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Exhibit 3.2
BYLAWS
OF
IMMUNEX CORPORATION
Originally adopted on April 27, 1994.
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CONTENTS
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SECTION 1. OFFICES.................................................... 1
SECTION 2. SHAREHOLDERS............................................... 1
2.1 Annual Meeting...................................... 1
2.2 Special Meetings.................................... 1
2.3 Meetings by Communications Equipment................ 1
2.4 Date, Time and Place of Meeting..................... 1
2.5 Notice of Meeting................................... 1
2.6 Business for Shareholders' Meetings................. 2
2.6.1 Business at Annual Meetings................. 2
2.6.2 Business at Special Meetings................ 3
2.6.3 Notice to Corporation....................... 3
2.7 Waiver of Notice.................................... 3
2.8 Fixing of Record Date for Determining Shareholders.. 3
2.9 Voting Record....................................... 3
2.10 Quorum.............................................. 4
2.11 Manner of Acting.................................... 4
2.12 Proxies............................................. 4
2.13 Voting of Shares.................................... 4
2.14 Voting for Directors................................ 4
2.15 Action by Shareholders Without a Meeting............ 5
SECTION 3. BOARD OF DIRECTORS 5
3.1 General Powers...................................... 5
3.2 Number and Tenure................................... 5
3.3 Nomination and Election............................. 5
3.3.1 Nomination.................................. 5
3.3.2 Election.................................... 6
3.4 Annual and Regular Meetings......................... 6
3.5 Special Meetings.................................... 6
3.6 Meetings by Communications Equipment................ 7
3.7 Notice of Special Meetings.......................... 7
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3.7.1 Personal Delivery........................... 7
3.7.2 Delivery by Mail............................ 7
3.7.3 Delivery by Private Carrier................. 7
3.7.4 Facsimile Notice............................ 7
3.7.5 Delivery by Telegraph....................... 7
3.7.6 Oral Notice................................. 7
3.8 Waiver of Notice.................................... 8
3.8.1 In Writing.................................. 8
3.8.2 By Attendance............................... 8
3.9 Quorum.............................................. 8
3.10 Manner of Acting.................................... 8
3.11 Presumption of Assent............................... 8
3.12 Action by Board or Committees Without a Meeting..... 9
3.13 Resignation......................................... 9
3.14 Vacancies........................................... 9
3.15 Executive and Other Committees...................... 9
3.15.1 Creation of Committees...................... 9
3.15.2 Committee Rules............................. 10
3.15.3 Quorum and Manner of Acting................. 10
3.15.4 Minutes of Meetings......................... 10
3.15.5 Resignation................................. 10
3.15.6 Removal..................................... 10
3.16 Compensation........................................ 10
SECTION 4. OFFICERS................................................... 11
4.1 Appointment and Term................................ 11
4.2 Resignation......................................... 11
4.3 Removal............................................. 11
4.4 Contract Rights of Officers......................... 11
4.5 Chairman of the Board............................... 11
4.6 President........................................... 12
4.7 Vice President...................................... 12
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4.8 Secretary.......................................... 12
4.9 Treasurer.......................................... 12
4.10 Salaries........................................... 13
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS..................... 13
5.1 Contracts.......................................... 13
5.2 Loans to the Corporation........................... 13
5.3 Checks, Drafts, Etc................................ 13
5.4 Deposits........................................... 13
SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER................ 13
6.1 Issuance of Shares................................. 13
6.2 Certificates for Shares............................ 14
6.3 Stock Records...................................... 14
6.4 Transfer of Shares................................. 14
6.5 Lost or Destroyed Certificates..................... 14
SECTION 7. BOOKS AND RECORDS......................................... 14
SECTION 8. ACCOUNTING YEAR........................................... 15
SECTION 9. SEAL...................................................... 15
SECTION 10. INDEMNIFICATION.......................................... 15
10.1 Right to Indemnification........................... 15
10.2 Restrictions on Indemnification.................... 16
10.3 Advancement of Expenses............................ 16
10.4 Right of Indemnitee to Bring Suit.................. 16
10.5 Procedures Exclusive............................... 17
10.6 Nonexclusivity of Rights........................... 17
10.7 Insurance, Contracts and Funding................... 17
10.8 Indemnification of Employees and Agents of
the Corporation.................................... 17
10.9 Persons Serving Other Entities..................... 18
SECTION 11. AMENDMENTS............................................... 18
SECTION 12. GOVERNANCE AGREEMENT..................................... 18
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BYLAWS
OF
IMMUNEX CORPORATION
SECTION 1. OFFICES
-------------------
The principal office of the corporation shall be located at the principal place
of business or such other place as the Board of Directors ("Board") may
designate. The corporation may have such other offices, either within or
without the state of Washington, as the Board may designate or as the business
of the corporation may require from time to time.
SECTION 2. SHAREHOLDERS
------------------------
2.1 Annual Meeting
-------------------
The annual meeting of the shareholders shall be held at such place and at such
time as the Board shall prescribe, for the purpose of electing Directors and
transacting such other business as may properly come before the meeting. If the
day fixed for the annual meeting is a legal holiday at the place of the meeting,
the meeting shall be held on the next succeeding business day.
2.2 Special Meetings
---------------------
The Chairman of the Board, the President or the Board may call special meetings
of the shareholders for any purpose. Special meetings of the shareholders may
be called by shareholders as provided in the Articles of Incorporation.
2.3 Meetings by Communications Equipment
-----------------------------------------
Shareholders may participate in any meeting of the shareholders by any means of
communication by which all persons participating in the meeting can hear each
other during the meeting. Participation by such means shall constitute presence
in person at a meeting.
2.4 Date, Time and Place of Meeting
------------------------------------
Except as otherwise provided herein, all meetings of shareholders, including
those held pursuant to demand by shareholders as provided herein, shall be held
on such date and at such time and place, within or without the state of
Washington, designated by or at the direction of the Board.
2.5 Notice of Meeting
----------------------
Written notice stating the place, day and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called
shall be given by or at the direction of the Board, the Chairman of the Board,
the President or the Secretary to each shareholder entitled to notice of or to
vote at the meeting not less than 10 or more than 60 days before the meeting,
except that notice of a meeting to act on an amendment to the Articles of
Incorporation, a plan of merger or share exchange, the sale, lease, exchange or
other disposition of all or substantially all of the corporation's assets other
than in the regular course of business or the dissolution of the corporation
shall be given not less than 20 or more than 60 days before such meeting. Such
notice may be transmitted by mail, private carrier, personal delivery,
telegraph, teletype or communications equipment that transmits a facsimile of
the notice to like equipment which receives and reproduces such notice. If
these forms of written notice are impractical in the view of the Board, the
Chairman of the Board, the President or the Secretary, written notice may be
transmitted by an advertisement in a newspaper of general circulation in the
area of the corporation's principal office. If such notice is mailed, it shall
be deemed effective when deposited in the official government mail, first-class
postage prepaid, properly addressed to the shareholder at such shareholder's
address as it appears in the corporation's current record of shareholders.
Notice given in any other manner shall be deemed effective when dispatched to
the shareholder's address, telephone number or other number appearing on the
records of the corporation. Any notice given by publication as herein provided
shall be deemed effective five days after first publication.
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2.6 Business for Shareholders' Meetings
----------------------------------------
2.6.1 Business at Annual Meetings
In addition to the election of Directors, other proper business may be
transacted at an annual meeting of shareholders, provided that such business is
properly brought before such meeting. To be properly brought before an annual
meeting, business must be (a) brought by or at the direction of the Board or (b)
brought before the meeting by a shareholder pursuant to written notice thereof,
in accordance with subsection 2.6.3 hereof, and received by the Secretary not
fewer than 60 or more than 90 days prior to the date specified in subsection 2.1
hereof for such annual meeting (or if less than 60 days' notice or prior public
disclosure of the date of the annual meeting is given or made to the
shareholders, not later than the tenth day following the day on which the notice
of the date of the annual meeting was mailed or such public disclosure was
made). Any such shareholder notice shall set forth (i) the name and address of
the shareholder proposing such business; (ii) a representation that the
shareholder is entitled to vote at such meeting and a statement of the number of
shares of the corporation that are beneficially owned by the shareholder; (iii)
a representation that the shareholder intends to appear in person or by proxy at
the meeting to propose such business; and (iv) as to each matter the shareholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting, the language of the proposal (if appropriate), and any
material interest of the shareholder in such business. No business shall be
conducted at any annual meeting of shareholders except in accordance with this
subsection 2.6.1. If the facts warrant, the Board, or the chairman of an annual
meeting of shareholders, may determine and declare that (a) a proposal does not
constitute proper business to be transacted at the meeting or (b) business was
not properly brought before the meeting in accordance with the provisions of
this subsection 2.6.1 and, if, in either case, it is so determined, any such
business shall not be transacted. The procedures set forth in this subsection
2.6.1 for business to be properly brought before an annual meeting by a
shareholder are in addition to, and not in lieu of, the requirements set forth
in Rule 14a-8 under Section 14 of the Securities Exchange Act of 1934, as
amended, or any successor provision.
2.6.2 Business at Special Meetings
At any special meeting of the shareholders, only such business as is specified
in the notice of such special meeting given by or at the direction of the person
or persons calling such meeting, in accordance with subsection 2.5 hereof, shall
come before such meeting.
2.6.3 Notice to Corporation
Any written notice required to be delivered by a shareholder to the corporation
pursuant to subsection 2.5, subsection 2.6.1 or subsection 2.6.2 hereof must be
given, either by personal delivery or by registered or certified mail, postage
prepaid, to the Secretary at the corporation's executive offices in Seattle,
Washington.
2.7 Waiver of Notice
---------------------
Whenever any notice is required to be given to any shareholder under the
provisions of these Bylaws, the Articles of Incorporation or the Washington
Business Corporation Act, a waiver thereof in writing, signed by the person or
persons entitled to such notice and delivered to the corporation, whether before
or after the date and time of the meeting, shall be deemed equivalent to the
giving of such notice. Further, notice of the time, place and purpose of any
meeting will be deemed to be waived by any shareholder by attendance at such
meeting in person or by proxy, unless such shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting.
2.8 Fixing of Record Date for Determining Shareholders
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For the purpose of determining shareholders entitled (a) to notice of or to vote
at any meeting of shareholders or any adjournment thereof, (b) to demand a
special meeting, or (c) to receive payment of any dividend, or in order to make
a determination of shareholders for any other purpose, the Board may fix a
future date as the record date for any such determination. Such record date
shall be not more than 70 days, and, in case of a meeting of shareholders, not
less
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than 10 days prior to the date on which the particular action requiring such
determination is to be taken. If no record date is fixed for the determination
of shareholders entitled to notice of or to vote at a meeting, the record date
shall be the day immediately preceding the date on which notice of the meeting
is first given to shareholders. Such a determination shall apply to any
adjournment of the meeting unless the Board fixes a new record date, which it
shall do if the meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting. If no record date is set for the determination
of shareholders entitled to receive payment of any stock dividend or
distribution (other than one involving a purchase, redemption or other
acquisition of the corporation's shares) the record date shall be the date the
Board authorizes the stock dividend or distribution.
2.9 Voting Record
------------------
At least 10 days before each meeting of shareholders, an alphabetical list of
the shareholders entitled to notice of such meeting shall be made, arranged by
voting group and by each class or series of shares therein, with the address of
and number of shares held by each shareholder. This record shall be kept at the
principal office of the corporation for 10 days prior to such meeting, and shall
be kept open at such meeting, for the inspection of any shareholder or any
shareholder's agent.
2.10 Quorum
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A majority of the votes entitled to be cast on a matter by the holders of shares
that, pursuant to the Articles of Incorporation or the Washington Business
Corporation Act, are entitled to vote and be counted collectively upon such
matter, represented in person or by proxy, shall constitute a quorum of such
shares at a meeting of shareholders. If less than a majority of such votes are
represented at a meeting, a majority of the votes so represented may adjourn the
meeting from time to time without further notice if the new date, time or place
is announced at the meeting before adjournment. Any business may be transacted
at a reconvened meeting that might have been transacted at the meeting as
originally called, provided a quorum is present or represented at such meeting.
Once a share is represented for any purpose at a meeting other than solely to
object to holding the meeting or transacting business at such meeting, it is
deemed present for quorum purposes for the remainder of the meeting and any
adjournment thereof (unless a new record date is or must be set for the
adjourned meeting) notwithstanding the withdrawal of enough shareholders to
leave less than a quorum.
2.11 Manner of Acting
----------------------
If a quorum is present, action on a matter other than the election of Directors
shall be approved if the votes cast in favor of the action by the shares
entitled to vote and be counted collectively upon such matter exceed the votes
cast against such action by the shares entitled to vote and be counted
collectively thereon, unless the Articles of Incorporation or the Washington
Business Corporation Act requires a greater number of affirmative votes.
2.12 Proxies
-------------
A shareholder may vote by proxy executed in writing by the shareholder or by his
or her attorney-in-fact or agent. Such proxy shall be effective when received
by the Secretary or other officer or agent authorized to tabulate votes. A
proxy shall become invalid 11 months after the date of its execution, unless
otherwise provided in the proxy. A proxy with respect to a specified meeting
shall entitle the holder thereof to vote at any reconvened meeting following
adjournment of such meeting but shall not be valid after the final adjournment
thereof.
2.13 Voting of Shares
----------------------
Except as provided in the Articles of Incorporation or in subsection 2.14
hereof, each outstanding share entitled to vote with respect to a matter
submitted to a meeting of shareholders shall be entitled to one vote upon such
matter.
2.14 Voting for Directors
--------------------------
Each shareholder entitled to vote at an election of Directors may vote, in
person or by proxy, the number of shares owned by such shareholder for as many
persons as there are Directors to be elected and for whose election such
shareholder has a right to vote. Unless otherwise provided in the Articles of
Incorporation, the candidates elected shall be those receiving the largest
number of votes cast, up to the number of Directors to be elected.
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2.15 Action by Shareholders Without a Meeting
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Any action that could be taken at a meeting of the shareholders may be taken
without a meeting if one or more written consents setting forth the action so
taken are signed by all shareholders entitled to vote on the action and are
delivered to the corporation. If not otherwise fixed by the Board, the record
date for determining shareholders entitled to take action without a meeting is
the date the first shareholder signs the consent. A shareholder may withdraw a
consent only by delivering a written notice of withdrawal to the corporation
prior to the time that all consents are in the possession of the corporation.
Action taken by written consent of shareholders without a meeting is effective
when all consents are in the possession of the corporation, unless the consent
specifies a later effective date. Any such consent shall be inserted in the
minute book as if it were the minutes of a meeting of the shareholders.
SECTION 3. BOARD OF DIRECTORS
------------------------------
3.1 General Powers
-------------------
All corporate powers shall be exercised by or under the authority of, and the
business and affairs of the corporation shall be managed under the direction of,
the Board, except as may be otherwise provided in these Bylaws, the Articles of
Incorporation or the Washington Business Corporation Act.
3.2 Number and Tenure
----------------------
The number of Directors shall be fixed from time to time by the Board subject to
the Amended and Restated Governance Agreement, dated as of December 15, 1992,
among Immunex Corporation, Lederle Oncology Corporation and American Cyanamid
Company ("Cyanamid"), as it may be amended or stated from time to time (the
"Governance Agreement"). The number of Directors may be changed from time to
time by amendment to these Bylaws, but no decrease in the number of Directors
shall have the effect of shortening the term of any incumbent Director.
Directors need not be shareholders of the corporation or residents of the state
of Washington and need not meet any other qualifications.
3.3 Nomination and Election
----------------------------
3.3.1 Nomination
Only persons who are nominated in accordance with the following procedures shall
be eligible for election as Directors. Nominations for the election of
Directors may be made (a) by or at the direction of the Board subject to the
Governance Agreement or (b) by any shareholder of record entitled to vote for
the election of Directors at such meeting; provided, however, that a shareholder
may nominate persons for election as Directors only if written notice (in
accordance with subsection 2.6.3 hereof) of such shareholder's intention to make
such nominations is received by the Secretary not later than (i) with respect to
an election to be held at an annual meeting of the shareholders, not fewer than
60 nor more than 90 days prior to the date specified in subsection 2.1 hereof
for such annual meeting (or if less than 60 days' notice or prior public
disclosure of the date of the annual meeting is given or made to the
shareholders, not later than the tenth day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made) and (ii) with respect to an election to be held at a special meeting
of the shareholders for the election of Directors, the close of business on the
seventh business day following the date on which notice of such meeting is first
given to shareholders. Any such shareholder's notice shall set forth (a) the
name and address of the shareholder who intends to make a nomination; (b) a
representation that the shareholder is entitled to vote at such meeting and a
statement of the number of shares of the corporation that are beneficially owned
by the shareholder; (c) a representation that the shareholder intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (d) as to each person the shareholder proposes to nominate for
election or re-election as a Director, the name and address of such person and
such other information regarding such nominee as would be required in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had such nominee been nominated by the Board, and a description of
any arrangements or understandings, between the shareholder and such nominee and
any other persons (including their names), pursuant
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to which the nomination is to be made; and (e) the consent of each such nominee
to serve as a Director if elected. If the facts warrant, the Board, or the
chairman of a shareholders' meeting at which Directors are to be elected, shall
determine and declare that a nomination was not made in accordance with the
foregoing procedures and, if it is so determined, the defective nomination shall
be disregarded. The right of shareholders to make nominations pursuant to the
foregoing procedure is subject to the rights of the holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation. The procedures set forth in this subsection 3.3 for
nomination for the election of Directors by shareholders are in addition to, and
not in limitation of, any procedures now in effect or hereafter adopted by or at
the direction of the Board or any committee thereof.
3.3.2 Election
At each election of Directors, the persons receiving the greatest number of
votes shall be the Directors.
3.4 Annual and Regular Meetings
--------------------------------
An annual Board meeting shall be held without notice immediately after and at
the same place as the annual meeting of shareholders. By resolution the Board,
or any committee thereof, may specify the time and place either within or
without the state of Washington for holding regular meetings thereof without
notice other than such resolution.
3.5 Special Meetings
---------------------
Special meetings of the Board or any committee designated by the Board may be
called by or at the request of the Chairman of the Board, the President, the
Secretary or, in the case of special Board meetings, any one Director and, in
the case of any special meeting of any committee designated by the Board, by the
Chairman thereof. The person or persons authorized to call special meetings may
fix any place either within or without the state of Washington as the place for
holding any special Board or committee meeting called by them.
3.6 Meetings by Communications Equipment
-----------------------------------------
Members of the Board or any committee designated by the Board may participate in
a meeting of such Board or committee by, or conduct the meeting through the use
of, any means of communication by which all Directors participating in the
meeting can hear each other during the meeting. Participation by such means
shall constitute presence in person at a meeting.
3.7 Notice of Special Meetings
-------------------------------
Notice of a special Board or committee meeting stating the place, day and hour
of the meeting shall be given to a Director in writing or orally at least two
days before the meeting. Neither the business to be transacted at nor the
purpose of any special meeting need be specified in the notice of such meeting.
3.7.1 Personal Delivery
If notice is given by personal delivery, the notice shall be deemed effective
when delivered to a Director at least two days before the meeting.
3.7.2 Delivery by Mail
If notice is delivered by mail, the notice shall be deemed effective five days
after its deposit in the United States mail, as evidenced by the postmark, if
mailed with first class postage prepaid and properly addressed to a Director at
his or her address shown on the records of the corporation.
3.7.3 Delivery by Private Carrier
If notice is given by private carrier, the notice shall be deemed effective when
delivered to a Director at his or her address shown on the records of the
corporation.
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3.7.4 Facsimile Notice
If notice is delivered by wire or wireless equipment that transmits a facsimile
of the notice, the notice shall be deemed effective when dispatched to a
Director at his or her telephone number or other number appearing on the records
of the corporation.
3.7.5 Delivery by Telegraph
If notice is delivered by telegraph, the notice shall be deemed effective when
the content thereof is dispatched by the telegraph company for delivery to a
Director at his or her address shown on the records of the corporation.
3.7.6 Oral Notice
If notice is delivered orally, by telephone or in person, the notice shall be
deemed effective when personally given to the Director.
3.8 Waiver of Notice
---------------------
3.8.1 In Writing
Whenever any notice is required to be given to any Director under the provisions
of these Bylaws, the Articles of Incorporation or the Washington Business
Corporation Act, a waiver thereof in writing, signed by the person or persons
entitled to such notice and delivered to the corporation, whether before or
after the date and time of the meeting, shall be deemed equivalent to the giving
of such notice. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the Board or any committee designated by the Board
need be specified in the waiver of notice of such meeting.
3.8.2 By Attendance
A Director's attendance at or participation in a Board or committee meeting
shall constitute a waiver of notice of such meeting, unless the Director at the
beginning of the meeting, or promptly upon his or her arrival, objects to
holding the meeting or transacting business at such meeting and does not
thereafter vote for or assent to action taken at the meeting.
3.9 Quorum
-----------
Except in cases in which the Governance Agreement, the Articles of Incorporation
or these Bylaws otherwise provide, a majority of the number of Directors fixed
by or in the manner provided in these Bylaws shall constitute a quorum for the
transaction of business at any Board meeting, but, if less than a majority are
present at a meeting, a majority of the Directors present may adjourn the
meeting from time to time without further notice.
3.10 Manner of Acting
----------------------
If a quorum is present when the vote is taken, the act of the majority of the
Directors present at a Board meeting shall be the act of the Board, unless the
vote of a greater number is required by these Bylaws, the Articles of
Incorporation, the Washington Business Corporation Act or the Governance
Agreement.
3.11 Presumption of Assent
---------------------------
A Director of the corporation who is present at a Board or committee meeting at
which any action is taken shall be deemed to have assented to the action taken
unless (a) the Director objects at the beginning of the meeting, or promptly
upon his or her arrival, to holding the meeting or transacting any business at
such meeting, (b) the Director's dissent or abstention from the action taken is
entered in the minutes of the meeting, or (c) the Director
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delivers written notice of the Director's dissent or abstention to the presiding
officer of the meeting before its adjournment or to the corporation within a
reasonable time after adjournment of the meeting. The right of dissent or
abstention is not available to a Director who votes in favor of the action
taken.
3.12 Action by Board or Committees Without a Meeting
-----------------------------------------------------
Any action that could be taken at a meeting of the Board or of any committee
created by the Board may be taken without a meeting if one or more written
consents setting forth the action so taken are signed by each of the Directors
or by each committee member either before or after the action is taken and
delivered to the corporation. Action taken by written consent of Directors
without a meeting is effective when the last Director signs the consent, unless
the consent specifies a later effective date. Any such written consent shall be
inserted in the minute book as if it were the minutes of a Board or a committee
meeting.
3.13 Resignation
-----------------
Any Director may resign from the Board or any committee thereof at any time by
delivering either oral tender of resignation at any meeting of the Board or
written notice to the Secretary. Any such resignation is effective upon
delivery thereof unless the notice of resignation specifies a later effective
date, and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
3.14 Vacancies
---------------
Subject to the provisions of the Governance Agreement and unless the Articles of
Incorporation provide otherwise, any vacancy occurring on the Board may be
filled by the shareholders, the Board or, if the Directors in office constitute
fewer than a quorum, by the affirmative vote of a majority of the remaining
Directors. Any vacant office to be held by a Director elected by the holders of
one or more classes or series of shares entitled to vote and be counted
collectively thereon shall be filled only by the vote of the holders of such
class or series of shares. A Director elected to fill a vacancy shall serve
only until the next election of Directors by the shareholders.
3.15 Executive and Other Committees
------------------------------------
3.15.1 Creation of Committees
The Board shall designate the committees provided for in the Governance
Agreement, which committees shall have the members provided for in the
Governance Agreement and may, by resolution passed by a majority of the whole
Board, designate, subject to the Governance Agreement, one or more additional
committees, each committee to consist of one or more of the Directors of the
corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of the
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the Board, subject to the Governance
Agreement, to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board, shall have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers that may require it; but
no such committee shall have the power or authority to (a) authorize or approve
a distribution, except according to a general formula or method prescribed by
the Board, (b) approve or propose to shareholders actions or proposals required
by the Washington Business Corporation Act to be approved by shareholders, (c)
fill vacancies on the Board or any committee thereof, (d) adopt, amend or repeal
these Bylaws, (e) amend the Articles of Incorporation pursuant to Section
23B.10.020 of the Washington Business Corporation Act, (f) approve a plan of
merger not requiring shareholder approval, or (g) authorize or approve the
issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences and limitations of a class or series of shares,
except that the Board may authorize a committee or a senior executive officer of
the corporation to do so within limits specifically prescribed by the Board.
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3.15.2 Committee Rules
Unless the Governance Agreement or the Board otherwise provides, each committee
designated by the Board may make, alter and repeal rules for the conduct of its
business. In the absence of such rules, each committee shall conduct its
business in the same manner as the Board conducts its business pursuant to this
Section 3.
3.15.3 Quorum and Manner of Acting
A majority of the number of Directors composing any committee of the Board, as
established and fixed by resolution of the Board, shall constitute a quorum for
the transaction of business at any meeting of such committee, but, if less than
a majority are present at a meeting, a majority of such Directors present may
adjourn the meeting from time to time without further notice. Except as may be
otherwise provided in the Washington Business Corporation Act, if a quorum is
present when the vote is taken the act of a majority of the members present
shall be the act of the committee.
3.15.4 Minutes of Meetings
All committees shall keep regular minutes of their meetings and shall cause them
to be recorded in books kept for that purpose.
3.15.5 Resignation
Any member of any committee may resign at any time by delivering written notice
thereof to the Chairman of the Board, the President, the Secretary or the Board.
Any such resignation is effective upon delivery thereof, unless the notice of
resignation specifies a later effective date, and the acceptance of such
resignation shall not be necessary to make it effective.
3.15.6 Removal
The Board may remove any member of any committee elected or appointed by it but
only by the affirmative vote of the greater of a majority of the Directors then
in office and the number of Directors required to take action in accordance with
these Bylaws.
3.16 Compensation
------------------
By Board resolution, Directors and committee members may be paid their expenses,
if any, of attendance at each Board or committee meeting, or a fixed sum for
attendance at each Board or committee meeting, or a stated salary as Director or
a committee member, or a combination of the foregoing. No such payment shall
preclude any Director or committee member from serving the corporation in any
other capacity and receiving compensation therefor.
SECTION 4. OFFICERS
--------------------
4.1 Appointment and Term
-------------------------
The officers of the corporation shall be those officers appointed from time to
time by the Board or by any other officer empowered to do so. The Board shall
have sole power and authority to appoint executive officers. As used herein,
the term "executive officer" shall mean the President, any Vice President in
charge of a principal business unit, division or function or any other officer
who performs a policy making function. The Board or the President may appoint
such other officers and assistant officers to hold office for such period, have
such authority and perform such duties as may be prescribed. The Board may
delegate to any other officer the power to appoint any subordinate officers and
to prescribe their respective terms of office, authority and duties. Any two or
more offices may be held by the same person. Unless an officer dies, resigns or
is removed from office, he or she shall hold office until his or her successor
is appointed.
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4.2 Resignation
----------------
Any officer may resign at any time by delivering written notice thereof to the
Chairman of the Board, the President, a Vice President, the Secretary or the
Board, or by giving oral notice at any meeting of the Board. Any such
resignation is effective upon delivery thereof, unless the notice of resignation
specifies a later effective date, and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
4.3 Removal
------------
Any officer or agent elected or appointed by the Board may be removed by the
Board at any time, with or without cause. An officer or assistant officer, if
appointed by another officer, may be removed by any officer authorized to
appoint officers or assistant officers.
4.4 Contract Rights of Officers
--------------------------------
The appointment of an officer does not itself create contract rights.
4.5 Chairman of the Board
--------------------------
The Chairman of the Board shall be the chief executive officer of the
corporation unless some other officer is so designated by the Board, shall
preside over meetings of the Board and shareholders and, subject to the Board's
control, shall supervise and control all the assets, business and affairs of the
corporation. The Chairman of the Board may sign, with the Secretary or an
Assistant Secretary or with the Treasurer or an Assistant Treasurer,
certificates for shares of the corporation, deeds, mortgages, bonds, contracts
or other instruments, except when the signing and execution thereof have been
expressly delegated by the Board or these Bylaws to some other officer or agent
of the corporation or are required by laws to be otherwise signed or executed by
some other officer or in some other manner. In general, the Chairman of the
Board shall perform all duties incident to the office of the chief executive
officer of a corporation and shall perform such other duties as shall be
assigned to him or her by the Board from time to time.
4.6 President
--------------
If appointed, the President shall be the chief operating officer of the
corporation unless some other officer is so designated by the Board, and, in the
event of the death of the Chairman of the Board or his or her inability to act,
the President shall perform the duties of the Chairman of the Board, except as
may be limited by resolution of the Board, with all the powers of and subject to
all the restrictions upon the Chairman of the Board. The President may sign,
with the Secretary or an Assistant Secretary or with the Treasurer or an
Assistant Treasurer, certificates for shares of the corporation. The President
shall have, to the extent authorized by the Chairman of the Board or the Board,
the same powers as the Chairman of the Board to sign deeds, mortgages, bonds,
contracts or other instruments. The President shall perform all duties incident
to the office of President and such other duties as are prescribed by the
Chairman of the Board or the Board from time to time. If no Secretary has been
appointed, the President shall have responsibility for the preparation of
minutes of Board and shareholders' meetings and for authentication of the
records of the corporation.
4.7 Vice President
-------------------
In the event of the death of the President or his or her inability to act, the
Vice President (or if there is more than one Vice President, the Vice President
who was designated by the Board as the successor to the President or, if no Vice
President is so designated, the Vice President first elected to such office)
shall perform the duties of the President, except as may be limited by
resolution of the Board, with all the powers of and subject to all the
restrictions upon the President. Vice Presidents may sign, with the Secretary
or an Assistant Secretary or with the Treasurer or an Assistant Treasurer,
certificates for shares of the corporation. Vice Presidents shall perform such
other duties as from time to time may be assigned to them by the Chairman of the
Board or President or by or at the direction of the Board.
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4.8 Secretary
--------------
If appointed, the Secretary shall be responsible for preparation of minutes of
the Board and shareholders' meetings, maintenance of the corporation's records
and stock registers, and authentication of the corporation's records and shall,
in general, perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him or her by the President
or by or at the direction of the Board. The Secretary shall sign, with the
President or other officer authorized by the President or the Board,
certificates for shares of the corporation, deeds, mortgages, bonds, contracts
or other instruments. In the absence of the Secretary, an Assistant Secretary
may perform the duties of the Secretary.
4.9 Treasurer
--------------
If appointed, the Treasurer shall have charge and custody of and be responsible
for all funds and securities of the corporation, receive and give receipts for
moneys due and payable to the corporation from any source whatsoever, and
deposit all such moneys in the name of the corporation in banks, trust companies
or other depositories selected in accordance with the provisions of these Bylaws
and, in general, perform all the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him or her by the
President or by or at the direction of the Board. In the absence of the
Treasurer, an Assistant Treasurer may perform the duties of the Treasurer. If
required by the Board, the Treasurer or any Assistant Treasurer shall give a
bond for the faithful discharge of his or her duties in such amount and with
such surety or sureties as the Board shall determine.
4.10 Salaries
--------------
Subject to the terms of the Governance Agreement, the salaries of the officers
shall be fixed from time to time by the Board or by any person or persons to
whom the Board has delegated such authority. No officer shall be prevented from
receiving such salary by reason of the fact that he or she is also a Director of
the corporation.
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------------------
5.1 Contracts
--------------
The Board may authorize any officer or officers, or agent or agents, to enter
into any contract or execute and deliver any instrument in the name of and on
behalf of the corporation. Such authority may be general or confined to
specific instances.
5.2 Loans to the Corporation
-----------------------------
No loans shall be contracted on behalf of the corporation and no evidences of
indebtedness shall be issued in its name unless authorized by a resolution of
the Board. Such authority may be general or confined to specific instances.
5.3 Checks, Drafts, Etc.
-------------------------
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, or agent or agents, of the corporation and in such
manner as is from time to time determined by resolution of the Board.
5.4 Deposits
-------------
All funds of the corporation not otherwise employed shall be deposited from time
to time to the credit of the corporation in such banks, trust companies or other
depositories as the Board may select.
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SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
------------------------------------------------------
6.1 Issuance of Shares
-----------------------
No shares of the corporation shall be issued unless authorized by the Board, or
by a committee designated by the Board to the extent such committee is empowered
to do so.
6.2 Certificates for Shares
----------------------------
Certificates representing shares of the corporation shall be signed, either
manually or in facsimile, by the Chairman of the Board, the President or any
Vice President and by the Treasurer or any Assistant Treasurer or the Secretary
or any Assistant Secretary and shall include on their face written notice of any
restrictions that may be imposed on the transferability of such shares. All
certificates shall be consecutively numbered or otherwise identified.
6.3 Stock Records
------------------
The stock transfer books shall be kept at the principal office of the
corporation or at the office of the corporation's transfer agent or registrar.
The name and address of each person to whom certificates for shares are issued,
together with the class and number of shares represented by each such
certificate and the date of issue thereof, shall be entered on the stock
transfer books of the corporation. The person in whose name shares stand on the
books of the corporation shall be deemed by the corporation to be the owner
thereof for all purposes.
6.4 Transfer of Shares
-----------------------
The transfer of shares of the corporation shall be made only on the stock
transfer books of the corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer, or
by his or her attorney-in-fact authorized by power of attorney duly executed and
filed with the Secretary of the corporation. All certificates surrendered to
the corporation for transfer shall be cancelled, and no new certificate shall be
issued until the former certificates for a like number of shares shall have been
surrendered and cancelled.
6.5 Lost or Destroyed Certificates
-----------------------------------
In the case of a lost, destroyed or mutilated certificate, a new certificate may
be issued therefor upon such terms and indemnity to the corporation as the Board
may prescribe.
SECTION 7. BOOKS AND RECORDS
-----------------------------
The corporation shall:
(a) Keep as permanent records minutes of all meetings of its shareholders and
the Board, a record of all actions taken by the shareholders or the Board
without a meeting, and a record of all actions taken by a committee of the
Board exercising the authority of the Board on behalf of the corporation.
(b) Maintain appropriate accounting records.
(c) Maintain a record of its shareholders, in a form that permits preparation
of a list of the names and addresses of all shareholders, in alphabetical
order by class of shares showing the number and class of shares held by
each; provided, however, such record may be maintained by an agent of the
corporation.
(d) Maintain its records in written form or in another form capable of
conversion into written form within a reasonable time.
(e) Keep a copy of the following records at its principal office:
1. the Articles of Incorporation and all amendments thereto as
currently in effect;
2. these Bylaws and all amendments thereto as currently in effect;
3. the minutes of all meetings of shareholders and records of all
action taken by shareholders without a meeting, for the past three years;
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4. the financial statements described in Section 23B.16.200(1) of the
Washington Business Corporation Act, for the past three years;
5. all written communications to shareholders generally within the
past three years;
6. a list of the names and business addresses of the current
Directors and officers; and
7. the most recent annual report delivered to the Washington
Secretary of State.
SECTION 8. ACCOUNTING YEAR
---------------------------
The accounting year of the corporation shall be the calendar year, provided that
if a different accounting year is at any time selected by the Board for purposes
of federal income taxes, or any other purpose, the accounting year shall be the
year so selected.
SECTION 9. SEAL
----------------
The Board may provide for a corporate seal that shall consist of the name of the
corporation, the state of its incorporation and the year of its incorporation.
SECTION 10. INDEMNIFICATION
----------------------------
10.1 Right to Indemnification
------------------------------
Each person who was, is or is threatened to be made a named party to or is
otherwise involved (including, without limitation, as a witness) in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
Director or officer of the corporation or, that being or having been such a
Director or officer of the corporation, he or she is or was serving at the
request of the corporation as a Director, officer, partner, trustee, employee or
agent of another corporation or of a partnership, joint venture, trust, employee
benefit plan or other enterprise (hereinafter an "indemnitee"), whether the
basis of a proceeding is alleged action (or inaction) in an official capacity as
such a Director, officer, partner, trustee, employee or agent or in any other
capacity while serving as such a Director, officer, partner, trustee, employee
or agent, shall be indemnified and held harmless by the corporation against all
losses, claims, damages, liabilities or expenses (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties, amounts to be paid in
settlement and other expenses incurred in connection with such proceeding)
actually and reasonably incurred or suffered by such indemnitee in connection
therewith, and such indemnification shall continue as to an indemnitee who has
ceased to be a Director, officer, partner, trustee, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators.
Except as provided in subsection 10.2 hereof with respect to proceedings seeking
to enforce rights to indemnification, the corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if a proceeding (or part thereof) was authorized or ratified by
the Board. The right to indemnification conferred in this Section 10 shall be a
contract right.
10.2 Restrictions on Indemnification
-------------------------------------
No indemnification shall be provided to any such indemnitee for acts or
omissions of the indemnitee finally adjudged to be intentional misconduct or a
knowing violation of law, for conduct of the indemnitee finally adjudged to be
in violation of Section 23B.08.310 of the Washington Business Corporation Act,
for any transaction with respect to which it was finally adjudged that such
indemnitee personally received a benefit in money, property or services to which
the indemnitee was not legally entitled or if the corporation is otherwise
prohibited by applicable law from paying such indemnification. Notwithstanding
the foregoing, if Section 23B.08.560 or any successor provision of the
Washington Business Corporation Act is hereafter amended, the restrictions on
indemnification set forth in this subsection 10.2 shall be as set forth in such
amended statutory provision.
10.3 Advancement of Expenses
-----------------------------
The right to indemnification conferred in this Section 10 shall include the
right to be paid by the corporation the expenses incurred in defending any
proceeding in advance of its final disposition (hereinafter an "advancement of
expenses"). An advancement of expenses shall be made upon delivery to the
corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of
such indemnitee, to repay all amounts so advanced if and to the
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extent it shall ultimately be determined by final judicial decision from which
there is no further right to appeal that such indemnitee is not entitled to be
indemnified for such expenses under this subsection 10.3. An indemnitee's right
to advancement of expenses shall be conditioned upon such indemnitee (a)
delivering of the undertaking, (b) cooperating in providing the corporation with
such information as it may reasonably request and which is within such
indemnitee's power to provide, and (c) providing to the corporation of a written
affirmation of such indemnitee's good faith belief that any applicable standards
of conduct have been met by such indemnitee.
10.4 Right of Indemnitee to Bring Suit
---------------------------------------
If a claim under subsection 10.1 or 10.3 hereof is not paid in full by the
corporation within 60 days after a written claim has been received by the
corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim. If successful in whole or in part, in any such suit or in a suit
brought by the corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. The indemnitee shall be presumed
to be entitled to indemnification under this Section 10 upon submission of a
written claim (and, in an action brought to enforce a claim for an advancement
of expenses, where the required undertaking has been tendered to the
corporation), and thereafter the corporation shall have the burden of proof to
overcome the presumption that the indemnitee is so entitled.
10.5 Procedures Exclusive
--------------------------
Pursuant to Section 23B.08.560(2) or any successor provision of the Washington
Business Corporation Act, the procedures for indemnification and the advancement
of expenses set forth in this Section 10 are in lieu of the procedures required
by Section 23B.08.550 or any successor provision of the Washington Business
Corporation Act.
10.6 Nonexclusivity of Rights
------------------------------
The right to indemnification and the advancement of expenses conferred in this
Section 10 shall not be exclusive of any other right that any person may have or
hereafter acquire under any statute, provision of the Articles of Incorporation
or these Bylaws, general or specific action of the Board, contract or otherwise.
10.7 Insurance, Contracts and Funding
--------------------------------------
The corporation may maintain insurance, at its expense, to protect itself and
any Director, officer, partner, trustee, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under the Washington Business Corporation Act. The corporation may enter into
contracts with any Director, officer, partner, trustee, employee or agent of the
corporation in furtherance of the provisions of this Section 10 and may create a
trust fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this Section 10.
10.8 Indemnification of Employees and Agents of the Corporation
----------------------------------------------------------------
The corporation may, by action of the Board, grant rights to indemnification and
the advancement of expenses to employees and agents or any class or group of
employees and agents of the corporation (a) with the same scope and effect as
the provisions of this Section 10 with respect to indemnification and the
advancement of expenses of Directors and officers of the corporation; (b)
pursuant to rights granted or provided by the Washington Business Corporation
Act; or (c) as are otherwise consistent with law.
10.9 Persons Serving Other Entities
------------------------------------
Any person who, while a Director, officer or employee of the corporation, is or
was serving (a) as a Director or officer of another foreign or domestic
corporation of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation or (b) as a partner, trustee or
otherwise in an executive or management
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capacity in a partnership, joint venture, trust or other enterprise of which the
corporation or a wholly owned subsidiary of the corporation is a general partner
or has a majority ownership shall be deemed to be so serving at the request of
the corporation and entitled to indemnification and the advancement of expenses
under subsections 10.1 and 10.3 hereof.
SECTION 11. AMENDMENTS
-----------------------
These Bylaws may be altered, amended or repealed and new Bylaws may be adopted
by the Board, subject to the Governance Agreement, except that the Board may not
amend or repeal any Bylaw that the shareholders have expressly provided, in
amending or repealing such Bylaw, may not be amended or repealed by the Board.
The shareholders may, subject to any vote requirements set forth in the Articles
of Incorporation, also alter, amend and repeal these Bylaws or adopt new Bylaws.
All Bylaws made by the Board may be altered, amended, repealed or modified by
the shareholders, subject to the Governance Agreement.
SECTION 12. GOVERNANCE AGREEMENT
---------------------------------
Notwithstanding any other provision of these Bylaws, any conflict between (a)
any action taken by the corporation or the Board, or any provision of these
Bylaws, as they may be amended or restated from time to time, on the one hand,
and (b) the terms of the Governance Agreement, on the other, shall be resolved
in favor of the terms of the Governance Agreement, unless otherwise agreed to in
writing by Cyanamid.
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