EXHIBIT 3.2
BY-LAWS
OF
PHARMACEUTICAL RESOURCES, INC.
(A DELAWARE CORPORATION)
(AS LAST AMENDED ON JUNE 18, 2003)
BY-LAWS
OF
PHARMACEUTICAL RESOURCES, INC.
TABLE OF CONTENTS
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ARTICLE I MEETINGS OF STOCKHOLDERS...........................................1
Section 1.1. Place of Meetings..............................................1
Section 1.2. Annual Meetings................................................1
Section 1.3. Special Meetings...............................................1
Section 1.4. Notice of Meetings.............................................1
Section 1.5. Record Date....................................................1
Section 1.6. Action Without Meeting.........................................1
Section 1.7. Quorum and Voting..............................................2
Section 1.8 Conduct of Meeting.............................................2
ARTICLE II DIRECTORS.........................................................2
Section 2.1. Powers of Directors............................................2
Section 2.2. Number, Election and Term of Office............................2
Section 2.3. Vacancies......................................................3
Section 2.4. Meetings of Directors..........................................3
Section 2.5. Conduct of Meetings; Quorum; Voting............................3
Section 2.6. Action Without Meeting.........................................3
Section 2.7. Telephone Participation in Meetings............................3
Section 2.8. Committees of Directors........................................3
Section 2.9. Removal........................................................4
Section 2.10. Compensation...................................................4
Section 2.11. Manifestation of Dissent.......................................4
ARTICLE III OFFICERS.........................................................4
Section 3.1. Enumeration....................................................4
Section 3.2. President......................................................4
Section 3.3. Vice President(s)..............................................4
Section 3.4. Secretary......................................................4
Section 3.5. Treasurer......................................................5
Section 3.6. Other Officers and Assistant Officers..........................5
Section 3.7. Term and Compensation..........................................5
Section 3.8. Vacancies......................................................5
Section 3.9. Exercise of Rights as Stockholder..............................5
ARTICLE IV WAIVERS OF NOTICE.................................................5
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TABLE OF CONTENTS
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(CONTINUED)
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ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS..................5
Section 5.1. Mandatory Indemnification......................................6
Section 5.2. Advancement of Expenses........................................6
Section 5.3. Permissive Indemnification and Advancement of Expenses.........6
Section 5.4. Basis of Rights; Other Rights..................................6
Section 5.5. Insurance......................................................6
Section 5.6. Powers of the Board............................................7
Section 5.7. Definitions....................................................7
ARTICLE VI CAPITAL STOCK.....................................................7
Section 6.1. Issuance of Stock..............................................7
Section 6.2. Stock Certificates.............................................7
Section 6.3. Transfer of Stock..............................................7
Section 6.4. Lost, Stolen, Destroyed, or Mutilated Certificates.............7
Section 6.5. Regulations....................................................8
Section 6.6. Holders of Record..............................................8
Section 6.7. Restriction on Transfer........................................8
Section 6.8. Transfer Agent and Registrars..................................8
Section 6.9. Closing of Books...............................................8
ARTICLE VII GENERAL PROVISIONS...............................................8
Section 7.1. Corporate Seal.................................................8
Section 7.2. Fiscal Year....................................................8
Section 7.3. Authorization..................................................8
Section 7.4. Financial Reports..............................................8
Section 7.5. Effect of By-laws..............................................9
ARTICLE VIII QUALIFICATIONS OF DIRECTORS AND OFFICERS........................9
Section 8.1. Definitions....................................................9
Section 8.2. Qualifications.................................................9
Section 8.3. Determinations of the Board of Directors.......................9
ARTICLE IX AMENDMENTS TO AND EFFECT OF BY-LAWS...............................9
Section 9.1. Force and Effect of By-Laws....................................9
Section 9.2. Amendments to By-Laws..........................................9
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BY-LAWS
OF
PHARMACEUTICAL RESOURCES, INC.
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ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1.1. PLACE OF MEETINGS. Meetings of the stockholders of Pharmaceutical
Resources, Inc. (the "Corporation") shall be held at such place in or outside
the State of Delaware as shall be designated by the board of directors of the
Corporation (the "Board") or the authorized person or persons calling the
meeting.
Section 1.2. ANNUAL MEETINGS. The annual meeting of the stockholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held after the close of the Corporation's
fiscal year on such date and at such time as shall be designated by the Board.
Section 1.3. SPECIAL MEETINGS. Special meetings may be called for any purpose
and at any time by the President (if there be one) or the Board. Business
transacted at each special meeting shall be confined to the purposes stated in
the notice of such meeting.
Section 1.4. NOTICE OF MEETINGS. A written notice stating the place, date and
hour of each meeting and the purpose or purposes for which the meeting is called
shall be given by, or at the direction of, the Secretary or the person or
persons authorized to call the meeting to each stockholder of record entitled to
vote at such meeting not less than ten (10) days nor more than sixty (60) days
before the date of the meeting, unless a different period of time is required by
applicable law in a particular case.
Section 1.5. RECORD DATE. In order to determine the stockholders entitled to
notice of, and to vote at, any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
the Board may fix, in advance, a record date that shall not be more than sixty
(60) nor less than ten (10) days before the scheduled date of such meeting and
nor more than sixty (60) days prior to any other action. If no record date is
fixed: (x) the record date for determining stockholders entitled to notice of,
and to vote at, a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held and (y) the record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board is necessary, shall be the day on which the first written
consent is delivered to the Corporation. A determination of stockholders of
record entitled to notice of, and to vote at, a meeting of stockholders shall
apply to any adjournment of the meeting; PROVIDED, HOWEVER, that the Board may
fix a new record date for the adjourned meeting.
Section 1.6. ACTION WITHOUT A MEETING. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action that may be taken at any annual
or special meeting of the stockholders, may be taken without a meeting, without
prior notice and without a vote, in accordance with the provisions of the
General Corporation Law of the State of Delaware (the "Delaware Code"), only if
a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of the Corporation's outstanding common stock having not
less than the minimum number of votes that would be necessary to authorize or
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take such action at a meeting at which all shares entitled to vote thereon were
present and voted.
Section 1.7. QUORUM AND VOTING. The holders of a majority of the shares of
capital stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise expressly
provided by the Delaware Code, the Certificate of Incorporation or these
By-laws. If, however, such majority shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or by proxy, shall have the power, by the vote of the holders of a
majority of the capital stock thereon, to adjourn the meeting from time to time,
without notice other than announcement at the meeting (except as otherwise
provided by the Delaware Code). At such adjourned meeting at which the requisite
amount of shares of voting stock shall be represented, any business may be
transacted that might have been transacted at the meeting as originally
scheduled. At all meetings of the stockholders, each stockholder having the
right to vote shall be entitled to vote in person, or by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date not more
than three years prior to said meeting, unless such instrument lawfully provides
for a longer period. At each meeting of the stockholders, each stockholder shall
have one vote for each share of capital stock having voting power, registered in
his or her name on the books of the Corporation at the record date fixed or
otherwise determined in accordance with these By-laws. Except as otherwise
expressly provided by the Delaware Code, the Certificate of Incorporation or
these By-laws, all matters coming before any meeting of the stockholders shall
be decided by the vote of a majority of the number of shares of stock present in
person or represented by proxy at such meeting and entitled to vote thereat;
provided, however, that a quorum shall be present. The directors shall be
elected by the stockholders by ballot at the annual meeting or any special
meeting called for such purpose.
Section 1.8. CONDUCT OF MEETING. The Board, or, if the Board shall not have
made the appointment, the Chairman presiding at any meeting of stockholders,
shall have the power to appoint two or more persons to act as inspectors or
tellers, to receive, canvass and report the votes cast by the stockholders at
such meeting; provided, that no candidate for the office of director shall be
appointed as inspector or teller at any meeting for the election of directors.
The Chairman or, in his or her absence, the President (if there be one), a Vice
President or such other person as designated by the Board shall preside at all
meetings of the stockholders, and the Secretary, or in his or her absence, the
person whom the Chairman or, in his or her absence, the President, Vice
President or such other person may appoint shall act as Secretary of the meeting
and keep the minutes thereof.
ARTICLE II
DIRECTORS
Section 2.1. POWERS OF DIRECTORS. The business and affairs of the Corporation
shall be managed by or under the direction of the Board, which shall exercise
all powers that may be exercised or performed by the Corporation and that are
not, by the Delaware Code, the Certificate of Incorporation or these By-laws,
directed to be exercised or performed by the stockholders.
Section 2.2. NUMBER, ELECTION AND TERM OF OFFICE. Subject to the rights of the
holders of any class or series of capital stock having a preference over the
common stock of the Company as to dividends and/or upon liquidation, the number
of directors that shall constitute the whole Board shall not be less than three
nor more than 13 directors. Subject to the foregoing, the actual number of
directors shall be determined from time to time by resolution of the Board. The
directors, other than those who may be elected by the holders of any class or
series of stock having a preference over the common stock as to dividends and/or
upon liquidation, shall be classified with respect to the time for which they
severally hold office into three classes, as nearly equal in number as possible,
with the term of office of the first class to expire at the Annual Meeting of
Stockholders to be held in 2006, the term of office of the second class to
expire at the Annual Meeting of Stockholders to be held in 2004 and term of
office of the third class to expire at the Annual Meeting of Stockholders to be
held in 2005, with each of the members of each class to hold office until his or
her successors is duly elected and qualified. Commencing at the Company's 2007
Annual Meeting of Stockholders, and at each succeeding annual meeting of the
stockholders thereafter, the successors of the class of directors whose term
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expires at that meeting shall be elected by the vote of a plurality of the
number of shares of stock present in person or represented by proxy at such
meeting to hold office for a term expiring at the annual meeting of stockholders
in the third year following the year of their election, with each director to
hold office until his or her successor shall have been duly elected and
qualified or until his or her earlier death, resignation or removal. A director
may resign at any time upon written notice to the Corporation. Directors need
not be stockholders of the Corporation.
Section 2.3. VACANCIES. Vacancies and newly-created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority vote of only those directors who were directors of the Corporation
immediately prior to such vacancies or newly-created directorships, even though
such directors may constitute less than a quorum, or by a sole remaining
director. The occurrence of a vacancy that is not filled by action of the Board
shall constitute a determination by the Board that the number of directors is
reduced so as to eliminate such vacancy, unless the Board shall otherwise
specify. When one or more directors shall resign from the Board, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective. Any director so chosen to fill a vacancy or a newly-created
directorship shall hold office until the next election of the class for which
such director shall have been chosen and until his/her successor shall be
elected and qualified.
Section 2.4. MEETINGS OF DIRECTORS. Regular meetings of the Board shall be
held immediately following the annual meeting of stockholders for the purposes
of appointing officers and at such time and place as the Board shall from time
to time by resolution appoint, and no notice shall be required to be given of
any such regular meeting. A special meeting of the Board may be called for any
purpose by the President (if there be one) or by three directors by giving two
(2) days' notice to each director by overnight courier, electronic mail,
telegram, telefacsimile, telephone or other oral message, or by giving three (3)
days' notice if given by depositing the notice in the United States mail,
postage pre-paid. Such notice shall specify the time and place of the meeting,
which may be by means of conference, telephone or any other means of
communication by which all persons participating in the meeting are able to hear
each other.
Section 2.5. CONDUCT OF MEETINGS; QUORUM; VOTING. At meetings of the Board,
the Chairman or, in his or her absence, the President (if there be one) or a
designated Vice President, shall preside. Except as otherwise provided by these
By-laws, a majority of the total number of directors shall constitute a quorum
for the transaction of business, and the vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board. Any business may be transacted at any meeting at which every director
shall be present, even though the directors may not have had any advance notice
of such meeting.
Section 2.6. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
Section 2.7. TELEPHONE PARTICIPATION IN MEETINGS. Members of the Board, or any
committee thereof, may participate in a meeting of the Board or such committee
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 Section shall constitute presence in
person at such meeting.
Section 2.8. COMMITTEES OF DIRECTORS. By resolutions adopted by a majority of
the entire Board, the Board may designate an Executive Committee and one or more
other committees, each such committee to consist of one or more directors of the
Corporation (other than the Audit Committee, which shall consist of at least
three independent directors). Notwithstanding the foregoing, the Executive
Committee shall have no more than three directors and such directors may
exercise all the powers and authority of the entire Board in the management of
the business and day-to-day affairs of the Corporation without the necessity of
a meeting or approval of the entire Board (except as otherwise expressly limited
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by applicable law). Each such committee shall have such powers and authority of
the Board as may be provided from time to time in resolutions adopted by a
majority of the entire Board. The requirements with respect to the manner in
which the Executive Committee and each such other committee shall hold meetings
and take actions shall be set forth in the resolutions of the Board designating
the Executive Committee or such other committee.
Section 2.9. REMOVAL. A director may be removed, by the holders of a majority
of the shares of capital stock entitled to vote for the election of directors,
for "cause" only, as such term is generally used and defined under the Delaware
Code.
Section 2.10. COMPENSATION. The directors shall receive such compensation for
their services as may be authorized by resolution of the Board and shall be
reimbursed by the Corporation for ordinary and reasonable expenses incurred in
the performance of their duties as such. Subject to applicable law, nothing
contained herein shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 2.11. MANIFESTATION OF DISSENT. A director of the Company who is
present at a meeting of the Board or committee thereof at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his or her dissent shall be entered in the minutes of the meeting or
unless he shall file his or her written dissent to such action.
ARTICLE III
OFFICERS
Section 3.1. ENUMERATION. The officers of the Corporation that the Board shall
seek to appoint at its regular meeting following each annual stockholders'
meeting may consist of a president, such number of vice presidents (if any) as
the Board shall from time to time appoint, a secretary, a treasurer, and such
other officers (if any) as the Board shall from time to time appoint. The Board
may at any time elect one of its members as Chairman of the Board, who shall
preside at meetings of the Board and of the stockholders and shall have such
powers and perform such duties as shall from time to time be prescribed by the
Board. Any two or more offices may be held by the same person.
Section 3.2. PRESIDENT. The President, if there be one, shall be the chief
executive officer of the Corporation. Subject only to the authority of the
Board, he or she shall have general charge and supervision over, and
responsibility for, the business and affairs of the Corporation. Unless
otherwise directed by the Board, all other officers shall be subject to the
authority and supervision of the President. The President may enter into and
execute in the name of the Corporation contracts or other instruments in the
regular course of business or contracts or other instruments not in the regular
course of business that are authorized, either generally or specifically, by the
Board. The President shall also have such other powers and perform such other
duties as are incident to the office of the president of a corporation or as
shall from time to time be prescribed by the Board. In the event that there is
no President, the Board may allocate the duties and powers set forth in this
Section 3.2 among such other officers as the Board in its discretion shall
determine.
Section 3.3. VICE PRESIDENT(S). The Vice President or, if there shall be more
than one, the Vice Presidents, in the order of their seniority unless otherwise
specified by the Board, shall have such powers and perform such duties as shall
from time to time be prescribed by the Board and/or the President or, if there
be no President, by such other person or persons as may be designated by the
Board.
Section 3.4. SECRETARY. The Secretary shall record the proceedings of the
meetings of the stockholders and the Board in a book to be kept for that
purpose, and shall give notice as required by applicable law or these By-laws of
all such meetings. The Secretary shall have custody of the seal of the
Corporation and custody of all books, records and papers of the Corporation,
except such as shall be in the charge of the Treasurer or of some other person
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authorized or directed to have custody and possession thereof by resolution of
the Board. The Secretary may, together with the President (if there be one) or
such other person as may be designated by the Board, execute on behalf of the
Corporation any contract that has been approved by the Board. The Secretary
shall also have such other powers and perform such other duties as are incident
to the office of the secretary of a corporation or as shall from time to time be
prescribed by the Board or the President or, if there be no President, by such
other person or persons as may be designated by the Board.
Section 3.5. TREASURER. The Treasurer shall keep, or cause to be kept, full
and accurate accounts of the receipts and disbursements of the Corporation in
books belonging to the Corporation, shall have the custody of the funds of the
Corporation and shall deposit all moneys and other valuable effects of the
Corporation in the name and to the credit of the Corporation in such
depositories as may be designated by the Board, and shall also have such other
powers and perform such other duties as are incident to the office of the
treasurer of a corporation or as shall from time to time be prescribed by the
Board or the President or, if there be no President, by such other person or
persons as may be designated by the Board.
Section 3.6. OTHER OFFICERS AND ASSISTANT OFFICERS. The powers and duties of
each other officer or assistant officer who may from time to time be chosen by
the Board shall be as specified by, or pursuant to authority delegated by, the
Board at the time of the appointment of such other officer or assistant officer
or from time to time thereafter. In addition, each officer designated as an
assistant officer shall assist in the performance of the duties of the officer
to which he or she is assistant, and shall have the powers and perform the
duties of such officer during the absence or inability to act of such officer.
Section 3.7. TERM AND COMPENSATION. Officers shall be appointed by the Board
from time to time, to serve at the pleasure of the Board and subject to any
employment or similar agreements. Each officer shall hold office until his or
her successor is duly appointed and qualified, or until his or her earlier
death, resignation or removal. The compensation of all officers shall be fixed
by, or pursuant to authority delegated by, the Board from time to time.
Section 3.8. VACANCIES. In case any office shall become vacant, the Board
shall have the power to fill such vacancy. In case of the absence or disability
of any officer, the Board may delegate the powers or duties of any officer to
another officer or a director for such time to be determined by the Board.
Section 3.9. EXERCISE OF RIGHTS AS STOCKHOLDER. Unless otherwise ordered by
the Board, the President (if there be one) or a Vice President thereunto duly
authorized by the President or the Board, shall have full power and authority on
behalf of the Corporation to attend and to vote at any meeting of stockholders
of any corporation in which this Corporation may hold stock, and may exercise on
behalf of this Corporation any and all of the rights and powers incident to the
ownership of such stock at any such meeting, and shall have power and authority
to execute and deliver proxies and consents on behalf of this Corporation in
connection with the exercise by this Corporation of the rights and powers
incident to the ownership of such stock. The Board, from time to time, may
confer like powers upon any other person or persons.
ARTICLE IV
WAIVERS OF NOTICE
Any notice required to be sent by these By-Laws, the Certificate of
Incorporation or the Delaware Code may be waived in writing by any person
entitled to notice. The waiver or waivers may be executed either before or after
the event with respect to which notice is waived. Each director or stockholder
attending a meeting without protesting the lack of proper notice, prior to its
conclusion, shall be deemed conclusively to have waived notice of the meeting.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
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Section 5.1. MANDATORY INDEMNIFICATION. The Corporation shall indemnify and
hold harmless, to the fullest extent now or hereafter permitted by applicable
law, each director or officer of the Corporation who was or is, or is threatened
to be made, a party to or otherwise involved in any Proceeding (hereinafter
defined) by reason of the fact that such person is or was an Authorized
Representative (hereinafter defined), against all expenses (including attorneys'
fees and disbursements), judgments, fines (including excise taxes and penalties)
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such Proceeding, whether the basis of such person's
involvement in the Proceeding is an alleged act or omission in such person's
capacity as an Authorized Representative or in another capacity while serving in
such capacity, or both. The Corporation shall be required to indemnify an
incumbent or former director or officer in connection with a Proceeding
initiated by such person only if and to the extent that such Proceeding was
authorized by the Board or it is a civil suit by such person to enforce rights
to indemnification or advancement of expenses.
Section 5.2. ADVANCEMENT OF EXPENSES. The Corporation shall promptly pay all
expenses (including attorneys' fees and disbursements) actually and reasonably
incurred by an incumbent or former director or officer of the Corporation in
defending or appearing (otherwise than as a plaintiff) in any Proceeding
described in Section 5.1 hereof in advance of the final disposition of such
Proceeding upon receipt of an undertaking by or on behalf of such person to
repay all amounts so advanced if it shall ultimately be determined by a final,
unappealable judicial decision that such person is not entitled to be
indemnified for such expenses under this Article or otherwise.
Section 5.3. PERMISSIVE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
Corporation may, as determined by the Board in its discretion, from time to time
indemnify any person who was or is, or is threatened to be made, a party to or
otherwise involved in any Proceeding by reason of the fact that such person is
or was an Authorized Representative, against all expenses (including attorneys'
fees and disbursements), judgments, fines (including excise taxes and penalties)
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such Proceeding, whether the basis of such person's
involvement in the Proceeding is an alleged act or omission in such person's
capacity as an Authorized Representative or in another capacity while serving in
such capacity or both. The Corporation may, as determined by the Board in its
discretion from time to time, pay expenses actually and reasonably incurred by
any such person by reason of such person's involvement in such a Proceeding in
advance of the final disposition of the Proceeding.
Section 5.4. BASIS OF RIGHTS; OTHER RIGHTS. The rights to indemnification and
advancement of expenses provided by or granted pursuant to this Article shall be
presumed to have been relied upon by Authorized Representatives in serving or
continuing to serve the Corporation, shall continue as to a person who ceases to
be an Authorized Representative, shall inure to the benefit of the heirs,
executors and administrators of such person, and shall be enforceable as
contract rights. Such rights shall not be deemed exclusive of any other rights
to which a person seeking indemnification or advancement of expenses may be
entitled under the Delaware Code, agreement, vote of stockholders or
disinterested directors, or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such office
or position. Any amendment, modification or repeal of this Article shall not
adversely affect any right or protection of an Authorized Representative with
respect to any act or omission occurring prior to the time of such amendment,
modification or repeal.
Section 5.5. INSURANCE. The Corporation may purchase and maintain insurance on
behalf of each incumbent or former director and officer against any liability
asserted against or incurred by such person in any capacity, or arising out of
such person's status as an Authorized Representative, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Article. The Corporation shall not be required to
maintain such insurance if it is not available on terms satisfactory to the
Board or if, in the business judgment of the Board, either (i) the premium cost
for such insurance is substantially disproportionate to the amount of coverage
or (ii) the coverage provided by such insurance is so limited by exclusions
and/or limitations that there is insufficient benefit from such insurance. The
Corporation may purchase and maintain insurance on behalf of any person referred
to in Section 5.3 hereof against any liability asserted against or incurred by
such person in any capacity, or arising out of such person's status as an
Authorized Representative, whether or not the Corporation would have the power
to indemnify such person against such liability under the provisions of this
Article.
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Section 5.6. POWERS OF THE BOARD. The Corporation may enter into contracts to
provide any Authorized Representatives with specific rights to indemnification
and advancement of expenses, which contracts may confer rights and protections
to the maximum extent permitted by applicable law. The Board, without approval
of the stockholders, shall have the power to borrow money on behalf of the
Corporation, including the power to create trust funds, pledge, mortgage or
create security interests in the assets of the Corporation, obtain letters of
credit or use other means, from time to time, to ensure payment of such amounts
as may be necessary to perform the Corporation's obligations under this Article
or any such contract.
Section 5.7. DEFINITIONS. For the purposes of this Article:
(A) PROCEEDING. "Proceeding" means a threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative.
(B) CORPORATION. References to "the Corporation" include, in addition to the
resulting or surviving corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger, which, if
its separate existence had continued, would have had power and authority to
indemnify its Authorized Representatives, so that any person who is or was an
Authorized Representative of such constituent corporation shall stand in the
same position under this Article with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(C) AUTHORIZED REPRESENTATIVE. "Authorized Representative" means a director,
officer, employee or agent of the Corporation, or a trustee, custodian,
administrator, committeeman or fiduciary of any employee benefit plan, or a
person serving another corporation, partnership, joint venture, trust, other
enterprise or non-profit entity in any of the foregoing capacities at the
request of the Corporation.
ARTICLE VI
CAPITAL STOCK
Section 6.1. ISSUANCE OF STOCK. Shares of capital stock of any class now or
hereafter authorized, securities convertible into or exchangeable for such
stock, or options or other rights to purchase such stock or securities may be
issued or granted in accordance with authority granted by resolution of the
Board.
Section 6.2. STOCK CERTIFICATES. The Board shall adopt a form of stock
certificate for shares of the capital stock of the Corporation, which shall be
signed by the President or a Vice President and by the Treasurer or Assistant
Treasurer or the Secretary or Assistant Secretary and may be sealed with the
seal of the Corporation. All such certificates shall be numbered consecutively,
and the name of the person owning the shares represented thereby, with the
number of such shares and the date of issue, shall be entered on the books of
the Corporation. If certificates are signed by a transfer agent, acting on
behalf of the Corporation or registrar, the signatures of the officers of the
Corporation may be by facsimile.
Section 6.3. TRANSFER OF STOCK. Shares of capital stock of the Corporation
shall be transferred only on the books of the Corporation, by the holder of
record in person or by the holder's duly authorized representative, upon
surrender to the Corporation of the certificate for such shares duly endorsed
for transfer, together with such other documents (if any) as may be required to
effect such transfer.
Section 6.4. LOST, STOLEN, DESTROYED, OR MUTILATED CERTIFICATES. New stock
certificates may be issued to replace certificates alleged to have been lost,
stolen, destroyed or mutilated, upon such terms and conditions, including proof
of loss or destruction, and the giving of a satisfactory bond or other form of
indemnity, as the Board from time to time may determine.
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Section 6.5. REGULATIONS. The Board shall have the power and authority to make
all such rules and regulations not inconsistent with these By-laws as it may
deem expedient concerning the issue, transfer and registration of shares of
capital stock of the Corporation.
Section 6.6. HOLDERS OF RECORD. The Corporation shall be entitled to treat the
holder of record of any share or shares of capital stock of the Corporation as
the holder and owner in fact thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or right, title or interest in, such
share or shares on the part of any other person, whether or not the Corporation
shall have express or other notice thereof, except as otherwise provided by
applicable law.
Section 6.7. RESTRICTION ON TRANSFER. A restriction on the hypothecation,
transfer or registration of the shares of the Corporation may be imposed either
by these By-laws or by an agreement among any number of stockholders or such
holders and the Corporation. No restriction so imposed shall be binding with
respect to those securities issued prior to the adoption of the restriction
unless the holders of such securities are parties to an agreement or voted in
favor of the restriction.
Section 6.8. TRANSFER AGENT AND REGISTRARS. The Board shall have the power to
appoint one or more transfer agents and registrars for the transfer and
registration of certificates of stock of any class, and may require that stock
certificates be countersigned and registered by one or more of such transfer
agents and registrars.
Section 6.9. CLOSING OF BOOKS. The Board shall have the power to close the
stock transfer books of the Corporation for a period not exceeding sixty (60)
days preceding the date of any meeting of stockholders or the date for payment
of any dividend or the date for allotment of rights or the date when any change
or conversion or exchange of capital stock shall go into effect; provided, that,
in lieu of closing the stock transfer books, the Board may fix in advance a
date, not exceeding sixty (60) days preceding the date of any meeting of
stockholders, or the date for payment of any dividend or the date for allotment
of rights, or the date when any change or conversion or exchange of capital
stock shall go into effect, as a record date for the determination of
stockholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of any such dividends, or any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of capital stock, and in such case only stockholders of record on the
date so fixed shall be entitled to such notice of, and to vote at, such meeting,
or to receive payment of such dividend, or allotment of rights, or exercise such
rights, as the case may be, and notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as herein provided.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. CORPORATE SEAL. The Corporation may adopt a seal in such form as
the Board shall from time to time determine.
Section 7.2. FISCAL YEAR. The fiscal year of the Corporation shall be as
designated by the Board from time to time.
Section 7.3. AUTHORIZATION. All checks, notes, vouchers, warrants, drafts,
acceptances and other orders for the payment of moneys of the Corporation shall
be signed by such officer or officers or such other person or persons as the
Board may from time to time designate.
Section 7.4. FINANCIAL REPORTS. Subject to applicable law, financial
statements or reports shall not be required to be sent to the stockholders of
the Corporation, but may be so sent in the discretion of the Board, in which
event the scope of such statements or reports shall be within the discretion of
the Board, and such statements or reports shall not be required to have been
examined by or to be accompanied by an opinion of an accountant or firm of
accountants.
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Section 7.5. EFFECT OF BY-LAWS. No provision in these By-laws shall vest any
property right in any stockholder.
ARTICLE VIII
QUALIFICATIONS OF DIRECTORS AND OFFICERS
Section 8.1. DEFINITIONS. For purposes of this Article VIII, the following
terms shall have the following meanings:
(a) "Affiliate," "Associate" and "control" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) "Principal Party" shall mean any person or entity that, pursuant to an
agreement, understanding or otherwise, is represented by another person.
(c) "Regulatory Approvals" shall mean any governmental or regulatory
approvals, agreements, permits, licenses or registrations of the Corporation or
any of its subsidiaries necessary for the conduct of its business.
Section 8.2. QUALIFICATIONS. No person shall serve as a director or officer of
the Corporation or shall be elected or appointed to serve in any such capacity
if, in the good faith judgment of the Board, there is a reasonable likelihood
that service by such person as a director or officer (whether based on the
qualifications of such person or on the qualifications of any Affiliate,
Associate or Principal Party of such person) will result in (i) the loss of any
existing Regulatory Approvals, (ii) the inability of the Corporation or any
subsidiary to renew any Regulatory Approvals or (iii) the inability of the
Corporation or any subsidiary to obtain new Regulatory Approvals.
Section 8.3. DETERMINATIONS OF THE BOARD OF DIRECTORS. Any determination by
the Board with respect to the qualifications of any persons to serve as a
director or officer of the Corporation pursuant to this Article VIII, whether
based on the qualifications of such person or the qualifications of any
Affiliate, Associate or Principal Party of such person, shall, among other
things, take into account the involvement of any of such persons in legal
actions or proceedings or governmental investigations. Persons, or their
Affiliates, Associates or Principal Parties, covered by Section 8.2 shall
include, but shall not be limited to, any (i) directors, officers or employees
of the Corporation or its subsidiaries whose actions the Board has determined in
good faith were detrimental to the maintenance, renewal or acquisition of the
Regulatory Approvals, whether they resigned or were dismissed for cause, (ii)
persons or entities who were convicted in criminal proceedings or are named
defendants of pending criminal proceedings (excluding minor offenses) relating
to the pharmaceutical industry or any other business regulated by any federal,
state or local governmental agency or (iii) persons or entities who are subject
to any order, judgment, decree or debarment, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction or governmental or
regulatory authority, permanently or temporarily enjoining them from, or
otherwise limiting such person or entity from engaging in, any type of business
practice relating to the pharmaceutical industry or any other business regulated
by any federal, state or local governmental agency.
ARTICLE IX
AMENDMENTS TO AND EFFECT OF BY-LAWS
Section 9.1. FORCE AND EFFECT OF BY-LAWS. These By-Laws are subject to the
provisions of the Delaware Code and the Corporation's Certificate of
Incorporation, as it may be amended from time to time. If any provision in these
By-Laws is inconsistent with a provision in the Delaware Code or the Certificate
of Incorporation, the provision of the Delaware Code or the Certificate of
Incorporation shall govern.
Section 9.2. AMENDMENTS TO BY-LAWS. These By-Laws may be amended or repealed
and new By-Laws may be adopted by the stockholders and/or the Board. Any By-Laws
adopted, amended or repealed by the Board may be amended or repealed by the
stockholders.
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