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| 8-K - CURRENT REPORT - NOVAVAX INC | v333386_8k.htm |
AMENDED AND RESTATED
BY-LAWS
OF
NOVAVAX, INC.
TABLE OF CONTENTS
| ARTICLE 1 Stockholders | ||
| 1.1. | Place of Meetings. | |
| 1.2. | Annual Meeting. | |
| 1.3. | Special Meetings. | |
| 1.4. | Notice of Meetings. | |
| 1.5. | Voting List. | |
| 1.6. | Quorum. | |
| 1.7. | Adjournments. | |
| 1.8. | Voting and Proxies. | |
| 1.9. | Action at Meeting. | |
| 1.10. | Nomination of Directors. | |
| 1.11. | Notice of Business at Annual Meetings. | |
| 1.12. | Action without Meeting. | |
| 1.13. | Organization. | |
| ARTICLE 2 Directors | ||
| 2.1. | General Powers. | |
| 2.2. | Number; Election and Qualification. | |
| 2.4. | Terms of Office. | |
| 2.5. | Allocation of Directors Among Classes in the Event of Increases or Decreases in the Number of Directors. | |
| 2.6. | Vacancies. | |
| 2.7. | Resignation. | |
| 2.8. | Regular Meetings. | |
| 2.9. | Special Meetings. | |
| 2.10. | Notice of Special Meetings. | |
| 2.11. | Meetings by Telephone Conference Calls. | |
| 2.12. | Quorum. | |
| 2.13. | Action at Meeting. | |
| 2.14. | Action by Consent. | |
| 2.15. | Removal. | |
| 2.16. | Committees. | |
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| 2.17. | Compensation of Directors. | |
| ARTICLE 3 Officers | ||
| 3.1. | Enumeration. | |
| 3.2. | Election. | |
| 3.3. | Qualification. | |
| 3.4. | Tenure. | |
| 3.5. | Resignation and Removal. | |
| 3.6. | Vacancies. | |
| 3.7. | Chairman of the Board and Vice Chairman of the Board. | |
| 3.8. | President. | |
| 3.9. | Vice Presidents. | |
| 3.10. | Secretary and Assistant Secretaries. | |
| 3.11. | Treasurer and Assistant Treasurers. | |
| 3.12. | Salaries. | |
| ARTICLE 4 Capital Stock | ||
| 4.1. | Issuance of Stock. | |
| 4.2. | Certificates of Stock. | |
| 4.3. | Transfers. | |
| 4.4. | Lost, Stolen or Destroyed Certificates. | |
| 4.5. | Record Date. | |
| ARTICLE 5 General Provisions | ||
| 5.1. | Fiscal Year. | |
| 5.2. | Corporate Seal. | |
| 5.3. | Waiver of Notice. | |
| 5.4. | Voting of Securities. | |
| 5.5. | Evidence of Authority. | |
| 5.6. | Certificate of Incorporation. | |
| 5.8. | Severability. | |
| 5.9. | Pronouns. | |
| ARTICLE 6 Amendments | ||
| 6.1. | By the Board of Directors. | |
| 6.2. | By the Stockholders. | |
| 6.3. | Certain Provisions. | |
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AMENDED AND RESTATED BY-LAWS
OF
NOVAVAX, INC.
ARTICLE 1
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 or the President or, if not so designated, at the registered office
of the corporation.Novavax, Inc. (the “Corporation”).
For the purposes of these by-laws, if authorized by the Board of Directors in its sole discretion, and subject to such guidelines
and procedures as the Board of Directors or President may adopt, stockholders and proxyholders not physically present at a meeting
of stockholders may, by means of remote communication: (a) participate in a meeting of stockholders and (b) be deemed present in
person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote
communication.
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 within six months after
the end of each fiscal year of the corporation on a date to be fixed by the Board of Directors or the President
(which date shall not be a legal holiday in the place where the meeting is to be held) at the time and place to be fixed by the
Board of Directors or the President and stated in the notice of the meeting. If no annual meeting
is held in accordance with the foregoing provisions, the Board of Directors shall cause the meeting to be held as soon thereafter
as convenient. If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu
of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been taken at the annual
meeting, and in such case all references in these By-Laws to the annual meeting of the stockholders shall be deemed to refer to
such special meeting.
1.3.
Special Meetings. Special Subject
to the rights of the holders of any series of preferred stock of the Corporation with respect to calling special meetings of stockholders
of the Corporation, special meetings of stockholders may be called at any time only by
the Chief Executive Officer (or, if there is no Chief Executive Officer, the President) or by the Board of Directors. BusinessExcept
as otherwise required by law, 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, and the individual or group calling
such meeting shall have exclusive authority to determine the business included in such notice.
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 10 nor more than 60 days before the date of the meeting to each stockholder entitled
to vote atnotice of such meeting. The
notices of all meetings shall state the place, date and hour of the meeting, and the means of remote
communication, if any, by which stockholders and proxyholders may be deemed to be present and vote at such meeting.
The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called.
Notice to stockholders may be given in writing or by electronic transmission. If mailed, notice is given when deposited
in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation.Corporation.
Notice by electronic transmission shall be deemed to be given when directed to a stockholder by a form of electronic transmission
to which such stockholder has consented. Notice need not be given to any stockholder who submits a written waiver of notice signed
by such stockholder, or a waiver by electronic transmission by such stockholder, before or after the time stated therein. Attendance
of a stockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder
attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened.
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1.5.
Voting List. The officer who has charge of the stock ledger of the corporationCorporation
shall prepare, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting; provided, however, if the record date for determining the stockholders entitled
to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth
day before the meeting date, 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
10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours,
at a place within the city where the meeting is to be held. 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
for any purpose germane to the meeting.
1.6.
Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, the holders of
a majority of the shares of the capital stock of the corporationCorporation
issued and outstanding and entitled to vote at a meeting, present in person or represented by proxy, shall constitute
a quorum for the transaction of business. For any meeting of the holders of common stock, the holders of a majority of the shares
of the common stock of the corporationCorporation
issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute
a quorum at such meeting for the transaction of business.
1.7. Adjournments. Any
meeting of stockholders may be adjourned to any other time and to any other place at which a meeting of stockholders may be
held under these By-Laws by holders of a majority of the stockholdersshares present
or represented at the meeting and entitled to vote, although less than a quorum, or, if no
stockholder is present, by any officer entitled to preside at or to act as Secretary of such meeting. It
shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the
adjourned meeting are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date
is fixed for determination of stockholders entitled to vote at the adjourned meeting.
At the adjourned meeting, the corporationCorporation may
transact any business which might have been transacted at the original meeting.
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1.8.
Voting and Proxies. Each stockholder shall have one vote for each share of stock entitled to vote held of record
by such stockholder and a proportionate vote for each fractional share so held, unless otherwise provided by the General Corporation
Law of the State of Delaware, the Certificate of Incorporation or these By-Laws. Each stockholder of record entitled to vote at
a meeting of 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 him by written proxy executed by
the stockholder or his authorized agent and delivered to the Secretary of the corporationCorporation.
No such proxy shall be voted or acted upon after three years from the date of its execution, unless the proxy expressly provides
for a longer period.
1.9. Action at Meeting. When a quorum is present at any meeting, the holders of a majority of the stock present or represented and voting on a matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of a majority of the stock of that class present or represented and voting on a matter) shall decide any matter to be voted upon by the stockholders at such meeting, except when a different vote is required by express provision of law, the Certificate of Incorporation or these By-Laws. Any election of directors by stockholders shall be determined by a plurality of the votes cast by the stockholders entitled to vote at the election.
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1.10.
Nomination of Directors. OnlyExcept
as otherwise required by law, only persons who are nominated in accordance with the following
procedures set forth in this Section 1.10 shall be eligible for election
as directors. Nomination for election to the Board of Directors of the corporationCorporation
may be made (a) at a meeting of stockholders may be made by,
or at the direction of, the Board of Directors, or (b)
at any annual meeting of the stockholders or at any special meeting of stockholders where the Board of Directors has determined
that the election of directors will be conducted, by any stockholder of the corporationCorporation
who is a stockholder of record at the time of giving of the notice provided for in this Section 1.10, entitled to vote
for the election of directors at such meeting and who complies with the notice procedures
set forth in this Section 1.10. Such nominations, other than those made by or on behalf of the Board of Directors, shall
be made byand regardless of whether a stockholder conducts an independent solicitation
of proxies, must be preceded by timely notice in writing delivered or mailed by first class United States mail, postage
prepaid, to the Secretary, and of the Corporation.
To be timely for purposes of this Section 1.10, a stockholder notice must be received at
the principal executive offices of the Corporation (a) in the case of an annual meeting of stockholders of the Corporation, not
less than 60 days nor more than 90 days prior to suchthe
anniversary date of the prior year’s annual meeting; of
the stockholders of the Corporation, provided, however, that if less than 70in
the event that the date of the current year’s annual meeting of the stockholders is more than 30 days before or after the
anniversary date of the prior year’s annual meeting of the stockholders of the Corporation, 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 public disclosure of the date of such meeting was made, whichever occurs first; and (b)
in the case of a special meeting of stockholders where the Board of Directors has determined that the election of directors will
be conducted, to be timely for purposes of this Section 1.10, a stockholder’s notice must be received at the principal executive
offices of the Corporation not less than 60days nor more than 90 days prior to the meeting, provided, however, that in the event
that less than 100 days’ notice or prior public disclosure of the date of the meeting is given or
made to stockholders, such nomination shall have been mailed or delivered to the Secretary
notnotice by the stockholder to be timely must be received no later than
the close of business on the 10th day following the dateday
on which thesuch notice of
the date of the meeting was mailed or such public disclosure of
the date of such meeting was made, whichever occurs first. SuchFor
purposes of these by-laws, “public disclosure” means disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). In no event shall any adjournment or postponement of a meeting of the stockholders or the announcement thereof commence
a new time period for the delivery of the notice described in this Section 1.10. Such stockholder’s notice shall
set forth (a) as to each proposed nominee for election or reelection as a director (i)
the name, age, business address and, if known, residence address of each such
nominee, (ii) the principal occupation or employment of each such nominee, (iii) the class and number
of shares of capital stock and other securities of
the corporationCorporation which are beneficially
owned by each such nominee and whether and the extent to which any hedging or other transaction or
series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding has been
made, the effect or intent of which is to increase or decrease the voting power or economic interest of, such person with respect
to the Corporation’s securities, and (iv) any other information concerning the nominee that must be disclosed
as to nominees in proxy solicitations, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act
of 1934, as amended (including such person’s written consent to be named as a nominee and to serve as a director if elected);
and (b) as to the stockholder giving the notice and each Stockholder Associated Person (as defined
below) (i) the name and address, as they appear on the corporation’sCorporation’s
books, of such stockholder and (ii) a
description of all direct and indirect compensation and other material monetary arrangements, agreements or understandings during
the past three years, and any other material relationship, if any, between or concerning such stockholder and each Stockholder
Associated Person (as defined below), on the one hand, and each proposed nominee, and his or her respective affiliates and associates,
on the other hand; (iii) the class and number of shares of the corporationcapital
stock and other securities of the Corporation which are beneficially owned by such stockholder.
The corporationperson and (iv) any derivative positions held of record or beneficially
by such person and whether and the extent to which any hedging or other transaction or series of transactions has been entered
into by or on behalf of, or any other agreement, arrangement or understanding has been made, the effect or intent of which is to
increase or decrease the voting power or economic interest of, such person, with respect to the Corporation’s securities.
For purposes of these by-laws, a “Stockholder Associated Person” of any stockholder means (i) any “affiliate”
or “associate” (as those terms are defined in Rule 12b-2 under the Exchange Act) of the stockholder who owns beneficially
or of record any capital stock or other securities of the Corporation or, through one or more derivative positions, has an economic
interest (whether positive or negative) in the price of securities of the Corporation and (ii) any person acting in concert with
such stockholder or any affiliate or associate of such stockholder with respect to the capital stock or other securities of the
Corporation. In addition, any nominee proposed by a stockholder shall complete a questionnaire, in a form provided by the Corporation,
and such completed questionnaire shall be submitted promptly, and in any event within 10 days, after the Corporation provides the
form of such questionnaire. The Corporation may require any proposed nominee to furnish such other information as may
reasonably be required by the corporationCorporation
to determine the eligibility of such proposed nominee to serve as a director of the corporation.Corporation.
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.
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The chairman of the meeting may, if the
facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing
procedure, and if heprocedures set forth in this Section 1.10, and if the chairman
should so determine, hethe chairman shall
so declare to the meeting and, unless otherwise required by law, the defective nomination
shall be disregarded. In addition to the foregoing provisions of this Section 1.10, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Section 1.10.
1.11.
Notice of Business at Annual Meetings. At anany
annual meeting of the stockholders, except as otherwise required by law, only
such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of 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 an annual meeting by a stockholder. For of
record at the time of giving of the notice provided for in this Section 1.11, who is entitled to vote at such meeting and who complies
with the notice procedures set forth in this Section 1.11. In addition to any other applicable requirements, for business
to be properly brought properly before
an annual meeting of the stockholders by a stockholder,
if such business relates to the election of directors of the corporation, the procedures in Section 1.10 must be complied with.
If such business relates to any other matter pursuant to this Section 1.11, regardless
of whether the stockholder intends to conduct an independent solicitation of proxies, 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 corporationCorporation not
less than 60 days nor more than 90 days prior to the anniversary date of the prior year’s annual
meeting of the stockholders of the Corporation; provided, however, that in the
event that less than 70 days’ notice or prior public disclosure of the date
of the current year’s annual meeting is given or
made toof the stockholders is more than 30
days before or after the anniversary date of the prior year’s annual meeting of the stockholders of the Corporation,
notice by the stockholder to be timely must be so received not later than the close of business on the 10th day following
the date on which such notice of the date of the meeting was mailed or such public
disclosure of the date of such meeting was made, whichever occurs first.
In no event shall any adjournment or postponement of a meeting of the stockholders or the announcement thereof commence a new time
period for the delivery of the notice described in this Section 1.11. A stockholder’s notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the annual meeting (a) a brief description of the business
desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (b) the name
and address, as they appear on the corporation’sCorporation’s
books, of the stockholder proposing such business, (c) the class and number of shares of the
corporation whichcapital stock and other securities of the Corporation that are
beneficially owned by the stockholder and each Stockholder Associated Person, (d) any derivative positions
held of record or beneficially by the stockholder and any Stockholder Associated Person and whether and the extent to which any
hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement
or understanding has been made, the effect or intent of which is to increase or decrease the voting power or economic interest
of, such stockholder or any Stockholder Associated Person with respect to the Corporation’s securities, and (d)
any material interest of the stockholder or any Stockholder Associated Person in such business.
Notwithstanding anything in these By-Laws to the contrary, except as otherwise required by law, no
business shall be conducted at any annual meeting of stockholders except (i)
in accordance with the procedures set forth in this Section 1.11 and except that any
stockholder proposal which complies with Rule 14a-8 of the proxy rules (or any successor provision) promulgated under the Securities
Exchange Act of 1934, as amended, and is to be included in the corporation’s proxy statement for an annual meeting of stockholders
shall be deemed to comply with the requirements of thisor (ii) with respect to nominations
of persons for election as directors of the Corporation, in accordance with the provisions of Section 1.111.10
hereof.
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The chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that business was not properly brought before
the meetingproposed in accordance with the provisions
ofprocedures set forth in this Section 1.11,
and, if hethe
chairman should so determine, the chairman shall so declare to the meeting thatand,
except as otherwise required by law, any such business not properly brought before
the meeting shall not be transacted. In addition to the foregoing provisions of this
Section 1.11, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 1.11.
1.12. Action without Meeting. Stockholders may not take any action by written consent in lieu of a meeting.
1.13.
Organization. The Chairman of the Board, or in his absence the Vice Chairman of the Board designated by the Chairman
of the Board, or the President, in the order named, shall call meetings of the stockholders to order, and shall act as chairman
of such meeting; provided, however, that the Board of Directors may appoint any stockholder to act as chairman of any meeting in
the absence of the Chairman of the Board. The Secretary of the corporationCorporation
shall act as secretary at all meetings of the stockholders; but in the absence of the Secretary at any meeting of the
stockholders, the presiding officer may appoint any person to act as secretary of the meeting.
ARTICLE 2
Directors
2.1.
General Powers. The business and affairs of the corporationCorporation
shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporationCorporation
except as otherwise provided by law, the Certificate of Incorporation or these By-Laws. In the event of a vacancy in
the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board
until the vacancy is filled.
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2.2.
Number; Election and Qualification. The number of directors which shall constitute the whole Board of Directors
shall be determined by resolution of the Board of Directors, but in no event shall be less than three. The number of directors
may be decreased at any time and from time to time by a majority of the directors then in office, but only to eliminate vacancies
existing by reason of the death, resignation, removal or expiration of the term of one or more directors. The directors shall be
elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not
be stockholders of the corporationCorporation.
2.3. Classes
of Directors. The Board of Directors shall be and is divided into three classes: Class I, Class II and Class III.
No one class shall have more than one director more than any other class. If a fraction is contained in the quotient arrived at
by dividing the designated number of directors by three, then, if such fraction is one-third, the extra director shall be a member
of Class I, and if such fraction is two-thirds, one of the extra directors shall be a member of Class I and one of the extra directors
shall be a member of Class II, unless otherwise provided from time to time by resolution adopted by the Board of Directors.
2.3.
2.4. Terms of Office. Each director shall serve
for a term ending on the date of the third annual meeting following the annual meeting at which such director was elected; provided,
that each initial director in Class I shall serve for a term ending on the date of the annual meeting of stockholders in 1996;
each initial director in Class II shall serve for a term ending on the date of the annual meeting of stockholders in 1997; and
each initial director in Class III shall serve for a term ending on the date of the annual meeting of stockholders in 1998; and
provided further, that the term of each director shall be subject to the election and qualification of his successor and to his
earlier death, resignation or removal.
2.4.
2.5. Allocation of Directors Among Classes in the Event
of Increases or Decreases in the Number of Directors. In the event of any increase or decrease in the authorized number
of directors, (i) each director then serving as such shall nevertheless continue as a director of the class of which hesuch
director is a member and (ii) the newly created or eliminated directorships resulting from such increase or decrease
shall be apportioned by the Board of Directors among the three classes of directors so as to ensure that no one class has more
than one director more than any other class. To the extent possible, consistent with the foregoing rule, any newly created directorships
shall be added to those classes whose terms of office are to expire at the latest dates following such allocation, and any newly
eliminated directorships shall be subtracted from those classes whose terms of offices are to expire at the earliest dates following
such allocation, unless otherwise provided from time to time by resolution adopted by the Board of Directors.
2.5.
2.6. Vacancies. Any vacancy in the Board of Directors,
however occurring, including a vacancy resulting from an enlargement of the Board, shall be filled only by vote of a majority of
the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office, and a director chosen to fill a position resulting from an
increase in the number of directors shall hold office until the next election of the class for which such director shall have been
chosen, subject to the election and qualification of his successor and to his earlier death, resignation or removal.
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2.6.
2.7. Resignation. Any director may resign by
delivering his written resignation to the corporation at its principal office or toat
any time upon notice given in writing or by electronic transmission to the Chairman of the Board, if any, the President
or Secretary of the Corporation. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some other event.
2.7.
2.8. Regular Meetings. Regular meetings of the
Board of Directors 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 of Directors; provided that any director who is absent when such a determination is
made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately
after and at the same place as the annual meeting of stockholders.
2.8.
2.9. Special Meetings. Special meetings of the
Board of Directors may be held at any time and place, within or without the State of Delaware,
as designated in a callby
the person(s) calling the meeting and be called by the Chairman of the Board, President, two or more directors, or by
one director in the event that there is only a single director in office.
2.9. 2.10. Notice
of Special Meetings. Notice of any special meeting of directors shall be given to each director by the Secretary or
by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) by giving notice
to such director in person or by telephone, or by any form of electronic transmission to which
such director has consented, at least 24 hours in advance of the meeting, (ii) by sending a telegram, telecopy, or
telex, or delivering written notice by hand, to his last known business or home address at least 24 hours in advance of the
meeting, or (iii) by mailing written notice to his last known business or home address at least 72 hours in advance of the
meeting, in each case or such shorter period of time before the meeting as will nonetheless be
sufficient for the convenient assembly of the directors so notified. A notice or waiver of notice of a meeting of
the Board of Directors need not specify the purposes of the meeting.
2.10.
2.11. Meetings by Telephone Conference Calls. Directors
or any members of any committee designated by the directors may participate in a meeting of the Board of Directors 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.
2.11.
2.12. Quorum. AAt
any meeting of the Board of Directors, a majority of the total number of the whole
Board of Directorsdirectors then in office shall constitute a quorum at
all meetings of the Board of Directorsfor all purposes. In the event one
or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each
such director so disqualified; provided, however, that in no case shall less than one-third (1/3) of the number so fixed constitute
a quorum. In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice other than announcement at the meeting, until a quorum shall be present.
2.12.
2.13. Action at Meeting. At any meeting of the
Board of Directors at which a quorum is present, the vote of a majority of those present shall be sufficient to take any action,
unless a different vote is specified by law, the Certificate of Incorporation or these By-Laws. Notwithstanding
the foregoing, at any time during which the directors of the corporation who are affiliated with IGI, Inc. shall constitute at
least half of the membership of the Board of Directors, any matter requiring approval of the Board of Directors shall be subject
to the approval of not less than two-thirds of the directors.
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2.13.
2.14. Action by Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee of the Board of Directors may be taken without
a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing, and the written consents
are filed with the minutes of proceedings of the Board or committee.
2.14.
2.15. Removal. Directors of the corporationCorporation
may be removed only for cause by the affirmative vote of the holders of two-thirds of the shares of the capital stock
of the corporationCorporation issued and
outstanding and entitled to vote.
2.15.
2.16. Committees. The Board of Directors 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 corporationCorporation.
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 hethe
member or theymembers constitute
a quorum, may unanimously appoint another member of the Board of Directors 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 of Directors 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 of Directors in the management of the business and affairs of the corporationCorporation
and may authorize the seal of the corporationCorporation
to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the
Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make
rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted
as nearly as possible in the same manner as is provided in these By-Laws for the Board of Directors.
2.16.
2.17. Compensation of Directors. Directors may
be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any director from serving the corporationCorporation
or any of its parent or subsidiary corporation in any other capacity and receiving compensation for such service.
ARTICLE 3
Officers
3.1.
Enumeration. The officers of the corporationCorporation
shall consist of a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of
Directors shall determine, including a Chairman of the Board, a Vice Chairman of the Board, and one or more Vice Presidents, Assistant
Treasurers, and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate.
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3.2. Election. The President, Treasurer and Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any other meeting.
3.3. Qualification. No officer need be a stockholder. Any two or more offices may be held by the same person.
3.4. Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-Laws, each officer shall hold office until his successor is elected and qualified, unless a different term is specified in the vote choosing or appointing him, or until his earlier death, resignation or removal.
3.5.
Resignation and Removal. Any officer may resign by delivering his written resignation
to the corporation at its principal office orat any time upon notice given in writing
or by electronic transmission to the Chairman of the Board, if any, the President or Secretary
of the Corporation. Such resignation shall be effective upon receipt unless it is specified to be effective at some
other time or upon the happening of some other event.
Any officer may be removed at any time, with or without cause, by vote of a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no
officer who resigns or is removed shall have any right to any compensation as an officer for any period following his resignation
or removal, or any right to damages on account of such removal, whether his compensation be by the month or by the year or otherwise,
unless such compensation is expressly provided in a duly authorized written agreement with the corporationCorporation.
3.6.
Vacancies. The Board of Directors may fill any vacancy occurring in any office for any reason
and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer
and Secretary. Each such successor shall hold office for the unexpired term of his predecessor and until his successor
is elected and qualified, or until his earlier death, resignation or removal.
3.7.
Chairman of the Board and Vice Chairman of the Board. The Board of Directors may appoint a Chairman of the Board
and may designate the Chairman of the Board as Chief Executive Officer. If the Board of Directors appoints a Chairman of the Board,
hethe Chairman shall perform such duties
and possess such powers as are assigned to him by the Board of Directors. If the Board of Directors appoints a Vice Chairman of
the Board, hethe Vice Chairman shall,
in the absence or disability of the Chairman of the Board, perform the duties and exercise the powers of the Chairman of the Board
and shall perform such other duties and possess such other powers as may from time to time be vested in him by the Board of Directors.
3.8.
President. The President shall, subject to the direction of the Board of Directors, have general charge and supervision
of the business of the corporationCorporation.
Unless otherwise provided by the Board of Directors, hethe
President shall preside at all meetings of the stockholders, and if hethe
President is a director, at all meetings of the Board of Directors. Unless the Board of Directors has designated the
Chairman of the Board or another officer as Chief Executive Officer, the President shall be the Chief Executive Officer of the
corporationCorporation. The President
shall perform such other duties and shall have such other powers as the Board of Directors may from time to time prescribe.
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3.9. Vice Presidents. Any Vice President shall perform such duties and possess such powers as the Board of Directors 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 Presidents in the order determined by the Board of Directors) 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. The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board of Directors.
3.10. Secretary and Assistant Secretaries. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the President may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders and the Board of Directors 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.
Any Assistant Secretary shall perform such duties and possess such powers as the Board of Directors, the President or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting.
3.11.
Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may
from time to time be assigned to him by the Board of Directors or the President. In addition, the Treasurer shall perform such
duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep
and be responsible for all funds and securities of the corporationCorporation,
to deposit funds of the corporationCorporation in
depositories selected in accordance with these By-Laws, to disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors statements of all such transactions and of the financial
condition of the corporationCorporation.
The Assistant Treasurers shall perform such duties and possess such powers as the Board of Directors, the President or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer.
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3.12.
Salaries. Officers of the corporationCorporation
shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by
the Board of Directors.
ARTICLE 4
Capital Stock
4.1.
Issuance of Stock. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate
of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporationCorporation
or the whole or any part of any unissued balance of the authorized capital stock of the corporationCorporation
held in its treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in
such manner, for such consideration and on such terms as the Board of Directors may determine.
4.2.
Certificates of Stock. The shares of the corporation’sCorporation’s
stock may be certificated or uncertificated, as provided under the General Corporation Law of the State of Delaware.
Any certificates representing shares of stock shall be in such form as may be prescribed by law and by the Board of Directors,
certifying the number and class of shares owned by the stockholder in the corporationCorporation.
Each such certificate shall be signed by, or in the name of the corporationCorporation
by, the Chairman or Vice Chairman, if any, of the Board of Directors, or the President or a Vice President, and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporationCorporation.
Any or all of the signatures on the certificate may be a facsimile. Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the By-laws, applicable securities laws or any agreement
among any number of stockholders or among such holders and the corporationCorporation
shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement
of the existence of such restriction. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporationCorporation
shall send to the registered owner thereof a written notice that shall set forth any restrictions on the transfer or
registration of such shares of stock imposed by the corporation’sCorporation’s
articles of incorporation, these By-laws, any agreement among shareholders or any agreement between shareholders and
the corporationCorporation.
4.3.
Transfers. Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject
to applicable law, shares of stock may be transferred on the books of the corporationCorporation,
if such shares are certificated, by the surrender to the corporationCorporation
or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment
or power of attorney properly executed, or upon proper instructions from the holder of uncertificated shares in each case, with
such proof of authority or the authenticity of signature as the corporationCorporation
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 corporationCorporation 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 corporationCorporation
in accordance with the requirements of these By-laws.
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4.4.
Lost, Stolen or Destroyed Certificates. The corporationCorporation
may issue (i) upon written request to the transfer agent or registrar of the corporationCorporation,
a new certificate of stock, or (ii) uncertificated shares in place of any certificate or certificates previously issued by the
corporationCorporation in place of any
previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions as the Board of Directors
may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity
as the Board of Directors may require for the protection of the corporationCorporation
or any transfer agent or registrar.
4.5.
Record Date. The Board of Directors may fix in advance a date as a record date for the determination of the stockholders
entitled to notice of or to vote at any meeting of stockholders, or entitled to receive payment of any dividend or other distribution
or allotment of any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action.
SuchIf the Board of Directors fixes a record date
for purposes of determining the stockholders entitled to notice of any meeting or any adjournment thereof, such date shall also
be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines,
at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such
determination. In all other cases, the record date shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than
60 days prior to any other action to which such record date relates.
If no record date is fixed, the record date
for determining stockholders entitled to notice of orand
to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is
given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date
for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting.
ARTICLE 5
General Provisions
5.1.
Fiscal Year. Except as from time to time otherwise designated by the Board of Directors, the fiscal year of the
corporationCorporation shall begin on
the first day of January in each year and end on the last day of December in each year.
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5.2. Corporate Seal. The corporate seal, if any, shall be in such form as shall be approved by the Board of Directors.
5.3. Waiver of Notice. Whenever any notice whatsoever is required to be given by law, by the Certificate of Incorporation or by these By-Laws, a waiver of such notice either in writing signed by the person entitled to such notice or such person’s duly authorized attorney, or by telegraph, cable or any other available method, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting in person or by proxy, shall be deemed equivalent to such notice.
5.4.
Voting of Securities. Except as the directors may otherwise designate, the President or Treasurer may waive notice
of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporationCorporation
(with or without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or
organization, the securities of which may be held by this corporationCorporation.
5.5.
Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as
to any action taken by the stockholders, directors, a committee or any officer or representative of the corporationCorporation
shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.
5.6.
Certificate of Incorporation. All references in these By-Laws to the Certificate of Incorporation shall be deemed
to refer to the Certificate of Incorporation of the corporationCorporation,
as amended and in effect from time to time.
5.7. Transactions
with Interested Parties. No contract or transaction between the corporation and one or more of
the directors or officers, or between the corporation and any other corporation, partnership, association, or other organization
in which one or more of the directors or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of
Directors or a committee of the Board of Directors which authorizes the contract or transaction or solely because his or their
votes are counted for such purpose, if:
(1) The material
facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a quorum;
(2) The material
facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or
(3) The contract
or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors,
a committee of the Board of Directors, or the stockholders.
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Common or interested
directors may be counted in determining the presence or a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
5.7.
5.8. Severability. Any determination that any
provision of these By-Laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision
of these By-Laws.
5.8.
5.9. Pronouns. All pronouns used in these By-Laws
shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may
require.
ARTICLE 6
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 of Directors at which a quorum is present.
6.2.
By the Stockholders. Except as otherwise provided in Section 6.3, 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 corporationCorporation
issued and outstanding and entitled to vote at any regular or special meeting of stockholders, provided notice of such
alteration, amendment, repeal or adoption of new by-laws shall have been stated in the notice of such regular or special meeting.
6.3.
Certain Provisions. Notwithstanding any other provision of law, the certificate of Incorporation or these By-Laws,
and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least
seventy-five percent (75%) of the shares of the capital stock of the corporationCorporation
issued and outstanding and entitled to vote shall be required to amend or repeal, or to adopt any provision inconsistent
with Section 1.3, Section 1.10, Section 1.11, Section 1.12, Section 1.13, Article 2 or Article 6 or these By-Laws.
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