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Exhibit 3.4
FORM OF
AMENDED AND RESTATED BYLAWS
OF
NETGENICS, INC.
ARTICLE I
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Meetings of Stockholders
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SECTION 1. ANNUAL MEETINGS. The annual meeting of stockholders shall be
held at such time and place and on such date in each year as may be fixed by the
Board of Directors of the Corporation (the "BOARD") and stated in the notice of
the meeting, for the election of Directors, the consideration of reports to be
laid before such meeting and the transaction of such other business as may
properly come before the meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders shall
be called upon the written request of the chairman of the Board, the president,
the Directors by action at a meeting, a majority of the Directors acting without
a meeting, or of the holders of shares entitling them to exercise a majority of
the voting power of the Corporation entitled to vote thereat. Calls for such
meetings shall specify the purposes thereof. No business other than that
specified in the call shall be considered at any special meeting.
SECTION 3. NOTICES OF MEETINGS. Unless waived, and except as provided
in Section 230 of the General Corporation Law of the State of Delaware, written
notice of each annual or special meeting stating the date, time, place and
purposes thereof shall be given by personal delivery or by mail to each
stockholder of record entitled to vote at or entitled to notice of the meeting,
not more than sixty days nor less than ten days before any such meeting. If
mailed, such notice shall be directed to the stockholder at his address as the
same appears upon the records of the Corporation. Any stockholder, either before
or after any meeting, may waive any notice required to be given by law or under
these Bylaws.
SECTION 4. PLACE OF MEETINGS. Meetings of stockholders shall be held at
the principal office of the Corporation unless the Board determines that a
meeting shall be held at some other place within or without the State of
Delaware and causes the notice thereof to so state.
SECTION 5. QUORUM. The holders of shares entitling them to exercise a
majority of the voting power of the Corporation entitled to vote at any meeting,
present in person or by proxy, shall constitute a quorum for the transaction of
business to be considered at such meeting; provided, however, that no action
required by law or by the Certificate of Incorporation or these Bylaws to be
authorized or taken by the holders of a designated proportion of the shares of
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particular class or of each class may be authorized or taken by a lesser
proportion; and provided, further, that if a separate class vote is required
with respect to any matter, the holders of a majority of the outstanding shares
of such class, present in person or by proxy, shall constitute a quorum of such
class, and the affirmative vote of the majority of shares of such class so
present shall be the act of such class. The holders of a majority of the voting
shares represented at a meeting, whether or not a quorum is present, may adjourn
such meeting from time to time, until a quorum shall be present.
SECTION 6. RECORD DATE. The Board may fix a record date for any lawful
purpose, including, without limiting the generality of the foregoing, the
determination of stockholders entitled to (i) receive notice of or to vote at
any meeting of stockholders or any adjournment thereof or to express consent to
corporate action in writing without a meeting, (ii) receive payment of any
dividend or other distribution or allotment of any rights, or (iii) exercise any
rights in respect of any change, conversion or exchange of stock. Such record
date shall not precede the date on which the resolution fixing the record date
is adopted by the Board. Such record date shall not be more than sixty days nor
less than ten days before the date of such meeting, nor more than sixty days
before the date fixed for the payment of any dividend or distribution or the
date fixed for the receipt or the exercise of rights, nor more than ten days
after the date of which the resolution fixing the record date for such written
consent is adopted by the Board, as the case may be.
If a record date shall not be fixed in respect of any such matter, the
record date shall be determined in accordance with the General Corporation Law
of the State of Delaware.
Section 7. PROXIES. A person who is entitled to attend a stockholders'
meeting, to vote thereat, or to execute consents, waivers or releases, may be
represented at such meeting or vote thereat, and execute consents, waivers and
releases, and exercise any of his other rights, by proxy or proxies. Each proxy
must be in a form permitted by the General Corporation Law of the State of
Delaware.
ARTICLE II
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Directors
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SECTION 1. NUMBER OF DIRECTORS. Except as otherwise provided in the
Certificate of Incorporation, the number of Directors of the Corporation, none
of whom need be stockholders, shall not be fewer than six nor more than nine and
may be fixed from time to time by resolution of the Board.
SECTION 2. ELECTION OF DIRECTORS. Directors shall be elected at the
annual meeting of stockholders, but when the annual meeting is not held or
Directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Such election shall be by ballot whenever
requested by any stockholder entitled to vote at such election, but unless such
request is made the election may be conducted in any manner approved at such
meeting.
At each meeting of stockholders for the election of Directors, the
persons receiving the greatest number of votes shall be Directors.
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SECTION 3. TERM OF OFFICE. Each Director shall hold office until the
annual meeting next succeeding his election and until his successor is elected
and qualified, or until his earlier resignation, removal from office or death.
SECTION 4. REMOVAL. All the Directors, or all the Directors of a
particular class, or any individual Director may be removed from office, without
assigning any cause, by the vote of the holders of a majority of the voting
power entitling them to elect Directors in place of those to be removed.
SECTION 5. VACANCIES. Vacancies in the Board may be filled by a
majority vote of the remaining Directors until an election to fill such
vacancies is held. Stockholders entitled to elect Directors shall have the right
to fill any vacancy in the board (whether the same has been temporarily filled
by the remaining Directors or not) at any meeting of the stockholders called for
that purpose, and any Directors elected at any such meeting of stockholders
shall serve until the next annual election of Directors and until their
successors are elected and qualified.
SECTION 6. QUORUM AND TRANSACTION OF BUSINESS. A majority of the whole
authorized number of Directors shall constitute a quorum for the transaction of
business, except that a majority of the Directors in office shall constitute a
quorum for filling a vacancy on the Board. Whenever less than a quorum is
present at the time and place appointed for any meeting of the Board, a majority
of those present may adjourn the meeting from time to time, until a quorum shall
be present. The act of a majority of the Directors present at a meeting at which
a quorum is present shall be the act of the Board.
SECTION 7. ANNUAL MEETING. Annual meetings of the Board shall be held
immediately following annual meetings of the stockholders, or as soon thereafter
as is practicable. If no annual meeting of the stockholders is held, or if
Directors are not elected thereat, then the annual meeting of the Board shall be
held immediately following any special meeting of the stockholders at which
Directors are elected, or as soon thereafter as is practicable. If such annual
meeting of Directors is held immediately following a meeting of the
stockholders, it shall be held at the same place at which such stockholders'
meeting was held.
SECTION 8. REGULAR MEETINGS. Regular meetings of the Board shall be
held at such times and places, within or without the State of Delaware, as the
Board may, by resolution, from time to time determine. The secretary shall give
notice of each such resolution to any Director who was not present at the time
the same was adopted, but no further notice of such regular meeting need be
given.
SECTION 9. SPECIAL MEETINGS. Special meetings of the Board may be
called by the chairman of the Board, the president, any vice president or any
two members of the Board, and shall be held at such times and places, within or
without the State of Delaware, as may be specified in such call.
Section 10. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Notice of the time
and place of each annual or special meeting shall be given to each Director by
the secretary or by the person or persons calling such meeting. Such notice need
not specify the purpose or purposes of the meeting and may be given in any
manner or method and at such time so that the Director
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receiving it may have reasonable opportunity to attend the meeting. Such notice
shall, in all events, be deemed to have been properly and duly given if mailed
at least forty-eight hours prior to the meeting and directed to the residence of
each Director as shown upon the secretary's records. The giving of notice shall
be deemed to have been waived by any Director who shall attend and participate
in such meeting and may be waived, in a writing, by any Director either before
or after such meeting.
Section 11. COMPENSATION. The Directors, as such, shall be entitled to
receive such reasonable compensation, if any, for their services as may be fixed
from time to time by resolution of the Board, and expenses of attendance, if
any, may be allowed for attendance at each annual, regular or special meeting of
the Board. Nothing herein contained shall be construed to preclude any Director
from serving the Corporation in any other capacity and receiving compensation
therefor. Members of the executive committee or of any standing or special
committee may by resolution of the Board be allowed such compensation for their
services as the Board may deem reasonable, and additional compensation may be
allowed to Directors for special services rendered.
ARTICLE III
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Committees
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SECTION 1. EXECUTIVE COMMITTEE. The Board may from time to time, by
resolution passed by a majority of the whole Board, create an executive
committee of three or more Directors, the members of which shall be elected by
the Board to serve during the pleasure of the Board. If the Board does not
designate a chairman of the executive committee, the executive committee shall
elect a chairman from its own number. Except as otherwise provided herein and in
the resolution creating an executive committee, such committee shall, during the
intervals between the meetings of the Board, possess and may exercise all of the
powers of the Board in the management of the business and affairs of the
Corporation, other than that of filling vacancies among the Directors or in any
committee of the Directors or except as provided by law. The executive committee
shall keep full records and accounts of its proceedings and transactions. All
action by the executive committee shall be reported to the Board at its meeting
next succeeding such action and shall be subject to control, revision and
alteration by the Board, provided that no rights of third persons shall be
prejudicially affected thereby. Vacancies in the executive committee shall be
filled by the Directors, and the Directors may appoint one or more Directors as
alternate members of the committee who may take the place of any absent member
or members at any meeting.
SECTION 2. MEETINGS OF EXECUTIVE COMMITTEE. Subject to the provisions
of these Bylaws, the executive committee shall fix its own rules of procedure
and shall meet as provided by such rules or by resolutions of the Board, and it
shall also meet at the call of the chairman of the Board, the president, the
chairman of the executive committee or any two members of the committee. Unless
otherwise provided by such rules or by such resolutions, the provisions of
Section 10 of Article II relating to the notice required to be given of meetings
of the Board shall also apply to meetings of the members of the executive
committee. A majority of the executive committee shall be necessary to
constitute a quorum. The executive committee may act in a
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writing without a meeting, but no such action of the executive committee shall
be effective unless concurred in by all members of the committee.
SECTION 3. OTHER COMMITTEES. The Board may by resolution provide for
such other standing or special committees as it deems desirable, and discontinue
the same at its pleasure. Each such committee shall have such powers and perform
such duties, not inconsistent with law, as may be delegated to it by the Board.
The provisions of Section 1 and Section 2 of this Article shall govern the
appointment and action of such committees so far as consistent, unless otherwise
provided by the Board. Vacancies in such committees shall be filled by the Board
or as the Board may provide.
ARTICLE IV
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Officers
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SECTION 1. GENERAL PROVISIONS. The Board shall elect a president, such
number of vice presidents, if any, as the Board may from time to time determine,
a secretary and a treasurer. The Board may also elect a chairman of the Board
and may from time to time create such offices and appoint such other officers,
subordinate officers and assistant officers as it may determine. The chairman of
the Board, if one be elected, shall be, but the other officers need not be,
chosen from among the members of the Board. Any two or more of such offices,
other than those of president and vice president, may be held by the same
person, but no officer shall execute, acknowledge or verify any instrument in
more than one capacity.
SECTION 2. TERM OF OFFICE. The officers of the Corporation shall hold
office during the pleasure of the Board, and, unless sooner removed by the
Board, until the annual meeting of the Board following the date of their
election and until their successors are chosen and qualified. The Board may
remove any officer at any time, with or without cause. Subject to the provisions
of Section 6 of Article V of these Bylaws, a vacancy in any office, however
created, shall be filled by the Board.
ARTICLE V
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Duties of Officers
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SECTION 1. CHAIRMAN OF THE BOARD. The chairman of the Board, if one be
elected, shall preside at all meetings of the Board and meetings of stockholders
and shall have such other powers and duties as may be prescribed by the Board.
SECTION 2. PRESIDENT. The president shall be the chief executive
officer of the Corporation and shall exercise supervision over the business of
the Corporation and over its several officers, subject, however, to the control
of the Board. In the absence of the chairman of the Board, or if none be
elected, the president shall preside at meetings of stockholders. The president
shall have authority to sign all certificates for shares and all deeds,
mortgages, bonds, agreements, notes, and other instruments requiring his
signature; and shall have all the powers and duties prescribed by the General
Corporation Law of the State of Delaware and such others as the Board may from
time to time assign to him.
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SECTION 3. VICE PRESIDENTS. The vice presidents shall have such powers
and duties as may from time to time be assigned to them by the Board, the
chairman of the Board or the president. At the request of the president, or in
the case of his absence or disability, the vice president designated by the
president (or in the absence of such designation, the vice president designated
by the Board) shall perform all the duties of the president and, when so acting,
shall have all the powers of the president. The authority of vice presidents to
sign in the name of the Corporation certificates for shares and deeds,
mortgages, bonds, agreements, notes and other instruments shall be coordinate
with like authority of the president.
SECTION 4. SECRETARY. The secretary shall keep minutes of all the
proceedings of the stockholders and the Board and shall make proper record of
the same, which shall be attested by him; shall have authority to execute and
deliver certificates as to any of such proceedings and any other records of the
Corporation; shall have authority to sign all certificates for shares and all
deeds, mortgages, bonds, agreements, notes and other instruments to be executed
by the Corporation which require his signature; shall give notice of meetings of
stockholders and Directors; shall produce on request at each meeting of
stockholders a certified list of stockholders arranged in alphabetical order;
shall keep such books and records as may be required by law or by the Board;
and, in general, shall perform all duties incident to the office of secretary
and such other duties as may from time to time be assigned to him by the Board,
the chairman of the board or the president.
SECTION 5. TREASURER The treasurer shall have general supervision of
all finances; he shall have in charge all money, bills, notes, deeds, leases,
mortgages and similar property belonging to the Corporation, and shall do with
the same as may from time to time be required by the Board. He shall cause to be
kept adequate and correct accounts of the business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, stated capital and shares, together with such
other accounts as may be required; and he shall have such other powers and
duties as may from time to time be assigned to him by the Board, the chairman of
the Board or the president.
SECTION 6. ASSISTANT AND SUBORDINATE OFFICERS. Each other officer shall
perform such duties as the Board, the chairman of the board or the president may
prescribe. The Board may, from time to time, authorize any officer to appoint
and remove subordinate officers, to prescribe their authority and duties, and to
fix their compensation.
SECTION 7. DUTIES OF OFFICERS MAY BE DELEGATED. In the absence of any
officer of the Corporation, or for any other reason the Board may deem
sufficient, the Board may delegate, for the time being, the powers or duties, or
any of them, of such officers to any other officer or to any Director.
ARTICLE VI
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Certificates for Shares
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SECTION 1. FORM AND EXECUTION. Certificates for shares, certifying the
number of full-paid shares owned, shall be issued to each stockholder in such
form as shall be approved by
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the Board. Such certificates shall be signed by the chairman or vice-chairman of
the Board or the president or a vice president and by the secretary or an
assistant secretary or the treasurer or an assistant treasurer; provided,
however, that the signatures of any of such officers and the seal of the
Corporation upon such certificates may be facsimiles, engraved, stamped or
printed. If any officer or officers who shall have signed, or whose facsimile
signature shall have been used, printed or stamped on any certificate or
certificates for shares, shall cease to be such officer or officers, because of
death, resignation or otherwise, before such certificate or certificates shall
have been delivered by the Corporation, such certificate or certificates shall
nevertheless be as effective in all respects as though signed by a duly elected,
qualified and authorized officer or officers, and as though the person or
persons who signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not ceased to be an
officer or officers of the Corporation.
SECTION 2. REGISTRATION OF TRANSFER. Any certificate for shares of the
Corporation shall be transferable in person or by attorney upon the surrender
thereof to the Corporation or any transfer agent therefor (for the class of
shares represented by the certificate surrendered) properly endorsed for
transfer and accompanied by such assurances as the Corporation or such transfer
agent may require as to the genuineness and effectiveness of each necessary
endorsement.
SECTION 3. LOST, DESTROYED OR STOLEN CERTIFICATES. A new share
certificate or certificates may be issued in place of any certificate
theretofore issued by the Corporation which is alleged to have been lost,
destroyed or wrongfully taken upon (i) the execution and delivery to the
Corporation by the person claiming the certificate to have been lost, destroyed
or wrongfully taken of an affidavit of the fact, specifying whether or not, at
the time of such alleged loss, destruction or taking, the certificate was
endorsed, and (ii) the furnishing to the Corporation of indemnity and other
assurances, if any, satisfactory to the Corporation and to all transfer agents
and registrars of the class of shares represented by the certificate against any
and all losses, damages, costs, expenses or liabilities to which they or any of
them may be subjected by reason of the issue and delivery of such new
certificate or certificates or in respect of the original certificate.
SECTION 4. REGISTERED STOCKHOLDERS. A person in whose name shares are
of record on the books of the Corporation shall conclusively be deemed the
unqualified owner and holder thereof for all purposes and to have capacity to
exercise all rights of ownership. Neither the Corporation nor any transfer agent
of the Corporation shall be bound to recognize any equitable interest in or
claim to such shares on the part of any other person, whether disclosed upon
such certificate or otherwise, nor shall they be obliged to see to the execution
of any trust or obligation.
ARTICLE VII
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Fiscal Year
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The fiscal year of the Corporation shall commence on such date in each
year as shall be designated from time to time by the Board. In the absence of
such designation, the fiscal year of the Corporation shall commence on January 1
in each year.
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ARTICLE VIII
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Seal
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The Board may provide a suitable seal containing the name of the
Corporation. If deemed advisable by the Board, duplicate seals may be provided
and kept for the purposes of the Corporation.
ARTICLE IX
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Amendments
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These Bylaws shall be subject to alteration, amendment, repeal, or the
adoption of new Bylaws either by the affirmative vote or written consent of a
majority of the whole Board, or by the affirmative vote or written consent of
the holders of record of a majority of the outstanding stock of the Corporation,
present in person or represented by proxy and entitled to vote in respect
thereof, given at an annual meeting or at any special meeting at which a quorum
shall be present.
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