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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report: June 20, 1996
NEOPROBE CORPORATION
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(Exact Name of Registrant as Specified in Charter)
Delaware 0-20676 31-1080091
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(State of Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
425 Metro Place North, Suite 400, Dublin, Ohio 43017-1367
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (614) 793-7500
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ITEM 5. OTHER EVENTS.
SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
(a) An annual meeting of the stockholders of the registrant was held on May
30, 1996.
(b) The matters voted upon at the annual meeting and the results of the
voting are set forth below.
(i) Proposal No. 1 to amend the By-laws to divide the Board of
Directors into three classes having staggered terms of three years: 10,322,805
shares for, 2,114,404 shares against, and 27,979 abstentions. The amendment was
approved.
(ii) Proposal No. 2 to amend the Certificate of Incorporation to
divide the Board of Directors into three classes having staggered terms of three
years: 10,324,634 shares for, 2,115,546 shares against, and 26,008 abstentions.
The amendment was approved.
(iii) Election of Jerry K. Mueller, Jr. as a director to serve for a
term of one year: 16,089,874 shares for, and 535,612 shares withheld authority.
Mr. Mueller was elected.
(iv) Election of Zwi Vromen as a director to serve for a term of one
year: 15,301,450 shares for and 1,324,036 shares withheld authority. Mr.Vromen
was elected.
(v) Election of J. Frank Whitley, Jr. as a director to serve for a
term of one year: 16,090,474 shares for and 535,012 shares withheld authority.
Mr. Whitley was elected.
(vi) Election of David C. Bupp as a director to serve for a term of
two years: 16,089,974 shares for and 535,512 shares withheld authority. Mr. Bupp
was elected.
(vii) Election of Julius R. Krevans as a director to serve for a term
of two years: 16,092,624 shares for and 532,862 shares withheld authority. Dr.
Krevans was elected.
(viii) Election of James F. Zid as a director to serve for a term of
two years: 16,091,774 shares for and 533,712 shares withheld authority. Mr. Zid
was elected.
(ix) Election of C. Michael Hazard as a director to serve for a term
of three years: 16,090,474 shares for and 535,012 shares withheld authority. Mr.
Hazard was elected.
(x) Election of Michael P. Moore as a director to serve for a term of
three years: 16,621,104 shares for and 1,004,382 shares withheld authority. Mr.
Moore was elected.
(xi) Election of John L. Ridihalgh as a director to serve for a term
of three years: 16,090,974 shares for and 534,512 shares withheld authority. Dr.
Ridihalgh was elected.
(xii) Proposal No. 6 to approve the 1996 Stock Incentive Plan:
10,970,440 shares for, 1,634,458 shares against, and 70,074 abstentions. The
Plan was approved.
CHANGES IN SECURITIES.
Classified Board. The above described Proposals No. 1 and 2 to amend
the Certificate of Incorporation and By-laws of the Company (the "Amendments")
to divide the Board into three classes with staggered three year terms were on
the agenda for the Company's annual meeting of stockholders which was held on
May 30, 1996. Under the By-laws prior to adoption of the Amendments, the number
of directors constituting the entire Board was nine and they were elected for
one year terms. Upon approval of the Amendments, the Board was divided into
three classes, of three members each. The directors in the first class were
elected for a term of one year; the
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directors in the second class were elected for a term of two years and the
directors in the third class were elected for a term of three years. At each
subsequent annual meeting of stockholders, the terms of one class of directors
will expire and the newly nominated directors of that class will be elected for
a term of three years. The Board will be able to determine the total number of
directors constituting the full Board and the number of directors in each class,
but the total number of directors may not exceed 17 nor may the number of
directors in any class exceed six. Subject to these rules, the classes of
directors need not have equal numbers of members. No reduction in the total
number of directors or in the number of directors in a given class will have the
effect of removing a director from office or reducing the term of any then
sitting director. If the Board increases the number of directors in a class, it
will be able to fill the vacancies created for the full remaining term of a
director in that class even though the term may extend beyond the next annual
meeting. The directors will also be able to fill any other vacancies for the
full remaining term of the director whose death, resignation or removal caused
the vacancy. Prior to adoption of the Amendments, under the General Corporation
Law of the State of Delaware, any director of the Company or the entire Board
could have been removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors. However, after
adoption of the Amendments and division of the Board into classes, the
stockholders may only remove directors for cause.
Before the adoption of the Amendments, stockholders possessing a majority
of the Company's voting power could replace the entire Board at any annual
meeting since the entire Board was elected at each annual meeting for a one-year
term. After adoption of the Amendments, holders of a majority of the voting
power at a given meeting will not in any one year be able to replace a majority
of the directors since only one class of the directors will stand for election
in any one year. As a result, at least two annual meeting elections will be
required to change the majority of the directors by the requisite vote of
stockholders. The purpose of classifying the Board is to provide for a
continuing body, even in the face of a person who accumulates a sufficient
amount of voting power, whether by ownership or proxy or a combination, to have
a majority of the voting power at a given meeting and who may seek to take
control of the Company without paying a fair premium for control to all the
holders of Common Stock. This will allow the Board time to negotiate with such a
person and to protect the interests of the other stockholders who may constitute
a majority of the shares not actually owned by such person. However, it may also
have the effect of deterring third parties from making takeover bids for control
of the Company or may be used to hinder or delay a takeover bid thereby
decreasing the chance of the stockholders of the Company realizing a premium
over market price for their shares of Common Stock as a result of such bids. The
Amendments, as adopted, will affect every election of directors, will be
applicable even when no change of control is pending or threatened and will make
it more difficult for stockholders to change the majority of directors even when
the only reason for the change may be the performance of the present directors.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
99.1 Certificate of Amendment to Restated Certificate of Incorporation filed with the Delaware
Secretary of State on June 3, 1996
99.2 Restated Certificate of Incorporation of the Registrant (as corrected February 18, 1994 and
as amended June 27, 1994, July 25, 1995 and June 3, 1996)
99.3 Amendment to the Amended and Restated By-laws of Registrant adopted May 30, 1996
99.4 Amended and Restated By-laws of the Registrant dated July 21, 1993 (as amended July 18, 1995
and May 30, 1996)
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on behalf of the undersigned
hereunto duly authorized.
NEOPROBE CORPORATION
Date: June 17, 1996 By: /s/ David C. Bupp
-------------------------
Name: David C. Bupp
Title: President
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Page
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<S> <C> <C>
99.1 Certificate of Amendment to Restated Certificate of Incorporation filed 6
with the Delaware Secretary of State on June 3, 1996 ------
99.2 Restated Certificate of Incorporation of the Registrant (as 7
corrected February 18, 1994 and as amended June 27, 1994, ------
July 25, 1995 and June 3, 1996)
99.3 Amendment to the Amended and Restated By-laws of Registrant 16
adopted May 30, 1996 ------
99.4 Amended and Restated By-laws of the Registrant dated July 17
21, 1993 (as amended July 18, 1995 and May 30, 1996) ------
</TABLE>
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Exhibit 99.1
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
NEOPROBE CORPORATION
NEOPROBE CORPORATION, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
1. That the Board of Directors of the Corporation, in a meeting duly called
and held on the 18th day of January, 1996, adopted the following resolution:
RESOLVED, that Article Eight of the Certificate of Incorporation of the
Company be amended in its entirety to read as follows:
Notwithstanding any other provision set forth in the Certificate of
Incorporation of the Company or its By-laws, the board of directors shall be
divided into three classes; the term of office of those of the first class to
expire at the annual meeting next ensuing; of the second class one year
thereafter; of the third class two years thereafter; and at each annual election
held after the initial classification of the board of directors and election of
directors to such classes, directors shall be chosen for a full term of three
years, as the case may be, to succeed those whose terms expire. The total number
of directors constituting the full board of directors and the number of
directors in each class shall be fixed by, or in the manner provided in the
By-laws, but the total number of directors shall not exceed seventeen (17) nor
shall the number of directors in any class exceed six (6). Subject to the
foregoing, the classes of directors need not have the same number of members. No
reduction in the total number of directors or in the number of directors in any
class shall be effective to remove any director or to reduce the term of any
director. If the board of directors increases the number of directors in a
class, it may fill the vacancy created thereby for the full remaining term of a
director in that class even though such term may extend beyond the next annual
election. The board of directors may fill any vacancy occurring for any other
reason for the full remaining term of the director whose death, resignation or
removal caused the vacancy, even though such term may extend beyond the next
annual election.
2. That a majority of the holders of the only class of outstanding stock
entitled to vote thereon, in a meeting duly called and held on the 30th day of
May, 1996, in accordance with Section 242 of the General Corporation Law of the
State of Delaware, duly adopted said amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by David C. Bupp, its President, and attested by Jerry K. Mueller, Jr.,
its Secretary, who hereby declare and certify, under penalty of perjury, that
this instrument is their act and deed and the facts herein stated are true, this
30th day of May, 1996.
NEOPROBE CORPORATION
By /s/ David C. Bupp
------------------------
David C. Bupp, President
Attest:
/s/ Jerry K. Mueller, Jr.
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Jerry K. Mueller, Jr., Secretary
<PAGE> 1
Exhibit 99.2
RESTATED CERTIFICATE OF INCORPORATION
OF
NEOPROBE CORPORATION
(as corrected February 18, 1994 and as amended June 27, 1994,
July 25, 1995 and June 3, 1996)
ARTICLE ONE
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The name of the corporation is Neoprobe Corporation.
ARTICLE TWO
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The address of the corporation's registered office in the State of Delaware
is the Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is the
Corporation Trust Company.
ARTICLE THREE
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The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
(Article Four was amended to increase the total number of shares authorized
to be outstanding from 22,000,000 to 55,000,000 , the total number of shares of
Common Stock from 20,000,000 to 50,000,000 and the total number of shares of
Preferred Stock from 2,000,000 to 5,000,000 by a resolution adopted by the Board
of Directors on March 3, 1994 and approved by the stockholders on May 26, 1994).
ARTICLE FOUR
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4.1 AUTHORIZED SHARES. The total number of shares of capital stock which
the Corporation has authority to issue is 55,000,000 shares, consisting of:
(a) 50,000,000 shares of Common Stock, par value $.001 per share (the
"Common Stock");
(b) 5,000,000 shares of Preferred Stock, par value $.001 per share (the
"Preferred Stock").
4.2 COMMON STOCK.
(a) Subject to such voting rights of any other class or series of
securities as may be granted from time to time pursuant to this certificate of
incorporation, any amendment thereto, or the provisions of the laws of the State
of Delaware governing corporations, voting rights shall be vested exclusively in
the holders of Common Stock. Each holder of Common Stock shall have one vote in
respect of each share of such stock held.
(b) Subject to the rights of any other class or series of stock, the
holders of shares of Common Stock shall be entitled to receive, when and as
declared by the board of directors, out of the assets of the Corporation legally
available therefor, such dividends as may be declared from time to time by the
board of directors.
(c) Subject to such rights of any other class or series of securities as
may be granted from time to time, the holders of shares of Common Stock shall be
entitled to receive all the assets of the Corporation available for distribution
to shareholders in the event of the voluntary or involuntary liquidation,
dissolution, or winding up of the
<PAGE> 2
Corporation, ratably, in proportion to the number of shares of Common Stock held
by them. Neither the merger or consolidation of the Corporation into or with any
other corporation, nor the merger or consolidation of any other corporation into
or with the Corporation, nor the sale, lease, exchange or other disposition (for
cash, shares of stock, securities, or other consideration) of all or
substantially all the assets of the Corporation, shall be deemed to be a
dissolution, liquidation, or winding up, voluntary or involuntary, of the
Corporation.
4.3 PREFERRED STOCK. Shares of Preferred Stock may be issued from time to
time in one or more series. The board of directors of the Corporation is hereby
authorized to determine and alter all rights, preferences, and privileges and
qualifications, limitations, and restrictions thereof (including, without
limitation, voting rights and the limitation and exclusion thereof) granted to
or imposed upon any wholly unissued series of Preferred Stock and the number of
shares constituting any such series and the designation thereof, and to increase
or decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issue of shares of that
series then outstanding. In case the number of shares of any series is so
decreased, the shares constituting such reduction shall resume the status which
such shares had prior to the adoption of the resolution originally fixing the
number of shares of such series.
ARTICLE FIVE
------------
The business and affairs of the Corporation shall be managed by or under
the direction of the board of directors, and the directors need not be elected
by ballot unless required by the by-laws of the Corporation. In furtherance and
not in limitation of the powers conferred by statute, the board of directors of
the Corporation is expressly authorized to adopt, amend, or repeal the by-laws
of the Corporation.
ARTICLE SIX
-----------
Action shall be taken by the stockholders of the Corporation only at annual
or special meetings of stockholders, and stockholders may not act by written
consent. Special meetings of the Corporation may be called only as provided in
the by-laws.
ARTICLE SEVEN
-------------
Meetings of the stockholders may be held within or without the State of
Delaware, as the by-laws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Delaware at such place or places as
may be designated from time to time by the board of directors or in the by-laws
of the Corporation. The board of directors shall from time to time decide
whether and to what extent and at what times and under what conditions and
requirements the accounts and books of the Corporation, or any of them, except
the stock book, shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any books or documents of the
Corporation except as conferred by the laws of the State of Delaware or as
authorized by the board of directors.
(Article Eight was amended in its entirety by a resolution adopted by the
stockholders at the Annual Meeting of Stockholders held on May 30, 1996).
ARTICLE EIGHT
-------------
Notwithstanding any other provision set forth in the Certificate of
Incorporation of the Corporation or its By-laws, the board of directors shall be
divided into three classes; the term of office of those of the first class to
expire at the annual meeting next ensuing; of the second class one year
thereafter; of the third class two years thereafter; and at each annual election
held after the initial classification of the board of directors and election of
directors to such classes, directors shall be chosen for a full term of three
years, as the case may be, to succeed those whose terms expire. The total number
of directors constituting the full board of directors and the number of
directors in each class shall be fixed by, or in the manner provided in the
by-laws, but the total number of directors
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shall not exceed seventeen (17) nor shall the number of directors in any class
exceed six (6). Subject to the foregoing, the classes of directors need not have
the same number of members. No reduction in the total number of directors or in
the number of directors in any class shall be effective to remove any director
or to reduce the term of any director. If the board of directors increases the
number of directors in a class, it may fill the vacancy created thereby for the
full remaining term of a director in that class even though such term may extend
beyond the next annual election. The board of directors may fill any vacancy
occurring for any other reason for the full remaining term of the director whose
death, resignation or removal caused the vacancy, even though such term may
extend beyond the next annual election.
ARTICLE NINE
------------
(a) The Corporation shall, to the fullest extent permitted by the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended, indemnify all persons whom it may indemnify pursuant hereto.
(b) To the fullest extent permitted by the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended, a director of
this Corporation shall not be personally liable for the Corporation or its
Stockholders for monetary damages for breach of fiduciary duty as a director.
The modification or repeal of this Article Nine shall not affect the restriction
hereunder of a director's personal liability for any breach, act, or omission
occurring prior to such modification or repeal.
ARTICLE TEN
-----------
The Corporation is to have perpetual existence.
* * *
(A Certificate of Correction was filed to correct a failure to set forth in
the Restated Certificate of Incorporation filed with the Secretary of State of
Delaware on November 9, 1992, the following resolutions duly adopted by the
Board and duly approved by the stockholders):
WHEREAS, the Board of Directors of the Corporation deems it to be advisable
and in the best interests of the Corporation that the Corporation effectuates a
reverse split of its common stock, par value $0.001 per share (the "Common
Stock"), to cause the total number of issued and outstanding shares of Common
Stock to be 5,162,762 prior to a contemplated public offering of the securities
of the Corporation; it is therefore:
RESOLVED, that, subject to approval by the Corporation's stockholders,
there is hereby declared a one-for-two reverse split of the issued and
outstanding shares of Common Stock, effective immediately prior to the effective
time of the contemplated public offering (the "Conversion Time"), pursuant to
which each issued and outstanding share of Common Stock shall automatically be
converted into one-half of the one share of Common Stock, and each stockholder
of record at the Conversion Time shall receive one or more certificates
representing the number of fully-paid and nonassessable shares of Common Stock
equal to the number of shares held after the Conversion Time as a result of the
foregoing reverse split;
RESOLVED, FURTHER, that the shares of Common Stock that cease to be
outstanding as a result of the reverse stock split shall be authorized but
unissued shares;
RESOLVED, FURTHER, that fractions of a share existing after the reverse
stock split shall not be issued to the stockholders, and that such fractions
shall be paid in cash at their pro rata fair value, which the Board of Directors
hereby determines, after due consideration, to be $6.00 per share as of the
Conversion Time;
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RESOLVED, FURTHER, that appropriate adjustment shall be made to the
applicable conversion or other ratios of the Corporation's outstanding warrants,
options or other convertible securities to take account of the change in the
outstanding Common Stock resulting from the reverse stock split; and
RESOLVED, FURTHER, that the Conversion Time for the one-for-two reverse
split of the issued and outstanding shares of Common Stock as authorized on July
22, 1992, and approved by the Corporation's stockholders, shall be at the close
of business on Monday, November 9, 1992.
* * *
(The Board of Directors provided for a series of Preferred Stock on July
18, 1995 by the addition to the Certificate of Incorporation of the following
paragraphs which were incorporated in a Certificate of Designations, Preferences
and Rights of Series A Junior Participating Preferred Stock filed on July 25,
1995):
RESOLVED, that pursuant to the authority vested in the Board of Directors
of this Corporation in accordance with the provisions of its Restated
Certificate of Incorporation, a series of Preferred Stock of the Corporation be
and it hereby is created, and that the designation and amount thereof and the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" and the number of
shares constituting such series shall be 500,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on
the first day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $.05 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value $.001 per share, of the
Corporation (the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Junior Participating Preferred Stock. In the event the Corporation shall at any
time after August 28, 1995 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $.05 per share
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<PAGE> 5
on the Series A Junior Participating Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the number of votes to which holders of Class A Junior Participating Preferred
Stock were entitled immediately prior to such event under the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of Series A
Junior Participating Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. During each default period, all holders of
Preferred Stock (including holders of the Series A Junior Participating
Preferred Stock) with dividends in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class, irrespective of series, shall
have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders of
Series A Junior Participating Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this Section 3(C) or at
any annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if any, to increase, in certain
cases, the authorized number of Directors shall be exercised unless the holders
of ten percent (10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders of Common
Stock shall not affect the exercise by the holders of Preferred Stock of such
voting right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to
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<PAGE> 6
elect two (2) Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of the Preferred
Stock shall have the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required number. After
the holders of the Preferred Stock shall have exercised their right to elect
Directors in any default period and during the continuance of such period, the
number of Directors shall not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A Junior
Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or stockholders
owning in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request, the
calling of a special meeting of the holders of Preferred Stock, which meeting
shall thereupon be called by the Chairman of the Board, President or the
Secretary of the Corporation. Notice of such meeting and of any annual meeting
at which holders of Preferred Stock are entitled to vote pursuant to this
paragraph (C)(iii) shall be given to each holder of record of Preferred Stock by
mailing a copy of such notice to him at his last address as the same appears on
the books of the Corporation. Such meeting shall be called for a time not
earlier than 20 days and not later than 60 days after such order or request or
in default of the calling of such meeting within 60 days after such order or
request, such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding. Notwithstanding the
provisions of this paragraph (C)(iii), no such special meeting shall be called
during the period within 60 days immediately preceding the date fixed for the
next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be entitled
to elect the whole number of Directors until the holders of Preferred Stock
shall have exercised their right to elect two (2) Directors voting as a class,
after the exercise of which right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in paragraph
(C)(ii) of this Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which elected
the Director whose office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill vacancies as provided in
clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred Stock
as a class shall terminate, and (z) the number of Directors shall be such number
as may be provided for in the certificate of incorporation or by-laws
irrespective of any increase made pursuant to the provisions of paragraph
(C)(ii) of this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the certificate of incorporation
or by-laws). Any vacancies in the Board of Directors effected by the provisions
of clauses (y) and (z) in the preceding sentence may be filled by a majority of
the remaining Directors.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
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<PAGE> 7
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior Participating
Preferred Stock, except dividends paid ratably on the Series A Junior
Participating Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior Participating
Preferred Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such parity stock in exchange for shares of
any stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Junior Participating
Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any shares of stock ranking on
a parity with the Series A Junior Participating Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received [$.10] per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series A
Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the Series
A Liquidation Preference and the Common Adjustment in respect to all outstanding
shares of Series A Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating Preferred Stock and
holders of shares of Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preferred Stock and Common Stock, on a per
share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which
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<PAGE> 8
rank on a parity with the Series A Junior Participating Preferred Stock, then
such remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. Optional Redemption.
(A) The Corporation shall have the option to redeem the whole or any
part of the Series A Junior Participating Preferred Stock at any time at a
redemption price equal to, subject to the provisions for adjustment hereinafter
set forth, 100 times the "current per share market price" of the Common Stock on
the date of the mailing of the notice of redemption, together with unpaid
accumulated dividends to the date of such redemption. In the event the
Corporation shall at any time after the Rights Declaration Date, (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were otherwise entitled
immediately prior to such event under the preceding sentence shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. The "current per share market
price" on any date shall be deemed to be the average of the closing price per
share of such Common Stock for the 10 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date. The closing price for each
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Common Stock is not listed or admitted to trading on
the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the principal national securities exchange on which the Common Stock
is listed or admitted to trading or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") or such other system then in
use or, if on any such date the Common Stock is not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the
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<PAGE> 9
Common Stock selected by the Board of Directors of the Corporation. If on such
date no such market maker is making a market in the Common Stock, the fair value
of the Common Stock on such date as determined in good faith by the Board of
Directors of the Corporation shall be used. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which the Common
Stock is listed or admitted to trading is open for the transaction of business
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which
banking institutions in the State of New York are not authorized or obligated by
law or executive order to close.
(B) Notice of any such redemption shall be given by mailing to the
holders of the Series A Junior Participating Preferred Stock a notice of such
redemption, first class postage prepaid, not later than the thirtieth day and
not earlier than the sixtieth day before the date fixed for redemption, at their
last address as the same shall appear upon the books of the Corporation. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the stockholder received such
notice, and failure duly to give such notice by mail, or any defect in such
notice, to any holder of Series A Junior Participating Preferred Stock shall not
affect the validity of the proceedings for the redemption of such Series A
Junior Participating Preferred Stock are to be redeemed, the redemption shall be
made by lot as determined by the Board of Directors.
(C) If any such notice of redemption shall have been duly given or if
the Corporation shall have given to the bank or trust company hereinafter
referred to irrevocable written authorization promptly to give or complete such
notice, and if on or before the redemption date specified therein the funds
necessary for such redemption shall have been deposited by the Corporation with
the bank or trust company designated in such notice, doing business in the
United States of America and having a capital, surplus and undivided profits
aggregating at least $25,000,000 according to its last published statement of
condition, in trust for the benefit of the holders of Series A Junior
Participating Preferred Stock called for redemption, then, notwithstanding that
any certificate for such shares so called for redemption shall not have been
surrendered for cancellation, from and after the time of such deposit all such
shares called for redemption shall no longer be deemed outstanding and all
rights with respect to such shares shall no longer be deemed outstanding and all
rights with respect to such shares shall forthwith cease and terminate, except
the right of the holders thereof to receive from such bank or trust company at
any time after the time of such deposit the funds so deposited, without
interest, and the right to exercise, up to the close of business on the fifth
day before the date fixed for redemption, all privileges of conversion or
exchange if any. In case less than all the shares represented by any surrendered
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares. Any interest accrued on such funds shall be paid to the
Corporation from time to time. Any funds so deposited and unclaimed at the end
of six years from such redemption date shall be repaid to the Corporation, after
which the holders of shares of Series A Junior Participating Preferred Stock
called for redemption shall look only to the Corporation for payment thereof;
provided that any funds so deposited which shall not be required for redemption
because of the exercise of any privilege of conversion or exchange subsequent to
the date of deposit shall be repaid to the Corporation forthwith.
Section 9. Ranking. The Series A Junior Participating Preferred Stock shall
rank junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. So long as any shares of Series A Junior
Participating Preferred Stock are outstanding, the Restated Certificate of
Incorporation of the Corporation shall not be further amended in any manner
which would materially alter or change the powers, preferences or special rights
of the Series A Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or more of
the outstanding shares of Series A Junior Participating Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Junior Participating Preferred Stock.
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<PAGE> 1
Exhibit 99.3
NEOPROBE CORPORATION
AMENDMENT TO
AMENDED AND RESTATED BY-LAWS
ADOPTED MAY 30, 1996
Section 2 of Article III of the By-laws of the Corporation was amended by
adding the following paragraph at the end thereof:
Notwithstanding any other provision set forth in the By-laws of the
Corporation, the board of directors shall be divided into three classes; the
term of office of those of the first class to expire at the annual meeting next
ensuing; of the second class one year thereafter; of the third class two years
thereafter; and at each annual election held after the initial adoption of this
by-law by the stockholders and the election of directors held at the meeting at
which this by-law is adopted, directors shall be chosen for a full term of three
years, as the case may be, to succeed those whose terms expire. When this by-law
is initially adopted by the stockholders, the board of directors shall consist
of nine members and each class shall consist of three members. Thereafter, the
board of directors may fix the total number of directors constituting the full
board of directors and the number of directors in each class, but the total
number of directors shall not exceed seventeen (17) nor shall the number of
directors in any class exceed six (6). Subject to the foregoing, the classes of
directors need not have the same number of members. No reduction in the total
number of directors or in the number of directors in any class shall be
effective to remove any director or to reduce the term of any director. If the
board of directors increases the number of directors in a class, it may fill the
vacancy created thereby for the full remaining term of a director in that class
even though such term may extend beyond the next annual election. The board of
directors may fill any vacancy occurring for any other reason for the full
remaining term of the director whose death, resignation or removal caused the
vacancy, even though such term may extend beyond the next annual election.
<PAGE> 1
Exhibit 99.4
NEOPROBE CORPORATION
*******************
AMENDED AND RESTATED BY-LAWS
************
AS AMENDED JULY 18, 1995 AND MAY 30, 1996
************
ARTICLE I
---------
OFFICES
-------
SECTION 1. REGISTERED OFFICE. The registered office of the corporation
in the state of Delaware shall be located at Corporation Trust Center, 1209
Orange Street, Wilmington, Delaware, County of New Castle. The name of the
corporation's registered agent at such address shall be the Corporation Trust
Company. The registered office and/or registered agent of the corporation may be
changed from time to time by action of the board of directors.
SECTION 2. OTHER OFFICES. The corporation may also have offices at such
other places, both within and without the state of Delaware, as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
----------
MEETINGS OF STOCKHOLDERS
------------------------
SECTION 1. PLACE AND TIME OF MEETINGS. An annual meeting of the
stockholders shall be held each year within 13 months after the last annual
meeting for the purpose of electing directors and conducting such other proper
business as may come before the meeting. The date, time, and place of the annual
meeting shall be determined by the chairman of the board; provided, that if the
chairman of the board does not make such determination within 12 months after
the last annual meeting, the board of directors shall determine the date, time
and place of such meeting.
(The following section was amended by the Board of Directors on July 18, 1995)
SECTION 2. SPECIAL MEETINGS. The board of directors may call a special
meeting of the stockholders for any purpose or purposes and such meeting may be
held at such time and place, within or without the State of Delaware, as may be
determined by the board of directors.
<PAGE> 2
Neoprobe Corporation
Amended and Restated By-Laws
Page 2
Business transacted at any special meeting of stockholders shall be limited to
the purpose or purposes stated in the notice of meeting as required by Section 3
of this Article II. No officer, director nor stockholder shall have the power to
call a meeting of stockholders without the authorization of the board of
directors.
SECTION 3. NOTICE. Whenever stockholders are required or permitted to
take action at a meeting, written notice stating the place, date, time and, in
the case of special meetings, the purpose or purposes of such meeting, shall be
given to each stockholder entitled to vote at such meeting not less than 10 nor
more than 60 days before the date of the meeting; except that where the matter
to be acted on is a merger of the corporation or a sale of all or substantially
all of its assets, such notice shall be given not less than 20 nor more than 60
days before the date of the meeting. All such notices shall be delivered, either
personally or by mail, by or at the direction of the board of directors, the
chief executive officer, or the secretary and, if mailed, such notice shall be
deemed to be delivered when deposited with the United States mail, postage
prepaid, addressed to the stockholder at the address of the stockholder as the
same appears on the records of the corporation.
SECTION 4. STOCKHOLDERS LIST. The officer having charge of the stock
ledger of the corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
meeting arranged in alphabetical order, showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least 10 days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting or, if not
so specified, at the place where the meeting is to be held. The list also shall
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 5. QUORUM. The holders of a majority of the outstanding shares
of capital stock entitled to vote at a meeting, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders, except
as otherwise provided by statute or by the certificate of incorporation. A
quorum that is present to organize a meeting shall not be broken by the
subsequent withdrawal of one or more stockholders. If a quorum is not present,
the holders of a majority of the shares present in person or represented by
proxy at the meeting, and entitled to vote at the meeting, may adjourn the
meeting to another time and/or place.
SECTION 6. ADJOURNED MEETINGS. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting the corporation may
<PAGE> 3
Neoprobe Corporation
Amended and Restated By-Laws
Page 3
transact any business that might have been transacted at the original meeting.
If the adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 7. VOTE REQUIRED. When a quorum is present, the affirmative
vote of the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless the question is one upon which by express provisions of an
applicable law, certificate of incorporation or these by-laws a different vote
is required, in which case such express provision shall govern and control the
decision of such question.
SECTION 8. VOTING RIGHTS. Except as otherwise provided by the General
Corporation Law of the state of Delaware or by the certificate of incorporation
of the corporation or any amendments thereto and subject to Section 10 of this
Article II, every stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of common stock held
by such stockholder.
SECTION 9. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for such stockholder
by proxy. Each proxy shall be in writing executed by the stockholder giving the
proxy or the stockholder's duly authorized attorney. No proxy shall be valid
after the expiration of 3 years from its date, unless the proxy provides for a
longer period. Unless and until voted, every proxy shall be revocable at the
pleasure of the stockholder who executed it or the stockholder's legal
representatives or assigns, except in those cases where an irrevocable proxy
permitted by statute has been given.
SECTION 10. FIXING A RECORD DATE FOR STOCKHOLDER MEETINGS. In order
that the corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If no record date is fixed by the board of
directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be the close of business on the next
day preceding the day on which notice is given, or if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
<PAGE> 4
Neoprobe Corporation
Amended and Restated By-Laws
Page 4
(The following section was added by the Board of Directors on July 18, 1995)
SECTION 11. CONDUCT OF MEETINGS. The board of directors shall establish
the agenda of each meeting of the stockholders, annual or special, at or prior
to the calling thereof. No proposal of any corporate action by any stockholder
shall be considered at any meeting of stockholders unless the stockholder who
intends to propose such action has delivered a timely written notice of his
intention to put such proposal before the meeting to the executive offices of
the Corporation. A notice of proposal will be deemed to not be timely unless it
has been received by the Corporation within the time limits prescribed by
paragraph (a)(iii) of Rule 14a-8 of the Proxy Rules of the Securities and
Exchange Commission. The board of directors may determine that a proposal
submitted by a stockholder pursuant to this section has insufficient
relationship to the business of the Corporation to justify delay, disruption or
other interference with the meeting process or that implementation of such
proposal would be contrary to applicable law, and upon making such
determination, exclude such proposal from consideration at the meeting of
stockholders with respect to which such proposal was submitted. Except as
otherwise determined by the board of directors in advance of a meeting of
stockholders, the order of business at all meetings of the stockholders and all
matters relating to the manner of conducting the meeting shall be determined by
the chairman of the meeting, whose decisions may be overruled only by the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the matter. Meetings shall be
conducted in a manner designed to accomplish the business of the meeting in a
prompt and orderly fashion and to be fair and equitable to all stockholders, but
it shall not be necessary to follow any manual of parliamentary procedure.
ARTICLE III
-----------
DIRECTORS
---------
SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by or under the direction of the board of directors.
SECTION 2. NUMBER, ELECTION AND TERM OF OFFICE. The number of directors
which shall constitute the whole board initially shall be 9. Thereafter, the
number of directors shall be established from time to time by resolution of the
board. The directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote in
the election of directors. The directors shall be elected in this manner at the
annual meeting of the stockholders, except as provided in Section 4 of this
Article III. Each director elected shall hold office until a successor is duly
elected and qualified, or until his or her earlier death, resignation, or
removal, as hereinafter provided.
<PAGE> 5
Neoprobe Corporation
Amended and Restated By-Laws
Page 5
(The following paragraph was added by the Board of Directors on July 18, 1995)
At a meeting of stockholders at which directors are to be elected, only
persons nominated as candidates shall be eligible for election as directors.
Persons may be nominated as candidates by the board of directors or a duly
constituted committee thereof, or by any stockholder entitled to vote for the
election of directors. Such nominations, if not made by the board of directors
or a duly constituted committee thereof, shall be made only by a written notice
(a) setting forth (i) the name, age, business address and residence address of
each nominee proposed in such notice, (ii) the principal occupation or
employment of each such nominee, and (iii) the number of shares of capital stock
of the Corporation beneficially owned by each such nominee; (b) signed and
verified by the stockholder making such nomination; and (c) delivered to the
secretary of the Corporation, together with each such nominee's written
acceptance of such nomination and agreement to serve if elected, not less than
one hundred twenty (120) days before the first anniversary of the date of the
mailing of the notice of the most recently concluded annual meeting, if such
nomination is for an election to be held at an annual meeting; provided,
however, that if the date of such annual meeting is more than thirty (30) days
before or after the first anniversary of the most recently concluded annual
meeting, or if such election is to be held at a special meeting, such notice
shall be delivered to the Corporation not more than seven (7) days after the
date of the notice of such annual or special meeting.
(At the 1996 Annual Meeting of Stockholders, held May 30, 1996 the
Stockholders duly adopted a resolution amending these By-laws by adding the
following paragraph to the end of this Section 2 of Article III:)
Notwithstanding any other provision set forth in the By-laws of the
Company, the board of directors shall be divided into three classes; the term of
office of those of the first class to expire at the annual meeting next ensuing;
of the second class one year thereafter; of the third class two years
thereafter; and at each annual election held after the initial adoption of this
by-law by the stockholders and the election of directors held at the meeting at
which this by-law is adopted, directors shall be chosen for a full term of three
years, as the case may be, to succeed those whose terms expire. When this by-law
is initially adopted by the stockholders, the board of directors shall consist
of nine members and each class shall consist of three members. Thereafter, the
board of directors may fix the total number of directors constituting the full
board of directors and the number of directors in each class, but the total
number of directors shall not exceed seventeen (17) nor shall the number of
directors in any class exceed six (6). Subject to the foregoing, the classes of
directors need not have the same number of members. No reduction in the total
number of directors or in the number of directors in any class shall be
effective to remove any director or to reduce the term of any director. If the
board of directors increases the number
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of directors in a class, it may fill the vacancy created thereby for the full
remaining term of a director in that class even though such term may extend
beyond the next annual election. The board of directors may fill any vacancy
occurring for any other reason for the full remaining term of the director whose
death, resignation or removal caused the vacancy, even though such term may
extend beyond the next annual election.
SECTION 3. REMOVAL AND RESIGNATION. Any director or the entire board of
directors may be removed at any time by the holders of a majority of the shares
then entitled to vote at an election of directors. Whenever the holders of any
class or series are entitled to elect one or more directors by the provisions of
the corporation's certificate of incorporation, the provisions of this section
shall apply, in respect to the removal of a director or directors so elected, to
the vote of the holders of the outstanding shares of that class or series and
not to the vote of the outstanding shares as a whole. Any director may resign at
any time upon written notice to the corporation.
SECTION 4. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director. Each director so chosen shall hold office until a
successor is duly elected and qualified, or until his or her earlier death,
resignation, or removal, as herein provided.
SECTION 5. COMPENSATION. The board of directors may from time to time
fix the compensation of directors for their services in that capacity. The
compensation of a director may consist of an annual fee, or a fee for attendance
at each regular or special meeting of the board, or any meeting of any committee
of the board of which such director is a member, or a combination of fees of
both types; provided, that nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. The board also may provide for the
reimbursement to any director of expenses incurred in attending any meeting of
the board or any committee of the board of which such director is a member.
SECTION 6. ANNUAL MEETINGS. The annual meeting of each newly elected
board of directors shall be held without notice immediately after, and at the
same place as, the annual meeting of stockholders.
SECTION 7. OTHER MEETINGS AND NOTICE. Regular meetings, other than the
annual meeting, of the board of directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the board. Special meetings of the board of directors may be called by or at the
request of any director on at least 24 hours notice to each director, either
personally, by telephone, by mail, by telegraph, or by facsimile transmission.
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SECTION 8. QUORUM, REQUIRED VOTE, AND ADJOURNMENT. A majority of the
total number of directors shall constitute a quorum for the transaction of
business. The vote of a majority of directors present at a meeting at which a
quorum is present shall be the act of the board of directors. If a quorum shall
not be present at any meeting of the board of directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
SECTION 9. COMMITTEES. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation, which
to the extent provided in such resolution or these by-laws, shall have and may
exercise the powers of the board of directors in the management and affairs of
the corporation, except as otherwise limited by law. The board of directors 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. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors when required.
SECTION 10. COMMITTEE RULES. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the board of
directors designating such committee. In the event that a member and that
member's alternate, if alternates are designated by the board of directors as
provided in Section 9 of this Article III, of such committee is or are absent or
disqualified, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in place of any such absent or disqualified member.
SECTION 11. COMMUNICATIONS EQUIPMENT. Members of the board of directors
or any committee thereof may participate in and act at any meeting of such board
or committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
SECTION 12. WAIVER OF NOTICE. Any member of the board of directors or
any committee thereof who is present at a meeting shall be conclusively presumed
to have waived notice of such meeting, except when such member attends for the
express purpose of objecting at the beginning of the meeting to the transaction
of any business because the meeting is not lawfully called or convened.
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SECTION 13. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
the certificate of incorporation, any action required or permitted to be taken
at any meeting of the board of directors, or of any committee thereof, may be
taken without a meeting, if all members of the board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
ARTICLE IV
----------
OFFICERS
--------
SECTION 1. NUMBER. The executive officers of the corporation shall be
chosen by the board of directors and shall consist of: a chairman of the board,
a president, one or more vice-presidents, a secretary, and a treasurer. The
board of directors may also choose such other officers and assistant officers as
it may deem necessary or desirable. The chairman of the board shall be selected
among the directors, but no other executive officer need be a member of the
board. Any number of offices may be held by the same person. In its discretion,
the board of directors may choose not to fill any office for any period as it
may deem advisable.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected by the board of directors, and each officer shall hold office
until a successor is duly elected and qualified, or until his or her earlier
death, resignation, or removal, as hereinafter provided.
SECTION 3. REMOVAL. Any officer or agent elected by the board of
directors may be removed for cause or without cause by the board of directors,
or by the chairman of the board or the president acting under authority
delegated to him by the board, provided that any such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
SECTION 4. VACANCIES. Any vacancy occurring in any office because of
death, resignation, removal, disqualification, or otherwise may be filled by the
board of directors.
SECTION 5. COMPENSATION. Compensation of all officers shall be fixed by
the board of directors and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a director of the corporation.
SECTION 6. CHAIRMAN OF THE BOARD. The chairman of the board shall be
the chief executive officer of the corporation, shall be selected from among the
directors of the corporation, and shall be in the general and active charge of
the entire business and affairs of the corporation, subject to the powers of the
board of directors, and shall be its chief policy making officer. He or she
shall preside at all meetings of the board of directors and stockholders, and
shall have such other powers and perform such other duties as may be prescribed
by the board of directors or provided in these by-laws.
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SECTION 7. PRESIDENT. The president shall be the chief operating
officer and shall have all operating responsibility for the day to day business
of the corporation, and all corporate functions shall report to the president.
In the absence of a chairman of the board, the president shall preside at all
meetings of the stockholders and of the board of directors. The president shall
have such other powers and perform such other duties as may be prescribed by the
chairman of the board or the board of directors or as may be provided in these
by-laws.
SECTION 8. VICE-PRESIDENTS. The vice-president, or if there shall be
more than one, the vice-presidents in the order determined by the board of
directors shall, in the absence or disability of the president, act with all of
the powers and be subject to all restrictions of the president. The
vice-presidents also shall perform such other duties and have such other powers
as the board of directors, the chairman of the board, the president, or these
by-laws may, from time to time, prescribe.
SECTION 9. SECRETARY AND ASSISTANT SECRETARIES. The secretary shall
attend all meetings of the board of directors, all meetings of the committees
thereof, and all meetings of the stockholders, and record all such proceedings
of such meetings in a book to be kept for that purpose. The assistant secretary,
or if there be more than one, the assistant secretaries in the order determined
by the chairman of the board, shall, in the absence or disability of the
secretary, perform the duties of the secretary.
SECTION 10. TREASURER AND ASSISTANT TREASURERS. The treasurer shall
have the custody of the corporate funds and securities; shall keep full and
accurate accounts of receipts and disbursements thereof; shall deposit all
moneys and other valuable effects in the name of the corporation; shall cause
the funds of the corporation to be disbursed when such disbursements have been
duly authorized. If required by the board of directors, the treasurer and each
assistant treasurer shall give the corporation a bond for such term, in such
sums and with such sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of the office of treasurer. The
assistant treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the chairman of the board, shall in the
absence or disability of the treasurer, perform the duties of the treasurer.
SECTION 11. OTHER OFFICERS, ASSISTANT OFFICERS, AND AGENTS. Officers,
assistant officers and agents, if any, shall have such authority and perform
such duties as may from time to time be prescribed by resolution of the board of
directors.
SECTION 12. ABSENCE OR DISABILITY OF OFFICERS. In the case of the
absence or disability of any officer of the corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the chairman of the board or the president may delegate the powers
and duties of such officer to any other officer.
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ARTICLE V
---------
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
-------------------------------------------------
SECTION 1. INDEMNIFICATION. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to:
(a) 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 the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against 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 if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
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 judgment, 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 the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful; or
(b) any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and 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 to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
SECTION 2. STANDARD OF CONDUCT. Any indemnification under subsections
(a) and (b) of Section 1 of this Article V (unless ordered by a court) shall be
made by the 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 said subsections (a) and (b). Such determination shall be
made (1) by the board of directors by a majority vote of a quorum consisting of
directors who were 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.
SECTION 3. PAYMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in this Article V.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
SECTION 4. NOT EXCLUSIVE. The indemnification and advancement of
expenses provided by, or granted pursuant to, the provisions of this Article V
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the certificate
of incorporation, or any 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 such office.
SECTION 5. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
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SECTION 6. DEFINITIONS.
(a) For purposes of this Article V, references to "the
corporation" shall include, in addition to the corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article V with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
(b) For purposes of this Article V, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article V.
SECTION 7. CONTRACTUAL NATURE. This Article V shall be deemed to be a
contract between the corporation and each director and officer who serves as
such at any time while this Article V is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought based in whole or in part
upon such state of facts. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article V shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
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ARTICLE VI
----------
CERTIFICATES OF STOCK
---------------------
SECTION 1. FORM. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by,
the chairman of the board of directors or the president or a vice-president, and
the secretary or an assistant secretary, or the treasurer or an assistant
treasurer of the corporation, certifying the number of shares owned by such
holder of the corporation. If such a certificate is countersigned (1) by a
transfer agent or an assistant transfer agent other than the corporation or one
of its employees or (2) by a registrar, other than the corporation or one of its
employees, the signature of any such chairman of the board of directors,
president, vice-president, secretary, assistant secretary, treasurer or
assistant treasurer may be facsimiles. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificate, shall cease to be such officer or officers of the
corporation whether because of death, resignation, or otherwise before such
certificate or certificates have been delivered by the corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be
such officer or officers of the corporation. The board of directors may appoint
a bank or trust company organized under the laws of the United States or any
state thereof to act as its transfer agent or registrar, or both in connection
with the transfer of any class or series of securities of the corporation.
SECTION 2. LOST CERTIFICATES. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or as a condition precedent to the
issuance thereof, the board of directors may require the owner of such lost,
stolen, or destroyed certificate or certificates, or the owner's representative,
to give the corporation a bond sufficient to indemnify the corporation against
any claim that may be made against the corporation on account of the loss,
theft, or destruction of any such certificate or the issuance of such new
certificate.
SECTION 3. FIXING A RECORD DATE FOR PURPOSES OTHER THAN FOR STOCKHOLDER
MEETINGS. In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment or any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion, or exchange of stock, or for the purposes of any other
lawful action, the board of directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record
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date shall be not more than 60 days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose shall
be at the close of business on the day on which the board of directors adopts
the resolution relating thereto.
ARTICLE VII
-----------
GENERAL PROVISIONS
------------------
SECTION 1. FISCAL YEAR. The fiscal year of the corporation shall end on
December 31 unless otherwise fixed by resolution of the board of directors.
SECTION 2. CORPORATE SEAL. The board of directors shall provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the corporation and the words "Corporate Seal, Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Voting
securities in any other corporation held by the corporation shall be voted by
the chairman of the board or the president, unless the board of directors
specifically confers authority to vote with respect thereto, which authority may
be general or confined to specific instances, upon some other person or officer.
Any person authorized to vote securities shall have the power to appoint
proxies, with general power of substitution.
SECTION 4. INSPECTION OF BOOKS AND RECORDS. Any stockholder of record,
in person or by attorney or other agent, shall, upon written demand under oath
stating the purpose thereof, have the right during the usual hours for business
to inspect for any proper purpose the corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean any purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing that
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the corporation at its principal
place of business.
SECTION 5. SECTION HEADINGS. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
SECTION 6. INCONSISTENT PROVISIONS. In the event that any provision of
these by-laws is or becomes inconsistent with any provision of the certificate
of incorporation, the General Corporation Law of the state of Delaware, or any
other applicable law, the provision of these by-
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laws shall not be given any effect to the extent of such inconsistency but shall
otherwise be given full force and effect.
ARTICLE VIII
------------
AMENDMENTS
----------
These by-laws may be amended, altered or repealed and new by-laws
adopted at any meeting of the board of directors by a majority vote. The fact
that the power to adopt, amend, alter or repeal the by-laws has been conferred
upon the board of directors shall not divest the stockholders of the same
powers.
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