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AVATEX CORPORATION
BY-LAWS
OFFICES
1. The principal office shall be in the City of Wilmington, County
of New Castle, State of Delaware, and the name of the resident agent in
charge thereof is Corporation Trust Company.
The Corporation may also have offices outside the State of
Delaware at such places as the Board of Directors may, from time to time,
appoint or the business of the Corporation may require.
SEALS
2. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed, reproduced or otherwise.
STOCKHOLDERS' MEETINGS
3. All the meetings of the stockholders shall be held at the
office of the Corporation in the City of Wilmington, County of New Castle and
State of Delaware, or at such other places as the Board of Directors may
determine.
4. The annual meeting of the stockholders shall be held on the
third Wednesday of July of each year, if not a legal holiday, and if a legal
holiday, then on the next secular day following, at 10:00 A.M. (Daylight
Savings Time, if in effect), or at such other date and time as the Board of
Directors may determine. At the annual meeting of stockholders, the
stockholders shall elect by a plurality vote, by ballot, a Board of Directors
and may transact any and all other business which may be brought before the
meeting.
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5. The holders of forty percent (40%) of the issued and
outstanding stock of the Corporation entitled to vote, present in person or
represented by proxy, shall constitute a quorum, except as otherwise required
by the laws of Delaware, by the Certificate of Incorporation or by these
Bylaws. In the event of lack of a quorum, the chairman of the meeting or a
majority in interest of the stockholders present in person or represented by
proxy may adjourn the meeting from time to time without notice other than an
announcement at the meeting until a quorum shall be obtained. At any such
adjournment meeting at which there is a quorum, any business may be
transacted which might have been transacted at the meeting originally called.
6. At each meeting of the stockholders every stockholder having
the right to vote shall be entitled to vote, in person or by proxy appointed
by an instrument in writing subscribed by such stockholder and bearing a date
no more than three (3) years prior to said meeting, unless said instrument
provides for a longer period. Each stockholder shall have one vote for each
share of stock having voting power registered in his name on the books of the
Corporation on the date fixed as the record date for the determination of
stockholders entitled to vote. The vote for directors, and, upon the demand
of any stockholder the vote upon any question before the meeting, shall be by
ballot. All elections shall be had and, except as otherwise provided by law,
by the Certificate of Incorporation or by these Bylaws, all questions decided
by a plurality vote. All proxies shall be filed with the Secretary.
Notwithstanding any other provision in these Bylaws or the
Certificate of Incorporation, all proxies, consents, ballots and voting
tabulations that identify stockholders shall be kept confidential, except
when disclosure is mandated by applicable law or such disclosure with respect
to a proxy, consent, ballot or voting of a particular stockholders is
expressly requested by such stockholders.
7. Written notice of the annual meeting of stockholders shall be
mailed, postage prepaid, at least ten (10) days prior to the meeting to each
stockholder entitled to vote thereat at such address as appears on the stock
transfer books of the Corporation.
8. Each election of directors shall be conducted by one (1) or
more inspectors or judges, who may or may not be stockholders. The tabulators
and inspectors of election in respect to all proxies, consents, ballots and
voting with respect to the Corporation shall be appointed and shall serve in
accordance with Section 231 of the General Corporation Law of the State of
Delaware. The inspectors or judges shall be sworn to the faithful performance
of their duties and shall, in writing, certify to the returns.
9. A complete list of the stockholders entitled to vote at the
ensuing election, arranged in alphabetical order with the residence of each
and the number of voting shares held by each, shall be prepared by the
Secretary and filed in the office where the election is to be held at least
ten (10) days before every election, and shall at all times during the usual
hours for business and during the whole time of said election be open to the
examination of any stockholder.
10. Special meetings of the stockholders, for any purpose or
purposes unless otherwise prescribed by statute, may be called at any time by
the Board of Directors and shall be
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called by the Chairman of the Board, or either Co-Chairman of the Board, as
the case may be, the President or Secretary at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote thereat. Such request
shall state the purpose or purposes of the proposed meeting.
11. Business transacted at all special meetings of stockholders
shall be confined to the matters stated in the call.
12. Written notice of each special meeting of stockholders, stating
the time and place and the purpose or purposes for which the meeting is
called, shall be mailed, postage prepaid, at least ten (10) days before such
meeting, to each stockholder entitled to vote thereat at such address as
appears on the stock transfer books of the Corporation.
12A. Subject to the rights of the holders of the Corporation's
preferred stock, written notice of the intent to make a nomination at a
meeting of stockholders must be received by the Secretary of the Corporation
not later than (a) with respect to an election to be held at an annual
meeting of stockholders, 45 days in advance of such meeting; and (b) with
respect to an election to be held at a special meeting of stockholders for
the election of directors, the close of business on the seventh day following
the date on which notice of such meeting is first given to stockholders. The
foregoing sentence shall not be subject to amendment, alteration or repeal by
the Board of Directors. The notice must contain (a) the name and address of
the stockholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the stockholder is a
holder of record of the Corporation's stock entitled to vote at the meeting
to nominate the person or persons specified in the notice; (c) a description
of all arrangements or understandings between the stockholders and each
nominee and any other person or persons (naming such person or persons)
pursuant to which the nominee or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had each nominee been nominated, or intended to be nominated, by
the Board of Directors of the Corporation; and (e) the consent of each
nominee to serve as a director of the Corporation if so elected.
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DIRECTORS
13. The property and business of this Corporation shall be managed
by its Board of Directors. Directors need not be stockholders. The directors
shall be divided into three classes with the total number of directors to be
allocated among the three classes as equally as possible. The term of office
of the first class shall expire at the annual meeting next ensuring; of the
second class one year thereafter; of the third class two years thereafter;
and at each annual meeting election held after such classification and
election, directors shall be chosen for a full three-year term to succeed
those whose terms expire and to serve in such capacity until his or her
successor has been duly elected and qualified. The election of directors by
classes as provided herein shall be irrespective of the directors which any
separate class of shareholders may elect pursuant to the provisions of any
resolution that may be adopted by the directors under Section 151 of the
Delaware General Corporation Law and Article Fourth of this Corporation's
Restated Certificate of Incorporation in regard to the authorization of one
or more series of preferred stock.
14. The directors may hold their meetings, have one or more
officers and keep the books of the Corporation outside of Delaware at such
place or places as they may from time to time determine.
15. The Board of Directors shall have and exercise all the powers
belonging or pertaining to the Corporation as fully and in all respects and
with like effect as the stockholders in their corporate capacity could have
and exercise the same, excepting only as to such matters as by law, or the
Certificate of Incorporation or these Bylaws require the action of the
stockholders. The Board of Directors hall have the power to create such
offices and appoint such officers, in addition to those prescribed by these
Bylaws, and such other agents and officers, agents and employees, including
the officers provided for in these Bylaws; to declare and pay such dividends
out of the net earnings of the Corporation as it deems proper; to fix from
time to time the amount to be reserved as working capital; to hold in reserve
such part of the earnings as it deems proper and to invest the same in any
property necessary or property in its judgment, to carry on, improve and
enlarge the business and property of the Corporation; to incur such
indebtedness, to enter into such contracts, to acquire such property, to
sell, convey, transfer, mortgage and exchange such portions of the property
of the Corporation, and generally to conduct, manage and control the business
and property of the Corporation in such manner as the Directors, in their
judgment, deem proper.
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CHANGE IN NUMBER OF DIRECTORS AND VACANCIES
16. The number of Directors of the Corporation shall be fixed from
time to time by resolution of a majority of the entire Board of Directors,
provided that the number of directors of the Corporation shall not be fixed
at less than three (3), and further provided that the total number of
directors shall be divided as equally as possible among the three classes of
Directors as specified in Section 13 above. If the office of any director or
directors becomes vacant by reason by death, resignation, retirement,
disqualification, removal from office, or otherwise, a majority of the
remaining directors, through less than a quorum, shall choose a successor or
successors, who shall hold office until the next election of the class or
classes for which such director or directors shall have been chosen and until
a successor or successors shall have been duly elected and qualified.
Notwithstanding any other provision of these Bylaws, and, if authorized by
the Certificate of Incorporation of the Corporation, the affirmative vote of
the holders of 80% or more of the voting power of the shares of the then
outstanding Voting Stock, voting together as a single class, shall be
required to amend or repeal, or adopt any provision inconsistent with, this
Section 16 or Section 13 of these Bylaws.
COMMITTEES
17. The Board of Directors may, by resolution, establish an
Executive Committee which shall consist of not less than two (2) members of
the Board of Directors. The Executive Committee shall consist of the
Co-Chairmen of the Board and such other members of the Board of Directors as
may be appointed by such resolution. Subject to the limitations imposed by
the laws of Delaware, the Certificate of Incorporation, these Bylaws or a
resolution of the Board of Directors, the Executive Committee shall have the
authority to exercise all of the powers of the Board of Directors in the
management and business affairs of the Company. The Executive Committee shall
keep regular minutes of its proceedings and report the same to the Board when
required.
18. The Board of Directors may, by resolution, designate such
additional standing committees or special committees of the Board of
Directors as it may, from time to time, deem appropriate.
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COMPENSATION OF DIRECTORS
19. Directors shall be compensated for their services in such
manner as the Board of Directors may determine, and in addition to such
allowance they shall be reimbursed for necessary traveling expenses incurred
in attending the meetings away from their respective homes. The Corporation
shall not enter into or extend any agreements or arrangements pursuant to
which compensation would be paid to any director, officer or employee of the
Corporation contingent upon a change of control, merger or acquisition of the
Corporation, without the affirmative vote of a majority of the issued and
outstanding stock of the Corporation entitled to vote.
20. Members of the Executive Committee or other special or standing
committees shall also be compensated in such manner as the Board of Directors
may determine.
MEETINGS OF THE BOARD
21. The newly elected Board may meet, at the place of holding and
immediately following the annual meeting of the stockholders at which they
are elected, for the purpose of organization, election of officers and
transacting such other business as shall be brought before the meeting, and
no notice of such meeting shall be necessary to the newly elected directors
in order legally to constitute the meeting, provided a majority of the whole
Board shall be present, or they may meet at such place and time as shall be
fixed by the Chairman of the Board or the majority of the Directors on like
notice as hereinafter provided for the calling of special meetings of the
Board.
22. Regular meetings of the Board may be held without notice at
such time and place as shall from time to time be determined by the Board.
Special meetings of the Board may be called by the Chairman of the Board, or
either of the Co-Chairmen of the Board, as the case may be, on five (5) days'
notice to each Director by mail or on two (2) days' notice to each Director
by telephone or telegram. Special meetings shall be called by the Chairman of
the Board, or either of the Co-Chairmen of the Board, as the case may be, the
President or Secretary in like manner and on like notice on the written
request of as majority of the Directors.
23. At all meetings of the Board the presence of a majority of the
Directors shall be necessary and sufficient to constitute a quorum for the
transaction and sufficient to constitute a quorum for the transaction of
business and, except as may be otherwise specifically provided by law or by
the Certificate of Incorporation or by these Bylaws, the act of a majority of
the Directors present or any meeting at which there is a quorum shall be the
act of the Board of Directors.
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OFFICERS
24. The officers of the Corporation shall be chosen by the Board of
Directors at the first meeting of the Board after each annual meeting of
stockholders and shall be a Chairman of the Board, or two Co-Chairmen of the
Board who shall be members of the Board, a Chief Executive Officer, who need
not be a member of the Board and a President, who shall be a member of the
Board, and a Secretary, who need not be a member of the Board. The Board of
Directors may also choose one or more Vice Chairmen, such number of Vice
Presidents as it shall deem necessary, a Treasurer, a Controller and such
number of Assistant Secretaries, Assistant Treasurer and Assistant
Controllers as it shall deem necessary, who shall hold their offices for such
terms and shall have such authority, exercise such powers and perform such
duties as shall be determined from time to time by the Board. Any number of
officers may be held by the same person.
25. The officers of the Corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer, agent or
employee of the Corporation may be removed or suspended at any time by the
affirmative vote of a majority of the whole Board of Directors. If the office
or any officer or officers becomes vacant for any reason, the vacancy shall
be filled by the Board of Directors.
DUTIES AND POWERS OF OFFICERS AND DIRECTORS
THE CHAIRMAN OF THE BOARD
26. The Chairman of the Board, or the Co-Chairmen of the Board, as
the case may be, shall preside at all meetings of the stockholders and of the
Board of Directors. Under the direction of the Board of Directors, the Chief
Executive Officer of the Corporation shall have the general management and
control, subject to the approval of the Board of Directors, of the business
and property of the Corporation; shall direct all officers, employees and
agents of the Corporation; shall see that all orders and resolutions of the
Board of Directors are carried into effect; and shall perform all such other
duties and exercise all such other powers as are usually incident and pertain
to the chief executive officer of a corporation as well as such other duties
and powers as the Board of Directors may from time to time prescribed. He
may, from time to time, delegate to any other officer or officers any of his
duties or powers.
27. Either of the Co-Chairmen of the Board, in the absence of the
other, shall perform the duties of the Chairman of the Board and shall
perform such other duties as the Board of Directors may prescribe.
THE PRESIDENT
28. The President, in the absence or disability of both of the
Co-Chairmen of the Board, shall preside at all meetings of the stockholders
and of the Board of Directors and perform the duties and exercise the powers
of the Chairman of the Board, exception only such
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powers and duties as the Chairman of the Board or the Co-Chairmen of the
Board, as the case may be, shall delegate to other officers, and he shall
perform such other duties as the Board of Directors shall prescribed.
VICE PRESIDENTS
29. In the absence or disability of the President, the Vice
President designated by the Board of Directors shall, under the direction of
the Board, perform the duties and exercise the powers of the President. Such
Vice President shall perform such other duties as the Board of Directors
shall from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
30. The Secretary shall attend all sessions of the Board of
Directors and all meetings of the stockholders and record all votes and the
proceedings of the meetings of the stockholders and Directors in a book to be
kept for that purpose; and shall perform like duties for the Executive
Committee and other standing committees when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and of the
Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors. He shall keep in safe custody the seal of the
Corporation and when authorized by the Board of Directors or the Executive
Committee affix the same to any instrument requiring it, and when so affixed
it shall be attested by his signature. He shall be sworn to the faithful
discharge of his duty.
31. The Assistant Secretaries shall, in the absence or disability
of the Secretary, perform the duties and exercise the powers of the
Secretary, and shall perform such other duties as the Board of Directors
shall prescribed.
DUTIES OF OFFICERS MAY BE DELEGATED
32. In case of the absence of any officer of the Corporation, or
for any other reason the Board of Directors may deem sufficient, the Board
may delegate, for the time being, the powers or duties, or any of them, of
such officer or any other officer, or to any director, provided a majority of
the entire Board of Directors concur therein.
CERTIFICATES OF STOCK
33. The certificates for shares of capital stock of the Corporation
shall be numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number of shares
and shall be signed by the Chairman of the Board, or either of the
Co-Chairmen of the Board, as the case may be, or the President or a Vice
President and by
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the Treasurer or the Secretary or an Assistant Secretary. Any or all of the
signatures on the certificates may be a facsimile.
34. The form of the stock certificates of the Corporation shall be
such as shall be prescribed and adopted by the Board of Directors from time
to time.
35. All certificates for shares of capital stock of the Corporation
shall be registered by a Registrar, selected by the Board of Directors and
certificates shall not be valid unless countersigned by such Registrar, which
signature of the Registrar may be a facsimile.
TRANSFERS OF STOCK
36. Transfers of capital stock shall be made on the books of the
Corporation only by the stockholder named in the certificate, in person or by
duly authorized attorney. No transfer shall be made unless and until the
certificate previously issued for the share or shares to be transferred shall
have been properly endorsed and surrendered for cancellation. All
certificates shall be issued and all transfers shall be made by a Transfer
Agent selected by the Board of Directors and certificates shall not be valid
unless countersigned by such Transfer Agent, which signature of the Transfer
Agent may be a facsimile.
37. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten
(10) days before the date of such meeting, more than sixty (60) days prior to
any other action, and in such case 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 express consent to corporate action in
writing without a meeting, or to receive payment of such dividend or other
distribution or allotment of rights, or to exercise any rights in respect of
any change, conversion or exchange of stock, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid.
REGISTERED STOCKHOLDERS
38. The Corporation shall be entitled to treat the holder of record
of any share or shares of its capital stock as the absolute owner thereof for
all purposes and shall not be bound to recognize any equitable or other
interest in or claim to such shares on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly
provided by the laws of the State of Delaware.
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LOST CERTIFICATES
39. Any person requesting a certificate or evidence of stock to be
issued in place of one lost or destroyed shall be required to make an
affidavit of affirmation as to the loss or destruction in such manner as the
Board of Directors may require, and to give the Corporation and its Transfer
Agents and Registrars a bond in such sum, as they may require to indemnify
the Corporation and its Transfer Agents and Registrars against any claim that
may be made against them or either of them on account of the alleged loss of
any such certificate, and the Board of Directors, being satisfied as to the
loss or destruction of the missing certificate shall have power to order and
direct a new certificate of the same tenor and for the same number of shares
as the one alleged to be lost or destroyed to be issued in lieu thereof,
provided however, that a new certificate may be issued without requiring any
bond when, in the judgment of the Board of Directors, it is proper to do so.
The Board shall have authority to make a general arrangement with its
Transfer Agents and Registrars to provide an open penalty bond of indemnity
without the necessity of individual bonds in each case and evidence of such
loss or destruction may be presented to the Transfer Agents and Registrars.
INSPECTION OF BOOKS
40. No stockholder shall have the right to inspect any account nor
book or document of the Corporation except as conferred by the laws of the
State of Delaware.
FISCAL YEAR
41. The fiscal year shall begin the first day of April in each year.
DIVIDENDS
42. Dividends upon the capital stock of the Corporation, subject to
the provision of the Certificate of Incorporation, if any, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock.
NOTICES
43. Whenever under the provisions of these Bylaws notice is
required to be given to any Director, officer or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing,
by mail, postage prepaid, addressed to such stockholder, officer or Director
at such address as appears on the books of the Corporation, or in default of
other address, to such Director, officer or stockholder, at the General Post
Office in the City of Wilmington, Delaware and such notice shall be deemed to
be given at the time when the same shall be thus mailed. Whenever any notice
whatsoever is required to be given under the
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provisions of these Bylaws, or under the provisions of the statutes of the
State of Delaware, a waiver thereof in writing, signed by the stockholder,
Director or officer entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
AMENDMENTS
44. The Board of Directors, by a majority vote of the entire Board
of Directors, may amend, alter or repeal these Bylaws but any such action of
the Board of Directors shall be subject to amendment or repeal by a majority
vote of the stockholders at any annual meeting or at any special meeting
called for such purposes. The stockholders may adopt a Bylaw or Bylaws by a
majority vote at any annual meeting or at any special meeting called for such
purposes. The stockholders may adopt a Bylaw or Bylaws by a majority vote at
any such annual or special meeting and any Bylaw so adopted may contain the
provision that it is not subject to amendment or repeal by the Board of
Directors.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
45. The Corporation shall indemnify its Directors and officers
against all reasonable expense incurred by them in defending claims made or
suits brought against them as Directors or officers and against all liability
in such suits, except in such cases as involve gross negligence or willful
misconduct in the performance of their duties. Such indemnification shall
extend to the payment of judgments against the Directors and officers and the
reimbursement of amounts paid in settlement of such claims or actions, and
may apply to judgments in favor of the corporation or amounts paid in
settlement to the Corporation. Such indemnification shall also extend to the
payment of counsel fees and expenses of officers and directors in suits
against them where successfully defended by such officers and Directors; or
where unsuccessfully defended, if the claim or action does not arise from the
gross negligence or willful misconduct of such officers or directors. The
Corporation shall also make payment to its Directors and officers of expenses
incurred by them in defending such claims made or suits brought in advance of
the disposition of such action, suit or proceeding. Such rights of
indemnification and advancement of expenses shall not be exclusive of any
right to which any Director or officer may be entitled as a matter of law and
shall extend to the estates of deceased Directors or officers.
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