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SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
<TABLE>
<S> <C>
/X/ Preliminary Proxy Statement / / Confidential, for Use of the Commission
Only (as permitted by Rule 14a-6(e)(2))
/ / Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
</TABLE>
THERAPEUTIC ANTIBODIES INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/X/ $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(i)(2) or
Item 22(a)(2) of Schedule 14A.
/ / $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
/ / Fee paid previously with preliminary materials.
/ / Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE> 2
THERAPEUTIC ANTIBODIES INC
1500 21ST AVENUE SOUTH
SUITE 310
NASHVILLE, TN 37212
June __, 1996
TO THE SHAREHOLDERS OF THERAPEUTIC ANTIBODIES INC.:
On behalf of the Board of Directors and management, I invite you
to attend a Special Meeting of Shareholders of Therapeutic Antibodies Inc. to
be held on June 28, 1996 at 9:00 a.m., Central Time, at the University Club of
Nashville, located at 2402 Garland Avenue, Nashville, Tennessee 37212.
The notice of meeting and proxy statement accompanying this letter
describe the specific business to be acted upon.
We do not anticipate that any other business will be acted upon or
reported upon at the meeting.
IT IS IMPORTANT THAT YOUR SHARES BE REPRESENTED AT THE MEETING.
WHETHER OR NOT YOU PLAN TO ATTEND IN PERSON, YOU ARE REQUESTED TO MARK, SIGN,
DATE AND PROMPTLY RETURN THE ENCLOSED PROXY CARD IN THE ENVELOPE PROVIDED.
Sincerely yours,
Martin S. Brown
Chairman of the Board
and Chief Executive Officer
IMPORTANT
COMPLETE, DATE AND SIGN THE ENCLOSED PROXY CARD
AND RETURN IT PROMPTLY.
<PAGE> 3
THERAPEUTIC ANTIBODIES INC
1500 21ST AVENUE SOUTH
SUITE 310
NASHVILLE, TN 37212
NOTICE OF SPECIAL SHAREHOLDERS' MEETING
JUNE 28, 1996
Notice is hereby given that a Special Meeting of Shareholders of
Therapeutic Antibodies Inc. (the "Company") will be held on June __, 1996, at
9:00 a.m., Central Time, at the University Club of Nashville, located at 2402
Garland Avenue, Nashville, Tennessee 37212, for the following purposes:
1. To approve certain amendments to, and the
restatement of, the Company's Certificate of Incorporation and
Bylaws;
2. To approve an amendment to the Company's 1990 Stock
Incentive Plan to increase the number of shares of Common Stock
authorized and reserved for issuance thereunder from 1,200,000
shares to 1,650,000 shares; and
3. To transact such other business as may properly
come before the meeting or any adjournment thereof.
Shareholders of record at the close of business on June 4, 1996
are entitled to notice of and to vote at the Special Meeting of Shareholders.
Dated: June __, 1996 By order of the Board of Directors
Harry G. Browne, M.D.
Secretary
IMPORTANT
WHETHER YOU EXPECT TO ATTEND THE MEETING OR NOT, PLEASE SIGN, DATE
AND RETURN THE ENCLOSED PROXY CARD AS PROMPTLY AS POSSIBLE IN THE ENVELOPE
PROVIDED, WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES.
<PAGE> 4
THERAPEUTIC ANTIBODIES INC
PROXY STATEMENT
INFORMATION CONCERNING THE SOLICITATION
This statement is furnished in connection with the solicitation of
proxies to be used at the Special Meeting of Shareholders (the "Special
Meeting") of Therapeutic Antibodies Inc. ("TAb" or the "Company") to be held on
June 28, 1996 at 9:00 a.m., Central Time, at the University Club of Nashville,
located at 2402 Garland Avenue, Nashville, Tennessee 37212, and at any
adjournment or adjournments thereof.
At the Special Meeting, the shareholders will vote on the certain
amendments to, and the restatement of, the Company's Certificate of
Incorporation and Bylaws, and an amendment to the Company's 1990 Stock
Incentive Plan to increase the number of shares authorized and reserved for
issuance thereunder from 1,200,000 shares to 1,650,000 shares. Approval of
each matter will require the affirmative vote of a majority of the votes cast
with respect thereto by the shares entitled to vote at a meeting at which a
quorum is present.
Shareholders are urged to sign the enclosed form of proxy and
return it promptly in the envelope enclosed for that purpose. Proxies will be
voted in accordance with the shareholders' directions. If no directions are
given, proxies will be voted for approval of the matters described herein.
Under the Company's Certificate of Incorporation, as amended, and Bylaws and
under Delaware law, abstentions and broker non-votes will not have the effect
of votes in opposition to the proposals. The Board of Directors knows of no
other business to be presented at the Special Meeting. If any other business
is properly presented, the persons named in the enclosed proxy have authority
to vote in accordance with the recommendations of the Board of Directors. A
proxy may be revoked at any time prior to the voting thereof by written request
to the Company at 1500 21st Avenue South, Suite 310, Nashville, TN 37212,
Attention: Harry G. Browne, M.D., Secretary. A proxy may also be revoked by
submission to the Company of a more recently dated proxy. The giving of a
proxy will not affect the right of the shareholders to attend the Special
Meeting and vote in person. A shareholder may revoke a proxy by attending the
Special Meeting and voting in person.
The solicitation of proxies in the enclosed form is made on behalf
of the Board of Directors of the Company. The entire cost of soliciting these
proxies will be borne by the Company. In addition to being solicited through
the mails, proxies may be solicited personally or by courier service, telephone
or telegraph by officers, directors and employees of the Company, who will
receive no additional compensation for such activities. Arrangements will also
be made with brokerage houses and other custodians, nominees and fiduciaries to
forward solicitation materials to the beneficial owners of shares held of
record by such persons, who will be reimbursed for their reasonable expenses
incurred in such connection. It is expected that this Proxy Statement will
first be sent to shareholders on June 18, 1996.
OUTSTANDING VOTING SECURITIES
Only shareholders of record on June 4, 1996, were entitled to
notice of and to vote at the Special Meeting. On that date there were
17,142,086 shares of Common Stock outstanding. Each share has one vote.
<PAGE> 5
AMENDMENT AND RESTATEMENT
OF CERTIFICATE OF INCORPORATION AND BYLAWS
BACKGROUND
The proposal to amend and restate the Company's Certificate of
Incorporation and Bylaws is directly related to the Company's financing
activities. The Company is actively engaged in the preparation for a
prospective underwritten offering of shares of its Common Stock in the United
Kingdom (the "U.K.") through the London Stock Exchange (the "London Exchange").
Neither the number of shares to be offered nor the proposed offering price have
been determined. There is no assurance that the offering will proceed. If the
offering does proceed and is successfully completed, the proceeds of the
offering will be used to repay indebtedness, to further the Company's research
and development, and for general corporate purposes. The Board of Directors has
determined that an offering through the London Exchange would be in the best
interests of the Company's shareholders because the Directors believe that the
Company's base of revenues, development and production activities in the United
Kingdom, Europe and Australia increase the likelihood of the Company being
favorably valued by investors in the United Kingdom and being able to complete
successfully its fundraising efforts, although there can be no assurance in that
respect.
The Board of Directors has been advised by the Company's counsel
in the United Kingdom that the London Exchange listing rules (including,
particularly, requirements affecting foreign companies and scientific research
companies), as well as the expectations of investors through the London
Exchange, are such that certain changes to the Company's corporate governance
documents would either be necessary or desirable for the furtherance of the
London Exchange offering. The Board of Directors has determined that such
changes are advisable and in the best interests of the shareholders, to the
extent that such changes may be effected in compliance with Delaware law,
federal law, and the rules and regulations of the Securities and Exchange
Commission. Therefore, on June 4, 1996, the Board of Directors approved the
proposed amendments to and restatement of the Company's Certificate of
Incorporation and Bylaws, as further described below.
Unless both the amendment and restatement of the Certificate of
Incorporation and the amendment and restatement of the Bylaws are approved, the
Board of Directors believes it is highly unlikely that the Company will be able
to proceed with a public offering of its Common Stock in the United Kingdom on
the London Exchange, in which event the Company would be required to pursue
other financing alternatives, either in the United States or abroad, as to which
it has no current plans or commitments. Therefore, the proposals are being
submitted to the shareholders as a single item for their consideration, as
neither governance instrument would be proposed to be amended as recommended by
the Board of Directors, except in connection with the prospective London
Exchange financing. Further, neither the Certificate of Incorporation nor the
Bylaws will be amended in accordance with the proposals set forth herein, except
in connection with the closing of an underwritten offering of Common Stock on
the London Exchange within the twelve months following the date of the Special
Meeting.
AMENDMENT AND RESTATEMENT OF CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of the Company currently
authorizes the issuance of 30,500,000 shares of capital stock, divided into two
classes as follows: (i) 30,000,000 shares of Common Stock, par value $.001 per
share, and (ii) 500,000 shares of Preferred Stock, par value $10 per share. On
June 4, 1996, the Board of Directors of the Company approved an
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amendment to the Company's Certificate of Incorporation to eliminate the
authorization for Preferred Stock and to modify the manner in which certain
amendments to the Certificate of Incorporation and Bylaws of the Company may be
approved.
The Company's Certificate of Incorporation currently provides for
the issuance of up to 500,000 shares of Preferred Stock, in such series and with
such rights and preferences as the Board of Directors may designate. To date,
the Board of Directors has not designated any series of Preferred Stock and,
consequently, no shares of Preferred Stock have been issued. In connection with
the proposed London Exchange offering, the Company's U.K. counsel has advised
the Company that the existence of the authorized Preferred Stock, which could be
designated and issued upon approval by the Board of Directors, might have an
adverse effect on the marketability of the Company's Common Stock to U.K.
investors. Accordingly, the Board of Directors has proposed that the
Certificate of Incorporation be amended to eliminate the authorized Preferred
Stock. If the proposal is adopted, the Company's authorized capital stock
will consist only of the 30,000,000 shares of Common Stock currently authorized.
If the Preferred Stock is eliminated, the Board of Directors would
have less flexibility to structure financial transactions and would not be able
to issue Preferred Stock as a defense mechanism in the event of an unsolicited
attempt to acquire control of the Company without approval of the Board of
Directors. The Directors believe, however, that eliminating the Preferred Stock
is in the best interests of the shareholders.
The proposed amendment would also increase the par value of the
Common Stock from $.001 to $.01 per share. The Company's U.K. counsel has
advised that United Kingdom investors are more accustomed to stock issuances
having par values of $.01 per share or higher. The change in par value would
result in an adjustment to the presentation of paid-in capital on the Company's
balance sheet, but should have no discernable effect on the existing holders of
the Company's Common Stock.
The Company's Certificate of Incorporation currently provides that
the Board of Directors may amend, modify or repeal the Bylaws of the Company,
provided that the shareholders may modify or amend any amendment adopted by the
Board of Directors. The Delaware General Corporation Law provides that, unless
otherwise provided in the Bylaws or the Certificate of Incorporation of a
company, the Certificate of Incorporation may only be amended by the vote of
majority of the holders of capital stock, present in person or by proxy, at any
annual or special meeting of the stockholders. London Exchange rules require
that the rights attached to any class of shares in a company that has more than
one class of equity may only be varied if holders of 75% of the issued shares of
that class present in person or by proxy and entitled to vote at a meeting
consent in writing to the variation. The proposed amendment to the Certificate
of Incorporation provides that the Bylaws and the Amended and Restated
Certificate of Incorporation of the Company may only be amended by the vote of
the holders of a majority of the capital stock of the Company; provided, that
the affirmative vote of holders of seventy-five percent (75%) of any class of
capital stock present in person or by proxy and entitled to vote at a meeting
will be required to approve any amendment to the Certificate of Incorporation or
Bylaws that has the effect of modifying, varying, or abrogating the special
rights, privileges or preferences of such class. This proposal would have the
effect of making it more difficult in the future to amend the Company's Bylaws
or Certificate of Incorporation.
AMENDMENT AND RESTATEMENT OF BYLAWS
The Board of Directors has proposed a number of revisions to the
Bylaws of the Company designed to bring the Bylaws into compliance with specific
listing requirements of the London Stock Exchange or, in certain circumstances,
to incorporate United Kingdom corporate governance practices of U.K. companies
listed on the London Exchange. The proposed revisions are, in their order of
appearance in the Bylaws, as follows:
a. Article II Section 2. The Bylaws will expressly provide that the
shareholders shall approve the appointment of an accounting firm to
prepare the Company's audited financial statements. Historically,
the Board of Directors has selected the Company's accountants,
although in many United States corporations, the Board recommends
an accounting firm to the shareholders for approval at the annual
meeting. Because shareholder approval of the accountants is
customary United Kingdom practice, the Bylaws will be amended to
comply with U.K. practice.
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b. Article II Section 8. The quorum at all meetings of the
shareholders (including meetings of the holders of any class of
stock) will be reduced from a majority to one third, to comply with
London Exchange listing requirements. This change will make it
possible for the Company to conduct business at meetings of the
shareholders with fewer shareholders present or represented.
c. Article II Section 11. The amendments incorporate a new bylaw
addressing stockholder voting by proxy, which primarily recites
standard Delaware practice with respect to voting by proxy. One
proposed change from the Company's previous Bylaws is the reduction
of the period of effectiveness of an executed proxy from three
years to one (unless another period is specified in the proxy
form). The Board of Directors does not expect that this change
will have a significant effect on the Company's shareholders
because proxies are seldom effective for an extended period.
d. Article III Section 1. The Board of Directors previously amended
the Company's original Bylaws to increase the range of the maximum
size of the Board of Directors from 9 members to 15. This
amendment is incorporated into the Amended and Restated Bylaws.
e. Article III Section 1. All directors of the Company have
traditionally stood for re-election at each annual meeting of
shareholders. A bylaw provision has been proposed to expressly
provide for the annual election of the entire Board of Directors by
vote of the shareholders for or against each person who is
nominated for election to the Board. This differs slightly from the
Company's traditional practice of allowing shareholders to vote for
the nominees as a slate, with the opportunity to withhold votes for
any particular nominees. The Board of Directors does not believe
that this change will have any significant effect on the
shareholders.
f. Article III Section 4. The Bylaws currently provide that the place
of the first meeting of each newly elected Board of Directors shall
be determined by the stockholders at the annual meeting. Under the
proposed revisions, the Board of Directors would determine the
location of each regular meeting of the Board of Directors and the
location of any special meeting of the Directors would be
determined by the chairman, the president or a majority of the
Directors then in office.
g. Article III Section 14. A new section would be added to clarify
the circumstances in which a Director would be permitted to vote on
whether the Company may enter into a contract, transaction or
arrangement in which such Director has a material interest. This
change is required to comply with London Exchange listing rules.
These new provisions are consistent with Delaware law in all
material respects and should not have any material effect on the
ability of the Board of Directors to transact the business and
affairs of the Company.
h. Article IV Section 1. If the United Kingdom offering is completed,
a number of the Company's stockholders will reside outside of the
United States. To address the situation in which notices are
required to be sent to persons in another jurisdiction, the Board
of Directors proposes to amend the notice section of the Bylaws to
require that notices sent pursuant to the requirements of
applicable statutes, the Certificate of Incorporation or the
Bylaws, if sent to persons outside of the country or territory from
which the notice is sent, be sent by airmail, or if airmail to such
destination shall not be available, by the most rapid mail service
reasonably available. Such notice, if to a person outside of the
country or territory from which the notice is sent, shall be deemed
to be given at the time it is personally delivered or, if sent by
airmail, two days following the date on which such notice was
deposited in the mail. The Board of Directors does not believe
that this change will have any significant effect on the
shareholders.
i. Article V Section 1. The Company's Bylaws currently provide that
the President "shall be the chief executive officer of the
Company." In 1994, however, the Board of Directors appointed A.J.
Kazimi as the President and Martin S. Brown continued as the Chief
Executive Officer of the Company. The
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Board of Directors, therefore, recommends an amendment to the
Bylaws to provide for the appointment of a separate office of Chief
Executive Officer. The Board of Directors, by resolution, has
expressly ratified all actions of Mr. Brown and Mr. Kazimi, in
their capacities as Chief Executive Officer and President,
respectively, taken since their appointments to these positions in
1994. The Board of Directors does not believe that this change
will have any significant effect on the shareholders.
j. Article VI Section 1. A number of United Kingdom corporations with
shares listed on the London Exchange have elected to have their
shares traded in uncertificated form. Although the Board of
Directors has not made a determination whether the Company would
ever wish to provide for the trading of its shares on an
uncertificated basis, the Directors note that the issuance of
uncertificated shares is permitted under Delaware law, and
recommend the inclusion of a Bylaw provision allowing for the
issuance of stock in uncertificated form. The Board of Directors
does not believe that this change will have any significant effect
on the shareholders.
k. Article VI Section 1. The Company's U.K. advisors have requested
the inclusion in the Bylaws of a provision stating that the Company
may not issue stock certificates or warrants to bearer or in bearer
form. Although Delaware law does not specifically provide for the
issuance of instruments evidencing shares in bearer form, the
practice is permitted in the U.K. and, where a corporation's
articles of association so permit, London Stock Exchange listing
requirements require the inclusion of certain additional provisions
in the corporation's articles. The proposed Bylaw provision is
intended to eliminate any uncertainty as to whether the issuance of
bearer certificates or warrants by TAb are permitted. The Board of
Directors does not believe that this change will have any
significant effect on the shareholders.
l. Article VI Section 5. The Bylaws of a corporation whose shares are
to be listed on the London Exchange must provide that such
shares, if fully paid, shall be, with certain exceptions, free from
any restrictions on the right of transfer. The amendments include
a new bylaw so stating and noting specific circumstances in which
transfer may be restricted. The Board of Directors does not
believe that this change will have any significant effect on the
shareholders.
m. Article VI Section 7. In U.K. practice, corporations are not
obligated to register shares in the names of more than four persons
in a joint account, although London Exchange listing
requirements provide that a corporation must not prevent the
registration of shares in the names of up to four persons. While
there is no such limitation or requirement under United States or
Delaware law, the Board recommends inclusion of the four-person
limitation. None of the Company's shares are currently registered
in the names of more than four persons. This would not prohibit
the registration of shares in the name of a partnership or other
entity consisting of more than four persons, but where shares were
to be registered in the name of a joint account, the account could
not include more than four persons. The proposed new bylaw
concerning restrictions on transfers of shares is consistent with
this limitation in that it provides that the transfer of shares may
be restricted where the instrument of transfer designates more than
four persons as transferee. The Board of Directors does not
believe that this change will have any significant effect on the
shareholders.
n. Article VI Sections 8-12. To comply with U.K. practice, the
amendments include a new section dealing with untraceable
stockholders and unclaimed dividends. If dividends, options or
warrants sent to a stockholder have been uncashed or unexercised
(if exercisable) for a period of twelve years during which time the
Company has received no communication from such stockholder, has
declared at least three dividends in respect of such stockholders'
shares, and has made certain other reasonable efforts to locate
such stockholder, then the Company may sell the shares of the
stockholder at the best price reasonably obtainable. The proceeds
of any such sale shall be deposited in a separate account and shall
be a permanent debt of the Company to the stockholder. Proceeds so
deposited may be used in the business of the Company or invested as
the Directors deem appropriate. In the event two consecutive
dividends to a stockholder have been uncashed, unclaimed or
returned undelivered, the Company may withhold future dividends to
such
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stockholder. Such dividends and any future dividends shall be
deposited in a separate account and shall constitute a debt of the
Company to the stockholder. Any dividend remaining unclaimed after
a period of twelve years from the payment date of such dividend
shall be forfeited and shall revert to the Company. The
application of this provision shall be subject, in all respects, to
the requirements of pertinent law. The Board of Directors does not
believe that this change will have any significant effect on the
shareholders.
m. Article VII. United Kingdom corporations subject to the Companies
Act of 1985 (the "Companies Act") may avail themselves of the
provisions of Section 212 of the Companies Act, which provides that
where a corporation knows or has reason to know that a person is,
or during the immediately preceding three years was, "interested"
(as defined in the Companies Act) in shares of the corporation, the
corporation may give notice to such person requiring him/her to
provide confirmation of such interest or certain additional
information, in either case as specified in Section 212 of the
Companies Act. Where a stockholder receiving such notice fails to
comply with the requirements of the notice, the corporation may
declare the shares of such stockholder to be in "default" and may
impose certain restrictions on the ability of the stockholder to
vote, receive dividends on or transfer the shares which are the
subject of the notice until such time as the requirements of the
notice are complied with. As a Delaware corporation, the Company
is not subject to the provisions of the Companies Act, but in an
effort to avail itself of the remedies typically available to U.K.
corporations listed on the London Exchange, the Company has
included in Article VII a statement that Section 212 shall apply to
the Company as if it were subject to the Companies Act. The
ability of the Company to avail itself of any right or remedy set
forth in the Companies Act, however, is subject in all respects to
the enforceability of such remedies under U.S. and Delaware law.
o. Article IX Sections 1-2. Consistent with the proposed amendments
to the Certificate of Incorporation removing the right of the
Directors to amend the Bylaws of the Company, the proposed
amendments to the Bylaws provide that the Bylaws may only be
amended by the affirmative vote of the holders of majority of the
shares of capital stock of the Corporation, present in person or
represented by proxy and entitled to vote at any regular meeting of
the stockholders or special meeting called for that purpose. In
addition, the new Section 1 of Article IX provides that any
amendment to the Certificate of Incorporation or Bylaws that has
the effect of modifying or varying the special rights, privileges
or preferences of any class of capital stock would require the
affirmative vote of the holders of seventy-five percent (75%) of
such class present in person or by proxy and entitled to vote at
the meeting. The amendments add, as a clarification of this
provision, that any modification to the Certificate of
Incorporation to increase or decrease the number of authorized
shares of any class of capital stock shall not be deemed to be a
modification or variance of the special rights, privileges or
preferences of such class. These changes are made in order to
comply with the London Exchange listing requirements.
AMENDMENT TO 1990 STOCK INCENTIVE PLAN
APPROVAL OF AMENDMENT TO THE COMPANY'S 1990 STOCK INCENTIVE PLAN
On April 9, 1991, the Company's shareholders adopted and approved
the 1990 Stock Incentive Plan (the "1990 Plan") and 800,000 shares of Common
Stock were reserved for issuance thereunder to employees of the Company and its
subsidiaries. Subsequently on April 22, 1993, an additional 400,000 shares of
Common Stock were approved by the shareholders for reservation and issuance
thereunder. As of April 20, 1996, only 37,324 shares remained available for
future option grants under this plan and the Board of Directors had approved the
issuance of an additional 446,000 options, subject to shareholder approval.
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On June 4, 1996, the Board of Directors approved an amendment to
the 1990 Plan to increase the number of shares available under the plan from
1,200,000 shares to 1,650,000 shares. The affirmative vote of a majority of the
shares present, in person or by proxy, and entitled to vote at the Special
Meeting is required to approve this amendment to the 1990 Plan. Additional
shares are needed for use in the 1990 Plan so that stock option grants can
continue to be made to attract and retain key employees of the Company and its
subsidiaries. This amendment to the 1990 Plan will not take effect unless it is
approved by a majority of the votes cast at the Special Meeting. If this
amendment to the 1990 Plan is not approved by the stockholders, no grants of
options will be made under the 1990 Plan once the presently available number of
options are granted. The Board of Directors believes that the amendment to the
1990 Plan is in the best interests of the Company and its stockholders and
recommends a vote "FOR" the proposal.
The shares of the Company's Common Stock are not currently traded
on any Exchange. The last sale of Common Stock by the Company was in February
at a price per share of $5.50. The proceeds received by the Company from the
sale of Common Stock pursuant to the 1990 Plan will be used for the general
corporate purposes of the Company.
SUMMARY OF THE 1990 PLAN
If the amendment adding 450,000 shares is approved, a total of
1,650,000 shares of Common Stock will be reserved for issuance to employees and
officers of the Company and its subsidiaries under the 1990 Plan. Options
granted pursuant to the 1990 Plan may, at the discretion of the Compensation
Committee be incentive stock options.
The Compensation Committee was appointed by and serves at the
pleasure of the Board of Directors and, subject to the 1990 Plan, has full
authority to determine the provisions of options to be granted under the 1990
Plan, to interpret the terms of the 1990 Plan and of options granted under the
1990 Plan, to adopt, amend and rescind rules and guidelines for the
administration of the 1990 Plan and for its own acts and proceedings and to
decide all questions and settle all controversies and disputes which may arise
in connection with the 1990 Plan.
Among other matters, the Compensation Committee is authorized to
determine conclusively, consistent with the 1990 Plan, who will receive
options, the number and exercise price of the options, the time when the
options become exercisable, and whether such options will be incentive stock
options. Members of the Compensation Committee are eligible to be granted
options under the 1990 Plan.
The shares of Common Stock subject to the 1990 Plan may be
adjusted to give effect to stock dividends, stock splits and the like. The
Common Stock delivered to option holders upon the exercise of options may, in
the discretion of the Board of Directors, be either authorized but unissued
shares or shares held by the Company in treasury.
The Compensation Committee may, at its discretion, select any
eligible person to participate in the 1990 Plan. An eligible person to
participate in the 1990 Plan is any officer, director, advisor or employee of
the Company or any of its subsidiaries. As of May 31, 1996, there were
approximately 135 officers, directors and employees eligible to participate in
the 1990 Plan. The number of options which may be granted to any eligible person
is also within the discretion of the Compensation Committee, subject to certain
conditions concerning incentive stock options.
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Options granted under the 1990 Plan are exercisable at such time
or times as the Compensation Committee shall determine. However, no incentive
stock option may be exercisable after ten years from the date of its grant
(five years in the case of a 10% or more stockholder).
Under the 1990 Plan, options are transferable only by will or the
laws of descent and distribution, and may be exercised by a person other than
the option holder only in the circumstances outlined below.
Under the 1990 Plan, all previously unexercised options terminate
and are forfeited automatically three months following termination of the option
holder's service as an officer, director or employee of the Company, unless the
Compensation Committee or the Board of Directors specifies otherwise. However,
if an option holder becomes disabled or dies at a time when he or she is
entitled to exercise an option, then the portion formerly exercisable by the
option holder may be exercised by the option holder or the option holder's
executor or administrator, or by the person to whom the option is transferred
under the applicable laws of descent or distribution, within twelve months of
the death of the option holder or date of termination because of disability,
subject, in the case of incentive stock options, to the limitations stated above
on their exercise. Shares which are not delivered because of termination of
options may be reused for other options.
The exercise price of stock options granted under the 1990 Plan is
determined by the Compensation Committee on the date of grant, subject to
limitations contained in the 1990 Plan, including the limitation that the
exercise price may not be less than par value. However, there are certain
pricing restrictions for incentive stock options as set forth below.
Payment for shares to be granted upon exercise of options must be
made in full in cash or by bank draft, check or money order before the shares
are delivered. Part or all of the purchase price may also be paid in shares of
Common Stock. A person electing to exercise an option must give written notice
to the Company of the election, accompanied by any documents required by the
Compensation Committee and the purchase price. The Compensation Committee may
require the person to fulfill any conditions it stipulates that are not
inconsistent with the terms of the 1990 Plan. When options other than incentive
stock options are exercised or any options are exercised by an individual
subject to taxation in a foreign jurisdiction, the Company may require the
option holder to remit to the Company applicable taxes prior to the delivery of
any shares of Common Stock. If at the time an incentive stock option is
exercised, the Compensation Committee determines that the Company could be
liable for withholding applicable taxes upon a disposition of the underlying
Common Stock, the Compensation Committee may require as a condition of exercise
that the option holder agree to notify the Company of any disposition of the
underlying Common Stock and provide the Company with such security as the
Compensation Committee deems adequate to meet the potential liability of the
Company for withholding of taxes.
The Compensation Committee may at any time discontinue granting
options under the 1990 Plan. The Board of Directors may amend the 1990 Plan
except that no such amendment may adversely affect the rights of any option
holder without his or her consent and except that no such amendment will,
without the approval of the stockholders of the Company, increase the number of
shares available under the 1990 Plan, change the group of employees eligible to
receive options, reduce the exercise price of outstanding incentive stock
options, reduce the price at which future incentive stock options may be
granted, extendothe time within which options may be granted, alter the 1990
Plan so that options intended to qualify as incentive stock options under the
Code would not do so, or change the amendment provisions of the 1990 Plan.
No grant of incentive stock options can be made under the 1990
Plan after September 30, 2000, but options granted before that day may be
exercised after it.
8
<PAGE> 12
In the event of a stock dividend, stock split or other change in
corporate structure or capitalization affecting the Common Stock, the number
and kind of shares of stock or securities of the Company to be subject to the
1990 Plan and the options then outstanding or to be granted thereunder, and the
option price, will be appropriately adjusted by the Compensation Committee,
whose determination will be binding on all persons. In the event of a
consolidation or merger in which the Company is not the surviving corporation,
all outstanding options will thereupon terminate, provided that the Company
will arrange to have the surviving corporation grant replacement options to the
option holders.
The exercise price of incentive stock options may not be less than
100% of the fair market value of the Common Stock at the time the option is
granted, except as stated otherwise below. The aggregate fair market value,
determined at the time the option is granted, of the stock for which any person
may be granted incentive stock options which become exercisable for the first
time by such person in any calendar year cannot exceed the sum of $100,000
(determined at the time such option is granted). No incentive stock option will
be granted to a person who is not an "employee" as defined in the applicable
provisions of the Code and regulations issued thereunder. No incentive stock
option will be granted to any person who at the time of the grant owns,
directly or indirectly through application of the attribution rules of the
Code, stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company or of its subsidiaries unless the option price
at the time of the grant is at least 110% of the fair market value of the stock
subject to the option and the period of the option does not exceed five years
from the date of grant.
The 1990 Plan authorizes the Compensation Committee to grant stock
appreciation rights ("SARs") either in tandem with a stock option or
independent of a stock option. An SAR is a right to receive a payment equal to
the appreciation in market value of a stated number of shares of Common Stock
from the exercise price to the market value on the date of its exercise.
A tandem SAR may be granted either at the time of the grant of the
related stock option or at any time thereafter during the term of the stock
option. Upon the exercise of a stock option as to some or all of the shares
covered by the award, the related tandem SAR will be cancelled automatically to
the extent of the number of shares acquired through the stock option exercise.
The Company has no SARs outstanding.
FEDERAL INCOME TAX CONSEQUENCES
In general, neither the grant nor the exercise of an incentive
stock option granted under the 1990 Plan will result in taxable income to the
option holder or a deduction to the Company. If the option holder does not
dispose of stock received upon exercise of an incentive stock option within two
years from the date the option is granted or within one year after the date of
exercise, any later sale of such stock will result in a long-term capital gain
or loss.
If shares received upon exercising an incentive stock option are
disposed of before the holding period requirements described above have been
satisfied, the option holder will generally realize ordinary income at the time
of disposition of the stock. The amount of such ordinary income will generally
be equal to the difference between the fair market value of the stock on the
date of exercise and the option price. In the case of a disqualifying
disposition which is a sale with respect to which loss (if sustained) would be
recognized, then the amount of ordinary income will not exceed the excess of
the amount realized on such sale over the adjusted basis of the stock, that is,
in general, the price paid for the stock. The Company will generally be
entitled to a deduction for Federal income tax purposes equal to the amount of
ordinary income realized by the option holder, subject to any necessary
withholding and reporting requirements.
Certain option holders exercising incentive stock options may
become subject to the alternative minimum tax, under which the difference
between (i) the fair market value of stock purchased under incentive stock
options, determined on the date of exercise, and (ii) the exercise price will
be an item of tax preference in the year of exercise for purposes of the
alternative minimum tax.
9
<PAGE> 13
Options granted under the 1990 Plan which are not incentive stock
options are "nonstatutory options". No income results upon the grant of a
nonstatutory option. When an option holder exercises a nonstatutory option he
or she will realize ordinary income subject to withholding. Generally such
income will be realized at the time of exercise and in an amount equal to the
excess, measured at the time of exercise, of the then fair market value of the
Common Stock over the option price. The Company will generally be entitled to a
deduction for Federal income tax purposes equal to the amount of ordinary
income realized by the option holder, subject to certain withholding and
reporting requirements.
The foregoing summary is not a complete description of Federal
income tax aspects of the 1990 Plan. Moreover, the foregoing summary relates
only to Federal income taxes; there may also be Federal estate and gift tax
consequences associated with the 1990 Plan, as well as foreign, state and local
tax consequences.
10
<PAGE> 14
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the number of shares held
beneficially, directly or indirectly, as of May 31, 1996, by (i) all beneficial
owners of more than 5% of the Company's Common Stock, (ii) all Directors, (iii)
the Company's Chief Executive Officer and President (these two executive
officers being hereinafter referred to as the "Named Executive Officers") and
(iv) all Directors and executive officers as a group, together with the
percentage of the outstanding shares which such ownership represents.
<TABLE>
<CAPTION>
NAME AND ADDRESS AMOUNT AND NATURE
OF BENEFICIAL OWNER OF BENEFICIAL OWNERSHIP (3) PERCENT OF CLASS (4)
- ------------------- --------------------------- --------------------
<S> <C> <C>
Martin S. Brown (1) (2) 2,844,148 (5) 15.68%
Harry G. Browne, M.D. (1) 570,789 (6) 3.28
A. J. Kazimi (1) (2) 475,000 (7) 2.70
John Landon, M.D. (1) 1,062,325 (8) 6.16
Tim Chard, M.D. (1) 1,040,790 (9) 6.05
Steven L. Stroup, M.D. 391,700 (10) 2.28
Columbia Centennial Medical Center
2300 Patterson
Nashville, TN 37203
Joseph D. Williams 227,005 (11) 1.31
182 Tabor Rd.
Morris Plains, NJ 07950
Robert C. Hilton 119,924 (12) *
2100 West End Ave.
Nashville, TN 37203
Thomas G. Andrews 75,995 (13) *
2207 Crestmoor
Nashville, TN 37215
All Directors and Executive Officers as 6,882,219 (14) 39.03
a group (14 persons)
Schroder International 1,112,686 6.49
Trust Co., Ltd.
22 Church Street
Hamilton HM 11
Bermuda
</TABLE>
11
<PAGE> 15
- ------------------------
* Indicates less than 1% ownership
(1) The address for Messrs. Brown, Browne, Kazimi, Landon and Chard is c/o
the Company, 1500 21st Avenue, South, Suite 310, Nashville, Tennessee
37212.
(2) Named Executive Officers.
(3) Beneficial ownership is deemed to include shares of the Company's Common
Stock which an individual has a right to acquire within 60 days of the
date of this Proxy Statement upon the exercise of options. The table
includes options granted under the Company's 1990 Stock Incentive Plan.
These shares are deemed to be outstanding for the purposes of computing
the percentage ownership of that individual but are not deemed
outstanding for the purposes of computing the percentage of any other
person. Unless otherwise noted in the following footnotes, the persons
as to whom information is given had sole voting and investment power
over the shares of Common Stock shown as beneficially owned.
(4) Computation based upon 17,142,086 shares outstanding on May 31, 1996.
(5) Includes 179,804 shares of Common Stock owned by Mr. Brown's spouse,
863,333 shares of Common Stock issuable upon the exercise of warrants
outstanding, 110,000 shares of Common Stock issuable upon the exercise
of options granted pursuant to the 1990 Stock Incentive Plan, 68,449 of
Common Stock held in an Individual Retirement Account, 242,373 shares of
Common Stock held by the Atticus Trust of which Mr. Brown is a trustee,
and 60,000 shares of Common Stock issuable upon the exercise of
outstanding warrants held by the Atticus Trust.
(6) Includes 62,500 shares of Common Stock issuable upon the exercise of
outstanding warrants, 197,500 shares of Common Stock issuable upon the
exercise of options granted pursuant to the 1990 Stock Incentive Plan,
190,039 shares registered in the name of the Browne Family Trust, 64,750
shares registered in the name of the Browne Children's Trust and 56,000
shares registered in the name of the Margaret G. Browne Trust.
(7) Includes 420,000 shares of Common Stock issuable upon the exercise of
outstanding warrants and 55,000 shares of Common Stock issuable upon the
exercise of options granted pursuant to the 1990 Stock Incentive Plan.
(8) Includes 1,142 shares of Common Stock owned by Dr. Landon's spouse and
85,000 shares of Common Stock issuable upon the exercise of options
granted pursuant to the 1990 Stock Incentive Plan.
(9) Includes 35,000 shares of Common Stock issuable upon the exercise of
options granted pursuant to the 1990 Stock Incentive Plan.
(10) Includes 20,000 shares of Common Stock issuable upon the exercise of
outstanding warrants and 7,500 shares of Common Stock issuable upon the
exercise of options granted pursuant to the 1990 Stock Incentive Plan.
(11) Includes 15,000 shares of Common Stock issuable upon the exercise of
outstanding warrants and 93,333 shares of Common Stock issuable upon the
exercise of options granted pursuant to the 1990 Stock Incentive Plan.
(12) Includes 25,000 shares of Common Stock issuable upon the exercise of
outstanding warrants and 11,500 shares of Common Stock issuable upon
the exercise of options granted pursuant to the 1990 Stock Incentive
Plan.
(13) Includes 35,925 shares of Common Stock owned by Mr. Andrews' spouse and
19,500 shares of Common Stock issuable upon the exercise of options
granted pursuant to the 1990 Stock Incentive Plan.
(14) Includes 1,405,833 shares of Common Stock issuable upon the exercise of
outstanding warrants and 644,333 shares of Common Stock issuable upon
the exercise of options granted pursuant to the 1990 Stock Incentive
Plan.
12
<PAGE> 16
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table summarizes the compensation paid to or
accrued by or on behalf of the Company's Named Executive Officers for services
rendered in all capacities to the Company for the years ended December 31, 1994
and 1995.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
LONG TERM COMPENSATION
----------------------
- ----------------------------------------------------------------------------------------------------------------------------
ANNUAL COMPENSATION (1) AWARDS PAYOUTS
----------------------- ------ -------
- ----------------------------------------------------------------------------------------------------------------------------
NAME AND OTHER RESTRICTED SECURITIES ALL
PRINCIPAL ANNUAL STOCK UNDERLYING LTIP OTHER
POSITION YEAR SALARY($) BONUS($) COMPENSATION($) AWARDS($) OPTIONS (#) PAYOUTS($) COMPENSATION($)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Martin S. 1995 $153,158 $0 $ 0 - - - -
Brown 1994 109,383 0 0 - 40,000 - -
Chairman
and Chief
Executive
Officer
- ----------------------------------------------------------------------------------------------------------------------------
A. J. 1995 $144,266 $0 $ 0 - - - -
Kazimi 1994 113,367 0 0 - 20,000 - -
President
and
Treasurer
============================================================================================================================
</TABLE>
(1) These executive officers did not receive any annual compensation not
properly categorized as salary, except for certain perquisites or other
benefits the aggregate incremental cost of which to the Company for each
officer did not exceed the lesser of $50,000 or 10% of the total of
annual salary and bonus reported for each such officer.
The Company has no long-term incentive plans, as that term is
defined in Securities and Exchange Commission regulations, and the Company has
no defined benefit or actuarial plans covering employees of the Company. The
Company granted no Stock Appreciation Rights ("SARs") in 1995.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUES
There were no stock options granted to either of the Named
Executive Officers in 1995 and neither of the Named Executive Officers
exercised any stock options in 1995. The following table provides certain
information, with respect to the Named Executive Officers, concerning the
unexercised options at December 31, 1995.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
NUMBER OF SECURITIES UNDERLYING VALUE OF UNEXERCISED
UNEXERCISED OPTIONS AT FISCAL IN-THE-MONEY OPTIONS AT
YEAR END (#) FISCAL YEAR END ($)
- ----------------------------------------------------------------------------------------------------------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Martin S. Brown 110,000 0 $307,500 $0
- ----------------------------------------------------------------------------------------------------------------------------
A.J. Kazimi 55,000 0 $153,750 $0
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
13
<PAGE> 17
EMPLOYMENT AGREEMENTS
The Company is not a party to any employment agreement with
either of the Named Executive Officers.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The members of the Compensation Committee of the Company's Board
of Directors are Joseph D. Williams, Robert C. Hilton and Steven L. Stroup,
M.D. There are no interlocking relationships among the members of the
Compensation Committee.
401(K) PLAN
In addition to the 1990 Plan described hereinabove, the Company
has established the Therapeutic Antibodies Inc. 401(k) Savings Plan (the
"401(k) Plan"), which is a qualified retirement plan under Sections 401(a) and
401(k) of the Internal Revenue Code of 1986, as amended. All U.S. employees of
the Company are eligible to participate in the 401(k) Plan after completion of
one year of employment. The 401(k) Plan permits eligible employees to
contribute from 1% to 15% of their earnings to the 401(k) Plan by payroll
deduction, subject to certain other statutory limits. The 401(k) Plan permits
the Company to make discretionary matching contributions or other employer
contributions to the 401(k) Plan each year. The Company currently does not
make matching contributions to the 401(k) Plan.
14
<PAGE> 18
OTHER MATTERS
The Board of Directors, at the time of the preparation of this
Proxy Statement, knows of no business to come before the meeting other than
that referred to herein. If any other business should come before the meeting,
the persons named in the enclosed Proxy will have discretionary authority to
vote all proxies in accordance with the recommendation of the Board of
Directors.
UPON THE WRITTEN REQUEST OF ANY RECORD HOLDER OR BENEFICIAL OWNER
OF COMMON STOCK ENTITLED TO VOTE AT THE SPECIAL MEETING, THE COMPANY, WITHOUT
CHARGE, WILL PROVIDE A COPY OF ITS ANNUAL REPORT ON FORM 10-K FOR THE YEAR
ENDED DECEMBER 31, 1995, TOGETHER WITH THE FINANCIAL STATEMENT SCHEDULES, AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. REQUESTS SHOULD BE DIRECTED
TO G. THOMAS CURTIS, VICE PRESIDENT - FINANCE, THERAPEUTIC ANTIBODIES INC.,
1500 21ST AVENUE, SOUTH, SUITE 310, NASHVILLE, TENNESSEE 37212.
BY ORDER OF THE BOARD OF DIRECTORS
Nashville, Tennessee Harry G. Browne, M.D.
June __, 1996 Secretary
15
<PAGE> 19
APPENDIX A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THERAPEUTIC ANTIBODIES INC.
* * * * * *
Therapeutic Antibodies Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
FIRST. The name of the corporation is Therapeutic Antibodies
Inc. The date of filing of its original Certificate of Incorporation with the
Secretary of State of Delaware was August 10, 1984, and such Certificate of
Incorporation was amended on each of March 28, 1985, July 9, 1990 and August 2,
1993.
SECOND. This Amended and Restated Certificate of Incorporation
restates, integrates and further amends the Certificate of Incorporation of
this Corporation by amending Article 4(a), by deleting the provisions of
Articles 4(b), 5 and 7 and by adding a new Article 8 thereto.
THIRD. The text of the Certificate of Incorporation, as
previously amended, is hereby amended to read as herein set forth in full:
1. The name of the corporation is: THERAPEUTIC ANTIBODIES
INC.
2. The address of its registered office in the State of
Delaware is 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.
<PAGE> 20
3. The nature of the business or purposes to be conducted or
promoted is to engage in the research, development, testing, evaluation,
production, promotion, licensing and marketing of antibodies to drugs, tumors,
infectious diseases and chemical and biological weapons; to compile books,
reports, pamphlets and other literature to aid in the preparation and use of
the antibody products; and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
4. The Corporation shall have authority, acting by its Board
of Directors, to issue not more than Thirty Million (30,000,000) shares of
common stock, par value one tenth of one cent ($.001) each ("Common Stock").
All shares of Common Stock shall be one and the same class and when issued
shall have equal rights of participation in dividends and assets of the
Corporation and shall be non-assessable. Each outstanding share of Common
Stock shall be entitled to one vote on each matter submitted to a vote at a
meeting of stockholders.
5. The Corporation is to have perpetual existence.
6. Elections of Directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
7. Meetings of stockholders may be held within or without
the State of Delaware, as the Bylaws may provide. The books of the Corporation
may be kept (subject to any provision contained in the statutes) 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 Bylaws of the Corporation.
8. Any amendment, modification or repeal of this Amended and
Restated Certificate of Incorporation or the Bylaws of the Corporation, or the
adoption of new Bylaws, shall require the affirmative vote of the holders of a
majority of the shares of capital stock of the Corporation, present in person
or represented by proxy and entitled to vote at any regular or special meeting
of stockholders; provided, that the affirmative vote of the holders of at least
seventy-five percent (75%) of the outstanding shares of any class of the
capital stock of the Corporation, present in person or by proxy, entitled to
vote at any meeting of such class, shall be required to amend, alter or repeal
any provision of this Amended and Restated Certificate of Incorporation or the
Bylaws of the Corporation that has the effect of modifying, varying or
abrogating any of the special rights, privileges or preferences of such class.
FOURTH. This Amended and Restated Certificate of Incorporation
was duly adopted by the affirmative vote of a majority of the stockholders of
the Corporation in accordance with the applicable provisions of Sections 242
and 245 of the General Corporation Law of the State of Delaware.
-2-
<PAGE> 21
IN WITNESS WHEREOF, said Therapeutic Antibodies Inc. has caused
this certificate to be signed by Martin S. Brown, its Chairman and Chief
Executive Officer, and attested to by Harry S. Browne, its Secretary, this ___
day of June, 1996.
THERAPEUTIC ANTIBODIES INC.
By:
------------------------------------
Martin S. Brown,
Chairman and Chief Executive Officer
ATTEST:
By:
-------------------------
Harry S. Browne,
Secretary
-3-
<PAGE> 22
APPENDIX B
THERAPEUTIC ANTIBODIES INC.
AMENDED AND RESTATED
BYLAWS
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in
the City of Wilmington, County of New Castle, State of Delaware.
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 of Meetings. All meetings of the stockholders
for the election of Directors shall be held at the principal office of the
Corporation or at such other place either within or without the State of
Delaware as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
1
<PAGE> 23
Section 2. Annual Meetings. Annual meetings of stockholders
shall be held within one hundred twenty (120) days after the end of the
Corporation's fiscal year (or at such other date and time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting), at which the stockholders shall elect by a plurality vote a
Board of Directors, shall appoint an accounting firm to prepare the
Corporation's audited financial statements, and shall transact such other
business as may properly be brought before the meeting.
Section 3. Notice of Annual Meetings. Written notice of the
annual meeting stating the place, date and hour of the meeting shall be given
to each stockholder entitled to vote at such meeting not less than ten (10) nor
more than sixty (60) days before the date of the meeting.
Section 4. List of Stockholders Entitled to Vote. The officer
who has charge of the stock ledger of the Corporation shall prepare and make,
at least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and 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 ten (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 shall also
be produced and kept
2
<PAGE> 24
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present in person or represented by proxy.
Section 5. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the president
and shall be called by the president or secretary at the request in writing of
a majority of the Board of Directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Notice of Special Meetings. Written notice of a
special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
Section 7. Business to be Transacted at Special Meetings.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
Section 8. Quorum. The holders of one third of the stock issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present
3
<PAGE> 25
or represented at any meeting of the stockholders within such time (not to
exceed one hour) as the chairman of the meeting may decide to wait after the
designated commencement time of the meeting as set forth in the notice of the
meeting, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the meeting as originally notified. If the adjournment is
for more than thirty (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. The
holders of one third of the issued and outstanding shares of any class of the
Corporation's capital stock, present in person or represented by proxy and
entitled to vote thereat, shall constitute a quorum for any meeting of the
holders of such class of stock.
Section 9. Voting. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes, the certificate of incorporation or these Bylaws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
4
<PAGE> 26
Section 10. One Vote Per Share. Unless otherwise provided in
the certificate of incorporation, each stockholder shall at every meeting of
the stockholders be entitled to one (1) vote in person or by proxy for each
share of the capital stock having voting power held by such stockholder.
Section 11. Proxies. A stockholder may appoint a proxy (who
need not be a stockholder) to vote at a meeting of stockholders or otherwise
act for him by signing an appointment form, either personally or by his
attorney-in-fact. An appointment of a proxy is effective when received by the
secretary or other officer or agent authorized to tabulate votes. An
appointment is valid for twelve months, unless another period is expressly
provided for in the appointment form. An appointment of a proxy is revocable
by the stockholder, unless the appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an interest. In the event
shares are registered in the name of a corporation or other legal entity, the
proxy must be executed either under seal or under hand by a duly authorized
officer of such corporation or other legal entity.
Section 12. Action Without a Meeting. Unless otherwise provided
in the certificate of incorporation, any action required to be taken at any
annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may
be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to
5
<PAGE> 27
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. Number/Election of Directors. The number of
Directors which shall constitute the whole Board shall be not less than three
(3) nor more than fifteen (15). The first Board shall consist of four (4)
Directors. Thereafter, within the limits above specified, the number of
Directors shall be determined by resolution of the Board of Directors or by the
stockholders at the annual meeting. Directors need not be stockholders. The
number of Directors may be increased or decreased by action of the Board of
Directors or stockholders, provided that any such action by the Board of
Directors shall require the vote of a majority of the number of Directors which
the Corporation would have if there were no vacancies in the Board of
Directors. The Directors shall be elected at the annual meeting of the
stockholders and, except as provided in Section 2 of this Article, each
Director shall stand for re-election at each such annual meeting to hold office
until his successor is elected and qualified. Stockholders shall be permitted
to cast their votes for or against each person who is nominated for election to
the Board of Directors.
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Section 2. 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, and the Directors so chosen shall hold office until
the next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no Directors in office, then an
election of Directors may be held in the manner provided by statute. If, at
the time of filling any vacancy or any newly created directorship, the
Directors then in office shall constitute less than a majority of the whole
Board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such Directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the Directors chosen by the Directors then in office.
Section 3. Powers. The business of the Corporation shall be
managed by or under the direction of its Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as
are not by statute or by the certificate of incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
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Section 4. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such times and at such places, within
or without the State of Delaware, as shall from time to time be determined by
the Board.
Section 5. Special Meetings. Upon call at any time of the
chairman of the board, if any, the president, or a majority of Directors then
in office, a special meeting of the Board of Directors may be held at such
place, within or without the State of Delaware, on such date and at such time
as may be stated in the notice of such meeting. Written, oral, or any other
mode of notice of the time and place of meeting shall be given for a special
meeting in sufficient time, which need not in any event exceed 24 hours, for
the convenient assembly of the Directors or for their availability for a
telephonic meeting as provided in Section 8 of this Article III.
Section 6. Quorum. At all meetings of the Board a majority of
the Directors shall constitute a quorum for the transaction of business and the
act of a majority of the Directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 7. Action Without a Meeting. Unless otherwise
restricted by the certificate of incorporation or these Bylaws, any action
required or permitted to be taken at any
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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.
Section 8. Telephonic Meetings. Unless otherwise restricted by
the certificate of incorporation or these Bylaws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Subject to the provisions of Section 14 of this Article III, a quorum shall be
deemed to be present at such meeting if the number of Directors required under
Section 6 of this Article III participate in the meeting. A meeting held in
this manner shall be deemed to take place where the largest group of
participating Directors is assembled or, if no such group is readily
identifiable, at the place from where the chairman of the meeting participates.
COMMITTEES OF DIRECTORS
Section 9. Designation of 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. The Board may designate one or
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more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
Section 10. Absent Committee Members. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 11. Powers. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the Bylaws of the Corporation; and, unless the resolution or the
certificate of incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock. 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.
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Section 12. Minutes. Each committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 13. Compensation. Unless otherwise restricted by the
certificate of incorporation or these Bylaws, the Board of Directors shall have
the authority to fix the compensation of Directors. The Directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
INTERESTED DIRECTORS
Section 14. Transactions with Interested Directors. Except as
herein provided, a Director shall not vote as a Director (and if he does so
vote his vote shall not be counted) in respect of any contract, transaction or
arrangement or any other proposal whatsoever in which he has an interest which
(together with any interest of any person or entity with which he is
affiliated) is, to his knowledge, a material interest, otherwise than by virtue
of his interest, directly or indirectly, in shares, debentures or other
securities of the Corporation or by reason of
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any other interest in or through the Corporation. A Director shall not be
counted in the quorum at a meeting for purposes of any resolution on which he is
prohibited from voting.
Section 15. Exceptions. Notwithstanding the provisions of
Section 14 above, a Director shall (in the absence of any other material
interest) be entitled to vote on, and be counted in the quorum with respect to,
any resolution concerning any of the following matters, namely:
(a) the giving of any security, guarantee or indemnity to him
in respect of money lent or obligations incurred by him
or by any other person at the request of or for the
benefit of the Corporation or any of its subsidiaries; or
(b) the giving of any security, guarantee or indemnity to a
third party in respect of a debt or obligation of the
Corporation or any of its subsidiaries for which he
himself has assumed responsibility in whole or in part
under a guarantee or indemnity or by the giving of
security; or
(c) any proposal concerning an offer of shares or debentures
or other securities of or by the Corporation or any of
its subsidiaries for subscription or purchase in which
the Director is or may be entitled to participate as a
holder of securities or as a participant in the
underwriting or sub-underwriting thereof; or
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(d) any proposal concerning any other corporation in which
neither he nor any other person or entity with which he
is affiliated, to his knowledge, holds an interest in
shares (other than as trustee), directly or indirectly
and whether as an officer or stockholder or otherwise,
representing one percent (1%) or more of any class of the
equity securities of such corporation or of the voting
rights available to stockholders of such corporation or
of such shares or voting rights of any other corporation
through which his interest is derived (any such interest
being deemed for the purpose of this Section 15 to be a
material interest in all circumstances). For this
purpose there shall be disregarded any shares comprised
in a trust in which the Director's interest is in
reversion or remainder (if and so long as some other
person is entitled to receive the income from such trust)
and any shares comprised in any unit trust scheme managed
by persons who are wholly independent of and not
affiliated with the Director and in which the Director is
interested only as a unit holder; or
(e) any proposal to submit to the stockholders for approval
the adoption, modification or operation of a
superannuation fund or retirement, death, disability,
sickness or other benefit plan under which he may benefit
and which has been approved by or is subject to and
conditional upon approval by either the United Kingdom
Board of Inland Revenue or the United States Internal
Revenue Service for taxation purposes; or
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(f) any arrangement for the benefit of employees of the
Corporation or of any of its subsidiaries under which the
Director benefits in a similar manner to the employees
and which does not accord to the Director as such any
privilege or advantage not generally accorded to the
employees to whom such arrangement relates; or
(g) any arrangement for purchasing or maintaining for or for
the benefit of any Directors or for persons including
Directors any insurance which the Corporation may
properly purchase and maintain for the benefit of
Directors or for persons including Directors, including,
without limitation, insurance against any liability
incurred by such persons in respect of any act or
omission in the actual or purported execution and/or
discharge of their duties and/or in the exercise or
purported exercise of their powers and/or otherwise in
relation to their duties, powers or offices in relation
to the Corporation and/or any corporation controlled by
the Corporation or a subsidiary of it.
Section 16. Matters Involving Two or More Interested Directors.
Where proposals are under consideration concerning the appointment (including
fixing or varying or recommending the terms of appointment or the termination
thereof) of two or more Directors to offices or employments with the
Corporation or any body corporate in which the Corporation is interested, such
proposals may be divided and considered in relation to each Director separately
and in such
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case each of the Directors concerned (if not prohibited from voting under
Section 15 of these Bylaws) shall be entitled to vote (and be counted in the
quorum) in respect of each resolution except that concerning his own
appointment.
Section 17. Questions Concerning Materiality of Interest or
Entitlement to Vote Thereon. If any question should arise at any meeting as to
the materiality of the interest of a Director (other than the chairman of the
meeting) or as to the entitlement of any Director (other than such chairman) to
vote or be counted in the quorum and such question is not resolved by his
voluntarily agreeing to abstain from voting or not to be counted in the quorum,
such question shall be referred to the chairman of the meeting and his ruling
in relation to such other Director shall be final and conclusive except in a
case where the nature or extent of the interests of the Director concerned, as
known to such Director, have not been fairly disclosed. If any question as
aforesaid shall arise in respect of the chairman of the meeting, such question
shall be decided by a resolution of the Directors (for which purpose such
chairman shall be counted in the quorum, but shall not vote) and such
resolution shall be final and conclusive except in a case where the nature or
extent of the interests of such chairman, as known to such chairman, have not
been fairly disclosed.
Section 18. Subsidiaries and Other Entities. Any Director may
continue to be or become a director, officer, employee or stockholder of or be
otherwise interested in or be a party to any contract, transaction or
arrangement with any subsidiary of the Corporation or any entity in which the
Corporation may otherwise be interested, and, unless otherwise agreed, no such
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Director shall be accountable to the Corporation or its stockholders for any
compensation, profits or other benefits received by him as a director, officer,
employee or stockholder of or from his interest in, or from any such contract,
transaction or arrangement with, any such subsidiary or other entity.
Section 19. Exercise by Directors of Voting Powers. The
Directors may exercise the voting powers with respect to the shares of any
subsidiary owned by the Corporation or exercisable by them as directors of such
subsidiary in such manner in all respects as they shall deem appropriate
(including the exercise thereof in favor of any resolution appointing
themselves or any of them as directors or other officers or employees of such
subsidiary or voting or providing for the payment of compensation to such
directors, officers or employees).
REMOVAL OF DIRECTORS
Section 20. Removal of Directors. Unless otherwise restricted
by the certificate of incorporation or by law, any Director or the entire Board
of Directors may be removed, with or without cause, by the holders of a
majority of shares entitled to vote at an election of Directors.
ARTICLE IV
NOTICES
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Section 1. Means of Notice. Except as otherwise required by law
or by the express provisions of these Bylaws, whenever, under the provisions of
the statutes or of the certificate of incorporation or of these Bylaws, notice
is required to be given to any Director or stockholder, such notice shall be
delivered either personally or by mail to such Director or stockholder, at his
address as it appears on the records of the Corporation, with postage thereon
prepaid; provided, that notice by mail to any person having an address outside
the country or territory from which such notice is sent shall be sent via
airmail. Notice shall be deemed to be given (a) with respect to any persons
having an address within the country or territory from which such notice is
sent, at the time when the same shall be personally delivered or deposited in
the mail and (b) with respect to any person having an address outside the
country or territory from which such notice is sent, at the time when the same
shall be personally delivered or two (2) days following the date on which such
notice was deposited in the mail. Notice to Directors may also be given by
telegraphic or electronic means, (including telex or telecopy) and shall be
deemed to be given at the time such notice is transmitted.
Section 2. Waiver of Notice. Whenever any notice is required to
be given under the provisions of the statutes or of the certificate of
incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated thereof, shall be deemed equivalent thereto.
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ARTICLE V
OFFICERS
Section 1. Officers. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a president, a vice-president, a
secretary and a treasurer. The Board of Directors may also choose such
additional officers as it may determine, including a chairman of the board,
chief executive officer, one or more vice-presidents (any one of which may be
designated as a senior or executive vice-president), and one or more assistant
secretaries and treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these Bylaws otherwise
provide.
Persons may hold more than one office except that no person may
serve as both president and secretary. Officers shall have the authority and
responsibilities given them by the Board of Directors, and each officer shall
hold office until his successor is elected and qualified, unless a different
term is specified by the Board of Directors.
Section 2. Appointment of Officers. The Board of Directors at
its first meeting after each annual meeting of stockholders shall choose a
president, one or more vice-presidents, a secretary and a treasurer.
Section 3. Salaries. The salaries of all officers and agents of
the Corporation shall be fixed by the Board of Directors.
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Section 4. Removal of Officers; Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify.
Any officer elected or appointed by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors.
Section 5. President. The president shall preside at all
meetings of the stockholders and the Board of Directors, shall have general and
active management of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. He
shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the Corporation, except where the same are required or permitted by law
to be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
Section 6. Vice Presidents. In the absence of the president or
in the event of his inability or refusal to act, the vice-president (or in the
event there be more than one vice-president, the vice-presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election) shall perform the duties of the president, and when so
acting, shall have all the powers and be subject to all the restrictions upon
the president. The vice-presidents shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe.
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Section 7. Secretary. The secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders and record all
the proceedings of the meetings of the Corporation and of the Board of
Directors in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or president, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation and he, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
Section 8. Assistant Secretary. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by
the Board of Directors (or if there be no such determination, then in the order
of their election) shall, in the absence of the secretary or in the event of
his inability or refusal to act, perform the duties and exercise the powers of
the secretary and shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
Section 9. Treasurer. The treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books
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belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories
as may be designated by the Board of Directors. He shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the president and the
Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, he
shall give the Corporation a bond (which shall be renewed every six (6) years)
in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and
for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 10. Assistant Treasurer. The assistant treasurer, or if
there shall be more than one, the assistant treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election) shall, in the absence of the treasurer or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the treasurer and shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
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ARTICLE VI
CAPITAL STOCK
Section 1. Certificates Representing Shares. The certificates
of stock of the Corporation shall bear the name of the Corporation, shall be
numbered consecutively and shall be entered in the books of the Corporation as
they are issued. The Board of Directors may implement any arrangements that
the Board, in its absolute discretion, deems appropriate with respect to the
evidencing and transfer of shares of capital stock in uncertificated form
(subject always to any applicable law or regulation or the conditions and
requirements of any applicable exchange, market or system that regulates the
evidencing and transfer of title to a security without a written instrument).
With respect to certificated shares, each holder of the capital stock of the
Corporation shall be entitled to a certificate setting forth the holder's name
and number of shares and signed on behalf of the Corporation by the chairman,
the president or a vice-president and the treasurer or assistant treasurer or
the secretary or assistant secretary of the Corporation certifying the number
of shares owned by him in the Corporation. Each certificate shall have noted
thereon any restrictions on voting or transferability or any preference or call
provision. Certificates may be issued for partly paid shares and in such case
upon the face or back of the certificates issued to represent any such partly
paid shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified. The Corporation shall not issue stock
certificates or warrants to bearer or in bearer form.
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Section 2. Signatures. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct
a new certificate or certificates to be issued, without charge (other than
exceptional out-of-pocket expenses of the Corporation in investigating such
evidence of loss, theft or destruction of the Certificate or Certificates and
preparing such bond as provided below) in place of any certificate or
certificates theretofore 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 certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfer of Stock. The capital stock of the
Corporation shall be transferred on the books of the Corporation by surrender
of properly endorsed certificates therefor by the holders thereof or their duly
authorized attorneys-in-fact, or, in the event that the Board
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shall have authorized the evidencing and transfer of uncertificated shares, in
such form and in accordance with procedures established by the Board (subject
always to any applicable law or regulation or the conditions and requirements
of any applicable exchange, market or system that regulates the evidencing and
transfer of title to a security without a written instrument). Upon surrender
to the Corporation or the transfer agent of the Corporation of a certificate
for shares duly endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer (in such form as the Corporation or the
transfer agent shall require) and accompanied by the appropriate stamp duty (if
required), it shall be the duty of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction upon its books. No fee shall be charged by the Corporation to
register any transfer, assignation or succession of shares on the books of the
Corporation.
Section 5. Restrictions on Transfer of Stock. Except as set
forth below or as provided by applicable law, shares of the Corporation's
capital stock shall be issued free of all liens, encumbrances and security
interests. Transfer of shares may be restricted (a) as provided in Article VII
of these Bylaws, (b) in the event that the instrument of transfer designates
more than four (4) persons as transferee, (c) in the event the instrument of
transfer is in respect of more than one class of stock and (d) by the
provisions of the Securities Act of 1933, as amended (the "1933 Act") and
applicable state securities laws which may provide that shares of the
Corporation's capital stock may only be transferred pursuant to an effective
registration statement under the 1933 Act or pursuant to an exemption from such
registration under the 1933 Act or such state securities laws. In the event
transfer of shares of the Corporation's capital stock is
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restricted as provided above, the Corporation may disapprove any requested
transfer of such shares.
Section 6. Fixing Record Date. 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, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action. 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.
Section 7. Registered Stockholders. Subject to the provisions
of Section 5 above, the Corporation shall register shares of its capital stock
in such name(s) as the holder(s) thereof shall request; provided, however, that
the Corporation shall be under no obligation to register shares in the names of
more than four (4) persons. In the case of a share held jointly by more than
one person or entity, the Corporation shall not be bound to issue more than one
certificate therefor and delivery of a certificate to one of several joint
holders shall constitute sufficient delivery to all. The Corporation shall be
entitled to recognize the exclusive right of a person
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registered on its books as the owner of shares to receive dividends, and to
vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware. If two
or more persons are jointly entitled to a share, then, in voting upon any
question, the vote of the senior who tenders a vote, whether in person or by
proxy, shall be accepted to the exclusion of the votes of the other registered
holders of the share, and for this purpose seniority shall be determined by the
order in which the names stand in the Register in respect of that share.
UNTRACED STOCKHOLDERS
Section 8. Sale of Shares of Untraced Stockholders. The
Corporation shall be entitled to sell as the agent of the stockholder at the
best price reasonably obtainable any shares registered in the name of that
stockholder; provided, that the following conditions are satisfied:
(a) for a period of twelve years no check, option or
warrant sent by the Corporation through the post in a prepaid
envelope addressed to the stockholder at his address on the
Company's records or other the last known address given by the
stockholder to which checks, options or warrants are to be sent
has been cashed or exercised (if exercisable) and no
communication has been received by the Corporation from the
stockholder provided that in such period of twelve years
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at least three dividends whether interim or final on or in
respect of the shares in question have become payable and no such
dividend during that period has been claimed; and
(b) the Corporation has at the expiration of the said
period of twelve years given notice of its intention to sell such
shares by advertisement in two national daily newspaper(s)
published in the country in which the stockholder was last known
to reside and in one newspaper circulating in the area in which
the last known address of the stockholder (or the address at
which service of notices may be effected under these Bylaws) is
located; and
(c) the Corporation has not during the additional
period of three months after the date of the advertisement and
prior to the exercise of the power of sale received any
communication from the stockholder; and
(d) if the shares are listed or dealt in on the
London Stock Exchange, the Corporation has given notice in
writing to the London Stock Exchange of its intention to sell
such shares.
Section 9. Additional Shares. If during any twelve year period
or three month period referred to respectively in paragraphs (a) and (c) above,
additional shares have been issued in respect of those held at the beginning of
such twelve year period or of any previously issued
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during such periods, and all the other requirements of such paragraph have been
satisfied in respect of such additional shares, the Corporation may also sell
the additional shares.
Section 10. Manner of Sale. To give effect to any such sale
pursuant to Sections 8 or 9 above, the Corporation may appoint any person to
execute as transferor an instrument of transfer of such share or shares
registered in the name of the stockholder and such instrument of transfer shall
be as effective as if it had been executed by the stockholder. The purchaser
shall not be bound to see to the application of the proceeds of sale, nor shall
his title to the shares be affected by any irregularity in or invalidity of the
proceedings relating to the sale. The Corporation shall remain liable to
account to the holder of such share or shares for the net proceeds of such sale
and shall be deemed to be his debtor, and not a trustee for him in respect of
the same.
Section 11. Unclaimed Dividends. In the event that the
Corporation shall have sent through the mail in a prepaid envelope addressed to
a stockholder at his address on the Corporation's records or the last known
address given by the stockholder dividends paid by the Corporation and on two
consecutive occasions such dividends shall not have been cashed or claimed or
shall have been returned undelivered, or, following one such occasion,
reasonable inquiries have failed to establish any new address for the
stockholder, the Corporation thereafter shall be entitled to withhold the issue
of dividends to such stockholder. The Corporation shall remain liable to
account to such stockholder for the amounts otherwise required to be
distributed
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but for the provisions of this Section 11 and shall be deemed to be his debtor,
and not a trustee for him in respect of the same.
Section 12. Separate Account. Any proceeds, dividends or other
amounts in respect of which the Corporation remains liable to account by virtue
of this Article VI, shall be carried to a separate account and, except as
provided below, shall be a permanent debt of the Corporation. The payment by
the Directors of any unclaimed dividend or other moneys payable on or in
respect of a share into a separate account shall not constitute the Company a
trustee in respect thereof and any dividend unclaimed after a period of twelve
(12) years from the date the dividend became due for payment shall be forfeited
and shall revert to the Company. Moneys carried to such separate accounts may
either be employed in the business of the Corporation or invested in such
investments as the Directors may from time to time deem appropriate. Such
moneys shall not bear interest as against the Corporation.
ARTICLE VII
DISCLOSURE OF INTERESTS IN SHARES
Section 1. Notice Under Section 212 of Companies Act of 1985.
The provisions of Part VI of the Companies Act 1985 of the United Kingdom (the
"Companies Act") shall apply to the Corporation as if the Corporation were a
"public company" as defined in Section 1(3) of the Companies Act and so that
for the purposes of construing the same in relation to the Corporation each
reference in such part of the Companies Act to a public company shall be
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deemed to include reference also to the Corporation. Accordingly, the
Corporation may give notice in writing requiring a person whom the Corporation
knows or has reasonable cause to believe to be or, at any time during the three
(3) years immediately preceding the date on which the notice is issued, to have
been interested in capital stock of the Corporation comprised in, or which
would, if the Corporation were a "public company" as defined above, be
comprised in, the Corporation's relevant share capital (as defined in Section 7
of this Article VII) to provide the confirmation or indication referred to in
Section 212(1)(a) of the Companies Act together with the additional information
referred to in Section 212(1)(b) of the Companies Act.
Section 2. Default Notice. If any stockholder, or any other
person appearing to be interested in stock held by such stockholder, has been
duly served with such a notice as is referred to in Section 1 of this Article
VII and is in default for the prescribed period in supplying to the Corporation
the information thereby required, the Directors may in their absolute
discretion at any time thereafter serve a notice (a "Default Notice") upon such
stockholder as follows:
(a) a Default Notice may provide that, in respect of
stock in relation to which the default occurred ("Default Stock," which term
shall include any additional stock issued in respect of such stock), where the
Default Stock represents at the date of the Default Notice less than the
prescribed percentage, the stockholder shall not be entitled to attend or
exercise either personally or by proxy the votes attaching thereto or to
exercise any other right conferred thereby in relation to meetings of the
Corporation or of the holders of any class of capital stock of the Corporation;
and
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(b) where the Default Stock represents at the date of
the Default Notice at least the prescribed percentage, then the Default Notice
may additionally provide that:
(i) except on winding up of the Corporation, any
dividend or other money which would otherwise be payable in
respect of the Default Stock may (if so determined by the
Directors) be withheld in whole or in part (as the Directors
determine) by the Corporation without any liability to pay
interest thereon when such money is finally paid to the
stockholder and, in circumstances where an option to elect to
receive stock instead of cash in respect of any dividend shall be
or has been given to stockholders, any notice of election in
respect of the Default Stock shall not be effective; and/or
(ii) no transfer, other than an approved transfer, of
any of the stock held by such stockholder shall be registered
unless the stockholder is not himself in default as regards
supplying the information requested and the transfer when
presented for registration is accompanied by a certificate by the
stockholder in a form satisfactory to the Directors to the effect
that after due and careful inquiry the stockholder is satisfied
that none of the stock the subject of the transfer is Default
Stock;
(c) the Corporation shall send to each other person
appearing to the Directors to be interested in the stock the subject of any
Default Notice, the address of whom has
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been notified to the Corporation, a copy of the notice, but the failure or
omission by the Corporation to do so or the non-receipt of such notice by any
such person shall not invalidate such notice. Neither the Corporation nor the
Directors shall in any event be liable to any person as a result of the
Directors having imposed any restrictions pursuant to subparagraphs (a) (b) or
(c) of Section 2 of this Article VII or failed to determine that such
restrictions shall cease to apply if the Directors have acted in good faith.
(d) except as herein provided, any Default Notice
shall have effect in accordance with its terms for so long as the default in
respect of which the Default Notice was issued continues and shall cease to
have effect thereafter upon the Directors so determining (such a determination
to be made within a period of one week of the default having been duly
remedied) with written notice thereof being given as soon as practicable
thereafter to the relevant stockholder.
(e) any Default Notice shall cease to have effect in
relation to any stock transferred where the transfer is demonstrated to the
reasonable satisfaction of the Directors to be an approved transfer.
(f) the Directors may at any time give notice
cancelling a Default Notice, in whole or in part, or suspending, in whole or in
part, the imposition of any restrictions contained in the Default Notice for a
given period and may pay to a trustee nominated by them for the purpose any
dividend or other monies payable in respect of any shares subject to the
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restrictions referred to in subparagraphs (a) (b) or (c) of Section 2 of this
Article VII. Notice of any suspension, shall be given by the Corporation to
the relevant stockholder as soon as possible thereafter.
Section 3. Copy of Notice to Stockholder. Where, on the basis
of information obtained from a stockholder in respect of any shares held by
him, the Corporation gives a notice under Section 1 of this Article VII to any
other person, it shall at the same time send a copy of the notice to the
stockholder, but the accidental omission to do so, or the non-receipt by the
stockholder of such notice, shall not invalidate or otherwise affect the
application of Sections 1 and 2 of this Article VII.
Section 4. Interested Person. For the purpose of this Article
VII:
(a) a person shall be treated as appearing to be
interested in any stock either if the stockholder holding such stock or any
other person has given information to the Corporation under the said Section
212 or otherwise which names such person as being so interested or fails to
establish the identities of those interested in the stock and (after taking
into account the said information and any other information in its possession)
the Corporation knows or has reasonable cause to believe that the person in
question is or may be interested in the stock;
(b) "interested" shall be construed as it is for the
purpose of the said Section 212 of the Companies Act. Where stock in which a
person appears to be interested are
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held by a Depositary, the provisions of this Article VII shall apply only to
that stock held by the Depositary in which such person appears to be interested
and not to any other stock held by the Depositary.
(c) the prescribed period shall be twenty-eight (28)
days from the date of service of the notice under the said Section 1 of this
Article VII except where the Default Stock represent at least the prescribed
percentage in which case such period shall be reduced to fourteen (14) days,
subject to such adjustment to such periods as the Directors shall from time to
time prescribe;
(d) the "prescribed percentage" shall be 0.25 percent
(.25%) in nominal value of the issued shares of any class of stock in the
Corporation;
(e) reference to a person being in default in
supplying to the Corporation the information required by a notice under the
said Section 1 of this Article VII includes:
(i) reference to his having failed or refused to
give all or any part ofit; and
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(ii) reference to his having given information which
he knows to be false in a material particular or
having recklessly given information which is
false in any material particular;
Section 5. Approved Transfers. A transfer of stock is an
approved transfer if but only if:
(a) it is a transfer of stock to an offeror by way or
in pursuance of acceptance of a take-over offer for the Corporation; or
(b) the Directors are satisfied that the transfer is
made pursuant to a sale of the whole of the beneficial ownership of the stock
to a party who, in the opinion of the Directors, is not connected with the
transferor thereof or with any other person appearing to be interested in such
stock immediately prior to such sale (being a party which itself is not the
holder of any stock in the Corporation in respect of which a Default Notice is
then in force or a person appearing to be interested in any such shares) and
the Directors do not have reasonable grounds to believe that the transferor or
any other person appearing to be interested in such first-mentioned stock will,
following such transfer, have any interest in such stock; or
(c) the transfer results from a sale made through a
recognized investment exchange (as defined in the Financial Services Act 1986
of the United Kingdom) or
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any stock exchange outside the United Kingdom on which the Corporation's stock
(or rights in respect of that stock) are normally traded.
(d) "take-over offer" means an offer made to all the
holders (or all the holders other than the person making the offer and his
nominees) of the stock in the Corporation to acquire that stock or a specified
proportion of it, or to all the holders (or all the holders other than the
person making the offer and his nominees) of a particular class of stock to
acquire the stock of that class or a specified portion of such stock.
Section 6. Additional Definitions. (a) Sections 203-205 and 208
of the Companies Act shall apply for the purpose of construing references in
this Article VII to persons interested in stock as they apply in relation to
Sections 198-201 of the Companies Act (but with the omission of any reference
to Section 209 of the Companies Act).
(b) "Relevant share capital" shall have the meaning ascribed
to such term in Section 198(2) of the Companies Act; provided, that the phrase,
"the company's issued share capital of a class carrying rights to vote in all
circumstances at general meetings of the company," appearing in such section
shall be construed to refer to shares of Common Stock entitled to vote at any
meeting of the stockholders.
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Section 7. Notices. Any notice referred to in this Article VII
may be served by the Corporation upon the addressee either personally or by
sending it through the post in a pre-paid letter addressed to the addressee at
his usual or last known address.
Section 8. Court Order. Nothing herein contained shall
prejudice or affect the right of the Corporation to apply to the court for an
order under Section 216 of the Companies Act notwithstanding that any
notification under Section 1 of this Article VII on which such application is
based required information on shorter notice than may be prescribed for any
purpose by this Article VII or the right of the Corporation to exercise any
other right or power howsoever arising.
Section 9. United States Law; SEC Reporting Requirements. The
provisions of this Article VII are subject, in all respects, to the laws,
regulations and requirements of Delaware and the United States, including the
rules and regulations of the United States Securities and Exchange Commission.
In the event that, and for so long as, the Corporation has a class of capital
stock registered under Section 12 or Section 15 of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), holders of at least five percent (5%) of
any class of the Corporation's equity securities may be subject to certain
reporting obligations to the Securities and Exchange Commission under Sections
13 and 16 of the 1934 Act. In addition, the Corporation may from time to time
request certain information from such holders to enable the Corporation to meet
its reporting obligations under the 1934 Act.
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ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Declaration; Payment. Dividends upon the capital
stock of the Corporation, subject to the provisions of the certificate of
incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
certificate of incorporation.
Section 2. Reservation of Funds Prior to Payment. Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose as the
Directors shall think conducive to the interest of the Corporation, and the
Directors may modify or abolish any such reserve in the manner in which it was
created.
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ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition
of the Corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the Corporation shall be the
calendar year, unless otherwise established by the Board of Directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal
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may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
INDEMNIFICATION
Section 7. The Corporation shall indemnify its officers,
Directors, employees and agents to the extent permitted by the General
Corporation Law of Delaware.
ARTICLE IX
AMENDMENTS
Section 1. Amendments to Bylaws. These Bylaws may be altered,
amended or repealed and new Bylaws adopted by the affirmative vote of the
holders of a majority of the shares of capital stock of the Corporation,
present in person or represented by proxy and entitled to vote at any regular
meeting of the stockholders or special meeting called for that purpose.
Section 2. Modification of Rights of Stockholders.
Notwithstanding any other provision of the Certificate of Incorporation of the
Corporation or these Bylaws (and in addition to any other vote that may be
required by law, the Certificate of Incorporation or these Bylaws), the
affirmative vote of the holders of at least seventy-five percent (75%) of the
shares of any class of the capital stock of the Corporation, present in person
or represented by proxy and entitled to vote at any meeting of such class,
shall be required to amend, alter or repeal any
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provision of the Certificate or Incorporation or these Bylaws that has the
effect of modifying, varying or abrogating any of the special rights,
privileges or preferences of such class. A modification of the Certificate of
Incorporation of the Corporation to increase or decrease the number of
authorized shares of any class of capital stock of the Corporation shall not be
deemed a modification, variance or abrogation of the special rights, privileges
or preferences of such class for purposes of this Section 2.
APPROVED AND ADOPTED
BY THE BOARD OF DIRECTORS
OF THERAPEUTIC ANTIBODIES INC.
Date: June __, 1996
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APPENDIX C
PROXY CARD
THERAPEUTIC ANTIBODIES INC
SPECIAL MEETING OF SHAREHOLDERS
JUNE 28, 1996
THIS PROXY IS SOLICITED ON BEHALF OF THE COMPANY'S BOARD OF DIRECTORS.
The undersigned hereby appoints Martin S. Brown and Harry G.
Browne, M.D., or either of them, with power of substitution, as Proxies to vote
all stock of Therapeutic Antibodies Inc. owned by the undersigned at the
Special Meeting of Shareholders to be held at the University Club of Nashville,
located at 2402 Garland Avenue, Nashville, Tennessee 37212, at 9:00 a.m. on
June 28, 1996, and any adjournment thereof, on the following items of business
and such other business as may properly come before the meeting.
1. AS TO THE AMENDMENT AND RESTATEMENT OF THE COMPANY'S
CERTIFICATE OF INCORPORATION AND BYLAWS:
FOR
--------
AGAINST
--------
ABSTAIN
--------
2. AS TO THE AMENDMENT TO THE 1990 STOCK INCENTIVE PLAN:
FOR
--------
AGAINST
--------
ABSTAIN
--------
3. IN THEIR DISCRETION, UPON SUCH OTHER MATTERS AS MAY
PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENT
THEREOF.
THIS PROXY CARD, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE
MANNER DIRECTED HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS
MADE, THIS PROXY WILL BE VOTED FOR ALL PROPOSALS.
Please sign, and when signing as attorney, executor,
administrator, trustee or guardian, please give full title as such. If a
corporation, please sign in full corporate name by President or other
authorized officer. If a partnership, please sign in partnership name by
authorized person.
<TABLE>
<S> <C>
Dated: , 1996
------------- ------------------------------------
Shareholder Name (Please print)
------------------------------------
Signature of Shareholder
------------------------------------
Signature if held jointly
[ ] I expect to attend the Special Meeting [ ] I do not expect to attend the Special Meeting
</TABLE>
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY
USING THE ENCLOSED ENVELOPE.
