UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) December 6, 2004
(December 1, 2004)
Delaware
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(State or Other Jurisdiction of Incorporation)
000-28385 91-2003490
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(Commission File Number) (IRS Employer Identification No.)
145 Union Square Drive, New Hope, PA 18938-1365
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(Address of Principal Executive Offices) (Zip Code)
215-862-9720
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(Registrant's Telephone Number, Including Area Code)
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(Former Name or Former Address, if Changed Since Last Report)
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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))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On December 1, 2004, Protalex, Inc., a New Mexico corporation
("Protalex New Mexico"), consummated a merger (the "Reincorporation Merger")
with and into its newly-formed, wholly owned subsidiary, Protalex, Inc., a
Delaware corporation ("Protalex Delaware") in order to reincorporate in the
State of Delaware (the "Reincorporation"). The Reincorporation Merger was
effected pursuant to an Plan of Merger and Agreement entered into between
Protalex New Mexico and Protalex Delaware on October 26, 2004. The
Reincorporation was submitted to vote of, and approved by, Protalex New Mexico's
shareholders at its annual meeting held on October 26, 2004. As a result of the
Reincorporation, the legal domicile of the company is now Delaware.
As provided by the Plan of Merger and Agreement, each outstanding Protalex New Mexico common share, zero par value per share ("New Mexico Common Stock"), was automatically converted into one Protalex Delaware common share, par value $0.00001 per share ("Delaware Common Stock"), at the time the Reincorporation Merger became effective. Each share certificate representing issued and outstanding New Mexico Common Stock continues to represent the same number of shares of Delaware Common Stock. In addition, as a result of the Reincorporation Merger, each outstanding option, right or warrant to acquire shares of New Mexico Common Stock converted into an option, right or warrant to acquire an equal number of shares of Delaware Common Stock, under the same terms and conditions as the original option, right or warrant and such options, rights and warrants shall no longer represent the right to acquire shares of New Mexico Common Stock. All of the company's employee benefit plans, including the Protalex Inc. 2003 Stock Option Plan (the "2003 Plan") have been assumed and continued by the surviving corporation, and shares of Delaware Common Stock will be authorized to be issued under the 2003 Plan equal to the number of shares of New Mexico Common Stock authorized to be issued under the Plan immediately prior to the Reincorporation Merger. Pursuant to the Plan of Merger and Agreement, the directors and officers of Protalex New Mexico in office immediately prior to the Reincorporation Merger continue to serve as the directors and officers of the surviving corporation. The company's common stock continues to be quoted on the Over-the-Counter Bulletin Board under the symbol "PRTX.OB". A copy of the form of Plan of Merger and Agreement is filed as an exhibit to this Form 8-K, and statements herein regarding the Plan of Merger and Agreement are qualified by reference to the complete Plan of Merger and Agreement.
ITEM 3.03 MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS.
Prior to the Reincorporation, the company's corporate affairs were governed by the corporate law of New Mexico, and its Articles of Incorporation and Bylaws (the "New Mexico Charter and Bylaws"), each of which were adopted under New Mexico law. Pursuant to the Plan of Merger and Agreement described above, and as a result of the consummation of the Reincorporation Merger, the Certificate of Incorporation and the Bylaws of Protalex, Inc. Delaware in effect immediately prior to the consummation of the Reincorporation Merger (the "Delaware Charter and Bylaws") became the Certificate of Incorporation and Bylaws of the surviving corporation. Accordingly, the constituent instruments defining the rights of holders of the company's common stock will now be the Delaware Charter and Bylaws, copies of which are filed as exhibits to this Form 8-K, rather than the New Mexico Charter and Bylaws. Additionally, as a result of the Reincorporation Merger, Delaware corporate law will generally be applicable in the determination of the rights of stockholders of the company under state corporate laws.
A description of the general effects of the replacement of the New
Mexico Charter and Bylaws with the Delaware Charter and Bylaws and the
applicability of Delaware corporate law rather than New Mexico corporate law in
the determination of the rights of stockholders of the company, has previously
been reported by the company in its Definitive Proxy Statement on Schedule 14A
filed with the Securities and Exchange Commission on October 1, 2004 (the "Proxy
Statement"). We hereby incorporate into this Form 8-K by reference in their
entirety and refer you to the following Sections of the Proxy Statement:
"Proposal One-Par Value of Capital Stock; Surplus; Capital (p.6); Action by
Shareholders Without a Meeting (p. 7); Indemnification (p.7); Amendment to the
Bylaws (p. 7); Dividends (p. 8); Examination of Books and Records (p.8);
Business Combination Statute (p. 8); Dissenters' (Appraisal) Rights (p. 8);
Business Combination Statute (p. 8); and Derivative Actions (p. 8)."
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit No. Description
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2.1 Plan of Merger and Agreement between Protalex, Inc., a New Mexico
corporation and Protalex, Inc., a Delaware corporation.
3.1 Certificate of Incorporation of the Registrant
3.2 Bylaws of the Registrant
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: December 6, 2004 /s/ Marc L. Rose
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By: Marc L. Rose
Title: Vice President of Finance,
Chief Financial Officer and
Treasurer
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EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
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2.1 Plan of Merger and Agreement between Protalex, Inc., a New
Mexico corporation and Protalex, Inc., a Delaware corporation.
3.1 Certificate of Incorporation of the Registrant
3.2 Bylaws of the Registrant
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PLAN OF MERGER AND AGREEMENT
of
PROTALEX, INC.
a New Mexico corporation
with and into
PROTALEX, INC.
a Delaware corporation
PROTALEX, INC.
a Delaware corporation
to be the surviving corporation
Plan of Merger and Agreement (this "Agreement") by and between Protalex, Inc., a New Mexico corporation (the "New Mexico Corporation"), and Protalex, Inc., a Delaware corporation (the "Delaware Corporation" or "Surviving Corporation"), said corporations being hereinafter sometimes referred to collectively as the "Constituent Corporations";
WITNESSETH:
WHEREAS, the Delaware Corporation is a corporation duly organized and existing under laws of the State of Delaware;
WHEREAS, the New Mexico Corporation is a corporation duly organized and existing under the laws of the State of New Mexico;
WHEREAS, on the date of this Agreement, the New Mexico Corporation has authority to issue 40,000,000 shares of common stock, no par value, of which 16,695,034 shares are issued and outstanding and entitled to vote to approve this Agreement;
WHEREAS, on the date of this Agreement, the Delaware Corporation has authority to issue 40,000,000 shares of common stock, $0.00001 par value, of which 100 shares are issued and outstanding, entitled to vote to approve this Agreement, and owned by the New Mexico Corporation;
WHEREAS, the respective Boards of Directors of the New Mexico Corporation and the Delaware Corporation have determined that it is advisable that the New Mexico Corporation be merged with and into the Delaware Corporation, in accordance with the applicable provisions of the laws of the State of New Mexico and the State of Delaware permitting such merger; and
WHEREAS, the respective Boards of Directors of the New Mexico Corporation and the Delaware Corporation have approved this Agreement and the Board of Directors of the New Mexico Corporation has directed that this Agreement be submitted to a vote of its respective shareholders;
NOW THEREFORE, in consideration of the foregoing and of the agreements, covenants, and provisions hereinafter set forth, the New Mexico Corporation and the Delaware Corporation do hereby agree as follows:
ARTICLE I
New Mexico Corporation and the Delaware Corporation shall be merged into a single corporation, in accordance with applicable provisions of the laws of the State of New Mexico and the State of Delaware, by the New Mexico Corporation merging into the Delaware Corporation, which shall be the surviving corporation.
ARTICLE II
Upon the Effective Date (as hereinafter defined):
1. The New Mexico Corporation shall be merged with and into the Delaware Corporation, shall be the surviving corporation, and the separate existence of the New Mexico Corporation shall cease.
2. The Surviving Corporation shall thereupon and thereafter possess all of the rights, privileges, immunities, powers, purposes and franchises, of a public as well as of a private nature, of each of the Constituent Corporations and all property, real, personal and mixed, all debts due on whatever account, including subscriptions to shares and all other choses in action, and all and every other asset or interest of, or belonging to, or due to each of the Constituent Corporations shall be taken and deemed to be transferred to and vested in the Surviving Corporation without further act or deed, and the title to all property, real, personal or mixed, or any interest therein, vested in either of the Constituent Corporations shall not revert or be in any way impaired by reason of the merger.
3. The Surviving Corporation shall thenceforth assume and be liable for all of the liabilities, obligations and penalties of each of the Constituent Corporations, and any claim existing or action or proceeding pending by or against either of the Constituent Corporations, or any shareholder, officer or director of either of the Constituent Corporations, may be prosecuted to judgment as if the merger had not taken place, or the Surviving Corporation may be substituted in its place; and neither the rights of creditors nor any liens upon the property of either of the Constituent Corporations shall be impaired by the merger, but shall attach to the Surviving Corporation as if incurred or contracted by it. Without limiting the generality of the foregoing: (i) the Surviving Corporation shall thenceforth be bound by the Stock Option Plan of the New Mexico Corporation (the "Stock Option Plan"), and shall for all purposes be recognized as the "Company" in such Stock Option Plan, and (ii) the Surviving Corporation shall thenceforth be bound by the terms of each of the stock option agreements entered into between the New Mexico Corporation and the optionees thereunder pursuant to the Stock Option Plan, and shall for all purposes be recognized as the "Company" in such agreements.
4. Shares of common stock, $0.00001 par value, of the Surviving Corporation shall be made available for future grants under the Stock Option Plan in an amount equal to the number of shares of common stock, no par value, of the New Mexico Corporation available for future grants under the Stock Option Plan on the Effective Date.
5. The Certificate of Incorporation of the Delaware Corporation as in effect on the Effective Date shall be and remain the Certificate of incorporation of the Surviving Corporation until the same shall be appropriately amended or repealed.
6. The By-laws of the Delaware Corporation as in effect on the Effective Date shall be and remain the By-laws of the Surviving Corporation until the same shall be properly amended or repealed.
7. The directors and officers of the Delaware Corporation shall remain the same as they were immediately prior to the Effective Date.
ARTICLE III
The Surviving Corporation shall comply with the provisions of the New
Mexico Business Corporation Act with respect to foreign corporations and hereby
agrees that (i) it may be served with process in the State of New Mexico in any
proceeding for the enforcement of any obligation of the New Mexico Corporation
and in any proceeding for the enforcement of the rights of a dissenting
shareholder of the New Mexico Corporation against the Surviving Corporation;
(ii) the Secretary of State of New Mexico is irrevocably appointed as its agent
to accept service of process in any such proceeding; and (iii) it will promptly
pay to the dissenting shareholders, if any, of the New Mexico Corporation the
amount, if any, to which they shall be entitled under the provisions of the New
Mexico Business Corporation Act pertaining to the rights of dissenting
shareholders.
ARTICLE IV
The manner and basis of converting the shares of the New Mexico Corporation into shares of the Surviving Corporation shall be as follows:
1. Upon the Effective Date, the 100 shares of common stock, $0.00001 par value, of the Delaware Corporation owned by the New Mexico Corporation immediately prior to the Effective Date shall be cancelled and retired, all rights in respect thereof shall cease and the capital of the Surviving Corporation shall be reduced by the $100 of capital applicable to such shares.
2. Upon the Effective Date each share of common stock, no par value, of the New Mexico Corporation issued and outstanding shall thereupon, and without the surrender of stock certificate or any other action, be converted into one fully paid and non-assessable, issued and outstanding share of common stock, $0.00001 par value, of the Surviving Corporation. Outstanding certificates representing shares of common stock of the New Mexico Corporation shall thenceforth be deemed to represent the same number of shares of common stock of the Surviving Corporation, and the holder thereof shall have all of the same rights which he would have had if such certificates had been issued by the Surviving Corporation.
3. Upon the Effective Date, all outstanding options or warrants to buy common stock, no par value, of the New Mexico Corporation shall become, respectively, options or warrants to buy the same number of shares of common stock, $0.00001 par value, of the Surviving Corporation.
4. After the Effective Date, each holder of a certificate representing outstanding shares of common stock, no par value, of the New Mexico Corporation may, but shall not be required to, surrender the same to the Surviving Corporation, and upon such surrender such holder shall be entitled to receive a certificate or certificates issued by the Surviving Corporation for the number of shares of common stock, $0.00001 par value, represented by the surrendered certificate; provided, however, it shall be a condition of any such issuance that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such issuance shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates representing common stock, $0.00001 par value, of the Surviving Corporation in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. The Surviving Corporation shall be entitled to rely upon the stock records of the New Mexico Corporation as to the ownership of its shares of common stock, no par value, at the Effective Date.
5. The New Mexico Corporation will not make any transfers of certificates representing outstanding shares of its common stock, no par value, of the New Mexico Corporation on its books after the Effective Date.
ARTICLE V
Upon the Effective Date:
1. the respective, assets of the New Mexico Corporation and the Delaware Corporation shall be taken up or continued on the books of the Surviving Corporation in the amounts at which such assets shall have been carried on their respective books immediately prior to the Effective Date, except those assets which are shares to be cancelled as provided herein;
2. the respective liabilities and reserves of the New Mexico Corporation and the Delaware Corporation (excluding capital stock, paid-in surplus and retained earnings) shall be taken up or continued on the books of the Surviving Corporation in the amounts at which such liabilities and reserves shall have been carried on their respective books immediately prior to the Effective Date; and
3. the capital stock, paid-in surplus and retained earnings of the New Mexico Corporation shall be taken up on the books of the Surviving Corporation as capital stock, paid-in surplus and retained earnings, respectively, in the amounts at which the same shall be carried on the books of the New Mexico Corporation immediately prior to the Effective Date, except with respect to shares to be cancelled as provided herein.
ARTICLE VI
The Delaware Corporation, as the Surviving Corporation, shall pay all expenses of carrying this Agreement into effect and accomplishing the merger herein provided for.
ARTICLE VII
The New Mexico Corporation agrees that from time to time as and when requested by the Surviving Corporation, its successors or assigns, it will execute, acknowledge, deliver and file all proper deeds, assurances, assignments, bills of sale and other documents, and do all other acts and things, or cause the same to be done, necessary or proper in order to vest, perfect or confirm in the Surviving Corporation title to and possession of all the property, rights, privileges, powers and franchises of the New Mexico Corporation, or otherwise necessary or proper to carry out the intent and purposes of this Agreement.
ARTICLE VIII
This Agreement shall be submitted by the New Mexico Corporation to its shareholders as provided by New Mexico and Delaware law. This Agreement shall take effect, and shall be deemed to be the Plan of Merger and Agreement of the Constituent Corporations, upon the approval or adoption thereof by the shareholders of the New Mexico Corporation in accordance with the laws of the State of New Mexico and the State of Delaware, and upon the execution, acknowledgment, filing and recording of such documents and the doing of such acts and things as shall be required for accomplishing the merger under the laws of the States New Mexico and Delaware. The term "Effective Date" as used in this Agreement shall be the point in time at which the last act required to make the merger effective under the respective laws of such states shall have been performed.
ARTICLE IX
Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be abandoned for any reason whatsoever by the New Mexico Corporation by appropriate resolution of its Board of Directors at any time prior to the time that this Agreement (or a certificate in lieu thereof) filed with the Delaware Secretary of State becomes effective, notwithstanding approval or adoption of this Agreement by the shareholders of the New Mexico Corporation.
ARTICLE X
At any time prior to the time that this Agreement (or certificate in lieu thereof) is filed with the Delaware Secretary of State becomes effective, whether before or after approval and adoption by the shareholders of the New Mexico Corporation, this Agreement may be amended in any manner (except that the provisions of each of Article IV, Paragraph 2, Article II, Paragraph 5, or any other terms and conditions of this Agreement if such alteration or change would adversely affect the shareholders of the New Mexico Corporation may not be amended without the approval of the shareholders of the New Mexico Corporation) as may be determined in the judgment of the respective Boards of Directors of the Constituent Corporations to be necessary, desirable, or expedient in order to clarify the intention of the parties hereto or to effect or facilitate the filing, recording or official approval of this Agreement and the merger provided for herein, in accordance with the purposes and intent of this Agreement.
IN WITNESS WHEREOF, each of the Constituent Corporations has caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereto affixed as of the 26th day of October, 2004.
PROTALEX, INC., a New Mexico corporation
By: /s/ Steven H. Kane
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Steven H. Kane
Its: President
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PROTALEX, INC., a Delaware corporation
By: /s/ Steven H. Kane
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Steven H. Kane
Its: President
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CERTIFICATE OF SECRETARY OF
PROTALEX, INC.
I, Steven H. Kane, Secretary of Protalex, Inc., a Delaware corporation, hereby certify as Secretary and under the seal of said corporation that the Plan of Merger and Agreement to which this certificate is attached, after having been first duly executed on behalf of said corporation by its President, was adopted at a meeting of the sole shareholder of Protalex, Inc. on March 23, 2004.
WITNESS MY HAND AND SEAL OF PROTALEX, INC. on the 26th day of October, 2004.
/s/ Frank M. Dougherty ----------------------------- Frank M. Dougherty, Secretary |
[SEAL]
The above Plan of Merger and Agreement, having been executed on behalf of Protalex, Inc., a Delaware corporation, the only Delaware corporation which is a party thereto, and having been adopted by the sole shareholder in accordance with the provisions of the general laws of the State of Delaware, the President of Protalex, Inc., now hereby executes said Plan of Merger and Agreement under the corporate seal by the authority of the Board of Directors of Protalex, Inc. this 26th day of October, 2004.
PROTALEX, INC.
By: /s/ Steven H. Kane -------------------------------------- Steven H. Kane, President |
CERTIFICATE OF INCORPORATION
OF
PROTALEX, INC.
A DELAWARE CORPORATION
ARTICLE I
The name of the Corporation is Protalex, Inc.
ARTICLE II
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
ARTICLE III
The address of its registered office in the State of Delaware is National Corporate Research, Ltd., 615 South DuPont Highway, in the City of Dover, County of Kent, Delaware 19901. The name of its registered agent at such address is National Corporate Research, Ltd.
ARTICLE IV
The name and mailing address of the incorporator is: Nancy A. Crane, 600 West Broadway, Suite 2600, San Diego, California 92101.
ARTICLE V
The aggregate number of shares which the corporation shall have authority to issue is Forty Million (40,000,000) shares of common stock, par value $0.00001 per share.
ARTICLE VI
1. Indemnification of Directors. A director of the corporation shall not be personally liable to the corporation for monetary damages for breach of fiduciary duty as a director except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit.
2. Indemnification of Officers and Agents. The Corporation is authorized to provide indemnification of its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, does make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 23rd day of March, 2004.
/s/ Nancy A. Crane
--------------------------------
Nancy A. Crane, Incorporator
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BYLAWS
OF
PROTALEX, INC.
ARTICLE I
STOCKHOLDERS
SECTION 1.1 ANNUAL MEETINGS. An annual meeting of stockholders shall be held for the election of directors 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. Any other proper business may be transacted at the annual meeting.
SECTION 1.2 SPECIAL MEETINGS. Special meetings of stockholders for any purpose or purposes may be called at any time, date or place, either within or without the State of Delaware, by the Board of Directors, or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority, as expressly provided in a resolution of the Board of Directors, include the power to call such meetings, but such special meetings may not be called by any other person or persons.
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 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 provided by law, the certificate of incorporation of
these bylaws, the written notice of any meeting shall be given no 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 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.
SECTION 1.4 ADJOURNMENTS. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such 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, which 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.
SECTION 1.5 QUORUM. Except as otherwise provided by law, the certificate of incorporation or these bylaws, at each meeting of stockholders the presence in person or by proxy of the holders of shares of stock having a majority of the votes which could be cast by the holders of all 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 stockholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided in
Section 1.4 of these bylaws until a quorum shall attend. Shares of its 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 to vote stock, including
but not limited to its own stock, held by it in a fiduciary capacity.
SECTION 1.6 ORGANIZATION. Meetings of stockholders 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 his absence by a Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
SECTION 1.7 VOTING; PROXIES. Except as otherwise provided by 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 him which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed 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 another duly executed proxy bearing a later date with the Secretary of the corporation. Voting at meetings of stockholders need not be by written ballot and need not be conducted by inspectors of election unless so determined by the holders of shares of stock having a majority of the votes which could be cast by the holders of all outstanding shares of stock entitled to vote thereon which are present in person or by proxy at such meeting. At all meetings of stockholders for the election of directors a plurality of the votes cast shall be sufficient to elect. All other elections and questions shall, unless otherwise provided by law, the certificate of incorporation or these bylaws, be decided by the vote of the holders of shares of stock having a majority of the votes which could be cast by the holders of all shares of stock entitled to vote thereon which are present in person or represented by proxy at the meeting.
SECTION 1.8 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 to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix 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:
(1) 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 date of such meeting;
(2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and
(3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (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; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (iii) the record date for determining stockholders for any other purpose 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.
SECTION 1.9 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. 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.
SECTION 1.10 ACTION BY CONSENT OF STOCKHOLDERS. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 NUMBER; QUALIFICATIONS. The Board of Directors shall consist of up to nine (9) members. The initial number of directors shall be seven, with the number thereafter to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.
SECTION 2.2 ELECTION; RESIGNATION; REMOVAL; VACANCIES. The Board of Directors shall initially consist of the persons named as directors in the Action of Incorporator, and each director so elected shall hold office until the first annual meeting of stockholders and until his successor is elected and qualified or until such director's earlier resignation or removal. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one (1) year and until his successor is elected and qualified or until such director's resignation or removal. Any director may resign at any time upon written notice to the corporation. Any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, and each director so elected shall hold office until the expiration of the term of office of the director whom he has replaced and until his successor is elected and qualified. Any one or more of the directors may be removed with or without cause at any time by the vote or written consent of the stockholders representing not less than a majority of the issued and outstanding capital stock entitled to voting power.
SECTION 2.3 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, and if so determined, notices thereof need not be given.
SECTION 2.4 SPECIAL MEETINGS. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of 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 (24) hours before the special meeting.
SECTION 2.5 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 bylaw shall constitute presence in person at such meeting.
SECTION 2.6 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 or these bylaws otherwise provide, 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 2.7 ORGANIZATION. 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 chairman of the meeting may appoint any person to act as secretary of the meeting.
SECTION 2.8 INFORMAL ACTION BY DIRECTORS. Unless otherwise restricted by the certificate of incorporation or these bylaws, 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.
ARTICLE III
COMMITTEES
SECTION 3.1 COMMITTEES. The Board of Directors may, by resolution passed by a majority of the whole 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 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 pages which may require it.
SECTION 3.2 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 of these bylaws.
ARTICLE IV
OFFICERS
SECTION 4.1 EXECUTIVE OFFICERS; ELECTION; QUALIFICATIONS; TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES. The corporation shall have such officers with such titles and duties as shall be stated in a resolution of the Board of Directors. 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. 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, and removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.
SECTION 4.2 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 by the Board of Directors and, to the extent not so provided, as generally pertain to their respective officers, 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 V
STOCK
SECTION 5.1 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. The Board of Directors may make such rules and regulations as it may deem expedient not inconsistent with the bylaws or with the Certificate of Incorporation, concerning the issue, transfer and registration of the certificates for shares of stock of the corporation. It may appoint a transfer agent or registrar of transfers, or both, and it may require all certificates to bear the signature of either or both. 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 5.2 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 VI
INDEMNIFICATION
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 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 she or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or 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 (an "indemnitee"), against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such indemnitee. The corporation shall be required to indemnify an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if the initiation of such proceeding (or part thereof) by the indemnitee 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 an indemnitee in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the director or officer to repay all amounts advanced if it should be ultimately determined that the director or officer is not entitled to be indemnified under this Article or otherwise.
SECTION 6.3 CLAIMS. If a claim for indemnification or payment of expenses under this Article VI is not paid in full within sixty (60) days after a written claim therefor by the indemnitee has been received by the corporation, the indemnitee 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 expenses of prosecuting such claim. In any such action the corporation shall have the burden of proving that the indemnitee was not entitled to the requested indemnification or payment of expenses under applicable law.
SECTION 6.4 NONEXCLUSIVITY OF RIGHTS. The rights conferred on any person by this Article VI shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 6.5 OTHER INDEMNIFICATION. The corporation's obligation, if any, to indemnify any 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 person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit 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 person in respect of any act or omission occurring prior to the time of such repeal or modification.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 FISCAL YEAR. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.
SECTION 7.2 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 7.3 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 7.4 INTERESTED DIRECTORS; QUORUM. 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 committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if:
(1) the material facts as to his 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
(2) the material facts as to his 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
(3) 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.
SECTION 7.5 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. The corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.
SECTION 7.6 AMENDMENT OF BYLAWS. These bylaws may be altered, amended or repealed and new bylaws may be adopted at any regular or special meeting of the stockholders by a vote of the stockholders owning a majority of the shares and entitled to vote thereat. These bylaws may be altered, amended or repealed and new bylaws may be adopted at any regular or special meeting of the Board of Directors (if notice of such alteration or repeal be contained in the notice of such special meeting) by a majority vote of the directors present at the meeting at which a quorum is present, but any such amendment shall not be inconsistent with or contrary to the provision of any amendment adopted by the stockholders.
CERTIFICATE OF SECRETARY
I certify:
That I am the duly elected and acting Secretary of Protalex, Inc., a Delaware corporation; and
That the foregoing bylaws, comprising nine (9) pages, constitute the Bylaws of such corporation on the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate and affixed the seal of such corporation on September 1, 2004.
/s/ Frank M. Dougherty ----------------------------- Frank M. Dougherty, Secretary |
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