UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
November 17, 2008
HEMISPHERX BIOPHARMA, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-27072 52-0845822
(state or other juris- (Commission (I.R.S. Employer
diction of incorporation) File Number) (Identification No.)
1617 JFK Boulevard, Philadelphia, Pennsylvania 19103
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (215) 988-0080
_____________________________________________________________
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Section 5 - Corporate Governance and Management
-----------------------------------------------
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
On November 17, 2007, our Board of Directors approved an amendment to our
Restated and Amended (the "Bylaws") solely to reduce the quorum required for our
adjourned 2008 annual meeting of stockholders from a majority to 44%. The quorum
requirement was not otherwise changed. Please see the discussion in Item 8.01
below.
The foregoing description is qualified in its entirety by reference to the
amendment approved by the Board as contained in the Restated and Amended Bylaws,
a copy of which is attached and incorporated herein as Exhibit 3.1 to this Form
8-K.
Section 8 - Other Events
Item 8.01 Other Events.
On October 17, 2008, we further adjourned our annual stockholders' meeting to
Tuesday, November 11, 2008 at 10:00 a.m. at the Crown Plaza Hotel, 1800 Market
Street, Philadelphia Pennsylvania 19103. The meeting was adjourned because the
required quorum of a majority of the shares eligible to vote at the meeting
again was not present at the meeting. Although we and our proxy solicitation
agent, MacKenzie Partners, Inc., worked diligently to obtain the required
majority quorum, we were unable to obtain a quorum. As noted above, to assure
that the meeting can be held, our Board of Directors amended our By-Laws to
reduce the quorum for the meeting from a majority to 44% in voting power of the
outstanding shares of stock entitled to vote at the meeting. The reduced quorum
relates solely to the 2008 Annual Stockholders' Meeting. We will continue to
solicit proxies in an attempt to receive votes from a majority of the shares
eligible to vote at the meeting.
For more information, please see the October 17, 2008 press released filed as
exhibit 99.1 to this report.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits:
3.1 Amended and Restated Bylaws.
99.1 Press Release dated November 17, 2008
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HEMISPHERX BIOPHARMA, INC.
November 20, 2008 By: /s/ William A. Carter
--------------------------
William A. Carter M.D.,
Chief Executive Officer
Exhibit 3.1
RESTATED AND AMENDED BYLAWS
of
HEMISPHERX BIOPHARMA, INC.
(November 17, 2008)
ARTICLE I.
MEETINGS OF STOCKHOLDERS.
Section 1.1. Annual Meeting. The annual meeting of stockholders shall
be held at such date, time and place, either within or without the State of
Delaware, as may be designated by resolution of the Board of Directors from time
to time. At the annual meeting, directors shall be elected and such other
business transacted as shall have been properly brought before the meeting.
Section 1.2. Special Meeting. Special meetings of stockholders for any
purpose or purposes may be called by the Chairman of the Board, the President, a
majority of the Board of Directors, or a majority of the Executive Committee,
and shall be called by the Secretary upon the request, in writing, of the
stockholders owning a majority of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote at such meeting. A stockholder
request for a special meeting shall be signed, dated and delivered to the
Secretary, shall state the purpose of the proposed meeting, and shall provide
the information required by Section 1.4(c) hereof. The Board of Directors or, in
the absence of action by the Board of Directors, the Chairman of the Board,
shall have the sole power to determine the date, time and place for any special
meeting of stockholders and to set a record date for the determination of
stockholders entitled to vote at such meeting pursuant to Section 1.11 hereof.
Following such determination, it shall be the duty of the Secretary to cause
notice to be given to the stockholders entitled to vote at such meeting, in the
manner set forth in Section 1.3 hereof, that a meeting will be held at the
place, time and date and in accordance with the record date determined by the
Board of Directors or the Chairman of the Board. The stockholders requesting the
special meeting shall not have the power to give notice of the meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given that shall state the place, date and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the Certificate of Incorporation or
these By-laws, the written notice of any meeting 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. If mailed, such notice shall be
deemed given when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address as it appears on the records of the
Corporation.
Section 1.4. Advance Notice Requirements for Stockholder Proposals. The
following procedures shall govern all cases in which a stockholder seeks to
propose business to be addressed at a meeting of stockholders or to nominate
persons to stand for election as directors of the Corporation (a "Stockholder
Proposal"). No business shall be transacted at a meeting of stockholders except
in accordance with the following procedures. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the Corporation. Notwithstanding any language in these by-laws to
the contrary, this section shall not apply to any right of holders of preferred
shares of the Corporation to nominate and elect a specified number of directors
in certain circumstances to the extent such procedures are set forth in the
Certificate of Incorporation.
(a) Annual Meetings of Stockholders.
(1) A Stockholder Proposal may be brought before an annual
meeting of stockholders only (i) pursuant to the Corporation's notice of meeting
delivered pursuant to Section 1.3 hereof (or any supplement thereto), (ii) by or
at the direction of the Board of Directors (or any duly authorized committee
thereof) or the Chairman of the Board or (iii) by any stockholder of the
Corporation who was a stockholder of record of the Corporation at the time the
notice provided for in this Section 1.4 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in subparagraphs (2) and (3) of this paragraph (a)
in this Section 1.4.
(2) For a Stockholder Proposal to be properly brought before
an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a)(1)
of this Section 1.4, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and the subject of the Stockholder
Proposal must otherwise be a proper matter for stockholder action as determined
by the Board of Directors. The stockholder's notice shall contain, at a minimum,
the information set forth in Section 1.4(c). To be timely, a stockholder's
notice , for all Stockholder Proposals other than the nomination of candidates
for director, shall be delivered to the Secretary at the principal executive
offices of the Corporation not less than sixty (60) nor more than ninety (90)
days prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, the stockholder's notice in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
public disclosure of the date of the annual meeting was made, whichever first
occurs. To be timely, a stockholder's notice , with respect to a Stockholder
Proposal for nomination of candidates for director, shall be delivered to the
Secretary at the principal executive offices of the Corporation not less than
ninety (90) nor more than one hundred twenty (120) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, the
stockholder's notice in order to be timely must be so received not later than
the close of business on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or public disclosure of the
date of the annual meeting was made, whichever first occurs. In no event shall
the public announcement of an adjournment or postponement of an annual meeting
of stockholders commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above.
(3) Notwithstanding anything in paragraph (a)(2) of this
Section 1.4 to the contrary, in the event that the Stockholder Proposal relates
to the nomination of candidates for director and the number of directors to be
elected to the Board of Directors of the Corporation at an annual meeting is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least one hundred days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this Section
1.4 shall also be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later than
the close of business on the tenth day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been described in
the Corporation's notice of meeting given pursuant to Section 1.3 hereof. To the
extent such business includes the election of directors, a Stockholder Proposal
nominating persons to stand for election as directors may be made at a special
meeting of stockholders only (i) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or the Chairman of the
Board, or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time the notice provided for in this Section 1.4(b) is delivered
to the Secretary of the Corporation, who is entitled to vote at the special
meeting and who gives timely notice in writing by the Secretary of the
Corporation. The stockholder's notice shall contain, at a minimum, the
information set forth in Section 1.4(c). To be timely, a stockholder's notice
shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following the
day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above.
(c) Contents of Stockholder's Notice. Any stockholder's notice required
by this Section 1.4 shall set forth the following information: As to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the Stockholder Proposal is made, the stockholder's notice shall set forth (i)
the name and address of such stockholder and of such beneficial owner, as they
appear on the Corporation's books, (ii) the class and number of shares of
capital stock of the Corporation which are owned beneficially and of record by
such stockholder and such beneficial owner and (iii) a representation that such
stockholder intends to appear in person or by proxy at the stockholder meeting.
For any Stockholder Proposal that seeks to nominate persons to stand for
election as directors of the Corporation, the stockholder's notice also shall
include (i) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made, (ii) a
representation whether the stockholders or the beneficial owners, if any, intend
or are part of a group which intends to (1) deliver a proxy statement and/or
form of proxy to holders of at least the percentage of the Corporation's
outstanding capital stock required to elect the nominee and/or (2) otherwise
solicit proxies from stockholders in support of such nomination, and (iii) any
other information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder. For any Stockholder
Proposal that seeks to nominate persons to stand for election as directors of
the Corporation, the stockholder's notice also shall state, as to each person
whom the stockholders propose to nominate for election or reelection as a
director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation and employment of the person, (iii) the
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected., (iv) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of record by
the person and (v) any other information relating to the person that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act, and the rules and regulations
promulgated thereunder. The Corporation may require any proposed nominee to
furnish such other information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a director of the Corporation.
For any Stockholder Proposal that seeks to propose matters to be considered at a
stockholder meeting other than the nomination of persons to stand for election
as directors of the Corporation, the stockholder's notice shall set forth for
each item of business proposed for consideration (i) a description of the item
of business, (ii) the text of the proposal or business (including the text of
any resolutions proposed for consideration and in the event that such business
includes a proposal to amend the by-laws of the Corporation, the language of the
proposed amendment), (iii) the reasons for conducting such business at the
stockholder meeting, (iv) and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the Stockholder
Proposal is made, and (v) any other information relating to the stockholder, the
beneficial owner, or the proposed business that would be required to be
disclosed in a proxy statement or other filings in connection with solicitations
of proxies relating to the proposed item of business pursuant to Section 14 of
the Exchange Act, and the rules and regulations promulgated thereunder.
(d) Only Stockholder Proposals made in accordance with the procedures
set forth in this Section 1.4 shall be considered at an annual or special
meeting of stockholders of the Corporation. Except as otherwise provided by law,
the chair of the meeting shall have the power and duty to (i) determine whether
a Stockholder Proposal was made in accordance with the procedures set forth in
this Section 1.4 and (ii) if any Stockholder Proposal is not in compliance with
this Section 1.4, including whether the stockholder or beneficial owner, if any,
on whose behalf the Stockholder Proposal is made solicits (or is part of a group
which solicits) or fails to so solicit (as the case may be) proxies in support
of the Stockholder Proposal in compliance with such stockholder's representation
as required by Section (c) of this Section 1.4, to declare that such Stockholder
Proposal shall be disregarded.
(e) For purposes of this Section 1.4, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(f) Notwithstanding the foregoing provisions of this Section 1.4, a
stockholder also shall comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 1.4. Nothing in this Section 1.4 shall be deemed to affect
any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 1.5. Postponement and Cancellation of Meeting. Any previously
scheduled annual or special meeting of the stockholders may be postponed and any
previously scheduled annual or special meeting of the stockholders called by the
Chairman of the Board, the President, a majority of the Board of Directors, or a
majority of the Executive Committee may be canceled by resolution of the Board
of Directors upon public notice given prior to the time previously scheduled for
such meeting of stockholders.
Section 1.6 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these by-laws, at each meeting of stockholders
the presence in person or by proxy of the holders of a majority in voting power
of the outstanding shares of stock entitled to vote at the meeting shall be
necessary and sufficient to constitute a quorum. Notwithstanding the foregoing
sentence, solely for purposes of the 2008 annual meeting of stockholders, the
presence in person or by proxy of the holders of 44% in voting power of the
outstanding shares of stock entitled to vote at the meeting shall be necessary
and sufficient to constitute a quorum. In the absence of a quorum, the chair of
the meeting may adjourn the meeting from time to time in the manner provided in
Section 1.10 hereof until a quorum shall attend. Shares of the Corporation's own
stock belonging to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation or any subsidiary of
the Corporation to vote stock, including but not limited to its own stock, held
by it in a fiduciary capacity. The chair of the meeting shall have the power and
the duty to determine whether a quorum is present at any meeting of
stockholders.
Section 1.7. Officers for Meeting of Stockholders. Meetings of
stockholders shall be presided over by the Chairman of the Board, if any, or in
his absence by the President, or in his absence by a Vice President, or in the
absence of the foregoing persons by a chair designated by the Board of
Directors, or in the absence of such designation by a chair chosen at the
meeting by a plurality vote. The Secretary shall act as secretary of the
meeting, but in his absence the chair of the meeting may appoint any person to
act as secretary of the meeting.
Section 1.8. Conduct of Meetings. Every meeting of stockholders shall
be presided over by the chair of the meeting selected pursuant to Section 1.7,
hereof. The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be determined by
the chair of the meeting and announced at the meeting. The Board of Directors
may adopt by resolution such rules and regulations for the conduct of the
meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chair of the meeting shall have the exclusive right and authority
to prescribe such rules, regulations and procedures and to do all such acts as,
in the judgment of the chair, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chair of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iii) limitations on attendance at or
participation in the meeting to stockholders of record of the Corporation, their
duly authorized and constituted proxies or such other persons as the chair of
the meeting shall determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on or the
elimination of time allotted to questions or comments by participants. Unless
and to the extent determined by the Board of Directors or the chair of the
meeting, meetings of stockholders shall not be required to be held in accordance
with the rules of parliamentary procedure.
Section 1.9. Voting; Proxies. Except as otherwise provided by or
pursuant to the provisions of the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of stockholders shall be entitled to one vote
for each share of stock held by such stockholder which has voting power upon the
matter in question. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or by delivering a proxy in accordance with
applicable law bearing a later date to the Secretary of the Corporation. Voting
at meetings of stockholders need not be by written ballot. At all meetings of
stockholders, a plurality of the votes cast shall be sufficient to elect
directors. All other elections and questions shall, unless otherwise provided by
the Certificate of Incorporation, these by-laws, the rules or regulations of any
stock exchange applicable to the Corporation, or applicable law or pursuant to
any regulation applicable to the Corporation or its securities, be decided by
the affirmative vote of the holders of a majority in voting power of the shares
of stock of the Corporation which are present in person or by proxy and entitled
to vote thereon.
Section 1.10. Adjournment of Meeting. Any meeting of stockholders,
annual or special, may be adjourned solely by the chair of the meeting from time
to time to reconvene at the same or some other time, date and place. The
stockholders present at a meeting shall not have authority to adjourn the
meeting. Notice need not be given of any such adjourned meeting if the time,
date and place thereof are announced at the meeting at which the adjournment is
taken. If the time, date and place of the adjourned meeting are not announced at
the meeting at which the adjournment is taken, then the Secretary of the
Corporation shall give written notice of the time, date and place of the
adjourned meeting not less than ten (10) days prior to the date of the adjourned
meeting. Notice of the adjourned meeting also shall be given if the meeting is
adjourned in a single adjournment to a date more than 30 days or in successive
adjournments to a date more than 120 days after the original date fixed for the
meeting.
At an adjourned meeting at which a quorum is present, the stockholders
may transact any business which might have been transacted at the original
meeting. Once a share is represented for any purpose at a meeting, it shall be
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. A new record date shall be set if the meeting is adjourned in
a single or successive adjournments to a date more than 120 days after the
original date fixed for the meeting. If after the adjournment a new record date
is fixed for the adjourned meeting, notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the adjourned meeting
consistent with the new record date.
Section 1.11 Fixing Date for Determination of Stockholders of Record.
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 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 other than stockholder action by written consent, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date: (i) in the case of determination of stockholders entitled to
vote at any meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than sixty (60) nor less than ten (10)
days before the original date of such meeting, and (ii) in the case of any other
lawful action other than stockholder action by written consent, shall not be
more than sixty days prior to such other action. If no record date is fixed by
the Board of Directors: (i) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held, and (ii) the record date for determining
stockholders for any other purpose (other than stockholder action by written
consent) shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. 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
and shall fix a new record date for the adjourned meeting if the meeting is
adjourned in a single or successive adjournments to a date more than 120 days
after the original date fixed for the meeting.
Section 1.12. Procedures for Stockholder Action by Consent.
1.12.1 Request for Record Date. The record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting shall be as fixed by the Board of Directors or as otherwise
established under this Section 1.12.1. Any person seeking to have the
stockholders authorize or take corporate action by written consent without a
meeting shall, by written notice addressed to the Secretary and delivered to the
Corporation and signed by a stockholder of record, request that a record date be
fixed for such purpose. The written notice shall contain at a minimum the
information required in Section 1.4(c) for a Stockholder Proposal and shall
state the reasons for soliciting consents for such action. The Board of
Directors shall have ten (10) days following the date of receipt of the notice
to determine the validity of the request, including the sufficiency of the
information provided. During the ten (10) day period, the Corporation may
require the stockholder of record and/or beneficial owner requesting a record
date for proposed stockholder action by consent to furnish such other
information as it may reasonably require to determine the validity of the
request for a record date. Following the determination of the validity of the
request, and no later than ten (10) days after the date on which such request is
received by the Corporation, the Board of Directors may fix a record date for
such purpose which shall be no more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors and
shall not precede the date such resolution is adopted. If the Board of Directors
fails within ten (10) days after the date the Corporation receives such notice
to fix a record date for such purpose, the record date shall be the day on which
the first written consent is delivered to the Corporation in the manner
described in Section 1.12.3 below unless prior action by the Board of Directors
is required by law, in which event the record date shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action.
1.12.2 Form of Consent. Every written consent purporting to take or
authorize the taking of corporate action and/or related revocations (each such
written consent and related revocation is referred to in this Section 1.12 as a
"Consent") shall bear the date of signature of each stockholder who signs the
Consent, and no Consent shall be effective to take the corporate action referred
to therein unless, within 60 days of the earliest dated Consent delivered in the
manner required by this Section 1.12, Consents signed by a sufficient number of
stockholders to take such action are so delivered to the Corporation.
1.12.3 Delivery of Consent. A Consent shall be delivered to the
Corporation by delivery to its registered office in the State of Delaware or to
the Secretary of the Corporation at the Corporation's principal place of
business. Delivery to the Corporation's registered office shall be made by hand
or by certified or registered mail, return receipt requested.
In the event of the delivery to the Corporation of a Consent, the
Secretary of the Corporation shall provide for the safe-keeping of such Consent
and shall promptly conduct such ministerial review of the sufficiency of the
Consents and of the validity of the action to be taken by stockholder consent as
the Secretary deems necessary or appropriate, including, without limitation,
whether the holders of a number of shares having the requisite voting power to
authorize or take the action specified in the Consent have given consent;
provided, however, that if the corporate action to which the Consent relates is
the removal or replacement of one or more members of the Board of Directors, the
Secretary of the Corporation shall promptly designate two persons, who shall not
be members of the Board of Directors, to serve as Inspectors with respect to
such Consent and such Inspectors shall discharge the functions of the Secretary
of the Corporation under this Section 1.12.3. If after such investigation the
Secretary or the Inspectors (as the case may be) shall determine that the
Consent is valid and that the action therein specified has been validly
authorized, that fact shall forthwith be certified on the records of the
Corporation kept for the purpose of recording the proceedings of meetings of
stockholders, and the Consent shall be filed in such records, at which time the
Consent shall become effective as stockholder action. In conducting the
investigation required by this Section 1.12.3, the Secretary or the Inspectors
(as the case may be) may, at the expense of the Corporation, retain special
legal counsel and any other necessary or appropriate professional advisors, and
such other personnel as they may deem necessary or appropriate to assist them,
and shall be fully protected in relying in good faith upon the opinion of such
counsel or advisors.
No action by written consent without a meeting shall be effective until
such date as the Secretary or the Inspectors (as the case may be) certify to the
Corporation that the Consents delivered to the Corporation in accordance with
Section 1.12.3 represent at least the minimum number of votes that would be
necessary to take the action.
Nothing contained in this Section 1.12.3 shall in any way be construed
to suggest or imply that the Board of Directors or any stockholder shall not be
entitled to contest the validity of any Consent or revocation thereof, whether
before or after such certification by the Secretary or the Inspectors, or to
take any other action (including, without limitation, the commencement,
prosecution, or defense of any litigation with respect thereto, and the seeking
of injunctive relief in such litigation).
Section 1.13. Inspectors of Election. The Corporation may, and shall if
required by law, in advance of any meeting of stockholders, appoint one or more
inspectors of election, who may be employees of the Corporation, to act at the
meeting or any adjournment thereof and to make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath to execute faithfully the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspector or
inspectors so appointed or designated shall (i) ascertain the number of shares
of capital stock of the Corporation outstanding and the voting power of each
such share, (ii) determine the shares of capital stock of the Corporation
represented at the meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of shares of
capital stock of the Corporation represented at the meeting and such inspectors'
count of all votes and ballots. Such certification and report shall specify such
other information as may be required by law. In determining the validity and
counting of proxies and ballots cast at any meeting of stockholders of the
Corporation, the inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an election may
serve as an inspector at such election.
Section 1.14 List of Stockholders Entitled to Vote. The Secretary 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 at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present. Upon the willful
neglect or refusal of the directors to produce such a list at any meeting for
the election of directors, they shall be ineligible for election to any office
at such meeting. Except as otherwise provided by law, the stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list of stockholders or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
ARTICLE II. BOARD OF DIRECTORS.
Section 2.1 Number. The Board of Directors shall consist of one or more members,
the number thereof to be determined from time to time by resolution of the Board
of Directors. Directors need not be stockholders.
Section 2.2. Qualifications. No person who is or has been within the last five
(5) years (a) under Critical Investigation by the Food and Drug Administration
("FDA") (any such person, an "FDA Investigatee"), (b) under investigation for
scientific or medical misconduct by any duly constituted regulatory,
administrative or governmental authority worldwide (any such person, and
"Scientific/Medical Investigatee") and (c) under charges by or investigation for
criminal charges of any nature, including misdemeanors involving moral
turpitude, by any duly constituted governmental authority worldwide (any such
person, and "Criminal Investigatee") and no person who is or has been within the
last five (5) years an Affiliate or Associate of any FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee ("Related
Investigatee") shall be eligible to be elected or to serve as a director of the
corporation; provided, however, that a director of the corporation who is
validly nominated and elected a director but who after such election becomes a
FDA Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee shall not solely by reason of so becoming or being a FDA
Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee cease to be a director and instead shall continue as a
director for the reminder of the term for which such director was elected or
until such director's resignation or removal; provided further, however, that it
shall be the duty of any such director promptly to notify the Board of Directors
that such director is or has become a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee and it also shall
be the duty of any such director, either to promptly take all steps as may be
necessary to cause such director to be neither a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related
Investigatee, or, it all such steps cannot be or have not been taken and such
director continues to be either a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee and the pertinent
Critical Investigation has not been Finally Resolved within the pertinent
Resolution Period, to resign as a director of the corporation, effective
immediately, at or before the end of such Resolution Period.
(a) For purposes of this Section, the following terms shall have the following
respective meanings:
(i) Affiliate" means any person (or group of persons having any written or
unwritten agreement , arrangement or understanding, whether of not enforceable,
relating to any Critical Investigation) who or which, directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, any FDA Investigatee, Scientific/Medical Investigatee or
Criminal Investigatee. For purposes of the foregoing definitions, the term
"control" (including the terms "controlling" "controlled by" and "under common
control with") means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or otherwise, and a
"controlling" relationship between any person (or such a group) and another
person shall be deemed to exist whenever (but is not limited to the situation in
which) the former person (or members of such a group) directly or indirectly
holds or owns at least twenty percent (20%) of the aggregate voting power with
respect to, the latter person.
(ii) "Associates" means any person who or which:
(1) is an officer, partner, director, trustee or similar fiduciary of, or
authorized to act in any similar capacity with respect to, any FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee, any Affiliate or any
other Associate of a FDA Investigatee, Scientific/Medical Investigatee or
Criminal Investigatee;
(2) is directly or indirectly, the holder of owner of at least ten percent
(10%) any class or series of equity securities issued by any FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Associate;
(3) has a substantial beneficial interest in any FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Affiliate which is a
trust or estate; or
(4) is a member of the immediate family of any FDA Investigatee, any
Affiliate or any other person described in (1), (2), or (3) above.
For purposes of the foregoing definition, a person's "immediate family" includes
such person's spouse, children, siblings, parents-in-law, sons- and
daughter-in-law, and brother- and sister-in-law.
(III) Critical Investigation means any investigation by the FDA which
has reached the stage of the issuance of a "Warning Letter" by the FDA and which
might reasonably be expected, absent immediate and complete remediation, to lead
to seizure of assets, injunctions or criminal indictments.
(IV) When used with respect to any particular Critical Investigation,
the term "Finally Resolved" means that the FDA has issued a written statement
that the Critical Investigation has been satisfactorily resolved and terminated.
(V) "Resolution Period" means, in any pertinent case, the ninety (90)
day period (or longer period, not exceeding one hundred fifty (150) days, as
hereafter contemplated by the proviso to this definition) beginning on the
earlier of (1) the date on which a director of the corporation notifies the
Board of Directors that such director is or has become a FDA Investigatee or
Related Person or (2) the date on which the Board of Directors determines that a
director of the corporation is or has become a FDA Investigatee or Related FDA
Investigatee; provided, however, that the Board of Directors may (but is not
required to) extend a Resolution Period for up to an additional sixty (60) days
if the director establishes to the Board's satisfaction a reasonable likelihood
that during such extended period the pertinent Critical Investigation will be
Finally Resolved or such director will cease to be both a FDA Investigatee and a
Related FDA Investigatee.
(VI) "Subsidiary" means any corporation or other entity at least fifty
percent (50%) of the equity of which is owned, directly or indirectly, by the
corporation.
(b) The Board of Directors of the corporation (acting by at
least a majority of all Directors, excluding any who have acknowledged
themselves to be or have been determined to be FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related Investigatee
at the time of such Board action and excluding any director or directors whose
status as FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee or Related Investigatee is the subject of such action) shall have
the authority to determine whether any director of the corporation is or is not
or has ceased to be a FDA Investigatee, Scientific/Medical Investigatee or
Criminal Investigatee or Related Investigatee, and the Board of Directors
(acting by at least a majority of all directors, excluding any who have
acknowledged themselves to be or have been determined to be FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related
Investigatee) shall have the authority to determine whether any person nominated
or proposed for nomination as a director or who is the subject of a shareholder
request as hereinafter provided is ineligible to be so nominated and elected by
virtue or being a FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee or Related Investigatee. Each such Board determination shall be
based upon such information as has been brought to the attention of the Board
(whether in a shareholder request or otherwise) at the time such determination
is made, and no Board determination that any director or other person is or is
not or has ceased to be a FDA Investigatee, Scientific/Medical Investigatee or
Criminal Investigatee or Related Investigatee shall preclude the Board from
reconsidering the matter and making the contrary determination in light of any
facts or circumstances first coming to the attention of the Board after the
prior determination was made.
(c) The Board of Directors shall not nominate any person for
election as a director of the corporation, unless such prospective nominee has
provided the Board with all such information as the Board (or any member thereof
not excluded from determining the status of such person as a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related
Investigatee) has deemed necessary or appropriate to enable the Board to
determine such status and with a signed statement by the prospective nominee
that such person, having reviewed this Section, is aware of no reason not
disclosed to the Board why he or she would or might be considered a FDA
Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee (which statement also shall include an undertaking by such
person that if he or she is nominated, such person now promptly will inform the
Board, by written notice to the Chairman of the Board or the Secretary of the
corporation, if at any time prior to the election to which such person's
nomination relates he or she becomes aware of any fact or circumstance, whether
in existence on the date such undertaking is given or arising afterward, which
has given such person any reason to believe that he or she is or might be
considered a FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee or Related Investigatee), and unless after receipt of such
information and such statement, the Board has determined that the prospective
nominee is not a FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee or Related Investigatee.
(d) Any shareholder who is uncertain whether any person such
shareholder desires to nominate for election as a director of the corporation (a
"candidate") is a FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee or Related Person may request a determination from the Board
concerning that matter. Any such request must be in writing, identify the
candidate, set forth all reasons why the shareholder has such uncertainty
concerning the candidate, explain why the shareholder believes that the
candidate should not be considered a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee and include an
undertaking by or on behalf of the shareholder that, if the candidate is
determined not to be a FDA Investigatee, Scientific/Medical Investigatee or
Criminal Investigatee or Related Investigatee, the shareholder promptly will
inform the Board in the manner specified in paragraph (e) above if any time
prior to the election of directors next occurring the shareholder learns of any
fact or circumstance (whether in existence on the dare of the request or arising
afterward) which has given the shareholder any other reason to believe that or
to be uncertain whether the candidate is or might be considered a FDA
Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee and believes for the reasons stated in the request that he
or she should not be considered a FDA Investigatee, Scientific/Medical
Investigatee or Criminal Investigatee or Related Investigatee, which statement
also shall include an undertaking by the candidate comparable to that of the
requesting shareholder. With respect to any meeting at which directors are to be
elected, a shareholder may submit requests as to any number of candidates up to
and including five times at which the number of directors to be elected at such
meeting. A request may be submitted at any time at which the shareholder
properly may give notice of intent to nominate a candidate for election as a
director (other than a time at which such giving of notice of intent is proper
only by virtue of the provisions of paragraph (b) of this Section), and no
request may be submitted at any other time. No request shall be deemed
"submitted" for any purposes hereunder unless and until it is delivered in
person to the Chairman of the Board or the Secretary of the corporation or
delivered to the principal offices of the corporation addressed to the attention
of the Chairman or the Secretary. No request shall constitute a notice of intent
to nominate any candidate unless it expressly states that it is intend as such a
notice and it otherwise complies with all applicable requirements for such a
notice. Neither submission of a request, nor any action taken thereafter with
respect to such request, shall operate as a waiver of or otherwise relieve any
shareholder of any otherwise applicable procedural requirements respecting
nomination of director candidates, except as and to the extent contemplated in
paragraph (b).
(e) If any request satisfying the requirements of paragraph (f) is
timely and property submitted, the Board of Directors, within ten days following
the date such request is submitted (i.e., if it is impossible or impracticable
to do so during such period, as soon as practicable thereafter), shall consider
the request and determine whether the candidate who is the subject of the
request is ineligible to be nominated or elected a director by virtue of being a
FDA Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee. As promptly as possible following such action, the
requesting shareholder shall be notified in writing of the nature of such
determination and, if the determination made is that the candidate is a FDA
Investigatee, Scientific/Medical Investigatee or Criminal Investigatee or
Related Investigatee, the basis for such determination. In any other case in
which the Board determines that any candidate as to which a notice of intent to
nominate has been given is ineligible to be nominated or elected a director by
virtue of being a FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee or Related Investigatee (including any case in which a contrary
determination previously has been made in response to a shareholder request),
the shareholder having given such notice of intent shall be notified in writing
of such determination and the basis therefor as promptly as possible thereafter.
(f) If a candidate who is the subject of a proper and timely submitted
request meeting the requirements of paragraph (f) is determined by the Board not
to be a FDA Investigatee, Scientific/Medical Investigatee or Criminal
Investigatee or Related Investigatee and the request was submitted at least five
days in advance of the last date on which the requesting shareholder otherwise
would have been entitled to give notice of intent to nominate such candidate,
then the Board's determination shall operate as a waiver of the time limits
otherwise applicable to the giving of such notice of intent to the extent, if
any, necessary to afford the shareholder a period of five days following the
date on which notice of the Board's determination is given to the shareholder
within which to give notice of intent to nominate such candidate. If, in
response to a timely and properly submitted request, the Board determines that
the candidate who is the subject of the request is a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related Investigatee
and the request was submitted at least five days in advance of the last date on
which the requesting shareholder otherwise would have been entitles to give
notice of intent to nominate, then the Board's determination shall operate as a
waiver of the time limits otherwise applicable to the giving of notice of intent
to nominate to the extent, if any, necessary to afford the requesting
shareholder a period of fifteen days following the date on which notice of the
Board's determination is given to the shareholder within which to give notice of
intent to nominate another person in lieu of the ineligible candidate. In any
other case in which the Board determines that a candidate is a FDA Investigatee,
Scientific/Medical Investigatee or Criminal Investigatee or Related
Investigatee, such determination shall operate as a waiver if and only to the
extent expressly so provided in the resolutions setting forth such determination
or subsequent Board resolution. Whenever any shareholder is afforded an
additional time period within which to give notice of intention to nominate, the
Board may afford the other shareholders of the corporation a comparable
additional period of time within which to give such notice.
Section 2.3 Election; Resignation; Vacancies. At each annual meeting,
the stockholders shall elect directors each of whom shall hold office for a term
of one year or until his successor is duly elected and qualified, subject to
such director's earlier death, resignation, disqualification or removal. Any
director may resign at any time upon written notice to the Corporation. Such
resignation need not be accepted to be effective. Unless otherwise provided by
law or the Certificate of Incorporation, any newly created directorship or any
vacancy occurring on the Board of Directors for any cause may be filled solely
by a majority of the remaining members of the Board of Directors, although such
majority is less than a quorum, or by the sole remaining director, and each
director so elected shall hold office until the expiration of the term of office
of the director so replaced or until the director's successor is elected and
qualified. The stockholders shall not have the power to appoint directors to any
newly created directorship or vacancy.
Section 2.4 Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine. It
shall not be necessary to give notice of regular meetings of the Board of
Directors.
Section 2.5 Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President, the
Executive Committee, or by three (3) or more directors. Notice of a special
meeting of the Board of Directors shall be given by the person or persons
calling the meeting at least twenty-four hours before the special meeting if
such notice is given personally or by telephone or sent by telegram, telecopier
or other electronic means. Notice of a special meeting of the Board of Directors
shall be given by the person or persons calling the meeting at least three days
before the special meeting if given by regular mail. No notice of a special
meeting shall be necessary if the time and place of the special meeting was set
by resolution at a validly convened meeting of the Board of Directors. The
notice of a special meeting need not state the purpose or purposes of the
meeting.
Section 2.6 Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
by-law shall constitute presence in person at such meeting.
Section 2.7 Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the whole Board of Directors shall constitute a
quorum for the transaction of business. Except in cases in which the certificate
of incorporation, these by-laws or applicable law otherwise provides, the vote
of a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 2.8. Officers for Board Meetings. Meetings of the Board of
Directors shall be presided over by the Chairman of the Board, if any, or in his
absence by the Vice Chairman of the Board, if any, or in his absence by the
President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chair of
the meeting may appoint any person to act as secretary of the meeting.
Section 2.9. Independent Directors And Board Structure. A majority of
the Board of Directors shall be comprised of independent directors. The Chief
Executive Officer should be a member of the Board of Directors. In order to
ensure the greatest number of independent directors on a board of manageable
size, other direct management representation should be kept to a minimum and
should in no event exceed two other management directors.
The Board of Directors shall make clear to Senior Management of the
Company that board membership is neither necessary to their present positions
nor a prerequisite to a higher management position in the Company. Attendance of
management staff at Board Meetings should be at the discretion of the Chairman
of the Board but should be encouraged by the Board. The Board shall have full
and direct access to members of Senior Management and should be encouraged to
request reports directly to the Board by any member of Senior Management. Board
members should use judgment in dealings with management so that they do not
distract management from the business operations of the Company.
Conflicts of Interest. A director's personal financial or family
relationships may occasionally give rise to that director's material personal
interest in a particular issue. There will be times when a director's material
personal interest in an issue will limit that director's ability to vote on that
issue. The Governance Committee of the Board of Directors shall determine
whether such a conflict of interest exists on a case-by-case basis, including
the determination as to materiality under items (c) and (f) of this Section 2.9.
The Governance Committee shall take appropriate steps to identify such potential
conflicts and to ensure that a majority of the directors voting on an issue are
both disinterested and independent with respect to that issue. A determination
by the Governance Committee on any issue of independence or conflict of interest
shall be final and not subject to review.
For purposes of this Section, an "independent director" means a
director who: (a) is neither a current employee nor a former member of Senior
Management of the Company or an Affiliate; (b) is not employed by a provider of
professional services to the Company; (c) does not have any business
relationship with the Company, either personally or through a company of which
the director is an officer or a controlling shareholder, that is material to the
Company or to the director; (d) does not have a close family relationship, by
blood, marriage or otherwise with any member of Senior Management of the Company
or one of the Company's Affiliates; (e) is not an officer of a company of which
the Company's chairman or chief executive officer is also a board member; or (f)
does not personally receive or is not an employee of a foundation, university,
or other institution that receives grants or endowments from the Company, that
are material to the Company or to either the recipient and/or the foundation,
university, or institution.
"Senior Management" includes the chief executive, chief operating,
chief financial, chief legal and chief accounting officers, president, vice
president(s), treasurer, secretary and the controller of the Company.
"Affiliate" includes any person or entity which, alone or by
contractual obligation, owns or has the power to vote more than twenty-five (25)
percent of the equity interest in another, unless some other person or entity
acting alone or with another by contractual obligation owns or has the power to
vote a greater percentage of the equity interest. A subsidiary is considered an
affiliate if it is at least eighty (80) percent owned by the Company and
accounts for at least twenty-five (25) percent of the Company's consolidated
sales or assets.
Section 2.10 Action by Written Consent of Directors. Unless otherwise
restricted by the certificate of incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof, may be taken without a meeting if all members of the
Board of Directors or such 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 of Directors or such committee.
Section 2.11 Committees. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of the committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent permitted by law and 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.
Section 2.12. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II hereof.
Section 2.13. Executive Committee. There shall be an Executive
Committee to consist of such number of directors of the Board of Directors (the
"Executive Committee") to consist of that number of directors as the Board of
Directors may from time to time determine. The Board of Directors shall have
power at any time to change the number of the Executive Committee, except that a
reduction in the number of members of the Executive Committee shall not affect
any currently serving member. The Board of Directors may remove any member of
the Executive Committee at any time with or without cause and may fill vacancies
in the Committee by election from the members of the Board of Directors.
When the Board of Directors is not in session, the Executive Committee
shall have and may exercise all the power and authority of the Board of
Directors in the management and direction of the business and affairs of the
Corporation, and shall have power to authorize the seal of the Corporation to be
affixed to all papers which may require it. All actions of the Executive
Committee shall be reported to the Board of Directors at the meeting next
succeeding such action, provided, however, that such report need not be made to
the Board of Directors if prior to such meeting copies of the written minutes of
the meetings of the Executive Committee at which such action has been taken
shall have been mailed or delivered to all members of the Board of Directors.
ARTICLE III.
OFFICERS.
Section 3.1 Executive Officers; Election; Qualifications; Term of
Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a
President and Secretary, and it may, if it so determines, choose a Chairman of
the Board and a Vice Chairman of the Board from among its members. The Board of
Directors may also choose one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers. Each such officer
shall hold office until the first meeting of the Board of Directors after the
annual meeting of stockholders next succeeding his election, and until his
successor is elected and qualified or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Such
resignation need not be accepted to be effective. The Board of Directors may
remove any officer with or without cause at any time, but such removal shall be
without prejudice to the contractual rights of such officer, if any, with the
Corporation. Any number of offices may be held by the same person. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise may be filled for the unexpired portion of the term by the Board of
Directors.
Section 3.2 Powers and Duties of Executive Officers. The officers of
the Corporation shall have such powers and duties in the management of the
Corporation as may be prescribed in a resolution by the Board of Directors and,
to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board of Directors. The Board of Directors may
require any officer, agent or employee to give security for the faithful
performance of his duties.
ARTICLE IV.
SHARES OF STOCK.
Section 4.1 Certificates. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Corporation by the Chairman
or Vice Chairman of the Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the Corporation certifying the number of shares owned
by him in the Corporation. Any of or all the signatures on the certificate may
be a 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 4.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of
New Certificates. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE V.
MISCELLANEOUS PROVISIONS.
Section 5.1 Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 5.2 Seal. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 5.3. Signature of Checks, etc. All checks and drafts on the
bank accounts of the Corporation, and all bills of exchange and promissory
notes, and all acceptances, obligations and other instruments for the payment of
money shall be signed by such officer or officers, or agent or agents, as shall
be thereunto authorized, from time to time, by the Board of Directors or the
Executive Committee.
Section 5.4 Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 5.5 Form of Records. Any records maintained by the Corporation
in the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time.
Section 5.6 Amendment of By-laws. These by-laws may be altered, amended
or repealed, and new by-laws made, by the Board of Directors, but the
stockholders may make additional by-laws and may alter and repeal any by-laws
whether adopted by them or otherwise.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS, OFFICERS OR OTHER PERSONS.
Section 6.1 Right to Indemnification. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person (a "Covered Person")
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that he, or a person for
whom he is the legal representative, is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another Corporation or of a partnership, joint venture, trust,
enterprise or nonprofit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses (including
attorneys' fees) reasonably incurred by such Covered Person. Notwithstanding the
preceding sentence, except as otherwise provided in Section 6.3, the Corporation
shall be required to indemnify a Covered Person in connection with a proceeding
(or part thereof) commenced by such Covered Person only if the commencement of
such proceeding (or part thereof) by the Covered Person was authorized by the
Board of Directors of the Corporation.
Section 6.2 Prepayment of Expenses. The Corporation shall pay the
expenses (including attorneys' fees) incurred by a Covered Person in defending
any proceeding in advance of its final disposition, provided, however, that, to
the extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under this
Article VI or otherwise.
Section 6.3 Claims. If a claim for indemnification or advancement of
expenses under this Article VI is not paid in full within thirty days after a
written claim therefor by the Covered Person has been received by the
Corporation, the Covered Person may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the Corporation shall
have the burden of proving that the Covered Person is not entitled to the
requested indemnification or advancement of expenses under applicable law.
Section 6.4 Nonexclusivity of Rights. The rights conferred on any
Covered Person by this Article VI shall not be exclusive of any other rights
which such Covered Person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, these by-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 6.5 Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
its request as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such other Corporation, partnership, joint venture,
trust, enterprise or non-profit enterprise.
Section 6.6 Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VI shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
Section 6.7. The rights conferred on any Covered Person by this Article
VI are contract rights and shall continue as to a person who has ceased to be a
director or officer and shall inure the benefit of the person's heirs, executors
and administrators.
Section 6.8. Other Indemnification and Prepayment of Expenses. This
Article VI shall not limit the right of the Corporation, to the extent and in
the manner permitted by law, to indemnify and to advance expenses to persons
other than Covered Persons when and as authorized by appropriate corporate
action.
Exhibit 99.1
Company/Investor Contact:
Dianne Will Sean Collins, Sr. Partner
Hemispherx Biopharma, Inc. CCG Investor Relations
518-398-6222 310-477-9800
ir@hemispherx.net
HEMISPHERX BIOPHARMA, INC. ADJOURNS STOCKHOLDER MEETING
TO NOVEMBER 11, 2008
Philadelphia, PA, Oct. 17, 2008--Hemispherx Biopharma, Inc. (AMEX, HEB)
today announced that it adjourned its annual stockholders' meeting to Tuesday,
November 11, 2008 at 10:00 a.m. at the Crown Plaza Hotel, 1800 Market Street,
Philadelphia Pennsylvania 19103.
The meeting, scheduled for October 17, 2008, has been adjourned because the
required quorum of a majority of the shares eligible to vote at the meeting was
not present at the meeting. Approximately 48.5% of eligible votes were cast;
however, a quorum required in excess of 50%. A significant number of
stockholders are domiciled in Europe and less readily accessible for
notification purposes. To assure that the meeting can be held, the Company's
Board of Directors has amended the Company's By-Laws to reduce the quorum for
the meeting from a majority to 44% in voting power of the outstanding shares of
stock entitled to vote at the meeting. The reduced quorum relates solely to the
2008 Annual Stockholders' Meeting. The Company will continue to solicit proxies
in an attempt to receive votes from a majority of the shares eligible to vote at
the meeting.
The record date remains July 21, 2008. The purposes for which the meeting
is being held remain the same as those listed in the Company's Notice of Annual
Meeting of August 1, 2008. Stockholders should address questions about the
meeting to the Company's proxy solicitors at MacKenzie Partners, Inc., at (800)
322-2885 or (212) 929-5500, or Dianne Will at (518) 398-6222.
About Hemispherx Biopharma
Hemispherx Biopharma, Inc. is a specialty pharma company engaged in the
manufacture and clinical development of new drug entities for treatment of
seriously debilitating disorders. Hemispherx's flagship products include Alferon
N Injection(R) (FDA approved for a category of sexually transmitted diseases)
and the experimental therapeutics Ampligen(R) and Oragens(R). Ampligen(R) and
Oragens(R) represent experimental RNA nucleic acids being developed for globally
important debilitating diseases and disorders of the immune system. Hemispherx's
platform technology includes large and small agent components for potential
treatment of various severely debilitating and life threatening diseases.
Hemispherx has in excess of 90 issued patents comprising its core intellectual
property estate and a fully commercialized product (Alferon N Injection(R)). The
Company wholly owns and exclusively operates a GMP certified manufacturing
facility in the United States for commercial products. For more information
please visit www.hemispherx.net
Information contained in this news release other than historical information,
should be considered forward-looking and is subject to various risk factors and
uncertainties. For instance, the strategies and operations of Hemispherx involve
risk of competition, changing market conditions, change in laws and regulations
affecting these industries and numerous other factors discussed in this release
and in the Company's filings with the Securities and Exchange Commission. Any
specifically referenced investigational drugs and associated technologies of the
Company (including Ampligen(R), Alferon LDO and Oragens) are experimental in
nature and as such are not designated safe and effective by a regulatory
authority for general use and are legally available only through clinical trials
with the referenced disorders. The forward-looking statements represent the
Company's judgment as of the date of this release. The Company disclaims,
however, any intent or obligation to update these forward-looking statements.
Clinical trials for other potential indications of the approved biologic Alferon
N Injection(R) do not imply that the product will ever be specifically approved
commercially for these other treatment indications; Similarly, the completion of
NDA filing process with Ampligen(R) does not imply that the product will ever be
approved commercially.
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