OF
PEREGRINE
PHARMACEUTICALS, INC.,
a
Delaware corporation
ARTICLE
I
OFFICES
Section
1. Registered
Office. The registered office of the Corporation in the
State of Delaware shall be in the City of Dover, County of Kent.
Section
2. Other
Offices. The Corporation may also have
offices at such other places both within and without the State of Delaware
as
the Board of Directors may from time to time determine or the business of
the
Corporation may require.
Section
3. Books. The
books of the Corporation may be kept within or without the State of Delaware
as
the Board of Directors may from time to time determine or the business of
the
Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section
1. Place
of Meetings. All meetings of stockholders for the
election of directors shall be held at such place either within or without
the
State of Delaware as may be fixed from time to time by the Board of Directors,
or at such other place either within or without the State of Delaware as
shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting. Meetings of stockholders for any other purpose
may be held at such time and place, within or without the State of Delaware,
as
shall be stated in the notice of the meeting or in a duly executed waiver
of
notice thereof.
Section
2. Annual
Meetings. Annual meetings of
stockholders shall be held at a time and date designated by the Board of
Directors for the purpose of electing directors and transacting such other
business as may properly be brought before the meeting.
Section
3. Special
Meetings. Special meetings of
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called only by the
Board
of Directors, pursuant to a resolution adopted by a majority of the entire
Board
of Directors. As used in these Bylaws, the term "entire Board of
Directors" shall mean the total authorized number of directors. Such
request shall state the purpose or purposes of the proposed
meeting.
Section
4. Notification
of Business to be Transacted at Meeting. To be properly
brought before a meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a stockholder entitled to vote at the
meeting.
Section
5. Notice;
Waiver of Notice. Whenever stockholders
are required or permitted to take any action at a meeting, a written notice
of
the meeting shall be given which 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 required by law, such
notice shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder of record entitled to
vote at
such meeting. If mailed, such notice shall be deemed to be given when
deposited in the mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the Corporation. A written
waiver of any such notice signed by the person entitled thereto, 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 the 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.
Section
6. Quorum;
Adjournment. Except as otherwise
required by law, or provided by the Certificate of Incorporation or these
Bylaws, the holders of a majority of the capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy,
shall
constitute a quorum for the transaction of business at all meetings of the
stockholders. A meeting at which a quorum is initially present may
continue to transact business, notwithstanding the withdrawal of enough votes
to
leave less than a quorum, if any action taken is approved by at least a majority
of the required quorum to conduct that meeting. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented
by
proxy, shall have power to adjourn the meeting from time to time, without
notice
other than announcement at the meeting of the time and place of the adjourned
meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting
as
originally noticed. 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
entitled to vote at the meeting.
Section
7. Voting. Except
as otherwise required by law, or provided by the Certificate of Incorporation
or
these Bylaws, any question brought before any meeting of stockholders at
which a
quorum is present shall be decided by the vote of the holders of a majority
of
the stock represented and entitled to vote thereat. Unless otherwise
provided in the Certificate of Incorporation, each stockholder represented
at a
meeting of stockholders shall be entitled to cast one vote for each share
of the
capital stock entitled to vote thereat held by such stockholder. Such
votes may be cast in person or by proxy, but no proxy shall be voted on or
after
three (3) years from its date, unless such proxy provides for a longer
period. Elections of directors need not be by ballot unless the
Chairman of the meeting so directs or unless a stockholder demands election
by
ballot at the meeting and before the voting begins.
Section
8. Stockholder
Action by Written Consent Without a
Meeting. Commencing September 27,
1996, any action required or permitted to be taken by the stockholders of
the
Corporation must be effected at a duly called annual or special meeting of
such
holders and may not be effected by any consent in writing by such
holders.
Section
9. List
of Stockholders Entitled to Vote. The
officer who has charge of the stock ledger of the Corporation shall prepare
and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior
to
the meeting, either at a place within the city where the meeting is to be
held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during
the
whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section
10. Stock
Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the stockholders entitled
to examine the stock ledger, the list required by Section 9 of this
Article II or the books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section
11. Inspectors
of Election. In advance of any meeting
of stockholders, the Board of Directors may appoint one or more persons (who
shall not be candidates for office) as inspectors of election to act at the
meeting or any adjournment thereof. If an inspector or inspectors are
not so appointed, or if an appointed inspector fails to appear or fails or
refuses to act at a meeting, the Chairman of any meeting of stockholders
may,
and on the request of any stockholder or his proxy shall, appoint an inspector
or inspectors of election at the meeting. The duties of such
inspector(s) shall include: determining the number of shares
outstanding and the voting power of each; the shares represented at the meeting;
the existence of a quorum; the authenticity, validity and effect of proxies;
receiving votes, ballots or consents; hearing and determining all challenges
and
questions in any way arising in connection with the right to vote; counting
and
tabulating all votes or consents; determining the result; and such acts as
may
be proper to conduct the election or vote with fairness to all
stockholders. In the event of any dispute between or among the
inspectors, the determination of the majority of the inspectors shall be
binding.
Section
12. Organization. At
each meeting of stockholders the Chairman of the Board of Directors, if one
shall have been elected, (or in his absence or if one shall not have been
elected, the President) shall act as Chairman of the meeting. The
Secretary (or in his absence or inability to act, the person whom the Chairman
of the meeting shall appoint secretary of the meeting) shall act as secretary
of
the meeting and keep the minutes thereof.
Section
13. Order
of Business. The order and manner of
transacting business at all meetings of stockholders shall be determined
by the
Chairman of the meeting.
ARTICLE
III
DIRECTORS
Section
1. Powers. Except
as otherwise required by law or provided by the Certificate of Incorporation,
the business and affairs of the Corporation shall be managed by or under
the
direction of the Board of Directors.
Section
2. Number
and Election of Directors. Subject to
any limitations in the Certificate of Incorporation, the authorized number
of
directors of the Corporation shall be not less than four (4) nor more than
nine
(9) with the exact number to be established by resolution adopted by the
Board
of Directors. Directors shall be elected at each annual meeting of
stockholders to replace directors whose terms then expire, and each director
elected shall hold office until his successor is duly elected and qualified,
or
until his earlier death, resignation or removal. Any director may
resign at any time effective upon giving written notice to the Board of
Directors, unless the notice specifies a later time for such resignation
to
become effective. Unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective. If
the resignation of a director is effective at a future time, the Board of
Directors may elect a successor prior to such effective time to take office
when
such resignation becomes effective. Directors need not be
stockholders.
Section
3. Vacancies. Subject
to the limitations in the Certificate of Incorporation, vacancies in the
Board
of Directors resulting from death, resignation, removal or otherwise and
newly
created directorships resulting from any increase in the authorized number
of
directors may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. Each director so
selected shall hold office for the remainder of the full term of office of
the
former director which such director replaces and until his successor is duly
elected and qualified, or until his earlier death, resignation or
removal. No decrease in the authorized number of directors
constituting the Board of Directors shall shorten the term of any incumbent
directors.
Section
4. Time
and Place of Meetings. The Board of
Directors shall hold its meetings at such place, either within or without
the
State of Delaware, and at such time as may be determined from time to time
by
the Board of Directors.
Section
5. Annual
Meeting. The Board of Directors shall
meet for the purpose of organization, the election of officers and the
transaction of other business, as soon as practicable after each annual meeting
of stockholders, on the same day and at the same place where such annual
meeting
shall be held. Notice of such meeting need not be
given. In the event such annual meeting is not so held, the annual
meeting of the Board of Directors may be held at such place, either within
or
without the State of Delaware, on such date and at such time as shall be
specified in a notice thereof given as hereinafter provided in Section 7 of
this Article III or in a waiver of notice thereof.
Section
6. Regular
Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the State of Delaware
at such date and time as the Board of Directors may from time to time determine
and, if so determined by the Board of Directors, notices thereof need not
be
given.
Section
7. Special
Meetings. Special meetings of the Board
of Directors may be called by the Chairman of the Board, the President, the
Secretary or by any two or more directors. Notice of the date, time
and place of special meetings shall be delivered personally or by telephone
to
each director or sent by first-class mail or telegram, charges prepaid,
addressed to each director at the director's address as it is shown on the
records of the Corporation. In case the notice is mailed, it shall be
deposited in the United States mail at least four (4) days before the time
of
the holding of the meeting. In case the notice is delivered
personally or by telephone or telegram, it shall be delivered personally
or by
telephone or to the telegraph company at least forty-eight (48) hours
before the time of the holding of the meeting. The notice need not
specify the purpose of the meeting. A written waiver of any such
notice signed by the person entitled thereto, 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 the 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.
Section
8. Quorum;
Vote Required for Action;
Adjournment. Except as otherwise
required by law, or provided in the Certificate of Incorporation or these
Bylaws, a majority of the total number of directors then holding office shall
constitute a quorum for the transaction of business at all meetings of the
Board
of Directors and the affirmative vote of not less than a majority of the
directors present at any meeting at which there is a quorum shall be the
act of
the Board of Directors. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn
the
meeting, from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. A meeting at which a quorum
is initially present may continue to transact business, notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum to conduct that meeting. When a meeting is
adjourned to another time or place (whether or not a quorum is present),
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 Board of Directors may transact any business which
might
have been transacted at the original meeting.
Section
9. Action
by Written Consent. Unless otherwise
restricted by the Certificate of Incorporation, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof
may be taken without a meeting if all the members of the Board of Directors
or
committee, as the case may be, consent thereto in writing, and the writing
or
writings are filed with the minutes of proceedings of the Board of Directors
or
committee.
Section
10. Telephone
Meetings. Unless otherwise restricted
by the Certificate of Incorporation, members of the Board of Directors of
the
Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee, as
the
case may be, by conference telephone or similar communications equipment
by
means of which all persons participating in the meeting can hear each
other. Participation in a meeting pursuant to this Section 10
shall constitute presence in person at such meeting.
Section
11. Committees. The
Board of Directors may, by resolution passed unanimously by the entire Board
of
Directors, 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 such committee,
who
may replace any absent or disqualified member at any meeting of the
committee. In the event of absence or disqualification of a member of
a committee, and in the absence of a designation by the Board of Directors
of an
alternate member to replace the absent or disqualified member, the committee
member or members present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member. Any committee, to the extent allowed
by law and as provided in the resolution establishing such committee, shall
have
and may exercise all the power and authority of the Board of Directors in
the
management of the business and affairs of the Corporation, but no such committee
shall have the power or authority in reference to amending the Certificate
of
Incorporation, adopting an agreement of merger or consolidation, recommending
to
the stockholders the sale, lease or exchange of all or substantially all
of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
the
Bylaws of the Corporation; and, unless the resolution or the Certificate
of
Incorporation expressly so provides, no such committee shall have the power
or
authority to declare a dividend or to authorize the issuance of
stock. Each committee shall keep regular minutes of its meetings and
report to the Board of Directors when required.
The
Board
of Directors has, by resolution duly adopted, designated a Compensation
Committee, which Committee shall have full authority to consider all
compensation issues of this Corporation.
Section
12. Compensation. The
directors may be paid such compensation for their services as the Board of
Directors shall from time to time determine.
Section
13. Interested
Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors
or
officers, or have a financial interest, shall be void or voidable solely
for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or the committee thereof
which authorizes the contract or transaction, or solely because his of their
votes are counted for such purpose if: (i) the material facts as
to his or their relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Directors or the committee, and
the
Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
or
(ii) the material facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract
or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof, or
the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors
or
of a committee which authorizes the contract or transaction.
ARTICLE
IV
OFFICERS
Section
1. Officers. The
officers of the Corporation shall be a President, a Secretary and a Chief
Financial Officer. The Corporation may also have, at the discretion
of the Board of Directors, a Chairman of the Board, a Vice Chairman of the
Board, a Chief Executive Officer, one or more Vice Presidents, one or more
Assistant Financial Officers and Treasurers, one or more Assistant Secretaries
and such other officers as may be appointed in accordance with the provisions
of
Section 3 of this Article IV.
Section
2. Appointment
of Officers. The officers of the
Corporation, except such officers as may be appointed in accordance with
the
provisions of Section 3 or Section 5 of this Article IV, shall be
appointed by the Board of Directors, and each shall serve at the pleasure
of the
Board, subject to the rights, if any, of an officer under any contract of
employment.
Section
3. Subordinate
Officers. The Board of Directors may
appoint, and may empower the Chief Executive Officer or President to appoint,
such other officers as the business of the Corporation may require, each
of whom
shall hold office for such period, have such authority and perform such duties
as are provided in the Bylaws or as the Board of Directors may from time
to time
determine.
Section
4. Removal
and Resignation of Officers. Subject to
the rights of an officer under any contract, any officer may be removed at
any
time, with or without cause, by the Board of Directors or, except in case
of an
officer chosen by the Board of Directors, by any officer upon whom such power
of
removal may be conferred by the Board of Directors.
Any
officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that notice; and,
unless otherwise specified in that notice, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation shall be
without prejudice to the rights of the Corporation under any contract to
which
the officer is a party.
Section
5. Vacancies
in Offices. A vacancy in any office
because of death, resignation, removal, disqualification or any other cause
shall be filled in the manner prescribed in these Bylaws for regular
appointments to that office.
Section
6. Chairman
of the Board. The Chairman of the
Board, if such an officer is elected, shall, if present, preside at meetings
of
the stockholders and of the Board of Directors. He shall, in
addition, perform such other functions (if any) as may be prescribed by the
Bylaws or the Board of Directors.
Section
7. Vice
Chairman of the Board. The Vice
Chairman of the Board, if such an officer is elected, shall, in the absence
or
disability of the Chairman of the Board, perform all duties of the Chairman
of
the Board and when so acting shall have all the powers of and be subject
to all
of the restrictions upon the Chairman of the Board. The Vice Chairman
of the Board shall have such other powers and duties as may be prescribed
by the
Board of Directors or the Bylaws.
Section
8. Chief
Executive Officer. The Chief Executive
Officer of the Corporation shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the business
and
the officers of the Corporation. He shall exercise the duties usually
vested in the chief executive officer of a corporation and perform such other
powers and duties as may be assigned to him from time to time by the Board
of
Directors or prescribed by the Bylaws. In the absence of the Chairman
of the Board and any Vice Chairman of the Board, the Chief Executive Officer
shall preside at all meetings of the stockholders and of the Board of
Directors.
Section
9. President. The
President of the Corporation shall, subject to the control of the Board of
Directors and the Chief Executive Officer of the Corporation, if there be
such
an officer, have general powers and duties of management usually vested in
the
office of president of a corporation and shall have such other powers and
duties
as may be prescribed by the Board of Directors or the Bylaws or the Chief
Executive Officer of the Corporation. In the absence of the Chairman
of the Board, Vice Chairman of the Board and Chief Executive Officer, the
President shall preside at all meetings of the Board of Directors and
stockholders.
Section
10. Vice
President. In the absence or disability
of the President, the Vice Presidents, if any, in order of their rank as
fixed
by the Board of Directors or, if not ranked, a Vice President designated
by the
Board of Directors, shall perform all the duties of the President, and when
so
acting shall have all the powers of, and subject to all the restrictions
upon,
the President. The Vice Presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for them
respectively by the Board of Directors or the Bylaws, and the President,
or the
Chairman of the Board.
Section
11. Secretary. The
Secretary shall keep or cause to be kept, at the principal executive office
or
such other place as the Board of Directors may direct, a book of minutes
of all
meetings and actions of Directors, committees of Directors, and stockholders,
with the time and place of holding, whether regular or special, and, if special,
how authorized, the notice given, the names of those present at Directors'
meetings or committee meetings, the number of shares present or represented
at
stockholders' meetings, and a summary of the proceedings.
The
Secretary shall keep, or cause to be kept, at the principal executive office
or
at the office of the Corporation's transfer agent or registrar, as determined
by
resolution of the Board of Directors, a share register, or a duplicate share
register, showing the names of all stockholders and their addresses, the
number
and classes of shares held by each, the number and date of certificates issued
for the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors required by the Bylaws or by law
to
be given, and he shall keep or cause to be kept the seal of the Corporation
if
one be adopted, in safe custody, and shall have such powers and perform such
other duties as may be prescribed by the Board of Directors or by the
Bylaws.
Section
12. Chief
Financial Officer. The Chief Financial
Officer shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of accounts of the properties and business
transactions of the Corporation. The Chief Financial Officer shall
deposit all moneys and other valuables in the name and to the credit of the
Corporation with such depositories as may be designated by the Board of
Directors. He shall make such disbursements of the funds of the
Corporation as are authorized and shall render from time to time an account
of
all of his transactions as Chief Financial Officer and of the financial
condition of the Corporation. The Chief Financial Officer shall also
have such other powers and perform such other duties as may be prescribed
by the
Board of Directors or the Bylaws.
ARTICLE
V
STOCK
Section
1. Stock
Certificates; Uncertificated Shares.Shares of
stock of the Corporation may be issued in certificated or uncertificated
form or
any other such form as the Board of Directors may from time to time prescribe,
consistent with the laws of the State of Delaware. Every holder of certificated
shares of stock in the Corporation 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 they be elected, President or Vice-President,
and the
Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary,
certifying the number of shares owned by him in the Corporation.
Section
2. Signatures. Any
or all of 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
3. Lost
Certificates. A new certificate of
stock or uncertificated shares of stock may be issued in the place of any
certificate theretofore issued by the Corporation, alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person
claiming the certificate to be lost, stolen or destroyed. The
Corporation may, in the discretion of the Board of Directors and as a condition
precedent to the issuance of such new certificate or uncertificated shares,
require the owner of such lost, stolen, or destroyed certificate, or his
legal
representative, to give the Corporation a bond (or other security) sufficient
to
indemnify it against any claim that may be made against the Corporation
(including any expense or liability) on account of the alleged loss, theft
or
destruction of any such certificate or the issuance of such new
certificate.
Section
4. Transfers. Subject
to any restrictions on transfer, shares of stock of the Corporation shall
be
transferable in the manner prescribed by law and in these Bylaws or in any
agreement with the stockholder making the transfer. Shares of stock
of the Corporation may be transferred upon the books of the Corporation,
is such
shares are certificated, only by the person named in the certificate or by
his
attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a new certificate shall
be
issued, or, if such shares are uncertificated, only upon receipt of proper
transfer instructions from the registered owner of the shares.
Section
5. Record
Holders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as
the record holder of shares to receive dividends, and to vote as such record
holder, and to hold liable for calls and assessments a person registered
on its
books as the record holder of shares, and shall not be bound to recognize
any
equitable or other claim to or interest in such share or shares on the part
of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise required by law.
ARTICLE
VI
INDEMNIFICATION
Section
1. Right
to Indemnification. Each person who was
or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of
the
fact that he or she is or was a director or officer of the Corporation or
is or
was serving at the request of the Corporation as a director or officer of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while serving as a director or officer, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in
the
case of any such amendment, only to the extent that such amendment permits
the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director or officer
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in Section 2
of this
Article VI with respect to proceedings to enforce rights to indemnification,
the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or
part
thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Section
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of
its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director
or
officer (and not in any other capacity in which service was or is rendered
by
such indemnitee, including without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking,
by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this Article VI or otherwise (hereinafter an
"undertaking").
Section
2. Right
of Indemnitee to Bring Suit. If a claim
under Section 1 of this Article VI is not paid in full by the
Corporation within forty-five (45) days after a written claim has been received
by the Corporation, the indemnitee may at any time thereafter bring suit
against
the Corporation to recover the unpaid amount of the claim. If
successful in whole or part in any such suit or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of
an
undertaking, the indemnitee shall be entitled to be paid also the expense
of
prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a
suit
brought by the indemnitee to enforce a right to an advancement of expenses)
it
shall be a defense that, and (ii) any suit by the Corporation to recover
an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that,
the
indemnitee has not met the applicable standard of conduct set forth in the
Delaware General Corporation Law. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel,
or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth
in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel,
or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right hereunder, or by the Corporation to recover
an
advancement of expenses pursuant to the terms of an undertaking, the burden
of
proving that the indemnitee is not entitled to be indemnified or to such
advancement of expenses under this Article VI or otherwise shall be on the
Corporation.
Section
3. Non-Exclusivity
of Rights. The rights of
indemnification and to the advancement of expenses conferred in this
Article VI shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate
of
Incorporation, bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
Section
4. Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and
any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
Section
5. Indemnification
of Employees or Agents of the
Corporation. The Corporation may, to
the extent authorized from time to time by the Board of Directors, grant
rights
to indemnification and to the advancement of expenses, to any employee or
agent
of the Corporation to the fullest extent of the provisions of this
Article VI with respect to the indemnification and advancement of expenses
of directors or officers of the Corporation.
Section
6. Indemnification
Contracts. The Board of Directors is
authorized to enter into a contract with any director, officer, employee
or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if
the
Board of Directors so determines, greater than, those provided for in this
Article VI.
Section
7. Effect
of Amendment. Any amendment, repeal or
modification of any provision of this Article VI by the stockholders or the
directors of the Corporation shall not adversely affect any right or protection
of a director or officer of the Corporation existing at the time of such
amendment, repeal or modification.
ARTICLE
VII
GENERAL
PROVISIONS
Section
1. Dividends. Subject
to limitations contained in the General Corporation Law of the State of Delaware
and the Certificate of Incorporation, the Board of Directors may declare
and pay
dividends upon the shares of capital stock of the Corporation, which dividends
may be paid either in cash, securities of the Corporation or other
property.
Section
2. Disbursements. All
checks or demands for money and notes of the Corporation shall be signed
by such
officer or officers or such other person or persons as the Board of Directors
may from time to time designate.
Section
3. Fiscal
Year. The fiscal year of the
Corporation shall be fixed by resolution of the Board of Directors.
Section
4. Corporate
Seal. The Corporation shall have a
corporate seal in such form as shall be prescribed by the Board of
Directors.
Section
5. Record
Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of
stockholders or any adjournment thereof, or entitled to receive payment of
any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may
fix,
in advance, a record date, which shall not be more than sixty (60) days nor
less
than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned
meeting. Stockholders on the record date are entitled to notice and
to vote or to receive the dividend, distribution or allotment of rights or
to
exercise the rights, as the case may be, notwithstanding any transfer of
any
shares on the books of the Corporation after the record date, except as
otherwise provided by agreement or by applicable law.
Section
6. Voting
of Stock Owned by the Corporation. The
Chairman of the Board, the Chief Executive Officer, the President and any
other
officer of the Corporation authorized by the Board of Directors shall have
power, on behalf of the Corporation, to attend, vote and grant proxies to
be
used at any meeting of stockholders of any corporation (except this Corporation)
in which the Corporation may hold stock.
Section
7. Construction
and Definitions. Unless the context
requires otherwise, the general provisions, rules of construction and
definitions in the General Corporation Law of the State of Delaware shall
govern
the construction of these Bylaws.
Section
8. Amendments. Subject
to the General Corporation Law of the State of Delaware, the Certificate
of
Incorporation and these Bylaws, the Board of Directors may by the affirmative
vote of a majority of the entire Board of Directors amend or repeal these
Bylaws, or adopt other Bylaws as in their judgment may be advisable for the
regulation of the conduct of the affairs of the Corporation. Unless
otherwise restricted by the Certificate of Incorporation, these Bylaws may
be
altered, amended or repealed, and new Bylaws may be adopted, at any annual
meeting of the stockholders (or at any special meeting thereof duly called
for
that purpose) by a majority of the combined voting power of the then outstanding
shares of capital stock of all classes and series of the Corporation entitled
to
vote generally in the election of directors, voting as a single class, provided
that, in the notice of any such special meeting, notice of such purpose shall
be
given.
CERTIFICATE
OF SECRETARY
I,
the
undersigned, do hereby certify that:
(1) I
am the duly elected and acting Secretary of Peregrine Pharmaceuticals, Inc.,
a
Delaware corporation (the "Corporation"); and
(2) Attached
hereto is a true and complete copy of the Amended and Restated Bylaws of
the
Corporation as duly adopted by the Corporation's Board of Directors as of
December 21, 2007.
IN
WITNESS WHEREOF, I have hereunto subscribed my name this 21st day of
December,
2007.
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/s/
Paul J. Lytle |
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Paul
J. Lytle, Secretary |
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