EXHIBIT 3.5
AMENDED AND RESTATED BYLAWS
OF
ABGENIX, INC.
(A DELAWARE CORPORATION)
2
AMENDED AND RESTATED BYLAWS OF
ABGENIX, INC.
(a Delaware corporation)
TABLE OF CONTENTS
Page ARTICLE I CORPORATE OFFICES....................................................................1
1.1 REGISTERED OFFICE..............................................................1
1.2 OTHER OFFICES..................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS............................................................1
2.1 PLACE OF MEETINGS..............................................................1
2.2 ANNUAL MEETING.................................................................1
2.3 SPECIAL MEETING................................................................1
2.4 NOTICE OF STOCKHOLDERS' MEETINGS...............................................2
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND
STOCKHOLDER BUSINESS...........................................................2
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE...................................3
2.7 QUORUM.........................................................................4
2.8 ADJOURNED MEETING; NOTICE......................................................4
2.9 VOTING.........................................................................4
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT
WITHOUT A MEETING..............................................................4
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING.....................................5
2.12 PROXIES........................................................................6
2.13 ORGANIZATION...................................................................6
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE..........................................6
2.15 WAIVER OF NOTICE...............................................................7
ARTICLE III DIRECTORS..........................................................................7
3.1 POWERS.........................................................................7
3.2 NUMBER OF DIRECTORS............................................................7
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS.......................................7
3.4 RESIGNATION AND VACANCIES......................................................8
3.5 REMOVAL OF DIRECTORS...........................................................9
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.......................................9
3.7 FIRST MEETINGS.................................................................9
3.8 REGULAR MEETINGS...............................................................9
3.9 SPECIAL MEETINGS; NOTICE......................................................10
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TABLE OF CONTENTS
(Continued)
Page
3.10 QUORUM........................................................................10
3.11 WAIVER OF NOTICE..............................................................10
3.12 ADJOURNMENT...................................................................10
3.13 NOTICE OF ADJOURNMENT.........................................................11
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.............................11
3.15 FEES AND COMPENSATION OF DIRECTORS............................................11
3.16 APPROVAL OF LOANS TO OFFICERS.................................................11
3.17 SOLE DIRECTOR PROVIDED BY CERTIFICATE
OF INCORPORATION ..........................................................11
ARTICLE IV COMMITTEES.........................................................................12
4.1 COMMITTEES OF DIRECTORS.......................................................12
4.2 MEETINGS AND ACTION OF COMMITTEES.............................................12
4.3 COMMITTEE MINUTES.............................................................13
ARTICLE V OFFICERS............................................................................13
5.1 OFFICERS......................................................................13
5.2 ELECTION OF OFFICERS..........................................................13
5.3 SUBORDINATE OFFICERS..........................................................13
5.4 REMOVAL AND RESIGNATION OF OFFICERS...........................................14
5.5 VACANCIES IN OFFICES..........................................................14
5.6 CHAIRMAN OF THE BOARD.........................................................14
5.7 PRESIDENT.....................................................................14
5.8 VICE PRESIDENTS...............................................................15
5.9 SECRETARY.....................................................................15
5.10 CHIEF FINANCIAL OFFICER.......................................................15
5.11 ASSISTANT SECRETARY...........................................................16
5.12 ADMINISTRATIVE OFFICERS.......................................................16
5.13 AUTHORITY AND DUTIES OF OFFICERS..............................................16
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS.................................................17
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.....................................17
6.2 INDEMNIFICATION OF OTHERS.....................................................18
6.3 INSURANCE.....................................................................18
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TABLE OF CONTENTS
(Continued)
Page ARTICLE VII RECORDS AND REPORTS...............................................................18
7.1 MAINTENANCE AND INSPECTION OF RECORDS.........................................18
7.2 INSPECTION BY DIRECTORS.......................................................19
7.3 ANNUAL STATEMENT TO STOCKHOLDERS..............................................19
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS................................19
7.5 CERTIFICATION AND INSPECTION OF AMENDED AND RESTATE D
BYLAWS ..................................................................19
ARTICLE VIII GENERAL MATTERS..................................................................19
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING ........................19
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS.....................................20
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED ...........................20
8.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES..............................20
8.5 SPECIAL DESIGNATION ON CERTIFICATES...........................................21
8.6 LOST CERTIFICATES.............................................................21
8.7 TRANSFER AGENTS AND REGISTRARS................................................22
8.8 CONSTRUCTION; DEFINITIONS.....................................................22
ARTICLE IX AMENDMENTS.........................................................................22
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AMENDED AND RESTATED BYLAWS
OF
ABGENIX, INC.
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be fixed in the certificate of incorporation of the corporation.
1.2 OTHER OFFICES
The board of directors may at any time establish branch or subordinate offices at any place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or outside the State of Delaware designated by the board of directors. In the absence of any such designation, stockholders' meetings shall be held at the principal executive office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date and at a time designated by the board of directors. In the absence of such designation, the annual meeting of stockholders shall be held on the last Wednesday of May in each year at 10:00 a.m. However, if such day falls on a legal holiday, then the meeting shall be held at the same time and place on the next succeeding full business day. At the meeting, directors shall be elected, and any other proper business may be transacted.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the board of directors, by the chairman of the board, or by the president.
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If a special meeting is called by any person or persons other than the board of directors, then the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the chairman of the board, the president, or the secretary of the corporation. The officer receiving the request shall cause notice to be promptly given to the stockholders entitled to vote, in accordance with the provisions of Sections 2.4 and 2.6 of these Amended and Restated Bylaws, that a meeting will be held at the time requested by the person or persons calling the meeting, so long as that time is not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after receipt of the request, then the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 2.3 shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the board of directors may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or otherwise given in accordance with Section 2.6 of these Amended and Restated Bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date and hour of the meeting and (i) in the case of a special meeting, the purpose or purposes for which the meeting is called (no business other than that specified in the notice may be transacted) or (ii) in the case of the annual meeting, those matters which the board of directors, at the time of giving the notice, intends to present for action by the stockholders (but any proper matter may be presented at the meeting for such action). The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees who, at the time of the notice, the board intends to present for election.
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER
BUSINESS
Subject to the rights of holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation,
(a) nominations for the election of directors, and
(b) business proposed to be brought before any stockholder meeting
may be made by the board of directors or proxy committee appointed by the board of directors or by any stockholder entitled to vote in the election of directors generally if such nomination or business proposed is otherwise proper business before such meeting. However, any such stockholder may nominate one or more persons for election as directors at a meeting or propose business to be brought before a meeting, or both, only if such stockholder has given timely notice in proper written form of their intent to make such nomination or nominations or to propose such business. To be timely, such stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than one hundred twenty (120) calendar days in advance of the date specified in the corporation's
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proxy statement released to stockholders in connection with the previous year's annual meeting of stockholders; provided, however, that in the event that no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than thirty (30) days from the date contemplated at the time of the previous year's proxy statement, notice by the stockholder to be timely must be so received a reasonable time before the solicitation is made. To be in proper form, a stockholder's notice to the secretary shall set forth:
(i) the name and address of the stockholder who intends to make the
nominations or propose the business and, as the case may be, of the
person or persons to be nominated or of the business to be proposed;
(ii) a representation that the stockholder is a holder of record of
stock of the corporation entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
(iii) if applicable, a description of all arrangements or understandings
between the stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;
(iv) such other information regarding each nominee or each matter of
business to be proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, or the matter been proposed, or intended to be
proposed by the board of directors; and
(v) if applicable, the consent of each nominee to serve as director of
the corporation if so elected.
The chairman of the meeting shall refuse to acknowledge the nomination of any person or the proposal of any business not made in compliance with the foregoing procedure.
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders shall be given either personally or by first-class mail or by telegraphic or other written communication. Notices not personally delivered shall be sent charges prepaid and shall be addressed to the stockholder at the address of that stockholder appearing on the books of the corporation or given by the stockholder to the corporation for the purpose of notice. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication.
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An affidavit of the mailing or other means of giving any notice of any stockholders' meeting, executed by the secretary, assistant secretary or any transfer agent of the corporation giving the notice, shall be prima facie evidence of the giving of such notice.
2.7 QUORUM
The holders of a majority in voting power 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 stock holders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum is not present or represented at any meeting of the stockholders, then either (i) the chairman of the meeting or (ii) the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting in accordance with Section 2.7 of these Amended and Restated Bylaws.
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 laws of the State of Delaware or of the certificate of incorporation or these Amended and Restated Bylaws, a different vote is required, in which case such express provision shall govern and control the decision of the question.
If a quorum be initially present, the stockholders may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, if any action taken is approved by a majority of the stockholders initially constituting the quorum.
2.8 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time and place, unless these Amended and Restated Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business that might have been transacted at the original meeting. 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.
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.11 of these Amended and Restated Bylaws, subject to the provisions of Sections 217 and 218 of the General Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of incorporation or these Amended and Restated Bylaws, each stockholder shall be entitled to one vote for each share of capital stock held by
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such stockholder and stockholders shall not be entitled to cumulate their votes in the election of directors or with respect to any matter submitted to a vote of the stockholders.
Notwithstanding the foregoing, if the stockholders of the corporation are entitled, pursuant to Sections 2115 and 301.5 of the California Corporations Code, to cumulate their votes in the election of directors, each such stockholder shall be entitled to cumulate votes (i.e., cast for any candidate a number of votes greater than the number of votes that such stockholder normally is entitled to cast) only if the candidates' names have been properly placed in nomination (in accordance with these Amended and Restated Bylaws) prior to commencement of the voting, and the stockholder requesting cumulative voting has given notice prior to commencement of the voting of the stockholder's intention to cumulate votes. If cumulative voting is properly requested, each holder of stock, or of any class or classes or of a series or series thereof, who elects to cumulate votes shall be entitled to as many votes as equals the number of votes that (absent this provision as to cumulative voting) he or she would be entitled to cast for the election of directors with respect to his or her shares of stock multiplied by the number of directors to be elected by him, and he or she may cast all of such votes for a single director or may distribute them among the number to be voted for, or for any two or more of them, as he or she may see fit.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents 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 authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Such consents shall be delivered to the corporation by delivery to it registered office in the state of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation's registered office shall be by hand or by certified or registered mail, return receipt requested.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
For purposes of determining the stockholders entitled to notice of any meeting or to vote thereat, the board of directors may fix, in advance, a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors and which shall not be more than sixty (60) days nor less than ten (10) days before the date of any such meeting, and in such event only stockholders of record on the date so fixed are entitled to notice and to vote, notwithstanding any transfer of any shares on the books of the corporation after the record date.
If the board of directors does not so fix a record date, 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
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on the business day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting unless the board of directors fixes a new record date for the adjourned meeting, but the board of directors shall fix a new record date if the meeting is adjourned for more than thirty (30) days from the date set for the original meeting.
The record date for any other purpose shall be as provided in ...
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