the
dividend is adopted, as the case may be, will be the record date for such
determination of shareholders.
Section 1.8 List of Shareholders Entitled to Vote. At least ten days before
each meeting of shareholders, the officer or agent charged with
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overseeing the stock transfer books of the Corporation will compile a complete
list of the shareholders entitled to vote at such meeting, or any adjournment
thereof, arranged in alphabetical order, with the address of and the number of
shares held by each. Such list will be kept on file at the Corporation's
principal office for the ten days before the meeting and will be subject to the
inspection of any shareholder during that ten day period during normal business
hours for any purpose related to the meeting and during the meeting.
Section 1.9. Quorum. Except as otherwise provided by law, the Certificate
of Incorporation, or these Bylaws, a majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, will constitute
a quorum at a meeting of shareholders. If less than a majority of the
outstanding shares are represented at the meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice. If
a quorum is present or represented at such adjourned meeting, any business may
be transacted that might have been transacted at the meeting as originally
notified. The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
Section 1.10. Voting.
a. One Vote Per Share. Unless otherwise provided by the
Certificate of Incorporation (or action of the Board of Directors as provided
therein) or these Bylaws, each outstanding share entitled to vote will be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders.
b. Required Vote. Article VIII of the Certificate of
Incorporation provides for super-majority voting in certain circumstances.
Except as set forth therein, or as provided in the General Corporation Law of
the State of Delaware, a majority vote of those shares present and voting at a
duly organized meeting will suffice to defeat or enact any proposal; provided
that with respect to votes to elect directors, a plurality of the votes cast
will be sufficient to elect.
c. Shares Held By Other Than the Record Owner. Shares held by
an administrator, executor, guardian or conservator may be voted by him or her,
in person or by proxy, without the transfer of such shares into his or her name.
Shares held in the name of a trustee may be voted by him or her, in person or by
proxy, only if the shares are transferred into the trustee's name. Shares held
in the name of, by or under the control of a receiver may be voted by the
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receiver without transferring the shares into the receiver's name if authority
to do so is evidenced in an order from the court that appointed the receiver. A
shareholder whose shares are pledged shall be entitled to vote his or her shares
until the shares are transferred into the name of the pledgee, and thereafter,
the pledgee will be entitled to vote the shares so transferred. Shares belonging
to the Corporation or held by it in a fiduciary capacity may not be voted,
directly or indirectly, at any meeting, and will not be counted in determining
the total number of outstanding shares at any given time.
Section 1.11. Proxies.
a. General. At all meetings of shareholders, a shareholder may
vote by proxy. Proxies must be written, signed by the shareholder or by his or
her duly authorized attorney-in-fact, and filed with the Secretary of the
Corporation before or at the time of a meeting where a proxy is granted. No
proxy is valid after six months from the date of its execution, unless otherwise
provided in the proxy or coupled with an interest.
b. Irrevocable Proxies. A proxy may be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power.
c. Revocation of a Proxy. A shareholder may revoke any proxy
that is not irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or by delivering a proxy in
accordance with applicable law bearing a later date to the Secretary of the
Corporation.
Section 1.12. Shareholder Action by Written Consent Without a Meeting.
a. Action. Any action required to be taken at any annual or
special meeting of shareholders of the Corporation, or any action that may be
taken at any annual or special meeting of such shareholders may be taken without
a meeting, without prior notice, and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
b. Notice. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
shareholders who have not consented in writing. If the action which is consented
to is such as would have required the filing of a certificate under any Section
of the General Corporation Law of Delaware, if such action had been voted on by
shareholders at a meeting thereof, then the certificate filed under such Section
shall state, in lieu of any statement required by such Section concerning any
vote of shareholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
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ARTICLE II
Board of Directors
Section 2.1. Number, Qualifications. The Board of Directors shall consist
of that number of directors as are set from time to time by the affirmative vote
of a majority of the members of the Board of Directors. A director will hold
office until his or her successor is elected and qualified. Directors need not
be shareholders of the corporation.
Section 2.2. Election; Resignation; Vacancies. The Board of Directors will
initially consist of the persons designated by the Incorporator, and each
director so elected will hold office until the first annual meeting of
shareholders and until his or her successor is elected and qualified. At the
first annual meeting of shareholders, the shareholders will elect directors to
the Board of Directors. A director may resign at any time on written notice to
the Corporation. Any vacancy occurring in the Board of Directors, whether by
reason of death, resignation, removal, or an increase in the number of
directors, may be filled by the affirmative vote of the majority of the
remaining directors, though less than a quorum of the Board of Directors, or by
election at an annual meeting or at a special meeting of the shareholders called
for that purpose. A director elected to fill a vacancy will be elected for the
unexpired term of his predecessor in office.
Section 2.3. Regular Meetings. A regular meeting of the Board of Directors
for the election of officers and the transaction of any other business that may
properly come before the meeting shall be held immediately after, and at the
same place as, each annual meeting of shareholders, if a quorum of directors is
then present or as soon thereafter as may be convenient. Regular meetings of the
Board of Directors may be held at such places within or without the State of
Delaware and at such times as the Board of Directors may from time to time
determine. The Board of Directors may provide, by resolution, the date, time and
place for the holding of additional regular meetings without other notice than
such resolution.
Section 2.4. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the President or any director. The
person(s) authorized to call special meetings of the Board of Directors may fix
any place, within or without the State of Delaware, to hold a special meeting of
the Board of Directors. Notice of a special meeting must be given to each
director by the person(s) calling the meeting at least two days before the
meeting.
Section 2.5. Waiver of Notice. A director may waive notice of any meeting.
A director's attendance at a meeting shall constitute waiver of notice of such
meeting; provided that, when a director attends a meeting for the express
purpose of objecting to the transaction of any business to be transacted at the
meeting, the director will not be deemed to have waived notice of such meeting.
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Section 2.6. Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of telephonic conference, or similar
communications equipment that permits all persons participating in the meeting
to hear each other, and participation in a meeting pursuant to this Bylaw will
constitute presence at such meeting.
Section 2.7. Quorum. Vote Required for Action. At all meetings of the Board
of Directors, a majority of the whole Board of Directors will constitute a
quorum for the transaction of business. Unless required by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation or
these Bylaws, the vote of a majority of the directors present at a meeting at
which a quorum is present will be the act of the Board of Directors. If less
than a majority is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice. Once a quorum has
been established at a duly organized meeting, the Board of Directors may
continue to transact corporate business until adjournment, notwithstanding the
withdrawal of enough members to leave less than a quorum.
Section 2.8. Payment of Expenses. By resolution of the Board of Directors,
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors. Directors may be paid also either a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. Such payment will not preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 2.9. Dissent to Corporate Action. 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 the action taken unless he or she
(i) enters his or her dissent in the minutes of the meeting, (ii) files written
dissent to such action with the Secretary of the meeting before adjournment, or
(iii) expresses such dissent by written notice to the Secretary of the
Corporation within one (1) day after the adjournment of the meeting. The right
to dissent shall not apply to a director who voted in favor of such action.
Section 2.10. Action by Written Consent. Any action required or permitted
to be taken at a meeting of the Board of Directors may be taken without a
meeting if all members of the Board of Directors sign a written consent with
respect to such action. Such consent shall be filed with the minutes of
proceedings of the Board of Directors.
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ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, designate one or more committees,
each to consist of one or more of the directors. 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. In
the absence or disqualification of a member of the committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not constituting a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in place of any such absent or
disqualified member. Any such committee, to the extent permitted by the General
Corporation Law of the State of Delaware and to the extent provided in the
resolution of the Board of Directors, will have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers that may require it.
Section 3.2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules,
each committee will conduct its business pursuant to Article II of these Bylaws.
ARTICLE IV
Officers
Section 4.1. Officers. The officers of the Corporation may be a President,
Vice President, Secretary, and Treasurer. Other officers and assistant officers
may be authorized and elected or appointed by the Board of Directors. An
individual is permitted to hold more than one office.
Section 4.2. Election. The officers of the Corporation will be elected
annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of the shareholders. If the election of
officers is not held at such meeting, it will be held as soon thereafter as
convenient. Each officer will hold office until his or her successor is duly
elected and qualified, or until his or her death, resignation or removal.
Section 4.3. Removal. Any officer, elected or appointed, may be removed by
the Board of Directors, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
Section 4.4. Vacancy. A vacancy in any office for any reason may be filled
by majority vote of the Board of Directors, and any officer so elected will
serve for the unexpired portion of the term of such office.
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Section 4.5. President. The President presides at all meetings of the Board
of Directors and of shareholders and has general charge and control over the
affairs of the Corporation subject to the Board of Directors. The President
signs or countersigns all certificates, contracts and other instruments of the
Corporation as authorized by the Board of Directors and performs such other
duties incident to the office or required by the Board of Directors.
Section 4.6. Vice President. The Vice President exercises the functions of
the President in the President's absence, and has such powers and duties as may
be assigned to him or her from time to time by the Board of Directors.
Section 4.7. Secretary. The Secretary issues all required notices for
meetings of the Board of Directors and of the shareholders, keeps a record of
the minutes of the proceedings of the meetings of the Board of Directors and of
the shareholders, has charge of the Corporate Seal and the corporate books, and
makes such reports and performs such other duties as are incident to the office
or required by the Board of Directors.
Section 4.8. Treasurer. The Treasurer has custody of all monies and
securities of the Corporation, keeps regular books of account, disburses the
funds of the Corporation, renders account to the Board of Directors of all
transactions made on behalf of the Corporation and of the financial condition of
the Corporation from time to time as the Board requires, and performs all duties
incident to the office or properly required by the Board of Directors.
Section 4.9. Additional Officers. The Corporation may have such additional
officers as the Board of Directors deems necessary or appropriate including,
without limitation, a Chairman of the Board, Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, Assistant Vice Presidents, Assistant
Secretaries and Assistant Treasurers. Each such officer shall perform those
duties as determined or assigned by the Board of Directors.
Section 4.10. Salaries. The salaries of all officers will be fixed by the
Board of Directors, and may be changed from time to time by a majority vote of
the Board of Directors
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ARTICLE V
Certificate of Shares
Section 5.1. Certificates. The Corporation may issue certificates
representing shares of the Corporation, which will be in the form determined by
the Board of Directors, and will be signed by the President of the Corporation
or any other officers permitted by law, certifying the number of shares owned by
him or her in the Corporation. Any of or all the signatures on the certificate
may be a facsimile. If any officer, transfer agent or registrar who has signed,
or whose facsimile signature has been placed upon, a certificate ceases to hold
that position before the certificate is issued, it may be issued by the
Corporation with the same effect as if the officer, transfer agent or registrar
continued to hold that position at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. If a certificate is lost, stolen or destroyed, a new one may be
issued on such terms and indemnity to the Corporation as the Board of Directors
may prescribe.
ARTICLE VI
Indemnification of Directors and Officers
Section 6.1. Directors.
a. Right to Indemnification Insurance. Every person who was or
is a party to, or is threatened to be made a party to, or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she, or a person of whom he is
the legal representative, is or was a director or officer, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, or as its representative in another enterprise (an
"Indemnitee"), shall be indemnified and held harmless by the Corporation to the
fullest extent legally permissible under the laws of the State of Delaware
against all judgments, fines, penalties, excise taxes, amounts paid in
settlement and costs, charges and expenses (including attorneys' fees and
disbursements) actually and reasonably incurred or suffered by him or her in
connection therewith, subject to the standards of conduct, the procedures, and
other applicable provisions of the General Corporation Law of the State of
Delaware. Such right of indemnification is a contract right which may be
enforced in any manner desired by such person. The Corporation may purchase and
maintain insurance on behalf of an Indemnitee against any liability arising out
of such status, whether or not the corporation would have the power to indemnify
such person.
b. Inurement. The right to indemnification shall inure whether
or not the claim asserted is based on matters that predate the adoption of this
Article VI, will continue as to an Indemnitee who has ceased to hold the
position by virtue of which he or she was entitled to indemnification, and will
inure to the benefit of his or her heirs and personal representatives.
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c. Non-exclusivity of Rights. The right to indemnification and
to the advancement of expenses conferred by this Section 6.1 are not exclusive
of any other rights that an Indemnitee may have or acquire under any statute,
bylaw, agreement, vote of shareholders or disinterested directors, this
Certificate of Incorporation or otherwise.
d. Advancement of Expenses. The Corporation shall, from time
to time, reimburse or advance to any Indemnitee the funds necessary for payment
of expenses, including attorneys' fees and disbursements, incurred in connection
with defending any proceeding for which he or she is indemnified by the
Corporation, in advance of the final disposition of such proceeding; provided
that, if then required by the General Corporation Law of the State of Delaware,
the expenses incurred by or on behalf of an Indemnitee may be paid in advance of
the final disposition of a proceedings only upon receipt by the Corporation of
an undertaking by or on behalf of such Indemnitee to repay any such amount so
advanced if it is ultimately determined by a final and unappealable judicial
decision that the Indemnitee is not entitled to be indemnified for such
expenses.
Section 6.2. Officers, Employees and Agents. The Board of Directors may, on
behalf of the Corporation, grant indemnification to any officer, employee, agent
or other individual to such extent and in such manner as the Board of Directors
in its sole discretion may from time to time and at any time determine, in
accordance with the General Corporation Law of the State of Delaware.
ARTICLE VII
General Provisions
Section 7.1. Fiscal Year. The fiscal year of the Corporation will be fixed
by the Board of Directors.
Section 7.2. Amendments. These Bylaws may be amended or repealed or new
Bylaws may be adopted (i) at any regular or special meeting of shareholders at
which a quorum is present or represented, by the vote of the holders of a
majority of the shares entitled to vote in the election of any directors,
provided notice of the proposed alteration, amendment or repeal is contained in
the notice of such meeting; or (ii) by affirmative vote of a majority of the
Board of Directors at any regular or special meeting thereof.
Section 7.3. Books and Records; Examination. Any records maintained by the
corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in any form of
information storage, provided that the records can be converted into clearly
legible form within a reasonable time. The books and records of the Corporation
may be kept outside of the State of Delaware. Except as may otherwise be
provided by the General Corporation Law of the State of Delaware, the Board of
Directors will have the power to determine from time to time whether and to what
extent and at what times and places and under what conditions any of the
accounts, records and books of the Corporation are to be open to the inspection
of any shareholder.
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Section 7.4. Dividends. Subject to the provisions, if any, of the General
Corporation Law of Delaware and the Certificate of Incorporation, dividends on
the capital shares of the Corporation may be declared by the Board of Directors
at any regular or special meeting. Dividends may be paid in cash, in property or
in shares of the capital stock. Before payment of any dividend, the Board of
Directors may set aside out of any funds of the Corporation available for
dividends such reserves for any purpose that the directors will think conducive
to the interests of the Corporation.
Section 7.5. Seal. The Corporation may or may not have a corporate seal, as
may from time to time be determined by resolution of the Board of Directors. If
a corporate seal is adopted, it will have inscribed thereon the name of the
corporation and the words "Corporate Seal" and "Delaware". The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced or by causing the word {SEAL}, in brackets, to appear where the seal
is required to be impressed or affixed.
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