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AMENDED AND RESTATED BYLAWS
OF
VERSICOR, INC.
SECTION 1. In addition to its principal office in the State of
Delaware, the Corporation may also have offices at such other places within
or without the State of Delaware as the Board of Directors shall from time to
time determine.
SECTION 2. The annual meeting of the stockholders of the Corporation
shall be held on such date and at such time and at such place, within or
without the State of Delaware, as may be specified in the notice thereof, as
shall be fixed by the Board, for the purpose of electing directors and for
the transaction of only such other business as is properly brought before
such meeting in accordance with these by-laws. If any annual meeting shall
not be held on the day designated or the directors shall not have been
elected thereat or at any adjournment thereof, thereafter the Board shall
cause a special meeting of the stockholders to be held as soon as practicable
for the election of directors. At such special meeting the stockholders may
elect directors and transact other business with the same force and effect as
at an annual meeting of the stockholders duly called and held.
SECTION 3. Special meetings of the stockholders of the Corporation
may be held, within or without the State of Delaware, only upon notice given
by or at the direction of the Board. Such notice shall state the time, place
and purposes of the meeting.
SECTION 4. In order to be properly brought before any meeting of the
stockholders held pursuant to Section 2, business (including the election of
directors) must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board, (b) otherwise properly
brought before the meeting by or at the direction of the Board, or (c)
otherwise properly brought before the meeting by a stockholder. In addition
to any other applicable requirements, in order for any such business to be
properly brought before the meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of the
Corporation. In order to be timely, a stockholder's notice must be delivered
to or mailed and received at the principal executive offices of the
Corporation, not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within the 30 days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
of the date of the meeting was made, whichever first occurs. A stockholder's
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notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the meeting, (ii) the name and record address of
the stockholder proposing such business, (iii) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, and (iv)
any material interest of the stockholder in such business.
SECTION 5. Notice of the time and place of every meeting of the
stockholders and of the business to be acted on at such meeting shall be
mailed by the Secretary or the officer performing his duties, at least ten
days before the meeting, to each stockholder of record having voting power
and entitled to such notice at his last known post office address; provided,
however, that if a stockholder be present at a meeting, or in writing waive
notice thereof before or after the meeting, notice of the meeting to such
stockholder shall be unnecessary. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be cancelled,
by resolution of the Board upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
SECTION 6. The holders of a majority of the stock of the Corporation
having voting power present in person or by proxy shall constitute a quorum,
but in every case, the presiding officer at the meeting or the stockholders
present, although less than a quorum, shall have power to adjourn any meeting
from time to time without notice. The holders of a majority of the stock
present and entitled to vote at a duly qualified meeting of stockholders
shall have power to act; unless the matter is one as to which a different
vote is specified by the Certificate of Incorporation, these Bylaws, or
applicable law or regulation (other than Section 216 of the Delaware General
Corporation Law), in which case the different vote so specified by such law
or regulation shall apply. The foregoing provisions of this Section 6 each
shall be subject the voting rights of holders of any Preferred Stock the
Corporation and any quorum requirements related.
SECTION 7. Unless otherwise specified in the Certificate of
Incorporation, at every meeting of stockholders each stockholder entitled to
vote thereat shall be entitled to one vote for each share of stock held by
him and may vote and otherwise act in person or by proxy; but no proxy shall
be voted upon more than one year after its date unless such proxy provides
for a longer period.
SECTION 8. At least ten days before each election of directors a
complete list of the stockholders entitled to vote at such election, arranged
in alphabetical order and showing the address and the number of shares
registered in the name of each stockholder, shall be made and filed either at
a place within the city where the election is to be held and which place
shall be specified in the notice of the meeting at which such election is to
take place, or if not so specified, at the place where such meeting is to be
held. Such list shall be open to the
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examination of any stockholder during ordinary business hours for a period of
at least ten days prior to such election at the place so filed. Such list
shall be produced and kept at the time and place of such election and be
subject to inspection by any stockholder.
SECTION 9. Certificates of stock shall be of such form and device as
the Board of Directors may elect and shall be signed by the Chairman of the
Board or the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, but in case
any such Certificate is countersigned by a transfer agent, other than the
Corporation or its employee, or by a registrar, other than the Corporation or
its employee, any other signature on such certificate may be a facsimile,
engraved, stamped or printed.
SECTION 10. The stock of the Corporation shall be transferable or
assignable only on the books of the Corporation by the holders in person, or
by attorney, on the surrender of the certificates therefor. The Board of
Directors may appoint one or more transfer agents and registrar of the stock.
SECTION 11. The Board of Directors shall have the power to close the
stock transfer books of the Corporation for a period not exceeding sixty (60)
days preceding the date of any meeting of stockholders, or the date for
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into
effect. In lieu of closing the stock transfer books as aforesaid, the Board
of Directors is hereby authorized to fix in advance, a date, not exceeding
sixty (60) days preceding the date of any meeting of stockholders or the date
for the payment of any dividend or the date for the allotment of rights, or
the date when any change or conversion or exchange of capital stock shall go
into effect, as a record date for the determination of the stockholders
entitled to notice of and to vote at, any such meeting, or entitled to
receive payment of any such dividends, or to any such allotment of rights, or
to exercise the rights in respect of any such change, conversion or exchange
of capital stock, and in such case such stockholders and only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting or to receive
payment of such dividend, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation.
SECTION 12. The affairs of the Corporation shall be managed by a
Board consisting of such number of directors as shall be determined from time
to time by resolution of a majority of the number of directors constituting
the entire Board of Directors at such time, and in the absence of such
determination, the number of directors shall be nine. Any vacancies may be
filled in accordance with Article IX of the Corporation's Certificate of
Incorporation.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors at any meeting of
stockholders. Nominations of persons for
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election to the Board of Directors of the Corporation at the annual meeting
or any meeting called for the purpose of electing directors may be made at a
meeting of stockholders by or at the direction of the Board of Directors by
any nominating committee or person appointed by the Board or by any
stockholder of the Corporation entitled to vote for the election of directors
at the meeting who complies with the notice procedures set forth in this
Section 12.
In addition to any other applicable requirements, such nominations,
other than those made by or at the direction of the Board of Directors, shall
be made pursuant to timely notice in writing to the Secretary of the
Corporation. In order to be timely, a stockholder's notice must be delivered
to or mailed and received at the principal executive offices of the
Corporation, not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within the 30 days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
of the date of the meeting was made, whichever first occurs. Such
stockholder's notice to the Secretary shall contain (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director, (i) that person's consent to such nomination, (ii) the name, age,
business address and residence address of the person, (iii) the principal
occupation or employment of the person, and (iv) the class and number of
shares of capital stock of the Corporation which are beneficially owned by
the person and (b) as to the stockholder giving the notice (i) the name and
record address of the stockholder and (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as director of
the Corporation. No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set forth
herein.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that the nomination was not made in
accordance with the foregoing procedure, and if he should so determine, shall
so declare to the meeting and the defective nomination shall be disregarded.
SECTION 13. Meetings of the Board of Directors shall be
held at the times fixed by resolutions of the Board or upon call of the
Chairman of the Board or of the President or any five directors and may be
held outside the State of Delaware. The Secretary or officer performing his
duties shall give reasonable notice (which shall not in any event be less
than two (2) days) of all meetings of directors, provided that a meeting may
be held without notice immediately after the annual election, and notice need
not be given of regular meetings held at times fixed by resolution of the
Board. Meetings may be held at any time without notice if all the directors
are present or if those not present waive notice either before or after the
meeting. Notice by mail, telecopy or telegraph to the usual business or
residence address of the directors not less than the time above specified
before the meeting shall be sufficient. One-half of
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the total number of directors, but not less than five shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors. Less than such a quorum shall have power to
adjourn any meeting from time to time without notice.
SECTION 14. (a) Any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of this Corporation) by reason of the
fact that he is or was or has agreed to become a director, officer, employee or
agent of this Corporation, or is or was serving or has agreed to serve at the
request of this Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, shall be
indemnified by this Corporation against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
and any appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of this
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgement, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of this
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) Any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit, proceeding or investigation by or in the right of this Corporation to
procure a judgment in its favor by reason of the fact that he is or was or
has agreed to become a director, officer, employee or agent of this
Corporation, or is or was serving or has agreed to serve at the request of
this Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by
reason of any action alleged to have been taken or omitted in such capacity,
shall be indemnified by this Corporation against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit and any
appeal therefrom, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of this Corporation,
except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to this Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such costs, charges and expenses which the Court of
Chancery of Delaware or such other court shall deem proper.
(c) Notwithstanding the other provisions of this
Section, to the extent that a director, officer, employee or agent of this
Corporation has been successful on the
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merits or otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b) of this Section, or in defense of any claim, issue
or matter therein, he shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection therewith.
(d) Any indemnification under subsections (a) and
(b) of this Section (unless otherwise ordered by a court) shall be made by
this Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in subsections (a) and (b) of this Section. Such determination shall be
made (1) by the Board of Directors by a majority vote of a quorum consisting
of directors who are not parties to such action, suit or proceeding, or (2)
if such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders, or (4) if a Change in Control has
occurred and the director, officer, employee or agent seeking indemnification
so requests, in a written opinion rendered by independent legal counsel
chosen by the person requesting indemnification and not reasonably objected
to by the Board of Directors. For purposes of subclause (4) of this
subsection (d), "independent legal counsel" shall mean legal counsel other
than an attorney, or a firm having associated with it an attorney, who has
been retained by or who has performed substantial services for either this
Corporation or the person seeking indemnification within the past five years.
The Corporation shall pay the fees of the independent legal counsel. For
purposes of this subsection (d), a "Change in Control" shall be deemed to
have occurred if (i) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "1934 Act")
is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934
act), directly or indirectly, of securities of this Corporation representing
25% or more of the combined voting power of this Corporation's then
outstanding securities in a transaction not approved by the Board of
Directors sitting immediately prior to such acquisition, (ii) this
Corporation is a party to a merger, consolidation, sale of assets or other
reorganization, or proxy contest, as a consequence of which members of the
Board of Directors sitting immediately prior to such transaction or event
constitute less than five-sixths of the Board of Directors thereafter, or
(iii) during the immediately preceding four years, individuals who at the
beginning of such period constituted the Board of Directors cease for any
reason to constitute at least a majority thereof, unless the election of each
director who was not a director at the beginning of the period was approved
by a vote of at least two-thirds of the directors then still in office who
were directors at the beginning of the period.
(e) Costs, charges and expenses (including
attorney's fees) incurred by a person referred to in subsections (a) and (b)
of this Section in defending a civil or criminal action, suit or proceeding
shall be paid promptly by this Corporation in advance of the final
determination of such action, suit or proceeding; provided, however, that the
payment of such costs, charges and expenses incurred by a director or officer
in his capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer)
in advance of the final disposition of such action, suit or proceeding shall
be made only upon receipt of an undertaking by or on behalf of the director
or officer to repay all amounts so advanced in the event that it shall
ultimately be determined that such director or
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officer is not entitled to be indemnified by this Corporation as authorized
by the Section. Such costs, charges and expenses incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the
Board of Directors deems appropriate.
(f) The indemnification provided by this Section
shall not be deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any law (common or statutory),
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding office or while employed by or acting as agent for this
Corporation, it being the policy of this Corporation that indemnification of
the persons specified in subsections (a) and (b) of this Section shall be
made to the fullest extent permitted by applicable law. The indemnification
provided by this Section shall continue as to a person who has ceased to be a
director, officer, employee or agent, and shall inure to the benefit of the
estate, heirs, executors and administrators of such Person. All rights to
indemnification under this Section shall be deemed to be a contract between
this Corporation and each director, officer, employee or agent of this
Corporation who serves or served in such capacity at any time while this
Section is in effect. Any repeal or modification of this Section or any
repeal or modification of relevant provisions of the Delaware General
Corporation Law or any other applicable law shall not in any way diminish any
rights to indemnification of such director, officer, employee or agent or the
obligation of this Corporation arising hereunder.
(g) If this Section or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then this
Corporation shall nevertheless indemnify each director, officer, employee and
agent of this Corporation as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with
respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including, without limitation, any action by
or in the right of this Corporation, to the full extent permitted by any
applicable portion of this Section that shall not have been invalidated and
to the fullest extent permitted by applicable law.
SECTION 15. The Board of Directors, as soon as may be after
the election of directors in each year, shall appoint one of their number
Chairman of the Board and one of their number President of the Company, and
may also appoint one or more Executive Vice-Presidents, Senior Vice
-Presidents, First Vice-Presidents and Vice Presidents, a Secretary and a
Treasurer. The Board of Directors may from time to time appoint one of their
number as Vice-Chairman and may appoint such other officers as they deem
appropriate. Any person may hold more than one office, except that same
Person may not hold more than one of the offices of President and Secretary.
The Chairman so appointed shall not in such capacity be considered an officer
of this Corporation.
SECTION 16. The term of office of all officers shall be
until the next election of directors and until their respective successors
are chosen and qualified, or until they shall die or resign but any officer
may be removed from office at any time by the Board of Directors. Vacancies
in any office may be filled by the Board at any meeting.
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SECTION 17. The officers of the Company shall have such powers
and duties as usually pertain to their offices, except as modified by the Board
of Directors, and shall also have such powers and duties as may from time to
time be conferred upon them by the Board of Directors.
SECTION 18. The Board of Directors is authorized to select
such depositaries as it shall deem proper for the funds of the Corporation. All
checks and drafts against such deposited funds shall be signed and countersigned
by persons to be specified by the Board of Directors.
SECTION 19. The President, or any Vice-President, shall have
authority to execute and deliver all contracts or undertakings of the
Corporation.
SECTION 20. The corporation seal of the Corporation shall be
in such form as the Board of Directors shall prescribe.
SECTION 21. The fiscal year of the Corporation shall be the
calendar year.
SECTION 22. Either the Board of Directors or the stockholders
may alter or amend these Bylaws at any meeting, duly held as above provided, the
notice of which includes notice of the proposed alteration or amendment, as
permitted by the Certificate of Incorporation, these Bylaws or applicable laws
or regulations.
SECTION 23. The Board of Directors may impose restrictions on
transfer of securities of the Corporation pursuant to the Shareholder Rights
Agreement between the Corporation and the Rights Agent, as and to the extent
required by such Rights Agreement, as amended from time to time.
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