**Exhibit 3.5**

 

AMENDED AND RESTATED BYLAWS

 

Of

 

VICURON PHARMACEUTICALS INC.

 

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TABLE OF CONTENTS

 
| Section 1.  | Offices.                                                       |
|-------------|----------------------------------------------------------------|
|        |                                                           |
| Section 2.  | Place of Meetings.                                             |
|        |                                                           |
| Section 3.  | Annual Meeting.                                                |
|        |                                                           |
| Section 4.  | Special Meetings.                                              |
|        |                                                           |
| Section 5.  | Meeting Business.                                              |
|        |                                                           |
| Section 6.  | Notice; Waiver; Postponement; Cancellation.                    |
|        |                                                           |
| Section 7.  | Quorum.                                                        |
|        |                                                           |
| Section 8.  | Voting.                                                        |
|        |                                                           |
| Section 9.  | List of Stockholders Entitled to Vote.                         |
|        |                                                           |
| Section 10. | Stock Certificates.                                            |
|        |                                                           |
| Section 11. | Transfer of Shares; Transfer Agent and  Registrar.             |
|        |                                                           |
| Section 12. | Record Date.                                                   |
|        |                                                           |
| Section 13. | Number; Classes; Vacancies; Nominations.                       |
|        |                                                           |
| Section 14. | Special Provisions Relating to the Merger.                     |
|        |                                                           |
| Section 15. | Meetings; Notice; Waiver; Quorum; Voting.                      |
|        |                                                           |
| Section 16. | Indemnification of Directors, Officers,  Employees and Agents. |
|        |                                                           |
| Section 17. | Election; Positions.                                           |
|        |                                                           |
| Section 18. | Term.                                                          |
|        |                                                           |
| Section 19. | Powers and Duties.                                             |
|        |                                                           |
| Section 20. | Deposits; Checks and Drafts.                                   |
|        |                                                           |
| Section 21. | Contracts.                                                     |
|        |                                                           |
| Section 22. | Corporate Seal.                                                |
|        |                                                           |
| Section 23. | Fiscal Year.                                                   |
|        |                                                           |
| Section 24. | Amendment of Bylaws.                                           |
|        |                                                           |
| Section 25. | Shareholder Rights Agreement.                                  |
|        |                                                           |
| Section 26. | Italian Branch Manager                                         |
|        |                                                           |
| Section 27. | Directors of Italian Subsidiary                                |

 

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AMENDED AND RESTATED BYLAWS

of

VICURON PHARMACEUTICALS INC.

 

Section 1.                             Offices.  In addition to its principal office in theState of Delaware, the Corporation may also have offices at such other placeswithin or without the State of Delaware as the Board of Directors shall fromtime to time determine.

 

Section 2.                             Placeof Meetings.  Meetings of thestockholders for the election of directors or for any other purpose shall beheld at such time and place, either within or without the State of Delaware, asshall be designated from time to time by the Board of Directors.  The Board of Directors may, in its solediscretion, determine that stockholders and proxyholders not physically presentat a meeting of the stockholders may participate in a meeting of thestockholders by means of remote communications in the manner authorized by theGeneral Corporation Law of the State of Delaware (the “DGCL”).

 

Section 3.                             AnnualMeeting.  The annual meeting of thestockholders of the Corporation shall be held on such date and at such time asmay be specified in the notice thereof, as shall be fixed by the Board ofDirectors, for the purpose of electing directors and for the transaction ofonly such other business as is properly brought before such meeting inaccordance with these Bylaws.  If anyannual meeting shall not be held on the day designated or the directors shallnot have been elected thereat or at any adjournment thereof, thereafter theBoard of Directors shall cause a special meeting of the stockholders to be heldas soon as practicable for the election of directors.  At such special meeting the stockholders may elect directors andtransact other business with the same force and effect as at an annual meetingof the stockholders duly called and held.

 

Section 4.                             SpecialMeetings.  Special meetings of thestockholders of the Corporation may be held only upon notice given by or at thedirection of the Board of Directors.  Suchnotice shall state the time, place and purposes of the meeting.

 

Section 5.                             MeetingBusiness.  In order to be properlybrought before any meeting of the stockholders held pursuant to Section 3,business (including the election of directors) must be (a) specified in thenotice of meeting (or any supplement thereto) given by or at the direction ofthe Board of Directors, (b) otherwise properly brought before the meeting by orat the direction of the Board of Directors, or (c) otherwise properly brought beforethe meeting by a stockholder.  Inaddition to any other applicable requirements, in order for any such businessto be properly brought before the meeting by a stockholder, the stockholdermust have given timely notice thereof in writing to the Secretary of theCorporation.  In order to be timely, astockholder’s notice must be delivered to or mailed and received at theprincipal executive offices of the Corporation not less than sixty (60) daysnor more than ninety (90) days prior to the anniversary date of the immediatelypreceding annual meeting of stockholders; provided, however, that in the eventthat the annual meeting is called for a date that is not within the thirty (30)days before or after such anniversary date, notice by the stockholder in orderto be timely must be so received not later than the close of business on the15th day following the day on which such

 

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notice of the date of theannual meeting was mailed or such public disclosure of the date of the meetingwas made, whichever first occurs.  Astockholder’s notice to the Secretary shall set forth as to each matter thestockholder proposes to bring before the meeting (i) a brief description of thebusiness desired to be brought before the annual meeting and the reasons forconducting such business at the meeting, (ii) the name and record address ofthe stockholder proposing such business, (iii) the class and number of sharesof the Corporation that are beneficially owned by the stockholder, and (iv) anymaterial interest of the stockholder in such business.

 

Section 6.                             Notice;Waiver; Postponement; Cancellation. Notice of the time and place of every meeting of the stockholders, themeans of remote communications by which stockholders and proxyholders may bedeemed to be present in person and vote at such meeting, if any means of remotecommunications is permitted by the Board of Directors, and of the business tobe acted on at such meeting shall be mailed by the Secretary or the officerperforming his duties, at least ten (10) days before the meeting, to eachstockholder of record having voting power and entitled to such notice at hislast known post office address; provided, however, that if a stockholder bepresent at a meeting or in writing waive notice thereof before or after the meeting,notice of the meeting to such stockholder shall be unnecessary.  Any previously scheduled meeting of thestockholders may be postponed, and (unless the Fourth Amended and RestatedCertificate of Incorporation of the Corporation (as amended, the “Certificateof Incorporation”) otherwise provides) any special meeting of the stockholdersmay be cancelled, by resolution of the Board of Directors upon public noticegiven prior to the date previously scheduled for such meeting of stockholders.

 

Section 7.                             Quorum.  The holders of a majority of the stock ofthe Corporation having voting power present in person or by proxy shallconstitute a quorum, but in every case, the presiding officer at the meeting orthe stockholders present, although less than a quorum, shall have power toadjourn any meeting from time to time without notice.  The holders of a majority of the stock present and entitled tovote at a duly qualified meeting of stockholders shall have power to act; unlessthe matter is one as to which a different vote is specified by the Certificateof Incorporation, these Bylaws or applicable law or regulation (other thanSections 216(1) and (4) of the DGCL), in which case the different vote sospecified by such provision, law or regulation shall apply.  The foregoing provisions of this Section 7each shall be subject to the voting rights of holders of any Preferred Stock ofthe Corporation and any related quorum requirements.

 

Section 8.                             Voting.  Unless otherwise specified in theCertificate of Incorporation, at every meeting of stockholders, eachstockholder entitled to vote thereat shall be entitled to one vote for eachshare of stock held by such stockholder and may vote and otherwise act inperson or by proxy; but no proxy shall be voted upon more than one (1) yearafter its date unless such proxy provides for a longer period.

 

Withoutlimiting the manner in which a stockholder may authorize another person orpersons to act for such stockholder as proxy, the following shall constituteone of the valid means by which a stockholder may grant such authority:

 

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(i)                                     Astockholder may execute a writing authorizing another person or persons to actfor such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’sauthorized officer, director, employee or agent signing such writing or causingsuch person’s signature to be affixed to such writing by any reasonable means,including, without limitation, by facsimile signature.

 

(ii)                                  Astockholder may authorize another person or persons to act for such stockholderas proxy by transmitting or authorizing the transmission of a telegram,cablegram or other means of electronic transmission to the person who will bethe holder of the proxy or to a proxy solicitation firm, proxy support serviceorganization or like agent duly authorized by the person who will be the holderof the proxy to receive such transmission, provided that any such telegram,cablegram or other means of electronic transmission must either set forth or besubmitted with information from which it can be determined that the telegram,cablegram or other electronic transmission was authorized by thestockholder.  If it is determined thatsuch telegrams, cablegrams or other electronic transmissions are valid, theinspectors or, if there are no inspectors, such other persons making thatdetermination shall specify the information on which they relied.

 

A copy, facsimiletelecommunication or other reliable reproduction of the writing or transmissionauthorizing another person or persons to act as proxy for a stockholder may besubstituted or used in lieu of the original writing or transmission for any andall purposes for which the original writing or transmission could be used;provided, however, that such copy, facsimile telecommunication or otherreproduction shall be a complete reproduction.

 

Section 9.                             Listof Stockholders Entitled to Vote. At least ten (10) days before each election of directors, a completelist of the stockholders entitled to vote at such election, arranged inalphabetical order and showing the address and the number of shares registeredin the name of each stockholder, shall be made and filed either at a placewithin the city where the election is to be held and which place shall bespecified in the notice of the meeting at which such election is to take place,or, if not so specified, at the place where such meeting is to be held.  Such list shall be open to the examinationof any stockholder during ordinary business hours for a period of at least ten(10) days prior to such election at the place so filed.  Such list shall be produced and kept at thetime and place of such election and be subject to inspection by anystockholder.

 

Section 10.                       StockCertificates.  Certificates of stockshall be of such form and device as the Board of Directors may elect and shallbe signed by the Chairman of the Board of Directors or the President or a VicePresident and by the Treasurer or an Assistant Treasurer or the Secretary or anAssistant Secretary, but in case any such Certificate is countersigned by atransfer agent, other than the Corporation or its employee, or by a registrar,other than the Corporation or its employee, any other signature on suchcertificate may be a facsimile, engraved, stamped or printed.

 

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Section 11.                       Transferof Shares; Transfer Agent and Registrar. The stock of the Corporation shall be transferable or assignable only onthe books of the Corporation by the holders in person, or by attorney, on thesurrender of the certificates therefor. The Board of Directors may appoint one or more transfer agents andregistrar of the stock.

 

Section 12.                       RecordDate.  The Board of Directors shallhave the power to close the stock transfer books of the Corporation for aperiod not exceeding sixty (60) days preceding the date of any meeting ofstockholders, or the date for payment of any dividend, or the date for theallotment of rights, or the date when any change or conversion or exchange ofcapital stock shall go into effect.  Inlieu of closing the stock transfer books as aforesaid, the Board of Directorsis hereby authorized to fix in advance, a date, not exceeding sixty (60) dayspreceding the date of any meeting of stockholders or the date for the paymentof any dividend or the date for the allotment of rights, or the date when anychange or conversion or exchange of capital stock shall go into effect, as arecord date for the determination of the stockholders entitled to notice of andto vote at, any such meeting, or entitled to receive payment of any suchdividends, or to any such allotment of rights, or to exercise the rights inrespect of any such change, conversion or exchange of capital stock, and insuch case such stockholders and only such stockholders as shall be stockholdersof record on the date so fixed shall be entitled to such notice of, and to voteat, such meeting or to receive payment of such dividend, or to receive suchallotment of rights, or to exercise such rights, as the case may be,notwithstanding any transfer of any stock on the books of the Corporation.

 

Section 13.                       Number;Classes; Vacancies; Nominations. Subject to Section 14 of these Bylaws, the affairs of the Corporationshall be managed by a Board of Directors consisting of such number of directorsas shall be determined from time to time by resolution of a majority of thenumber of directors constituting the entire Board of Directors at such timeand, in the absence of such determination, the number of directors shall benine (9).  The Board of Directors shallbe divided into classes in accordance with Article IX of the Corporation’sCertificate of Incorporation, and any vacancies shall be filled in accordancewith the procedures specified in Article IX.

 

Only personswho are nominated in accordance with the following procedures shall be eligiblefor election as directors at any meeting of stockholders.  Nominations of persons for election to theBoard of Directors of the Corporation at the annual meeting or any meetingcalled for the purpose of electing directors may be made at a meeting ofstockholders (i) by or at the direction of the Board of Directors by anynominating committee or person appointed by the Board of Directors; provided,however, that, during the Transition Period (as such term is defined in Section14 of these Bylaws), the nominating procedures followed by the Board ofDirectors (and each class thereof) or the nominating committee of the Board ofDirectors are in accordance with Section 14 of these Bylaws, or (ii) by anystockholder of the Corporation entitled to vote for the election of directorsat the meeting who complies with the notice procedures set forth in thisSection 13.

 

In addition toany other applicable requirements, such nominations, other than those made byor at the direction of the Board of Directors, shall be made pursuant to

 

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timely notice in writing to theSecretary of the Corporation.  In orderto be timely, a stockholder’s notice must be delivered to or mailed andreceived at the principal executive offices of the Corporation, not less thansixty (60) days nor more than ninety (90) days prior to the anniversary date ofthe immediately preceding annual meeting of stockholders; provided, however,that in the event that the annual meeting is called for a date that is notwithin the thirty (30) days before or after such anniversary date, notice bythe stockholder in order to be timely must be so received not later than theclose of business on the 15th day following the day on which such notice of thedate of the annual meeting was mailed or such public disclosure of the date ofthe meeting was made, whichever first occurs. Such stockholder’s notice to the Secretary shall contain (a) as to eachperson whom the stockholder proposes to nominate for election or reelection asa director, (i) that person’s consent to such nomination, (ii) the name, age,business address and residence address of the person, (iii) the principaloccupation or employment of the person, and (iv) the class and number of sharesof capital stock of the Corporation which are beneficially owned by the person,and (b) as to the stockholder giving the notice (i) the name and record addressof the stockholder, and (ii) the class and number of shares of capital stock ofthe Corporation which are beneficially owned by the stockholder.  The Corporation may require any proposednominee to furnish such other information as may reasonably be required by theCorporation to determine the eligibility of such proposed nominee to serve asdirector of the Corporation.  No personshall be eligible for election as a director of the Corporation unless nominatedin accordance with the procedures set forth herein.

 

The Chairmanof the meeting shall, if the facts warrant, determine and declare to themeeting that the nomination was not made in accordance with the foregoingprocedure, and if he should so determine, shall so declare to the meeting andthe defective nomination shall be disregarded.

 

Section 14.                       SpecialProvisions Relating to the Merger.

 

(a)                            Asof the Effective Time (as such term is defined that certain Agreement and Planof Merger (the “Merger Agreement), dated as of July     ,2002, by and between the Corporation and Biosearch Italia S.p.A., an Italianjoint stock company (“Biosearch”)), the Board of Directors shall be comprisedof four (4) Versicor Approved Directors and four (4) Biosearch ApprovedDirectors (as such terms are defined in subsection (e) of this Section 14), and, subject to the fiduciary dutiesof directors and subsection (b) of this Section 14, during the periodcommencing on the Effective Time and ending on the third anniversary thereof(the “Transition Period”), the Board of Directors or the nominating committeeof the Board of Directors shall nominate for election at each stockholdersmeeting at which directors are elected, such number of Versicor ApprovedDirectors and Biosearch Approved Directors so that the Board of Directors shallat all times remain comprised of an equal number of Versicor Approved Directorsand Biosearch Approved Directors.

 

(b)                           Duringthe Transition Period, at least one (1) of the Versicor Approved Directors andat least one (1) of the Biosearch Approved Directors shall be “independentdirectors” (as such term is defined in the Nasdaq Marketplace Rules or in

 

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the rules andregulations of any other exchange on which the Corporation’s securities maytrade (the “Marketplace Rules”) and each other applicable rule and law (the“Independence Laws”)).  If, during theTransition Period, the Independence Laws require a greater percentage of theBoard of Directors to be “independent directors” (as such term is defined inthe Independent Laws), then, not later than the first day that the Corporationshall be unconditionally obligated to comply with the Independence Laws, thenumber of independent directors on the Board of Directors shall be increasedand the number of Versicor Approved Directors which are independent and thenumber of Biosearch Approved Directors which are independent shall be equal.

 

(c)                            Duringthe Transition Period, the Board of Directors shall consist of eight (8)members, and such number shall not be amended unless, immediately followingsuch amendment, (i) the Board of Directors is comprised of an equal number ofVersicor Approved Directors and Biosearch Approved Directors and (ii) therequirements of this Section 14 are fulfilled.

 

(d)                           If,at any time during the Transition Period, the number of Versicor ApprovedDirectors and the number of Biosearch Approved Directors are not equal, then,subject to the fiduciary duties of directors and subsection (b) of this Section14, the remaining Versicor Approved Directors (if the number of VersicorApproved Directors is, or would otherwise become, less than the number ofBiosearch Approved Directors) shall propose a person or persons to fill anyexisting vacancy or vacancies or the remaining Biosearch Approved Directors (ifthe number of Biosearch Approved Directors is, or would otherwise become, lessthan the number of Versicor Approved Directors) shall propose a person orpersons to fill any existing vacancy or vacancies, in each case such that thereshall be an equal number of Versicor Approved Directors and Biosearch ApprovedDirectors.  If the Board of Directorsdoes not approve and nominate the proposed replacement candidate VersicorApproved Director by resolution passed by a majority of the entire Board ofDirectors, then a new replacement Versicor Approved Director shall be proposedby a majority of the remaining Versicor Approved Directors and this processshall repeat itself until a replacement candidate Versicor Approved Director isapproved.  If full Board of Directorsdoes not approve and nominate the proposed replacement candidate BiosearchApproved Director by resolution passed by a majority of the entire Board ofDirectors, then a new replacement Biosearch Approved Director shall be proposedby a majority of the remaining Biosearch Approved Directors and this processshall repeat itself until a replacement candidate Biosearch Approved Directoris approved.  If the Board of Directorsapproves and nominates the proposed replacement candidate Versicor ApprovedDirector or Biosearch Approved Director, as applicable, by resolution passed bya majority of the entire Board of Directors, then the remaining directors ofthe class into which such Versicor Approved Director or Biosearch Approved Directorshall be assigned (or a majority of the directors of the remaining classes, ifno such director remains), shall approve and nominate such proposed replacementcandidate Versicor Approved Director or Biosearch Approved Director, asapplicable.

 

(e)                            Theterm “Versicor Approved Director” means (i) any person who becomes a Directorof the Corporation pursuant to Section 1.6(a) of the Merger

 

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Agreement and(ii) any person who becomes a Director of the Corporation pursuant to  subsection (d) of this Section 14 and who isdesignated by the Versicor Approved Directors; and the term “BiosearchDirector” means (i) any person who becomes a Director of the Corporation pursuantto Section 1.6(a) of the Merger Agreement and (ii) any person who becomes aDirector of the Corporation pursuant subsection (d) of this Section 14 and who is designated by the BiosearchApproved Directors.

 

(f)                              Byresolution passed by a majority of the entire Board of Directors, the Board of Directorsmay appoint from among its members such committees as it may from time  to time deem desirable and may delegate tosuch committees such powers of the Board of Directors as it may considerappropriate, as permitted by the Certificate of Incorporation, these Bylaws andby applicable law; provided, however, that during the Transition Period, (i)the Corporation shall have at least the following three (3) standingcommittees:  (1) the auditcommittee; (2) the compensation committee; and (3) the nominatingcommittee; (ii) the initial members and Chairpersons of such committeesshall be as set forth in Schedule 1.6 of the Merger Agreement,(iii) subject to the Marketplace Rules, the Independence Laws and otherapplicable rules and laws, each committee of the Board of Directors shall becomprised of an equal number of Versicor Approved Directors and BiosearchApproved Directors, and (iv) the replacements for members of any standingcommittee shall be proposed and approved in accordance with subsection (d) ofthis Section 14.

 

Section 15.                       Meetings;Notice; Waiver; Quorum; Voting.

 

(a)                            Meetingsof the Board of Directors shall be held at the times fixed by resolutions ofthe Board of Directors or upon call of the Chairman of the Board or of thePresident or any five (5) directors and may be held outside the State ofDelaware.  Members of the Board ofDirectors, or any committee thereof, may participate in a meeting of the Boardof Directors or such committee by means of a conference telephone or othercommunications equipment by means of which all persons participating in themeeting can hear each other, and participation in a meeting pursuant to  subsection (a) of this Section 15 shallconstitute presence in person at such meeting.

 

(b)                           TheSecretary or officer performing his duties shall give reasonable notice (whichshall not in any event be less than two (2) days) of all meetings of directors,provided that a meeting may be held without notice immediately after the annualelection, and notice need not be given of regular meetings held at times fixedby resolution of the Board of Directors. Meetings may be held at any time without notice if all the directors arepresent or if those not present waive notice either before or after themeeting.  Notice stating the place, dateand hour of the meeting shall be given by telephone, telegram or electronicmeans not less than the time above specified before the meeting shall besufficient.

 

(c)                            Fivedirectors shall constitute a quorum for the transaction of business.  For purposes of clarification, during theTransition Period, the presence of at least one Versicor Approved Director andone Biosearch Approved Director shall be

 

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required for aquorum to be established.  Less thansuch a quorum shall have power to adjourn any meeting from time to time withoutnotice.

 

(d)                           Theact of a majority of the directors present at any meeting at which a quorum ispresent shall be the act of the Board of Directors unless otherwise specifiedin the Certificate of Incorporation, these Bylaws or any applicable law, inwhich case the different vote so specified by such provision or law shallapply; provided, however, that during the Transition Period, the act of amajority of the directors present at any meeting at which a quorum is presentshall be the act of the Board of Directors if and only if such majority of thedirectors consists of at least one Versicor Approved Director and at least oneBiosearch Approved Director.

 

(e)                            Unlessotherwise provided in the Certificate of Incorporation, these Bylaws or anyapplicable law, any action required or permitted to be taken at any meeting ofthe Board of Directors or of any committee thereof may be taken without ameeting, if all the members of the Board of Directors or committee, as the casemay be, consent thereto in writing or by electronic transmission, and thewriting or writings or electronic transmission or transmissions are filed withthe minutes of proceedings of the Board of Directors or committee.  Such filing shall be in paper form if theminutes are maintained in paper form and shall be in electronic form if theminutes are maintained in electronic form.

 

Section 16.                       Indemnificationof Directors, Officers, Employees and Agents.

 

(a)                            Anyperson who was or is a party or is threatened to be made a party to anythreatened, pending or completed action, suit or proceeding, whether civil,criminal, administrative or investigative (other than an action by or in theright of this Corporation) by reason of the fact that he is or was or hasagreed to become a director, officer, employee or agent of this Corporation, oris or was serving or has agreed to serve at the request of this Corporation asa director, officer, employee or agent of another corporation, partnership,joint venture, trust or other enterprise, or by reason of any action alleged tohave been taken or omitted in such capacity, shall be indemnified by thisCorporation against costs, charges, expenses (including attorneys’ fees), judgments,fines and amounts paid in settlement actually and reasonably incurred by him inconnection with such action, suit or proceeding and any appeal therefrom, if heacted in good faith and in a manner he reasonably believed to be in or notopposed to the best interests of this Corporation, and, with respect to anycriminal action or proceeding, had no reasonable cause to believe his conductwas unlawful.  The termination of anyaction, suit or proceeding by judgment, order, settlement, conviction, or upona plea of nolo contendere or its equivalent, shall not, of itself, create apresumption that the person did not act in good faith and in a manner which hereasonably believed to be in or not opposed to the best interests of thisCorporation, and, with respect to any criminal action or proceeding, hadreasonable cause to believe that his conduct was unlawful.

 

(b)                           Anyperson who was or is a party or is threatened to be made a party to anythreatened, pending or completed action, suit, proceeding or investigation byor in the right of this Corporation to procure a judgment in its favor byreason of the fact

 

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that he is orwas or has agreed to become a director, officer, employee or agent of thisCorporation, or is or was serving or has agreed to serve at the request of thisCorporation as a director, officer, employee, or agent of another corporation,partnership, joint venture, trust or other enterprise, or by reason of anyaction alleged to have been taken or omitted in such capacity, shall beindemnified by this Corporation against costs, charges and expenses (includingattorneys’ fees) actually and reasonably incurred by him in connection with thedefense or settlement of such action or suit and any appeal therefrom, if heacted in good faith and in a manner he reasonably believed to be in or notopposed to the best interest of this Corporation, except that noindemnification shall be made in respect of any claim, issue or matter as towhich such person shall have been adjudged to be liable for negligence ormisconduct in the performance of his duty to this Corporation unless and onlyto the extent that the Court of Chancery of Delaware or the court in which suchaction or suit was brought shall determine upon application that, despite theadjudication of such liability but in view of all the circumstances of thecase, such person is fairly and reasonably entitled to indemnity for suchcosts, charges and expenses which the Court of Chancery of Delaware or suchother court shall deem proper.

 

(c)                            Notwithstandingthe other provisions of this Section 16, to the extent that a director,officer, employee or agent of this Corporation has been successful on themerits or otherwise in defense of any action, suit or proceeding referred to insubsections (a) and (b) of this Section 16, or in defense of any claim, issueor matter therein, he shall be indemnified against all costs, charges andexpenses (including attorneys’ fees) actually and reasonably incurred by him inconnection therewith.

 

(d)                           Anyindemnification under subsections (a) and (b) of this Section 16 (unlessotherwise ordered by a court) shall be made by this Corporation only asauthorized in the specific case upon a determination that indemnification of thedirector, officer, employee or agent is proper in the circumstances because hehas met the applicable standard of conduct set forth in subsections (a) and (b)of this Section 16.  Such determinationshall be made (1) by the Board of Directors by a majority vote of a quorumconsisting of directors who are not parties to such action, suit or proceeding,or (2) if such a quorum is not obtainable, or, even if obtainable, a quorum ofdisinterested directors so directs, by independent legal counsel in a writtenopinion, or (3) by the stockholders, or (4) if a Change in Control has occurredand the director, officer, employee or agent seeking indemnification sorequests, in a written opinion rendered by independent legal counsel chosen bythe person requesting indemnification and not reasonably objected to by theBoard of Directors.  For purposesof  subsection (4) of this subsection(d), “independent legal counsel” shall mean legal counsel other than anattorney, or a firm having associated with it an attorney, who has beenretained by or who has performed substantial services for either thisCorporation or the person seeking indemnification within the past five (5)years.  The Corporation shall pay thefees of the independent legal counsel. For purposes of this subsection (d), a“Change in Control” shall be deemed to have occurred if (i) any person (as suchterm is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of1934, as amended (the “1934 Act”) is or becomes the beneficial owner (as definedin Rule 13d-3 under the 1934 act), directly or indirectly, of securities ofthis Corporation representing twenty-five percent (25%) or more of the combinedvoting power of this Corporation’s then outstanding securities in a

 

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transactionnot approved by the Board of Directors sitting immediately prior to suchacquisition, (ii) this Corporation is a party to a merger, consolidation, saleof assets or other reorganization, or proxy contest, as a consequence of whichmembers of the Board of Directors sitting immediately prior to such transactionor event constitute less than five-sixths of the Board of Directors thereafter,or (iii) during the immediately preceding four (4) years, individuals who atthe beginning of such period constituted the Board of Directors cease for anyreason to constitute at least a majority thereof, unless the election of eachdirector who was not a director at the beginning of the period was approved bya vote of at least two-thirds of the directors then still in office who weredirectors at the beginning of the period.

 

(e)                            Costs,charges and expenses (including attorney’s fees) incurred by a person referredto in subsections (a) and (b) of this Section 16 in defending a civil or criminalaction, suit or proceeding shall be paid promptly by this Corporation inadvance of the final determination of such action, suit or proceeding;provided, however, that the payment of such costs, charges and expensesincurred by a director or officer in his capacity as a director or officer (andnot in any other capacity in which service was or is rendered by such personwhile a director or officer) in advance of the final disposition of suchaction, suit or proceeding shall be made only upon receipt of an undertaking byor on behalf of the director or officer to repay all amounts so advanced in theevent that it shall ultimately be determined that such director or officer isnot entitled to be indemnified by this Corporation as authorized by this Section16.  Such costs, charges and expensesincurred by other employees and agents may be so paid upon such terms andconditions, if any, as the Board of Directors deems appropriate.

 

(f)                              Theindemnification provided by this Section 16 shall not be deemed exclusive ofany other rights to which a person seeking indemnification may be entitledunder any law (common or statutory), agreement, vote of stockholders ordisinterested directors or otherwise, both as to action in his officialcapacity and as to action in another capacity while holding office or whileemployed by or acting as agent for this Corporation, it being the policy ofthis Corporation that indemnification of the persons specified in subsections(a) and (b) of this Section 16 shall be made to the fullest extent permitted byapplicable law.  The indemnificationprovided by this Section 16 shall continue as to a person who has ceased to bea director, officer, employee or agent, and shall inure to the benefit of theestate, heirs, executors and administrators of such Person.  All rights to indemnification under thisSection 16 shall be deemed to be a contract between this Corporation and eachdirector, officer, employee or agent of this Corporation who serves or servedin such capacity at any time while this Section 16 is in effect.  Any repeal or modification of this Section16 or any repeal or modification of relevant provisions of the DGCL or anyother applicable law shall not in any way diminish any rights to indemnificationof such director, officer, employee or agent or the obligation of thisCorporation arising hereunder.

 

(g)                           Ifthis Section 16 or any portion hereof shall be invalidated on any ground by anycourt of competent jurisdiction, then this Corporation shall neverthelessindemnify each director, officer, employee and agent of this Corporation as tocosts, charges and expenses (including attorneys’ fees), judgments, fines andamounts paid in

 

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settlementwith respect to any action, suit or proceeding, whether civil, criminal,administrative or investigative, including, without limitation, any action byor in the right of this Corporation, to the full extent permitted by anyapplicable portion of this Section 16 that shall not have been invalidated andto the fullest extent permitted by applicable law.

 

Section 17.                       Election;Positions.  The Board of Directors,as soon as may be after the election of directors in each year, shall appoint:(i) one of their number Chairman of the Board of Directors; and (ii) one oftheir number President of the Corporation, and may also appoint one or moreExecutive Vice-Presidents, Senior Vice-Presidents, First Vice-Presidents andVice Presidents, a Secretary and a Treasurer; provided, however, that as of andat the Effective Time, the positions referenced in Section 1.6(a) of the MergerAgreement shall be filled by the persons designated pursuant to that Section1.6(a).  The Board of Directors may fromtime to time appoint one of their number as Vice-Chairman and may appoint suchother officers as they deem appropriate. Any person may hold more than one office, except that same Person maynot hold more than one of the offices of President and Secretary.

 

Section 18.                       Term.  The term of office of all officers shall beuntil the next election of directors and until their respective successors arechosen and qualified, or until they shall die or resign, but any officer may beremoved from office at any time by the Board of Directors.  Vacancies in any office may be filled by theBoard of Directors at any meeting.

 

Section 19.                       Powersand Duties.  The officers of theCompany shall have such powers and duties as usually pertain to their offices,except as modified by the Board of Directors, and shall also have such powersand duties as may from time to time be conferred upon them by the Board ofDirectors.

 

Section 20.                       Deposits;Checks and Drafts.  The Board ofDirectors is authorized to select such depositaries as it shall deem proper forthe funds of the Corporation.  Allchecks and drafts against such deposited funds shall be signed andcountersigned by persons to be specified by the Board of Directors.

 

Section 21.                       Contracts.  The President, or any Vice-President, shallhave authority to execute and deliver all contracts or undertakings of theCorporation.

 

Section 22.                       CorporateSeal.  The corporation seal of theCorporation shall be in such form as the Board of Directors shall prescribe.

 

Section 23.                       FiscalYear.  The fiscal year of theCorporation shall be the calendar year.

 

Section 24.                       Amendmentof Bylaws.  Either the Board ofDirectors or the stockholders may alter or amend these Bylaws at any meeting,duly held as above provided, the notice of which includes notice of theproposed alteration or amendment, as permitted by the Certificate ofIncorporation, these Bylaws and applicable law; provided, however, that anyamendment of these Bylaws by the stockholders shall require the

 

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approval ofholders of shares of the Corporation representing at least seventy-five percent(75%) of the shares then entitled to vote thereon.

 

Section 25.                       ShareholderRights Agreement.  The Board ofDirectors may impose restrictions on transfer of securities of the Corporationpursuant to the Shareholder Rights Agreement between the Corporation and theRights Agent, as and to the extent required by such Rights Agreement, asamended from time to time.

 

Section 26.                       ItalianBranch Manager.  For the lesser of(i) the period during which Corporation has a “permanent establishment”for Italian tax purposes, and (ii) the Transition Period, the Board ofDirectors shall appoint one or more of their number as “Institore” (i.e.,the “Italian Branch Manager”) of the permanent establishment; provided, however,that as of and at the Effective Time, the position of Italian Branch Managershall be filled by the person designated pursuant to Section 1.6(b) of theMerger Agreement.

 

Section 27.                       Directorsof Italian Subsidiary.

 

(a)                            Forso long as the lesser of (i) the period during which the Corporation has acontrolling interest in an S.r.l. formed under the laws of Italy (the “ItalianSubsidiary”), and (ii) the Transition Period (such period, the “ItalianSubsidiary Transition Period”), the Board of Directors of the Corporation orthe nominating committee of the Board of Directors of the Corporation shallnominate for election at each shareholders meeting at which directors of theItalian Subsidiary are elected, such number of Versicor Approved Subsidiary Directors(as defined below) and Biosearch Approved Subsidiary Directors (as definedbelow) such that the Board of Directors of the Italian Subsidiary shall at alltimes remain comprised of an equal number of Versicor Approved SubsidiaryDirectors and Biosearch Approved Subsidiary Directors.

 

(b)                           Duringthe Italian Subsidiary Transition Period, the Board of Directors of the ItalianSubsidiary shall consist of eight (8) members, and such number shall not beamended unless, immediately following such amendment, (i) the Board ofDirectors of the Italian Subsidiary is comprised of an equal number of VersicorApproved Subsidiary Directors and Biosearch Approved Subsidiary Directors, and(ii) the requirements of this Section 27 are fulfilled.

 

(c)                            If,at any time during the Italian Subsidiary Transition Period, the number ofVersicor Approved Subsidiary Directors and the number of Biosearch ApprovedSubsidiary Directors are not equal, then the Board of Directors of theCorporation shall nominate to fill any existing vacancy or vacancies, as thecase may be, such person or persons as may be requested by the VersicorApproved Directors (if the number of Versicor Approved Subsidiary Directors is,or would otherwise become, less than the number of Biosearch Approved SubsidiaryDirectors) or by the Biosearch Approved Directors (if the number of BiosearchApproved Subsidiary Directors is, or would otherwise become, less than thenumber of Versicor Approved Subsidiary Directors) to ensure that there shall bean equal number of Versicor Approved Subsidiary Directors and BiosearchApproved Subsidiary Directors.  If theBoard of Directors of the

 

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Corporationdoes not approve and nominate the proposed replacement candidate VersicorApproved Subsidiary Director by resolution passed by a majority of the entireBoard of Directors of the Corporation, then a new replacement Versicor ApprovedSubsidiary Director shall be proposed by a majority of the Versicor ApprovedDirectors and this process shall repeat itself until a replacement candidateVersicor Approved Subsidiary Director is approved.  If the Board of Directors of the Corporation does not approve andnominate the proposed replacement candidate Biosearch Approved SubsidiaryDirector by resolution passed by a majority of the entire Board of Directors ofthe Corporation, then a new replacement Biosearch Approved Subsidiary Directorshall be proposed by a majority of the Biosearch Approved Directors and thisprocess shall repeat itself until a replacement candidate Biosearch ApprovedSubsidiary Director is approved.

 

(d)                           Theterm “Versicor Approved Subsidiary Director” means (i) any person who becomes aDirector of the Italian Subsidiary pursuant to Section 1.6(b) of the MergerAgreement, and (ii) any person who becomes a Director of the Italian Subsidiarypursuant to subsection (c) of this Section 27 and who is designated by theVersicor Approved Directors; and the term “Biosearch Approved SubsidiaryDirector” means (i) any person who becomes a Director of the ItalianSubsidiary pursuant to Section 1.6(b) of the Merger Agreement, and (ii)any person who becomes a Director of the Italian Subsidiary pursuant tosubsection (c) of this Section 27 and who is designated by the Biosearch ApprovedDirectors.

 

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The foregoingBylaws were adopted by the Board of Directors of the Corporation on May      , 2003.

 

 
|   |                       |   |
|--------|----------------------------|--------|
|   | Peter T.  Healy, Secretary |

 

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