1
EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
FOR THE REGULATION OF
LA JOLLA PHARMACEUTICAL COMPANY,
a Delaware Corporation
ARTICLE I
Principal Executive Office
Section 1.01 Registered Office. The registered office of La Jolla
Pharmaceutical Company (the "Corporation") in the State of Delaware shall be at
1013 Centre Road, in the City of Wilmington 19805, County of New Castle, and the
name of the registered agent in charge thereof shall be United States
Corporation Company.
Section 1.02 Principal Office. The principal executive office of the
Corporation shall be 6455 Nancy Ridge Drive, San Diego, California 92121.
ARTICLE II
Meeting of Stockholders
Section 2.01 Annual Meetings The annual meeting of stockholders shall be
held between 30 and 150 days following the end of the fiscal year of the
Corporation at such time and on such date as the board of directors shall
determine. At each annual meeting, directors shall be elected and any other
proper business may be transacted.
Section 2.02 Special Meetings. A special meeting of the stockholders for
the transaction of any proper business may be called at any time only by the
board of directors, the chairman of the board (if there is such an officer) or
the president and may be held at such time and place and on such date as is
determined by the person calling the meeting, within the limits fixed by law.
Section 2.03 Place of Meetings. Each annual or special meeting of
stockholders shall be held a such location as may be determined by the board of
directors, or if no such determination is made, at such place as may be
determined by the chief executive officer, or by any other officer authorized by
the board of directors or the chief executive officer to make such
determination. If no location is so determined, any annual or special meeting
shall be held at the principal executive office of the Corporation.
Section 2.04 Notice of Meetings. Notice of each annual or special
meeting of stockholders shall contain such information, and shall be given to
such persons at such time, and in such manner, as the board of directors shall
determine, or if no such determination is made, as
2
the chief executive officer, or any other officer so authorized by the board of
directors or the chief executive officer, shall determine, subject to the
requirements of applicable law.
Section 2.05 Conduct of Meetings Subject to the requirements of
applicable law, all annual and special meetings of stockholders shall be
conducted in accordance with such rules and procedures as the board of directors
may determine and, as to matters not governed by such rules and procedures, as
the chairman of such meeting shall determine. The chairman of any annual or
special meeting of stockholders shall be designated by the board of directors
and, in the absence of any such designation, shall be the chief executive
officer of the Corporation.
Section 2.06 Advance Notice of Stockholder Proposals and Stockholder
Nominations.
(a) At any meeting of the stockholders, only such business may be
conducted, and only such proposals may be acted upon, as have been brought
before the meeting (i) by or at the direction of the board of directors, or (ii)
by any stockholder of the Corporation entitled to vote on such business who
complies with the notice procedures set forth in this Section 2.06(a). For
business to be properly brought before any meeting of the stockholders by a
stockholder, the stockholder must have given notice thereof in writing which is
received by the Secretary of the Corporation not less than ninety (90) days nor
more than one hundred twenty (120) days in advance of such meeting, regardless
of any postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than ninety-five (95) days' notice or prior
public disclosure of the date of the scheduled meeting is given or made, notice
by the stockholder, to be timely, must be so delivered or received not later
than the close of business on the seventh day following the earlier of the date
of the first public announcement of the date of such meeting and the date on
which such notice of the scheduled meeting was mailed. A stockholder's notice to
the Secretary must set forth as to each matter the stockholder proposes to bring
before the meeting (i) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
(ii) the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business and any stockholders known by such
stockholder to be supporting such proposal, (iii) the class and number of shares
of the Corporation that are beneficially owned by the stockholder and by any
other stockholder known by such stockholder to be supporting such matter on the
date of such stockholder notice, and (iv) any material interest of the
stockholder in such business. In addition, the stockholder making such proposal
shall promptly provide any other information reasonably requested by the
Corporation. Notwithstanding anything in these Bylaws to the contrary, no
business may be conducted at any meeting of the stockholders except in
accordance with the procedures set forth in this Section 2.06(a). The presiding
officer of the meeting shall determine and declare at the meeting whether the
stockholder proposal was made in accordance with the terms of this Section
2.06(a). If the presiding officer determines that a stockholder proposal was not
made in accordance with the terms of this Section 2.06(a), he or she shall so
declare at the meeting and any such proposal will not be acted upon at the
meeting. This provision will not prevent the consideration and approval or
disapproval at the meeting of reports of officers, directors and committees of
the board of directors, but, in connection with such reports, no new business
may be acted upon at such meeting unless stated, filed and received as herein
provided.
(b) Nominations for the election of directors may be made by the
board of directors, any nominating committee or person appointed by the board of
directors, or by any
2
3
stockholder entitled to vote in the election of directors; provided, however,
that, subject to the rights, if any, of the holders of shares of Preferred Stock
then outstanding, a stockholder may nominate a person for election as a director
at a meeting only if written notice of such stockholder's intent to make such
nomination has been received by the Secretary of the Corporation not less than
ninety (90) days nor more than one hundred twenty (120) days in advance of such
meeting regardless of any postponements, deferrals or adjournments of that
meeting to a later date; provided, further, that if less than ninety-five (95)
days' notice or prior public disclosure of the date of the scheduled meeting is
given or made, notice by the stockholder, to be timely, must be so delivered or
received not later than the close of business on the seventh day following the
earlier of the date of the first public announcement of the date of such meeting
and the date on which such notice of the scheduled meeting was mailed. Each such
notice must set forth: (i) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be nominated; (ii) the
class and number of shares of the Corporation's stock which are beneficially
owned by the stockholder and a representation that such stockholder intends to
appear in person or by proxy at the meeting and nominate the person or persons
specified in the notice; (iii) a description of all arrangements or
understandings between the stockholder 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 the stockholder; (iv) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or intended
to be nominated, by the board of directors; and (v) the consent of each nominee
to serve as a director of the Corporation if so elected. In addition, the
stockholder making such nomination shall promptly provide any other information
reasonably requested by the Corporation. No person will be eligible for election
as a director of the Corporation unless nominated in accordance with the
procedures set forth in this Section 2.06(b). The presiding officer of the
meeting shall determine and declare at the meeting whether the nomination was
made in accordance with the terms of this Section 2.06(b). If the presiding
officer determines that a nomination was not made in accordance with the terms
of this Section 2.06(b), he or she shall so declare at the meeting and any such
defective nomination will be disregarded. No stockholder may nominate any person
for election as a director to any Class for which such stockholder is not
entitled to vote.
(c) Nothing herein is intended or will be construed to limit
requirements imposed by applicable laws or regulations upon stockholder
proposals, opposition thereto by the Corporation, or inclusion thereof in the
Corporation's proxy materials.
Section 2.07 Stock Options. Unless approved by the holders of a majority
of the shares present and entitled to vote at a duly convened meeting of
stockholders, the Corporation shall not (a) grant any stock options with an
exercise price that is less than 100% of the fair market value of the underlying
stock on the date of grant, unless (i) pursuant to the Corporation's 1995
Employee Stock Purchase Plan or (ii) the discount is no more than 15% of fair
market value at the time of grant, and then only with respect to non-qualified
stock options and in lieu of a reasonable amount of salary and cash bonus, or
(b) reduce the exercise price of any stock option granted under any existing or
future stock option plan. This Bylaw may not be amended or repealed without the
affirmative vote of the holders of a majority of the shares present and entitled
to vote at a duly convened meeting of stockholders.
3
4
ARTICLE III
Directors
Section 3.01 Number of Directors and Term of Office. Unless otherwise
provided in the Corporation's certificate of incorporation, the total number of
directors of the Corporation shall be not less than five (5) nor more than nine
(9), with the actual total number of directors set from time to time exclusively
by resolution of the Board of Directors. The Board of Directors shall consist of
six members until changed by such a resolution. There shall be three classes of
directors (each, a "Class"), known as Class 1, Class 2 and Class 3. The initial
Class 1, Class 2 and Class 3 directors shall serve in office as follows: Class 1
shall retire at the first annual meeting of stockholders following the filing of
the Corporation's Amended and Restated Certificate of Incorporation (the
"Effective Date"), Class 2 shall retire at the second annual meeting of
stockholders following the Effective Date, and Class 3 shall retire at the third
annual meeting of stockholders following the Effective Date. This annual
sequence shall be repeated thereafter. Each director in a Class shall be
eligible for re-election if nominated, and such director's seat shall be open
for election of a director, at the annual meeting of stockholders of the
Corporation at which such Class shall retire, to hold office for three years or
until his successor is elected or appointed.
Any additional directors elected or appointed shall be elected or
appointed to such Class as will ensure that the number of directors in each
Class remains as nearly equal as possible, and if all Classes have an equal
number of directors or if one Class has one director more than the other two
Classes, then any additional directors elected or appointed shall be elected or
appointed to the Class that does not have more directors than any other Class
and is subject to election at an ensuing annual meeting before any other such
Class.
Vacancies due to resignation, death, increases in the number of
directors, or any other cause shall be filled only by the Board of Directors
(unless there are no directors, in which case vacancies will be filled by the
stockholders) in accordance with the rule that each Class of directors shall be
as nearly equal in number of directors as possible. Notwithstanding such rule,
in the event of any change in the authorized number of directors each director
then continuing to serve as such will nevertheless continue as a director of the
Class of which he or she is a member, until the expiration of his or her current
term or his earlier death, resignation or removal. If any newly created
directorship or vacancy on the Board of Directors, consistent with the rule that
the three Classes shall be as nearly equal in number of directors as possible,
may be allocated to one or two or more Classes, then the Board of Directors
shall allocate it to that of the available Classes whose term of office is due
to expire at the earliest date following such allocation. When the Board of
Directors fills a vacancy, the director chosen to fill that vacancy shall be of
the same Class as the director he or she succeeds and shall hold office until
such director's successor shall have been elected and qualified or until such
director shall resign or shall have been removed. No reduction of the authorized
number of directors shall have the effect of removing any director prior to the
expiration of such director's term of office.
Section 3.02 Meetings of the Board. Each regular and special meeting of
the board shall be held at a location determined as follows: The board of
directors may designate any place, within or without the State of Delaware, for
the holding of any meeting. If no such
4
5
designation is made, (i) any meeting called by a majority of the directors shall
be held at such location, within the county of the Corporation's principal
executive office, as the directors calling the meeting shall designate; and (ii)
any other meeting shall be held at such location, within the county of the
Corporation's principal executive office, as the chief executive officer may
designate, or in the absence of such designation, at the Corporation's principal
executive office. Subject to the requirements of applicable law, all regular and
special meetings of the board of directors shall be conducted in accordance with
such rules and procedures as the board of directors may approve and, as to
matters not governed by such rules and procedures, as the chairman of such
meeting shall determine. The chairman of any regular or special meeting shall be
designated by the directors and, in the absence of any such designation, shall
be the chief executive officer of the Corporation.
Section 3.03 Qualifications of Directors.
No person shall be qualified to be elected to, or appointed to fill a
vacancy on, the board of the Corporation during the pendency of a Business
Combination transaction, as defined herein, if such person is, or (in the case
of a person described in clause (i), (ii) or (iii) below) was within the two
years preceding the date of such election or appointment: (i) an officer,
director, employee or affiliate (as defined in Rule 144 under the Securities Act
of 1933, as amended) of a party to such transaction (an "Interested Party") or
of any affiliate of an Interested Party; (ii) an agent subject to the direction
of an Interested Party; (iii) a consultant or advisor to an Interested Party;
(iv) a person having a material financial interest in the transaction (other
than through the ownership of stock or securities of the Corporation); or (v) a
person having any business, financial, or familial relationship with any person
referred to in clauses (i)-(iv) above that would reasonably be expected to
affect such person's judgment in a manner adverse to this Corporation. A person
shall not be disqualified from election or appointment to the board by reason of
this Section 3.03 solely because such person is a director or officer of this
Corporation who receives normal and customary compensation as such and/or is a
stockholder or affiliate of this Corporation.
For the purpose of this Section 3.03, a Business Combination shall mean
any of the following: (i) a merger or consolidation of this Corporation with
another corporation, or a sale of all or substantially all of the business and
assets of this Corporation; or (ii) an acquisition (including by tender offer or
any other means) by any person (including any two or more persons comprising a
group, within the meaning of Rule 13d-5 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")), of beneficial ownership, within the
meaning of Rule 13d-3 under the Exchange Act, of 15% or more of the outstanding
common stock of this Corporation.
A Business Combination shall be deemed pending for purposes of this
Section 3.03 commencing on the date any offer or proposal for such transaction
shall be made and until such time as the proposed transaction is abandoned or
until such time as: (i) the party proposing such transaction shall have acquired
beneficial ownership, as defined above, of 50% or more of this Corporation's
outstanding voting stock; and (ii) 10 business days shall have elapsed
thereafter. A business day shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in the State of California are authorized or
obligated by law or executive order to close.
5
6
ARTICLE IV
Indemnification
Section 4.01 Action, Etc. Other Than by or in the Right of the
Corporation. The Corporation shall indemnify any person who was or is a party or
is 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, 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner the 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
such person's 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, of itself, create a presumption that
the person did not act in good faith and in a manner which the 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, that the person had
reasonable cause to believe that such person's conduct was unlawful.
Section 4.02 Actions, Etc. by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is 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, 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 expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made in
respect of 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 the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 4.03 Determination of Right of Indemnification. Any
indemnification under Section 4.01 or 4.02 (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 4.01 and 4.02. Such determination shall
be made (i) by the Board by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a
6
7
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
Section 4.04 Indemnification Against Expenses of Successful Party
Notwithstanding the other provisions of this Article, to the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 4.01 or 4.02, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Section 4.05 Prepaid Expenses. Expenses incurred by an officer or
director in defending a civil or criminal action, suit or proceeding may 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 the director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board deems appropriate.
Section 4.06 Other Rights and Remedies. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
subsections of this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
Section 4.07 Continuation of Indemnification and Advancement of Expenses
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Section 4.08 Insurance. Upon resolution passed by the Board, the
Corporation may 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 such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Article.
Section 4.09 Constituent Corporations. For the purposes of this Article,
references to "the Corporation" include all constituent corporations absorbed in
a consolidation or merger as well as the resulting or surviving corporation, so
that any person who is or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the
7
8
provisions of this Article with respect to the resulting or surviving
corporation as such person would if such person had served the resulting or
surviving corporation in the same capacity.
Section 4.10 Other Enterprises, Fines, and Serving at Corporation's
Request. For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article.
ARTICLE V
Officers
Section 5.01 Officers. The Corporation shall have a chairman of the
board, a chief executive officer, a chief financial officer, a secretary, and
such other officers as may be designated by the board. Officers shall have such
powers and duties as may be specified by, or in accordance with, resolutions of
the board of directors. In the absence of any contrary determination by the
board of directors, the chief executive officer shall, subject to the power and
authority of the board of directors, have general supervision, direction, and
control of the officers, employees, business, and affairs of the Corporation.
Section 5.02 Limited Authority of Officers. No officer of the
Corporation shall have any power or authority outside the normal day-to-day
business of the Corporation to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable in connection with any
transaction unless so authorized by the board of directors.
ARTICLE VI
Waiver of Annual Reports
(a) In the event the Corporation becomes subject to the provisions of
Section 1501 of the California Corporations Code ("Code") by reason of the
applicability of Section 2115 of the Code, then so long as the Corporation has
less than 100 holders of record of its shares (determined as provided in Section
605 of the Code), no annual report to stockholders shall be required, and the
requirement to the contrary of Section 1501 of the Code is hereby expressly
waived.
(b) If the Corporation is not subject to Section 2115 of the Code,
Section 8.05(a) above shall not require or be interpreted to require the
Corporation to provide an annual report to stockholders under any circumstances,
and the Corporation shall not be under any such obligation unless the same is
required by any applicable provision of the General Corporation Law of Delaware
or any applicable federal laws.
8
9
ARTICLE VII
Amendments
New Bylaws may be adopted or these Bylaws may be amended or repealed by
the stockholders or, except for Sections 2.07 and 3.01, by the directors.
9