EXHIBIT 3.2
MYLAN LABORATORIES INC.
A PENNSYLVANIA CORPORATION
SECOND AMENDED AND RESTATED BYLAWS, AS AMENDED
TABLE OF CONTENTS
ARTICLE I................................................................................................1
Shareholders..........................................................................................1
Section 1.01. Annual Shareholders Meetings........................................................1
Section 1.02. Special Shareholders Meetings.......................................................1
Section 1.03. Organization........................................................................1
Section 1.04. Business of Shareholders Meetings...................................................1
Section 1.05. Order of Business...................................................................2
ARTICLE II...............................................................................................2
Directors.............................................................................................2
Section 2.01. Number, Election and Term of Office.................................................3
Section 2.02. Filling Vacancies...................................................................3
Section 2.03. Nominations of Directors: Election.................................................3
Section 2.04. Annual Meeting of the Board.........................................................4
Section 2.05. Regular Board Meetings: Notice.....................................................4
Section 2.06. Special Board Meetings: Notice......................................................4
Section 2.07. Action by Consent in Writing........................................................4
Section 2.08. Organization........................................................................4
Section 2.09. Board Meetings by Telephone.........................................................4
Section 2.10. Resignations........................................................................4
Section 2.11. Qualification of Directors..........................................................5
Section 2.12. Limitation of Director Liability....................................................5
ARTICLE III..............................................................................................5
Committees............................................................................................5
Section 3.01. Executive Committee: How Constituted and Powers....................................5
Section 3.02. Organization........................................................................5
Section 3.03. Other Committees....................................................................5
Section 3.04. Procedures..........................................................................6
Section 3.05. Action by Consent in Writing........................................................6
Section 3.06. Meetings by Telephone...............................................................6
Section 3.07. Resignations; Removal; Vacancies....................................................6
ARTICLE IV...............................................................................................6
Officers..............................................................................................6
Section 4.01. Officers............................................................................6
Section 4.02. Removal.............................................................................6
Section 4.03. Resignations........................................................................7
Section 4.04. Vacancies...........................................................................7
Section 4.05. Chief Executive Officer.............................................................7
Section 4.06. President...........................................................................7
Section 4.07. Chief Operating Officer.............................................................7
Section 4.08. Chief Financial Officer.............................................................8
Section 4.09. Chief Legal Officer.................................................................8
Section 4.10. Chief Science Officer...............................................................8
Section 4.11. Vice Presidents.....................................................................8
Section 4.12. The Secretary and Assistant Secretaries.............................................8
Section 4.13. The Treasurer and Assistant Treasurers..............................................9
Section 4.14. The Controller and Assistant Controllers............................................9
ARTICLE V................................................................................................9
Shares of Capital Stock...............................................................................9
Section 5.01. Share Certificates..................................................................9
Section 5.02. Lost, Stolen, Destroyed or Mutilated Certificates..................................10
Section 5.03. Regulations Relating to Shares.....................................................10
Section 5.04. Holders of Record..................................................................10
ARTICLE VI..............................................................................................11
Execution of Instruments.............................................................................11
Deposit and Withdrawal of Corporate Funds............................................................11
Section 6.01. Execution of Instruments Generally.................................................11
Section 6.02. General and Special Bank Accounts..................................................11
ARTICLE VII.............................................................................................11
General Provisions...................................................................................11
Section 7.01. Offices............................................................................11
Section 7.02. Corporate Seal.....................................................................11
Section 7.04. Financial Reports to Shareholders..................................................11
Section 7.05. Waiver of Notices..................................................................11
Section 7.06. Facsimile Signatures...............................................................11
Section 7.07. Reliance Upon Books, Reports and Records...........................................11
Section 7.08. Gender.............................................................................12
ARTICLE VIII............................................................................................12
Indemnification of Officers and Directors............................................................12
Section 8.01. Right to Indemnification...........................................................12
Section 8.02. Right to Payment of Expenses.......................................................12
Section 8.03. Right of Indemnitee to Bring Suit..................................................12
Section 8.04. Non-Exclusivity of Rights..........................................................13
Section 8.05. Insurance..........................................................................13
Section 8.06. Indemnification of Employees, Assistants and Agents................................13
Section 8.07. Other Enterprises, Fines, Serving at Corporation's Request.........................13
Section 8.08. Effect of Amendment................................................................13
Section 8.09. Savings Clause.....................................................................13
ARTICLE IX..............................................................................................13
Amendments...........................................................................................13
Section 9.01. Amendments.........................................................................13
ARTICLE X...............................................................................................13
Inapplicable Subchapters of Business Corporation Law of Pennsylvania.................................13
Section 10.01. Subchapter E......................................................................13
Section 10.02. Subchapter G......................................................................13
Section 10.03. Subchapter H......................................................................13
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MYLAN LABORATORIES INC.
A PENNSYLVANIA CORPORATION
SECOND AMENDED AND RESTATED BYLAWS, AS AMENDED
ARTICLE I
Shareholders
Section 1.01. Annual Shareholders Meetings. The annual meeting of the
shareholders of Mylan Laboratories Inc. (the "Corporation") shall be held on the
last Friday of July in each year if not a legal holiday, and if a legal holiday,
then on the next succeeding day which is not a legal holiday, at 11:00 a.m., at
the principal executive office of the Corporation, or at such other date, time
and place as may be fixed by the Board of Directors (the "Board").
Section 1.02. Special Shareholders Meetings. Special meetings of the
shareholders may be called at any time by the Chairman of the Board or by
two-thirds of the Board. Special shareholders meetings shall be held at such
time and such place as designated by the Chairman of the Board or his designee.
No business may be transacted at any special meeting of the shareholders other
than that stated in the notice of meeting.
Section 1.03. Organization. The Chairman of the Board shall preside and
the Secretary, or in his absence any Assistant Secretary, shall act as
secretary, at all meetings of the shareholders. In the event that the Chairman
of the Board is absent, the Vice Chairman of the Board shall preside at such
meeting. In the absence of the Vice Chairman of the Board, the Chairman of the
Board shall designate another member of the Board, or an officer of the
Corporation, to preside over such meeting. If the Chairman of the Board fails to
designate such person, a member of the Board or an officer of the Corporation
shall be selected by a majority of the Board in attendance at such meeting, and
that officer shall preside over the meeting. In the absence of the Secretary and
any Assistant Secretary, the person presiding over the meeting shall designate
any person to act as secretary of the meeting.
Section 1.04. Business of Shareholders Meetings.
(a) At any annual meeting of the shareholders, only such business will
be conducted or considered as is properly brought before the meeting. To be
properly brought before an annual shareholders meeting, business must be (i)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board, (ii) brought before the meeting by the person
presiding over the meeting, or (iii) otherwise properly requested to be brought
before the meeting by a shareholder of the Corporation in accordance with
Section 1.04(b) of these Bylaws.
(b) For business to be properly requested by a shareholder to be
brought before an annual shareholders meeting, the shareholder must (i) be a
shareholder of the Corporation of record at the time of the giving of the notice
for such annual meeting, (ii) be entitled to vote at such annual meeting, and
(iii) be in compliance with the notice procedures set forth in this Section
1.04(b) of the Bylaws. To be timely, a shareholder's notice must be received by
the Secretary not less than one hundred twenty (120) calendar days prior to the
annual shareholders meeting; provided, however, that in the event a public
announcement of the date of the annual shareholders meeting is not made at least
seventy-five (75) calendar days prior to the date of the annual shareholders
meeting, notice by the shareholder to be timely must be received by the
Secretary not later than the
close of business on the tenth (10th) calendar day following the day on which a
public announcement is first made of the date of the annual shareholders
meeting. A shareholder's notice to the Secretary must set forth as to each
matter the shareholder proposes to bring before the annual shareholders meeting
a description in reasonable detail of the business desired to be brought before
the annual shareholders meeting and the reasons for conducting such business at
the annual meeting; the name and address, as they appear on the Corporation's
books, of the shareholder proposing such business and the beneficial owner, if
any, on whose behalf the proposal is made; the class and number of shares of the
Corporation that are owned beneficially and of record by the shareholder
proposing such business and the beneficial owner, if any, on whose behalf the
proposal is made; and any material interest of such shareholder proposing such
business and the beneficial owner, if any, on whose behalf the proposal is made.
A shareholder must also submit a supporting statement indicating the reasons for
bringing such proposal. A shareholder must also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), and the rules and regulations (the "Regulations") promulgated thereunder
with respect to the matters set forth in this Section 1.04 of the Bylaws. For
purposes of these Bylaws, the term "public announcement" means a posting on the
Corporation's website, disclosure in a press release reported by the Dow Jones
News Service, Associated Press, or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14, or 15(d) of the Exchange Act or
furnished to shareholders. Nothing in this Section 1.04 of the Bylaws will be
deemed to affect any rights of shareholders to request inclusion of proposal in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(c) The determination of whether any business sought to be brought
before any annual or special meeting of the shareholders is properly brought
before such meeting in accordance with these Bylaws will be made by the person
presiding over such meeting, be it the Chairman of the Board, the Vice Chairman
of the Board, a Board member or an officer of the Corporation appointed by the
Chairman of the Board or selected to preside by the Board pursuant to Section
1.03 of these Bylaws. If the person presiding over the meeting determines that
any business is not properly brought before such meeting, he will so declare to
the meeting and any such business will not be conducted or considered.
Section 1.05. Order of Business. The order and conduct of business at
shareholders meetings shall be determined by the person presiding over the
shareholders meeting. The person presiding over such meeting shall have the
power to adjourn the meeting to another place, date and time.
ARTICLE II
Directors
Section 2.01. Number, Election and Term of Office. The number of
Directors which shall constitute the full Board shall be such number, not less
than three, as shall be fixed by the Board or the shareholders; provided,
however, that if all the shares of the Corporation shall be owned beneficially
and of record by either one or two shareholders, the number of Directors may be
less than three but not less than the number of shareholders. The shareholders
shall elect a full Board at each annual meeting of shareholders. Each Director
shall serve until the next annual shareholders meeting, and
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thereafter until his successor has been selected and qualified, or until his
death, resignation or removal. The Board shall elect from among its members a
Chairman of the Board who shall appoint a Vice Chairman of the Board.
Section 2.02. Filling Vacancies. Any vacancy caused by the death,
resignation or removal of a Director shall be filled by appointment thereto by
the Chairman of the Board, or in his absence, by the Vice Chairman of the Board,
and such Director so appointed shall serve for the unexpired term of the
Director causing such vacancy.
Section 2.03. Nominations of Directors: Election.
(a) Only persons who are nominated in accordance with the following
procedures will be eligible for election at a meeting of shareholders as
Directors of the Corporation.
(b) Nominations of persons for election as Directors of the Corporation
may be made only at an annual meeting of shareholders by or at the direction of
the Board or by any shareholder who (i) is a shareholder of record at the time
of giving of notice provided for in this Section 2.03 of the Bylaws, (ii) is
entitled to vote for the election of Directors at such meeting, and (iii) is in
compliance with the notice procedures set forth in this Section 2.03(c) of these
Bylaws.
(c) To be timely, a shareholder's notice must be received by the
Secretary not less than one hundred twenty (120) calendar days prior to the
annual shareholders meeting; provided, however, that in the event a public
announcement of the date of the annual shareholders meeting is not made at least
seventy-five (75) calendar days prior to the date of the annual shareholders
meeting, notice by the shareholder to be timely must be received by the
Secretary not later than the close of business on the tenth (10th) calendar day
following the day on which a public announcement is first made of the date of
the annual shareholders meeting. To be in proper written form, such
shareholder's notice must set forth or include the name and address, as they
appear on the Corporation's books, of the shareholder giving the notice and of
the beneficial owner, if any, on whose behalf the nomination is made; a
representation that the shareholder giving the notice is a holder of record of
stock of the Corporation entitled to vote at such annual meeting and intends to
appear in person or by proxy at the annual meeting to nominate the person or
persons specified in the notice; the class and number of shares of stock of the
Corporation owned beneficially and of record by the shareholder giving the
notice and by the beneficial owner, if any, on whose behalf the nomination is
made; a description of all arrangements or understandings between or among any
of the shareholder giving the notice, the beneficial owner on whose behalf the
notice is given, each nominee, and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the shareholder giving the notice; such other information regarding each
nominee proposed by the shareholder giving the notice as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or intended
to be nominated, by the Board; and the signed consent of each nominee to serve
as a Director of the Corporation if so elected. At the request of the Board, any
person nominated by the Board for election as a Director must furnish to the
Secretary that information required to be set forth in a shareholder's notice of
nomination which pertains to the nominee. The person presiding over any annual
meeting will, if the facts warrant, determine that a nomination was not made in
accordance with the procedures prescribed by this Section 2.03 of the Bylaws,
and if he should so determine, he will so declare to
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the meeting and the defective nomination will be disregarded. A shareholder must
also comply with all applicable requirements of the Exchange Act and the
Regulations with respect to the matters set forth in this Section 2.03 of the
Bylaws.
Section 2.04. Annual Meeting of the Board. The annual meeting of the
Board shall be held immediately after the annual meeting of the shareholders and
shall be the annual organizational meeting of the Directors-elect, at which
meeting the new Board shall be organized, Committees of the Board shall be
established, and the officers of the Corporation for the ensuing year shall be
elected by the Board of Directors or appointed by the Chief Executive Officer
consistent with these Bylaws.
Section 2.05. Regular Board Meetings: Notice. Regular meetings of the
Board shall be held at such places and times as shall be determined by
resolution of the Board at its annual meeting. Notice of such regular meetings
of the Board shall not be required to be given, except that whenever the time or
place of such regular meetings shall be changed, notice of such action shall be
given promptly by telephone or otherwise to each Director not participating in
such action.
Section 2.06. Special Board Meetings: Notice. Special meetings of the
Board may be called at any time by the Chairman of the Board or by two-thirds of
the Directors, to be held at such place and times as shall be specified in the
notice or waiver of notice thereof. Notice of every special meeting of the
Board, stating the place, day and hour thereof, shall be given by telephone or
otherwise to each Director at least twenty-four (24) hours before the time at
which the meeting is to be held, unless such notice is waived pursuant to
Section 7.05 of the Bylaws.
Section 2.07. Action by Consent in Writing. Any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting
if all members of the Board shall consent thereto in writing, and the writing or
writings shall be filed with the minutes of the proceedings of the Board.
Section 2.08. Organization. The Chairman of the Board shall preside at
each meeting of the Board and the Secretary, or in his absence any Assistant
Secretary, shall act as secretary at all meetings of the Board. In the event
that the Chairman of the Board is absent, the Vice Chairman of the Board shall
preside at such meeting. In the absence of the Vice Chairman of the Board, a
Director shall be designated by the Chairman of the Board to preside over such
meeting. If the Chairman of the Board fails to designate such person, a majority
of the Board in attendance at such meeting shall select a Director to preside
over such meeting. In the absence of the Secretary or any Assistant Secretary,
the person presiding over the meeting shall designate any person to act as
secretary of the meeting.
Section 2.09. Board Meetings by Telephone. One or more of the Directors
may participate in any regular or special meeting of the Board by telephone
conference or similar communications equipment by means of which all persons
participating in the meeting are able to hear each other.
Section 2.10. Resignations. Any Director may resign at any time by
delivering his letter of resignation to the Chairman of the Board with a copy to
the Secretary. Any such resignation shall take effect at the time specified
therein, or, if the time when it shall become effective shall not be specified
therein, then it shall take effect immediately upon
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its receipt by the Chairman of the Board, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 2.11. Qualification of Directors. It shall be a qualification
for membership on the Board that a Director not be a member of the board of
directors or an officer or employee of a competitor (or an affiliate of a
competitor) of the Corporation.
Section 2.12. Limitation of Director Liability. A Director of the
Corporation shall not be personally liable for monetary damages as such for any
action taken, or any failure to take any action, unless the Director has
breached or failed to perform the duties of his office under Subchapter B of
Chapter 17 of the Business Corporation Law of Pennsylvania ("BCL"), including
Section 1712 thereof (relating to standard of care and justifiable reliance) and
the breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness; provided, however, that the limitation of liability provided in
this Section 2.12 shall not apply to the responsibility or liability of a
director pursuant to any criminal statute or the liability of a director for
payment of taxes pursuant to local, state or federal law. Neither the amendment
nor the repeal of this Section 2.12 shall eliminate or reduce the effect of this
Section 2.12 with respect to any matter occurring, or any cause of action, suit
or claim that, but for this Section 2.12, would accrue or arise, prior to such
amendment or repeal. If Subchapter B of Chapter 17 of the BCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by Subchapter B
of Chapter 17, or any successor thereto under the BCL, as amended from time to
time.
ARTICLE III
Committees
Section 3.01. Executive Committee: How Constituted and Powers. The
Board may elect such Directors then in office, to constitute an Executive
Committee (herein called the "Executive Committee"), provided, however, that
both the Chairman of the Board and the Vice Chairman of the Board shall be
members of said Committee. The Executive Committee shall keep proper minutes and
records of its proceedings, and all actions of the Executive Committee shall be
reported to the Board at its meeting next succeeding such activity. During the
intervals between the meetings of the Board of Directors, the Executive
Committee shall have, and may exercise, all powers and rights of the Board
unless otherwise limited by a resolution of the Board.
Section 3.02. Organization. The Chairman of the Board shall act as
chairman at all meetings of the Executive Committee and shall designate a person
to act as secretary thereof. In the event that the Chairman of the Board is
absent, the Vice Chairman shall act as chairman at all meetings of the Executive
Committee and shall designate a person to act as secretary thereof. If neither
the Chairman of the Board, nor the Vice Chairman of the Board is present at such
meeting, the chairman of such meeting shall be selected by a majority of the
members of the Executive Committee in attendance at such meeting and that
chairman shall designate a person to act as secretary thereof.
Section 3.03. Other Committees. The Board shall form an Audit
Committee, a Compensation Committee, a Finance Committee, a Governance and
Nominating Committee and such other committees as it may determine, which shall
in each case consist of Directors elected by the Board. Committees shall keep
proper minutes and
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records of their proceedings and may exercise such powers as the Board may by
resolution determine and specify in their respective charters and such other
resolutions as the Board may adopt.
Section 3.04. Procedures. A majority of all the members of any
Committee of the Board may fix its rules of procedure, determine its action and
fix the time and place of its meetings and specify what notice thereof, if any,
shall be given, unless the Board shall otherwise by resolution provide.
Section 3.05. Action by Consent in Writing. Any action required or
permitted to be taken at any meeting of any Committee may be taken without a
meeting if all members of the Committee shall consent thereto in writing and the
writing or writings shall be filed with the minutes of proceedings of the
Committee.
Section 3.06. Meetings by Telephone. One or more members of a Committee
may participate in any Committee meeting by telephone conference or similar
communications equipment by means of which all persons participating in the
meeting are able to hear each other.
Section 3.07. Resignations; Removal; Vacancies. Any member of a
Committee of the Board may resign therefrom at any time by delivering a letter
of resignation to the Chairman of the Board with a copy to the Secretary. Any
such resignation shall take effect at the time specified therein, or, if the
time when it shall become effective shall not be specified therein, then it
shall take effect immediately upon its receipt by the Chairman of the Board;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. The Board may remove a member of
any Committee of the Board. Any vacancy in a Committee of the Board shall be
filled by the vote of the Board and shall be effective upon delivery of a
written designation of such appointment to the Secretary.
ARTICLE IV
Officers
Section 4.01. Officers. The Corporation may have such officers as
determined by the Board, subject to the requirements of the BCL or other
applicable law, and pursuant to these Bylaws. Any two or more offices may be
held by the same person, except that any officer holding the position of Chief
Executive Officer, Chief Operating Officer, President or Chief Financial
Officer, or any position equivalent to such position, cannot hold the office of
the Secretary. The Board shall elect the Chief Executive Officer and the Board
may elect, or delegate authority to the Chief Executive Officer to appoint, a
President, a Chief Financial Officer, a Chief Legal Officer, a Chief Science
Officer, and any other officers of the Corporation as the Board or the Chief
Executive Officer may desire. Each officer elected by the Board, or appointed by
the Chief Executive Officer, shall hold office until the next succeeding annual
meeting of the Board and thereafter until his successor shall have been selected
and shall qualify, or until his death, resignation or removal.
Section 4.02. Removal. The Board may remove, either with or without
cause, at any time, any officer elected by the Board; provided, however, that
the removal shall be without prejudice to the contract rights, if any, of the
person so removed. The Board may delegate to the Chief Executive Officer the
right to remove, either with or without cause, at any time, any officer the
Chief Executive Officer has appointed; provided, however,
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that the removal shall be without prejudice to the contract rights, if any, of
the person so removed.
Section 4.03. Resignations. Any officer may resign at any time by
delivering a letter of resignation to the Chairman of the Board, or to the Chief
Executive Officer if such officer was appointed by the Chief Executive Officer,
with a copy to the Secretary. Any such resignation shall take effect at the time
specified therein, or, if the time when it shall become effective shall not be
specified therein, then it shall take effect immediately upon its receipt by the
Chairman of the Board, or the Chief Executive Officer, as the case may be; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 4.04. Vacancies. A vacancy caused by the death, resignation or
removal of any officer elected by the Board shall be filled by an election by
the Board, and such officer so elected by the Board shall serve for the
unexpired portion of the term of the officer causing such vacancy. The Board may
delegate to the Chief Executive Officer the right to fill any vacancy caused by
the death, resignation or removal of an officer appointed by the Chief Executive
Officer.
Section 4.05. Chief Executive Officer The Chief Executive Officer shall
have such powers and perform such duties as from time to time may be assigned to
him by the Board including, but not limited to, those powers and duties that may
be conferred upon the Chief Executive Officer under these Bylaws or any
resolution adopted by the Board pursuant to these Bylaws. The Chief Executive
Officer shall make a report of the state of the business of the Corporation at
each annual meeting of the shareholders and from time to time the Chief
Executive Officer shall report to the shareholders and to the Board those
corporate matters, which, in the Chief Executive Officer's judgment, are
required to be brought to their attention. The Chief Executive Officer shall
have general and active supervision and control of the over-all business and
affairs of the Corporation. Unless otherwise directed by the Board, the Chief
Executive Officer shall be the officer authorized to execute documents or take
actions on behalf of the Corporation in its capacity as a shareholder or equity
owner of any other entity. The Chief Executive Officer may sign, execute and
deliver in the name of the Corporation all contracts or other instruments
requiring execution by the Corporation, except in cases where the signing,
execution or delivery thereof shall be expressly delegated by the Board or by a
duly authorized Committee of the Board to some other officer or agent of the
Corporation or where any of them shall be required by law to be signed, executed
or delivered by a person other than the Chief Executive Officer. The Chief
Executive Officer may appoint from time to time such agents as may be deemed
advisable for the prompt and orderly transaction of the business of the
Corporation, prescribe their duties and the terms of their engagements, fix
their compensation and dismiss such agents so appointed.
Section 4.06. President. The President shall have such powers and
perform such duties as from time to time may be assigned to him by the Board or
by the Chief Executive Officer.
Section 4.07. Chief Operating Officer. The Chief Operating Officer
shall have such powers and perform such duties as from time to time may be
assigned to him by the Board, by the Chief Executive Officer or by the
President. The Chief Operating Officer shall be charged with the supervision of
the day-to-day operations of the Corporation.
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Section 4.08. Chief Financial Officer. The Chief Financial Officer
shall have such powers and perform such duties as from time to time may be
assigned to him by the Board, by the Chief Executive Officer or by the
President. The Chief Financial Officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of the Corporation,
using appropriate accounting principles; have supervision over and be
responsible for the financial affairs of the Corporation; cause to be kept at
the principal executive office of the Corporation and preserved for review as
required by law or regulation all financial records of the Corporation; be
responsible for the establishment of adequate internal control over the
transactions and books of account of the Corporation; and be responsible for
rendering to the proper officers and the Board upon request, and to the
shareholders and other parties as required by law or regulation, financial
statements of the Corporation.
Section 4.09. Chief Legal Officer. The Chief Legal Officer shall have
such powers and perform such duties as from time to time may be assigned to him
by the Board, by the Chief Executive Officer or by the President. The Chief
Legal Officer shall be the primary legal officer of the Corporation and shall
have general and active supervision and direction over the legal affairs of the
Corporation.
Section 4.10. Chief Science Officer. The Chief Science Officer shall
have such powers and perform such duties as from time to time may be assigned to
him by the Board, by the Chief Executive Officer or by the President. The Chief
Science Officer shall be the person responsible for the implementation of the
scientific direction of the corporation and shall have general and active
supervision over scientific matters related to the Corporation.
Section 4.11. Vice Presidents. Each of the Vice Presidents (including
each of the Executive Vice Presidents and Senior Vice Presidents) shall have
such powers and perform such duties as from time to time may be assigned to him
by the Chief Executive Officer or his designee.
Section 4.12. The Secretary and Assistant Secretaries.
(a) The Secretary shall record all the proceedings of the meetings of
the shareholders and the Board in one or more minute books kept for that
purpose; see that all notices shall be duly given in accordance with the
provisions of these Bylaws or as required by law; be custodian of the seal of
the Corporation, and shall see that such seal, or, if authorized by the Board, a
facsimile thereof, shall be affixed to any documents the execution of which on
behalf of the Corporation shall be duly authorized and may attest such seal when
so affixed; have charge, directly or through the transfer agent or transfer
agents and registrar or registrars duly appointed, of the issue, transfer and
registration of certificates for stock of the Corporation and of the records
thereof; upon request, exhibit or cause to be exhibited at all reasonable times
to the Board, at the place where they shall be kept, such records of the issue,
transfer and registration of the certificates for stock of the Corporation; and
in general, perform all duties incident to the office of Secretary and such
duties as from time to time may be assigned to him by the Board or the Chief
Executive Officer.
(b) At the request of the Secretary, or in his absence or inability to
act, the Assistant Secretary, or if there be more than one, any of the Assistant
Secretaries, shall perform the duties of the Secretary, and, when so acting,
shall have the powers of, and be subject to all the restrictions upon, the
Secretary. Each of the Assistant Secretaries shall
8
perform such duties as from time to time may be assigned to him by the Board,
the Chief Executive Officer or the Secretary.
Section 4.13. The Treasurer and Assistant Treasurers.
(a) The Treasurer shall have charge and custody of, and be responsible
for, all funds, corporate securities and investments, notes and valuable effects
of the Corporation; receive and give receipt for money due and payable to the
Corporation from any sources whatsoever; deposit all such money to the credit of
the Corporation in such banks, trust companies or other depositories as shall be
selected in accordance with the provisions of Section 6.02 hereof, cause such
funds to be disbursed by checks or drafts on the authorized depositories of the
Corporation signed as provided in Section 6.01 hereof; and be responsible for
the accuracy of the amounts of, and cause to be preserved proper vouchers for
all moneys so disbursed; render to the Chief Executive Officer, the Chief
Financial Officer, or the Board, whenever they, respectively, shall request the
Treasurer so to do, an account of the financial condition of the Corporation and
of all the Treasurer's transactions as such officer; upon request, exhibit or
cause to be exhibited at all reasonable times, at the place where they shall be
kept, the Treasurer's cash books and other records to the Board, the Chief
Executive Officer or the Chief Financial Officer; and have such powers and
perform such duties as from time to time may be assigned to him by the Board,
the Chief Executive Officer or the Chief Financial Officer.
(b) At the request of the Treasurer, or in his absence or inability to
act, the Assistant Treasurer, or if there be more than one, any of the Assistant
Treasurers, shall perform the duties of Treasurer, and, so acting, shall have
all the powers of, and be subject to all of the restrictions upon, the
Treasurer. Each Assistant Treasurer shall perform such duties as from time to
time may be assigned to him by the Board, the Chief Executive Officer, the Chief
Financial Officer and the Treasurer.
Section 4.14. The Controller and Assistant Controllers.
(a) The Controller shall keep or cause to be kept correct records of
the business and transactions of the Corporation and shall, upon request, at all
reasonable times exhibit or cause to be exhibited such records to the Board at
the place where such records shall be kept. The Controller shall have such
powers and perform such duties as from time to time may be assigned to him by
the Board, the Chief Executive Officer or the Chief Financial Officer.
(b) At the request of the Controller, or in case of his absence or
inability to act, the Assistant Controller, or, if there be more than one, any
of the Assistant Controllers, shall perform the duties of the Controller, and,
when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the Controller. Each of the Assistant Controllers shall
perform such duties as from time to time may be assigned to him by the Board,
the Chief Executive Officer, the Chief Financial Officer or the Controller.
ARTICLE V
Shares of Capital Stock
Section 5.01. Share Certificates. Every owner of stock of the
Corporation shall be entitled to have a certificate registered in such owner's
name in such form as the Board shall prescribe, certifying the number of shares
of stock of the Corporation owned by such owner. The certificates representing
shares of stock shall be numbered in the order in which they shall be issued and
shall be signed in the name of the Corporation by the Chief Executive Officer,
the President or such other officer, duly authorized, and by the
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Secretary or an Assistant Secretary. Any or all of the signatures on any such
certificate may be facsimiles. In case any officer or officers or transfer agent
or registrar of the Corporation who shall have signed, or whose facsimile
signature or signatures shall have been placed upon any such certificate shall
cease to be such officer or officers or transfer agent or registrar before such
certificate shall have been issued, such certificate may be issued by the
Corporation with the same effect as though the person or persons who shall have
signed such certificate, or whose facsimile signature or signatures shall have
been placed thereupon, were such officer or officers or transfer agent or
registrar at the date of issue. Records shall be kept of the amount of the stock
of the Corporation issued and outstanding, the manner in which and the time when
such stock was paid for, the respective names, alphabetically arranged, and the
addresses of the persons, firms or corporations owning of record the stock
represented by certificates for stock of the Corporation, the number, class and
series of shares represented by such certificates, respectively, the time when
each became an owner of record thereof, and the respective dates of such
certificates, and in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the Corporation for exchange or transfer shall
be canceled and a new certificate or certificates shall not be issued in
exchange for any existing certificate until such existing certificate shall have
been so canceled except in cases provided for in Section 5.02 hereof.
Section 5.02. Lost, Stolen, Destroyed or Mutilated Certificates. New
certificates for shares of stock may be issued to replace certificates lost,
stolen, destroyed or mutilated upon such conditions as the Board may from time
to time determine. If the registered owner of any stock of the Corporation
notifies the Corporation of any loss, theft, destruction or mutilation of the
certificate therefor the Corporation may, in its discretion, require the
registered owner of the lost, stolen or destroyed certificate or his legal
representatives to give the Corporation a bond in such sum, limited or
unlimited, and in such form and with such surety or sureties, as the Corporation
shall in its uncontrolled discretion determine, to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate, or the issuance of such new
certificate. The Corporation may, however, in its discretion refuse to issue any
such new certificate except pursuant to legal proceedings under the laws of the
Commonwealth of Pennsylvania.
Section 5.03. Regulations Relating to Shares. The Board shall have
power and authority to make all such rules and regulations not inconsistent with
these Bylaws as it may deem expedient, concerning the issue, transfer and
registration of certificates representing shares of stock of the Corporation.
Section 5.04. Holders of Record. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder and
owner in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by the laws of Commonwealth of Pennsylvania.
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ARTICLE VI
Execution of Instruments;
Deposit and Withdrawal of Corporate Funds
Section 6.01. Execution of Instruments Generally. The authority to sign
any contracts and other instruments requiring execution by the Corporation may
be conferred by the Board upon an authorized officer of the Corporation or upon
any other person or persons designated by the Board. Any person having authority
to sign on behalf of the Corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any other person or
persons so authorized by the Board.
Section 6.02. General and Special Bank Accounts. The Board may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board may
select, or as may be selected by any officer or officers or agent or agents of
the Corporation to whom power in that respect shall have been delegated by the
Board. The Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provisions of these Bylaws, as it
may deem expedient.
ARTICLE VII
General Provisions
Section 7.01. Offices. The principal executive office of the
Corporation shall be located at such place within or without the Commonwealth of
Pennsylvania as the Board from time to time designates. The registered office of
the Corporation shall be located at 1030 Century Building, 130 Seventh Street,
Pittsburgh, Pennsylvania 15222 or at such other place within the Commonwealth of
Pennsylvania as the Board from time to time designates.
Section 7.02. Corporate Seal. The Board shall prescribe the form of a
suitable corporate seal, which shall contain the full name of the Corporation
and the year and state of incorporation.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall
commence on the first day of April and end on the thirty-first day of March in
each year.
Section 7.04. Financial Reports to Shareholders. The Board shall cause
the preparation of financial statements reflecting the financial condition and
results of operations of the Corporation as of and for the period ending upon
the close of each fiscal year, and shall engage independent certified public
accountants to audit such financial statements. The Board shall cause such
financial statements and reports of auditors to be furnished to the
shareholders, and shall cause such other financial statements, if any, as it
deems advisable to be furnished to the shareholders.
Section 7.05. Waiver of Notices. Whenever notice shall be required to
be given by these Bylaws or by the Articles of Incorporation of the Corporation
or by the BCL, a written waiver thereof, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent to notice.
Section 7.06. Facsimile Signatures. In addition to the provisions for
use of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board or a Committee thereof.
Section 7.07. Reliance Upon Books, Reports and Records. Each Director,
each member of any Committee designated by the Board, and each officer of the
Corporation shall, in the performance of his duties, be fully protected in
relying in good faith upon the
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books of account or other records of the Corporation, including reports made to
the Corporation by any of its officers, by an independent certified public
accountant, by independent legal counsel, or by an appraiser.
Section 7.08. Gender. Any words in the masculine gender in these Bylaws
shall be deemed to include the feminine gender.
ARTICLE VIII
Indemnification of Officers and Directors
Section 8.01. Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), whether brought by or in the name of
the Corporation or otherwise, by reason of the fact that he is or was a Director
or an officer of the Corporation or is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
Director, officer, employee or agent or in any other capacity while serving as a
Director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by law, including, but not
limited to the BCL, as the same exists or may hereafter be amended (but, in the
case of such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board. For purposes of Section 8.01, 8.02 and
8.03, persons holding the following titles shall be considered officers of the
Company: Chief Executive Officer, President, Chief Operating Officer, Chief
Legal Officer, Chief Science Officer, and all persons holding the title of
Executive Vice President, Senior Vice President or Vice President.
Section 8.02. Right to Payment of Expenses. The right to
indemnification conferred in Section 8.01 shall include the right to be paid by
the Corporation the expenses (including attorneys' fees) incurred in defending
any such proceeding prior to its final disposition (hereinafter a "payment of
expenses"). The rights to indemnification and to the payment of expenses
conferred in Sections 8.01 and 8.02 shall be contract rights and such rights
shall continue as to an indemnitee who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators.
Section 8.03. Right of Indemnitee to Bring Suit. If a claim under
Section 8.01 or 8.02 of this Article is not paid in full by the Corporation
within sixty (60) days after a written claim has been received by the
Corporation, except in the case of a claim for a payment of expenses, in which
case the applicable period shall be twenty (20) days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, the
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indemnitee also shall be entitled to be paid the expense of prosecuting or
defending such suit, including attorney's fees.
Section 8.04. Non-Exclusivity of Rights. The rights to indemnification
and to the payment of expenses shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Corporation's
Articles of Incorporation, Bylaws, any agreement, any vote of shareholders or
disinterested directors or otherwise.
Section 8.05. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any Director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the BCL.
Section 8.06. Indemnification of Other Officers, Employees, Assistants
and Agents. The Corporation may, to the extent authorized from time to time by
the Board, grant rights to indemnification and to the payment of expenses to any
officer not otherwise covered by this Article, to an employee, an assistant or
an agent of the Corporation to the fullest extent of the provisions of this
Article with respect to the indemnification and payment of expenses of Directors
and officers of the Corporation.
Section 8.07. Other Enterprises, Fines, Serving at Corporation's
Request. For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
tax assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a Director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such Director, officer, employee, or
agent with respect to any employee benefit plan, its participants, or
beneficiaries.
Section 8.08. Effect of Amendment. Any amendment, repeal or
modification of any provision of this Article by the shareholders or the
Directors shall not adversely affect any right or protection of a Director or
officer existing at the time of such amendment, repeal or modification.
Section 8.09. Savings Clause. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each indemnitee as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to the fullest extent
permitted by any applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable law.
ARTICLE IX
Amendments
Section 9.01. Amendments. These Amended and Restated Bylaws may be
amended, altered and repealed, and new Bylaws may be adopted, by the
shareholders or the Board at any regular or special meeting.
ARTICLE X
Inapplicable Subchapters of Business Corporation Law of Pennsylvania
Section 10.01. Subchapter E. The provisions of Subchapter E to Chapter
25 of the BCL (successor to Section 910 of the BCL) shall not be applicable to
this Corporation.
Section 10.02. Subchapter G. The provisions of Subchapter G to Chapter
25 of the BCL, as approved April 27, 1990, shall not be applicable to this
Corporation.
Section 10.03. Subchapter H. The provision of Subchapter H to Chapter
25 of the BCL, as approved April 27, 1990, shall not be applicable to this
Corporation.
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