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Title: |
By-Laws [Amended and Restated] |
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Date: |
2002 |
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$52 |
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#284076 |
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AMENDED AND RESTATED BY-LAWS
OF
COLLAGENEX PHARMACEUTICALS, INC.
{PAGE}
TABLE OF CONTENTS
Page
----
ARTICLE I STOCKHOLDERS.......................................................1
1.1 Place of Meetings..........................................1
1.2 Annual Meeting.............................................1
1.3 Special Meetings...........................................1
1.4 Notice of Meetings.........................................1
1.5 Voting List................................................1
1.6 Quorum.....................................................2
1.7 Adjournments...............................................2
1.8 Voting and Proxies.........................................2
1.9 Nomination of Directors....................................3
1.10 Notice of Business at Annual Meetings......................4
1.11 Conduct of Meetings........................................6
ARTICLE II DIRECTORS.........................................................7
2.1 General Powers.............................................7
2.2 Number, Election and Qualification.........................7
2.3 Terms of Office; Vacancies.................................7
2.4 Quorum.....................................................8
2.5 Action at Meeting..........................................8
2.6 Removal....................................................8
2.7 Resignation................................................8
2.8 Regular Meetings...........................................8
2.9 Special Meetings...........................................8
2.10 Notice of Special Meetings.................................8
2.11 Meetings by Conference Communications Equipment............8
2.12 Action by Consent..........................................9
2.13 Organization...............................................9
2.14 Committees.................................................9
2.15 Compensation of Directors..................................9
ARTICLE III OFFICERS.........................................................9
3.1 Titles.....................................................9
3.2 Election..................................................10
3.3 Qualification.............................................10
3.4 Tenure....................................................10
3.5 Resignation and Removal...................................10
3.6 Vacancies.................................................10
3.7 Chairman of the Board.....................................10
3.8 President; Chief Executive Officer........................10
3.9 Vice Presidents...........................................11
3.10 Chief Financial Officer...................................11
i
{PAGE}
3.11 Secretary and Assistant Secretaries.......................11
3.12 Treasurer and Assistant Treasurers........................11
3.13 Salaries..................................................12
ARTICLE IV CAPITAL STOCK....................................................12
4.1 Issuance of Stock.........................................12
4.2 Certificates of Stock.....................................12
4.3 Transfers.................................................12
4.4 Lost, Stolen or Destroyed Certificates....................13
4.5 Fractional Shares.........................................13
4.6 Record Date...............................................13
ARTICLE V INDEMNIFICATION...................................................13
5.1 Right to Indemnification..................................13
5.2 Notification; Assumption of Defense.......................14
5.3 Prepayment of Expenses....................................14
5.4 Indemnitee Initiation; Other Indemnification..............14
5.5 Entitlement to Indemnification............................15
5.6 Non-Exclusivity of Rights.................................15
5.7 Amendment or Repeal.......................................15
ARTICLE VI GENERAL PROVISIONS...............................................15
6.1 Fiscal Year...............................................15
6.2 Corporate Seal............................................15
6.3 Waiver of Notice..........................................15
6.4 Contracts.................................................16
6.5 Proxies; Powers of Attorney; Other Instruments............16
6.6 Financial Reports.........................................16
6.7 Evidence of Authority.....................................16
6.8 Certificate of Incorporation..............................16
6.9 Transactions with Interested Parties......................16
6.10 Location and Form of Records..............................17
6.11 Severability..............................................17
6.12 Pronouns..................................................17
ARTICLE VII AMENDMENTS......................................................17
ii
{PAGE}
ARTICLE I
STOCKHOLDERS
1.1 Place of Meetings. All meetings of stockholders shall be held at such
place as may be designated from time to time by the Board of Directors, the
Chairman of the Board or the President or, if not so designated, at the
principal office of the Corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date and at a time designated by
the Board of Directors, the Chairman of the Board or the President (which date
shall not be a legal holiday in the place where the meeting is to be held). 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 meetings of stockholders for any purpose or
purposes may be called at any time by the Board of Directors, the Chairman of
the Board or the President, but such special meetings may not be called by any
other person or persons. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose or purposes
stated in the notice relating to the meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, 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 at such meeting. Without limiting the manner by which notice
otherwise may be given to stockholders, any notice shall be effective if given
by a form of electronic transmission consented to (in a manner consistent with
the General Corporation Law of the State of Delaware) by the stockholder to whom
the notice is given. The notices of all meetings shall state the place, date and
time of the meeting and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person 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. If notice is given by mail,
such notice shall be deemed given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation. If notice is given by electronic
transmission, such notice shall be deemed given at the time specified in Section
232 of the General Corporation Law of the State of Delaware.
1.5 Voting List. The Secretary shall prepare, at least 10 days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, 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 notice of the meeting, or
(ii) during ordinary business hours, at the principal place of business of the
Corporation. The list shall also be
{PAGE}
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. Except as
otherwise provided by law, the stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
1.6 Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, the holders of a majority in voting power of the
outstanding shares of the capital stock of the Corporation entitled to vote at
the meeting, present in person, present by means of remote communication in a
manner, if any, authorized by the Board of Directors in its sole discretion, or
represented by proxy, shall constitute a quorum for the transaction of business.
A quorum, once established at a meeting, shall not be broken by the withdrawal
of enough votes to leave less than a quorum.
1.7 Adjournments. Any meeting of stockholders may be adjourned from time to
time to any other time and to any other place at which a meeting of stockholders
may be held under these By-laws by the stockholders 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, and the means of remote communication, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such
adjourned meeting, are announced at the meeting at which adjournment is taken,
unless after the adjournment a new record date is fixed for the adjourned
meeting. At the adjourned meeting, the Corporation may transact any business
which might have been transacted at the original meeting.
1.8 Voting and Proxies. Except as otherwise provided by or pursuant to the
provisions of the Certificate of Incorporation, each stockholder entitled to
vote at any meeting of stockholders shall be entitled to one vote for each share
of stock held by such stockholder which has voting power upon the matter in
question. Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A proxy shall 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. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by delivering to the Secretary of the Corporation a revocation of the
proxy or a new proxy bearing a later date. Voting at meetings of stockholders
need not be by written ballot and may be by means of remote communications, as
determined by the Board of Directors, by which stockholders may be deemed to be
present in person and vote at such meetings. At all meetings of stockholders for
the election of directors a plurality of the votes cast shall be sufficient to
elect. All other elections and questions shall, unless otherwise provided by the
Certificate of Incorporation, these By-laws, the rules or regulations of any
stock exchange applicable to the Corporation, or applicable law or pursuant to
any regulation applicable to the Corporation or its securities, be decided by
the affirmative vote of the holders of a majority in voting power of the shares
of stock of the Corporation which are present in person or by proxy and entitled
to vote thereon.
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{PAGE}
1.9 Nomination of Directors.
-----------------------
(a) Except for (i) any directors entitled to be elected by the holders of
preferred stock and (ii) any directors elected in accordance with Section 2.3
hereof by the Board of Directors to fill a vacancy or newly created
directorship, only persons who are nominated in accordance with the procedures
in this Section 1.9 shall be eligible for election as directors. Nomination for
election to the Board of Directors of the Corporation at a meeting of
stockholders may be made (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation who (x) complies with the notice
procedures set forth in Section 1.9(b) and (y) is a stockholder of record on the
date of the giving of such notice and on the record date for the determination
of stockholders entitled to vote at such meeting.
(b) To be timely, a stockholder's notice must be received in writing by the
Secretary at the principal executive offices of the Corporation as follows: (x)
in the case of an election of directors at an annual meeting of stockholders,
not less than 90 days nor more than 120 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 20 days, or delayed by
more than 60 days, from the first anniversary of the preceding year's annual
meeting, a stockholder's notice must be so received not earlier than the one
hundred twentieth day prior to such annual meeting and not later than the close
of business on the later of (A) the ninetieth day prior to such annual meeting
and (B) the tenth day following the day on which notice of the date of such
annual meeting was mailed or public disclosure of the date of such annual
meeting was made, whichever first occurs; or (y) in the case of an election of
directors at a special meeting of stockholders, not earlier than the one hundred
twentieth day prior to such special meeting and not later than the close of
business on the later of (i) the ninetieth day prior to such special meeting and
(ii) the tenth day following the day on which notice of the date of such special
meeting was mailed or public disclosure of the date of such special meeting was
made, whichever first occurs.
The stockholder's notice to the Secretary shall set forth: (a) as to each
proposed nominee (i) such person's name, age, business address and, if known,
residence address, (ii) such person's principal occupation or employment, (iii)
the class and number of shares of stock of the Corporation which are
beneficially owned by such person, and (iv) any other information concerning
such person that must be disclosed as to nominees in proxy solicitations
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); (b) as to the stockholder giving the notice (i) such
stockholder's name and address, as they appear on the Corporation's books, (ii)
the class and number of shares of stock of the Corporation which are owned,
beneficially and of record, by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person at the meeting
to nominate the person(s) named in its notice; and (v) a representation whether
the stockholder intends or is part of a group which intends (a) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the Corporation's outstanding capital stock required to elect the nominee and/or
(b) otherwise to solicit proxies from stockholders in support of such nomination
and (c) as to the beneficial owner, if any, on whose behalf the nomination is
being made (i) such beneficial owner's name and address, (ii) the
-3-
{PAGE}
class and number of shares of stock of the Corporation which are beneficially
owned by such beneficial owner, (iii) a description of all arrangements or
understandings between such beneficial owner and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made and (iv) a representation whether the beneficial
owner intends or is part of a group which intends (a) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
Corporation's outstanding capital stock required to elect the nominee and/or (b)
otherwise to solicit proxies from stockholders in support of such nomination. In
addition, to be effective, the stockholder's notice must be accompanied by the
written consent of the proposed nominee to serve as a director if elected. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required to determine the eligibility of such proposed
nominee to serve as a director of the Corporation.
(c) The chairman of any meeting shall, if the facts warrant, determine that
a nomination was not made in accordance with the provisions of this Section 1.9
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination is made or solicited (or is part of a group which solicited) or
did not so solicit, as the case may be, proxies in support of such stockholder's
nominee in compliance with the representations with respect thereto required by
this Section 1.9), and if the chairman should so determine, the chairman shall
so declare to the meeting and the defective nomination shall be disregarded.
(d) Except as otherwise required by law, nothing in this Section 1.9 shall
obligate the Corporation or the Board of Directors to include in any proxy
statement or other stockholder communication distributed on behalf of the
Corporation or the Board of Directors information with respect to any nominee
for director submitted by a stockholder.
(e) Notwithstanding the foregoing provisions of this Section 1.9, if the
stockholder (or a qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the Corporation to present a
nomination, such nomination shall be disregarded, notwithstanding that proxies
in respect of such vote may have been received by the Corporation.
(f) For purposes of this Section 1.9, "public disclosure" shall include
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
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