Attached files
EXHIBIT
3.02
BYLAWS
OF
CARACO
PHARMACEUTICAL LABORATORIES, LTD.
(a
compilation of the current bylaws in effect as of October 26, 2009)
ARTICLE
I.
Offices
The
Corporation shall continuously maintain a registered office in Michigan and may
have such other office(s) at such place(s), both within and outside the State of
Michigan, as the Board of Directors (the "Board") from time to time determines
or as the business of the Corporation from time to time requires.
ARTICLE
II.
Meetings
of Shareholders
Section 1. Annual
Meetings. Subject to the provisions of Section 6(c) of Article
IX of these bylaws (the "Bylaws"), annual meetings of the Corporation's
shareholders ("Shareholders") shall be held at such time and place (within or
outside the State of Michigan) as shall be designated from time to time by the
Board and stated in the notice of the meeting. Subject to the Amended
and Restated Articles of Incorporation of the Corporation (the "Articles"), at
each annual meeting Shareholders shall elect directors to succeed those whose
terms expire and shall transact such other business as may properly be brought
before the meeting.
Section 2. Special
Meetings. Unless otherwise prescribed by law, the Articles or
these Bylaws, special meetings of Shareholders for any purpose or purposes may
be called only by the Chairman of the Board, the chief executive officer, the
president, or by the secretary or assistant secretary upon the written request
of two or more Directors of the total number of Directors of the Corporation.
Requests for special meetings shall state the purpose or purposes of the
proposed meeting and shall state that no other business shall be
conducted. Special meetings of Shareholders shall be held at such
time and place (within or outside the State of Michigan) as shall be designated
from time to time by the Board and stated in the notice of the
meeting. Business transacted at special meetings shall be confined to
the purpose or purposes stated in the notice.
Section 3. Notices of
Annual and Special Meetings.
|
|
(a)
|
Except
as otherwise provided by law, the Articles or these Bylaws, written notice
of any annual or special meeting of shareholders shall state the place,
date and time thereof and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, and shall be given, either
personally, by electronic transmission (in accordance with Article IX,
Section 7 of these Bylaws), or by mail to each shareholder of record
entitled to vote at such meeting not less than 10 or more than 60 days
prior to the meeting. If by electronic transmission, the notice
shall be given when electronically transmitted to the shareholder entitled
to the notice in a manner authorized by the shareholder. If
mailed, the notice shall be directed to the shareholder at his address as
it appears on the records of the Corporation unless, prior to the time of
mailing, he has filed with the Secretary a written request that notices
intended for him be mailed to some other address, in which case it should
be mailed to the address designated in such
request.
|
|
|
(b)
|
Notice
of any meeting of Shareholders (whether annual or special) to act upon an
amendment to the Articles, a reduction of stated capital or a plan of
merger, consolidation or sale of all or substantially all of the
Corporation's assets shall be accompanied by a copy of the proposed
amendment or plan of reduction, merger, consolidation or
sale.
|
Section 4. List of
Shareholders. At least 10 days (but not more than 60 days)
before any meeting of Shareholders, the officer or transfer agent in charge of
the stock transfer books of the Corporation shall prepare and make a complete
list of the Shareholders entitled to vote at such meeting, which list shall be
arranged alphabetically within each class and series of shares and shall show
the address of each Shareholder and the number of shares registered in the name
of each Shareholder. The list so prepared shall be maintained at a
place within the locality where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held, and shall be open to inspection by any
Shareholder, for any purpose germane to the meeting, during ordinary business
hours during a period of no less than 10 days prior to the
meeting. The list also shall be produced and kept open at the meeting
(during the entire duration thereof) and, except as otherwise provided by law,
may be inspected by any Shareholder or proxy of a Shareholder who is present in
person at such meeting.
Section
5. Presiding Officers; Order of Business.
|
|
(a)
|
Meetings
of Shareholders shall be presided over by the Chairman of the Board, if
the chairman is not present, by the chief executive officer, if the chief
executive officer is not present, by the president, or, if the president
is not present, by a vice president, or, if a vice president is not
present, by such person who is chosen by the Board, or, if none, by a
chairperson to be chosen at the meeting by Shareholders present in person
or by proxy who own a majority of the shares of common stock of the
Corporation entitled to vote and represented at such meeting. The
secretary of meetings shall be the secretary or assistant secretary of the
Corporation, or, if an assistant secretary is not present, such person as
may be chosen by the Board, or, if none, by such person who is chosen by
the chairperson at the meeting.
|
|
|
(b)
|
The
following order of business, unless otherwise ordered at the meeting by
the chairperson thereof, shall be observed as far as practicable and
consistent with the purposes of the
meeting:
|
|
|
(i)
|
Call
of the meeting to order.
|
|
|
(ii)
|
Presentation
of proof of mailing of notice of the meeting and, if the meeting is a
special meeting, the call thereof.
|
|
|
(iii)
|
Presentation
of proxies.
|
|
|
(iv)
|
Determination
and announcement that a quorum is
present.
|
|
|
(v)
|
Reading
and approval (or waiver thereof) of the minutes of the previous
meeting.
|
|
|
(vi)
|
Reports,
if any, of officers.
|
|
|
(vii)
|
Election
of directors to succeed those whose terms expired, if the meeting is an
annual meeting or a special meeting called for such
purpose.
|
|
|
(viii)
|
Consideration
of the specific purpose or purposes for which the meeting has been
called (other than the election of
directors).
|
|
|
(ix)
|
Transaction
of such other business as may properly come before the
meeting.
|
|
|
(x)
|
Adjournment.
|
Section
6. Quorum; Adjournments.
|
|
(a)
|
The
holders of a majority of the shares of common stock of the Corporation
issued and outstanding and entitled to vote at any given meeting present
in person or by proxy shall be necessary to and shall constitute a quorum
for the transaction of business at all meetings of Shareholders, except as
otherwise provided by law or by the Articles; provided, however, that no
quorum shall be deemed to exist unless 33-1/3% of the outstanding shares
of the Corporation's common voting stock is present in person or by
proxy.
|
|
|
(b)
|
If
a quorum is not present in person or by proxy at any meeting of
Shareholders, the chairman of the meeting or the holders of a majority of
all of the shares of stock entitled to vote at the meeting, present in
person or by proxy, shall have the power to adjourn the meeting from time
to time, without notice of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken and
at the adjourned meeting only business is transacted as might have been
transacted at the original meeting, until a quorum is present in person or
by proxy.
|
|
|
(c)
|
Even
if a quorum is present in person or by proxy at any meeting of the
Shareholders, the Shareholders entitled to vote thereat present in person
or by proxy shall have the power to adjourn the meeting from time to time
for good cause, without notice of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is
taken and at the adjourned meeting only business is transacted as might
have been transacted at the original meeting, until a date which is not
more than 30 days after the date of the original
meeting.
|
|
|
(d)
|
Anything
in paragraph (b) of this Section 6 to the contrary notwithstanding, if an
adjournment is for more than 30 days, or if after an adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each Shareholder of record entitled to vote
thereat.
|
Section
7. Voting.
|
|
(a)
|
At
any meeting of Shareholders every Shareholder having the right to vote
shall be entitled to vote in person or by proxy authorized by an
instrument in writing filed in accordance with the procedure established
for the meeting. Except as otherwise provided by law or by the
Articles, each Shareholder of record shall be entitled to one vote (on
each matter submitted to a vote) for each share of common stock registered
in his name on the books of the
Corporation.
|
|
|
(b)
|
All
elections of directors and, except as otherwise provided by law or by the
Articles, all other matters, shall be determined by a vote of a majority
of the shares present in person or represented by proxy and voting on such
other matters.
|
|
|
(c)
|
All
voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that
upon demand therefor by a Shareholder entitled to vote or his proxy, a
written share vote shall be taken. Every written share vote
shall be taken by ballots, each of which shall state the name of the
Shareholder or proxy voting and such other information as may be required
under the procedure established for the meeting. Every vote
taken by ballots shall be counted by an inspector or inspectors appointed
by the chairman of the meeting.
|
|
|
(d)
|
If
the Board consents, a shareholder may participate in a meeting of
shareholders by conference telephone or by other means of remote
communication through which all persons participating in a meeting may
communicate with other participants. Assuming the Board
consents, all participants shall be advised of the means of remote
communication, and the names of the participants shall be divulged to all
participants. Participation in a meeting pursuant to this
sub-section constitutes presence in person at the
meeting. Assuming the Board consents, shareholders not
physically present at a meeting of shareholders may participate in the
meeting by means of remote communication and are considered present in
person and may vote at the meeting if: (i) reasonable measures are
implemented to verify that each person considered present and permitted to
vote at the meeting by means of remote communication is a shareholder or
proxy holder; (ii) reasonable measures are implemented to provide each
shareholder or proxy holder a reasonable opportunity to participate in the
meeting and to vote on matters submitted to the shareholders, including an
opportunity to read or hear the proceedings of the meeting substantially
concurrently with the proceedings; and (iii) if any shareholder or proxy
holder votes or takes other action at the meeting by means of remote
communication, a record of the vote or other actions maintained by the
Corporation.
|
Section 8. Notice of
Shareholder Business. At any annual or special meeting of
Shareholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before a meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board, (b) properly brought before
the meeting by or at the direction of the Board, or (c) properly brought before
an annual meeting by a Shareholder, and if and only if the notice of a special
meeting provides for business to be brought before the special meeting by
Shareholders, properly brought before the special meeting by a
Shareholder. For business to be properly brought before a meeting by
a Shareholder, the Shareholder must have given timely notice thereof in writing
to the secretary or assistant secretary of the Corporation. To be
timely, a shareholder’s notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 120 calendar
days before the date of the Corporation’s proxy statement released to
shareholders in connection with the previous year’s annual meeting; provided,
however, if the Corporation did not hold an annual meeting the previous year, or
if the date of the current year’s annual meeting has been changed by more than
30 days from the date of the previous year’s meeting, then in order for a
shareholder’s notice to be timely, it must be received a reasonable time before
the Corporation begins to print and mail its proxy
materials. Furthermore, Shareholders are not permitted to nominate
individuals to serve as directors, unless notice of such nomination is given to
the Corporation in accordance with Section 13 of Article III of these
Bylaws. A Shareholder's notice to the secretary or assistant
secretary shall set forth as to each matter the Shareholder proposes to bring
before the meeting: (a) a brief description of the business desired
to be brought before the meeting and the reasons for conducting such business at
the meeting; (b) the name and address, as they appear on the Corporation's
books, of the Shareholder proposing such business; (c) the class and number of
shares of the Corporation which are beneficially owned by the Shareholder; and
(d) any material interest of the Shareholder in such
business. Notwithstanding anything in these Bylaws to the contrary,
no business shall be conducted at any meeting of Shareholders except in
accordance with the procedures set forth in this Section 8 of Article
II. The chairman of a meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting and in accordance with the provisions of this Section 8, and if he
should so determine, he shall so declare that the meeting and any such business
not properly brought before the meeting shall not be
transacted. Notwithstanding anything in these Bylaws to the contrary,
the Corporation shall be under no obligation to submit for action any
shareholder proposal at any meeting of shareholders, if either the shareholder
is not eligible, or the Corporation would otherwise be permitted to omit the
proposal, in accordance with applicable rules under the Securities Exchange Act
1934 as amended.
Section 9. Meetings
Required; No Action by Less Than Unanimous Consent. Any action
required or permitted to be taken by the Shareholders must be taken at a duly
called annual or special meeting of Shareholders and may not be effected by any
consent in writing signed by fewer than all of such Shareholders.
Section
10. Proxies. The Corporation shall solicit proxies
and provide proxy statements for all meetings of Shareholders and shall provide
copies of such proxy solicitation to any national securities exchange
("Exchange") on which the Corporation's shares are listed.
ARTICLE
III.
Directors
Section 1. General Powers;
Number; Tenure. The business and affairs of the Corporation
shall be managed under the direction of the Board, which may exercise all powers
of the Corporation and perform or authorize the performance of all lawful acts
and things which are not by law, the Articles or these Bylaws directed or
required to be exercised or performed by the Shareholders. The number of
directors of the Corporation shall be fixed from time to time exclusively by the
Board pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board for adoption), but shall not at any time be less than five (5) and no more
than eleven (11), with such number (between 5 and 11) to be fixed from time to
time by the Board pursuant to a resolution adopted by a majority vote of the
entire Board of Directors. Subject to the rights of the holders of
any class or series of preferred shares of the Corporation then outstanding, the
directors shall be classified, with respect to the time for which they severally
hold office, into three (3) classes, as nearly equal in number as reasonably
possible and with the directors of each class to hold office until their
successors are duly elected and qualified. At each annual meeting of
shareholders following such classification and election, directors elected to
succeed those directors whose terms expire shall be elected for a term of office
to expire at the third succeeding annual meeting of shareholders after their
election. Directors need not be shareholders of the Corporation nor residents of
the State of Michigan.
Section
2. Vacancies. Subject to the rights of the holders
of any series of Preferred Shares then outstanding, newly created directorships
resulting from any increase in the authorized number of directors and any
vacancies on the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be filled by a
majority vote of the remaining directors then in office, though
less than a quorum, and/or by a vote to ratify or elect by a majority of the
shares present in person or represented by proxy and voting on such ratification
or election, and directors so chosen shall hold office for a term expiring at
the annual meeting of shareholders at which the term of office of the class to
which they have been elected expires or until their successors have been duly
elected and qualified. No decrease in the number of directors
constituting the Board shall shorten the term of any incumbent
director.
Section
3. Removal; Resignation.
|
|
(a)
|
Subject
to the rights of the holders of any class or series of preferred shares of
the Corporation then outstanding, and except as otherwise provided by law,
the Articles or these Bylaws, at any meeting of the Shareholders called
expressly for such purpose, any director, or the entire Board, may be
removed, but only for cause, by a vote of Shareholders holding a majority
of the shares issued and outstanding and entitled to vote at an election
of directors, voting together as a single
class.
|
|
|
(b)
|
Any
director may resign at any time by giving written notice to the Board, the
Chairman of the Board, the president, the secretary or the assistant
secretary of the Corporation. Unless a subsequent time is
specified in such written notice, a resignation shall take effect upon its
receipt by the Corporation.
|
Section 4. Place of
Meetings. The Board may hold both regular and special meetings
either within or outside the State of Michigan, at such place as the Board from
time to time deems advisable.
Section 5. Annual
Meeting. The annual meeting of each newly elected Board shall
be held as soon as is practicable following the annual meeting of Shareholders,
and no notice to the newly elected directors of such meeting shall be necessary
for such meeting to be lawful.
Section 6. Regular
Meetings. Additional regular meetings of the Board may be held
without notice, at such time and place as from time to time may be determined by
the Board.
Section 7. Special
Meetings. Special meetings of the Board may be called by the
Chairman of the Board, by the chief executive officer, by the Executive
Committee or by a majority of the Board, upon 24 hours' notice to each director
if such notice is delivered personally or sent by telegram, or facsimile or upon
5 days' notice if sent by mail, unless such notice is waived. The notice should
set forth the purpose of such meeting. Except as set forth in the
notice, no other business may be transacted at the special
meeting. In addition, notices of special meetings may also be
delivered to each director by electronic transmissions (in accordance with
Article IX, Section 7 of these bylaws) and shall be deemed given when
electronically transmitted to the director in a manner authorized by the
director.
Section 8. Quorum;
Adjournments. A majority of the total number of directors then
in office shall constitute a quorum for the transaction of business at each and
every meeting of the Board, and the act of a majority of the directors present
at any meeting at which a quorum is present shall be the act of the Board,
except as otherwise specifically provided by law, the Articles or these
Bylaws. If a quorum is not present at any meeting of the Board, the
directors present may adjourn the meeting, from time to time, without notice
other than announcement at the meeting, until a quorum is present.
Section 9. Duties of
Directors. The directors of the Corporation shall have a
fiduciary duty to the Shareholders to arrange, oversee and supervise the affairs
and business of the Corporation.
Section
10. Compensation. Directors shall be entitled to
such compensation for their services as directors as from time to time may be
fixed by the board, including, without limitation, for their services as members
of committees of the board and in any event shall be entitled to reimbursement
of all reasonable expenses incurred by them in attending directors’
meetings.
Section 11. Action by
Consent. Any action required or permitted to be taken at any
meeting of the Board or a committee of the Board may be taken without a meeting
and without prior notice if a written consent in lieu of such meeting which sets
forth the action so taken is signed either before or after such action by all
directors or all members of the committee, as the case may be. All
written consents shall be filed with the minutes of the Board's
proceedings. A written consent has the same effect as a vote of the
Board or committee for all purposes.
Section 12. Meetings by
Telephone or Remote Communication. Members of the Board or any committee
appointed by the Board may participate in a meeting of the Board or any
committee by means of conference telephone or other means of remote
communication through which all persons participating in the meeting can
communicate with the other participants. Participation in a meeting
in such manner shall constitute presence in person at such meeting. A
written record shall be made of all actions taken at any meeting conducted by
means of a conference telephone or other means of remote
communication.
Section 13. Nomination of
Director Candidates. Subject to the rights of holders of any
class or series of preferred shares then outstanding, nominations for the
election of directors may be made by: (a) the Board or a proxy committee
appointed by the Board or (b) any Shareholder entitled to vote in the election
of directors generally; provided, however, any Shareholder entitled to vote in
the election of directors generally may nominate one or more persons for
election as directors at a meeting only if timely notice of such Shareholder's
intent to make such nomination or nominations has been given in writing to the
secretary or assistant secretary of the Corporation. To be timely, a
shareholder’s notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 120 calendar days
before the date of the Corporation’s proxy statement released to shareholders in
connection with the previous year’s annual meeting; provided, however, if the
Corporation did not hold an annual meeting the previous year, or if the date of
the current year’s annual meeting has been changed by more than 30 days from the
date of the previous year’s meeting, then in order for a shareholder’s notice to
be timely, it must be received a reasonable time before the Corporation begins
to print and mail its proxy materials. Each such notice shall set
forth: (a) the name and address of the Shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the Shareholder is a holder of record of stock of the Corporation entitled
to vote for the election of directors on the date of such notice and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or understandings
between the Shareholder and 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; (d) such other information regarding each nominee
proposed by such Shareholder 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 (e) the consent of each nominee to serve as a director of the
Corporation if so elected.
In the
event that a person is validly designated as a nominee in accordance with this
Section 13 and shall thereafter become unable or unwilling to stand for election
to the Board, the Board or the Shareholder who proposed such nominee, as the
case may be, may designate a substitute nominee upon delivery, not fewer than 10
days prior to the date of the meeting for the election of such nominee, of a
written notice to the secretary or assistant secretary setting forth such
information regarding such substitute nominee as would have been required to be
delivered to the secretary or assistant secretary pursuant to this Section 13
had such substitute nominee been initially proposed as a
nominee. Such notice shall include a signed consent to serve as a
director of the Corporation, if elected, of each such substitute
nominee.
If the
chairman of the meeting for the election of directors determines that a
nomination of any candidate for election as a director at such meeting was not
made in accordance with the applicable provisions of this Section 13, such
nomination shall be void.
Section 14. Advisory Panel
to the Board. The Board of Directors may, by resolution
adopted by affirmative vote of a majority of the whole of the Board of
Directors, appoint an advisory panel of persons, none of whom shall be current
members of the Board of Directors, for the purpose of advising the members of
the Board in carrying out their duties to the corporation. Such
advisors shall have no power to act on behalf of the Corporation or the Board or
to in any way bind the Corporation or the Board by their actions, nor shall they
possess any other powers reserved to directors or officers in these Bylaws or
owe any fiduciary obligation to the Corporation or the
shareholders. The Board of Directors shall have the power to
determine the size and membership of any such panel of advisors and may, at its
discretion remove individual advisors from the panel, or disband the panel as a
whole.
ARTICLE
IV.
Committees
Section 1. Formation of
Committees. The Board may, by resolution passed by a majority
of the directors present at any meeting at which a quorum is present, designate
one or more committees, with each committee consisting of one (1) or more
directors of the Corporation. The Board shall designate an Audit Committee,
which satisfies applicable regulations of the exchange or Nasdaq on which the
Corporation’s securities are listed. Except as prohibited by law, any
such committee, to the extent provided in the resolution, shall have and may
exercise the powers of the Board conferred upon such committee by the Board in
the management of the business and affairs of the Corporation and may authorize
the seal of the Corporation to be affixed to all papers which may require
it. Such committee or committees shall have the name or names as may
be determined from time to time by resolution adopted by the Board.
Section
2. Other Provisions Regarding Committees.
|
|
(a)
|
Subject
to the limitations set forth in Section 1 of this Article IV, the Board
shall have the power at any time to fill vacancies in, change the
membership of, or discharge any
committee.
|
|
|
(b)
|
Members
of any committee shall be entitled to such compensation for their services
as from time to time may be fixed by the Board and in any event shall be
entitled to reimbursement of all reasonable expenses incurred in attending
committee meetings. Any member of a committee may waive
compensation for any meeting. No committee member who receives
compensation as a member of any one or more committees shall be barred
from serving the Corporation in any other capacity or from receiving
compensation and reimbursement of reasonable expenses for any or all such
other services.
|
|
|
(c)
|
Unless
prohibited by law, the provisions of Section 11 ("Action by Consent") and
Section 12 ("Meetings by Telephone or Similar Communications") of Article
III shall apply to all committees from time to time created by the
Board.
|
|
|
(d)
|
Each
committee may determine the procedural rules for meeting and conducting
its business and shall act in accordance therewith, except as otherwise
provided herein or required by law. Adequate provision shall be
made for notice to members of all meetings. A majority of the
members must be present to constitute a quorum; and all matters shall be
determined by a majority vote of the members
present.
|
|
|
(e)
|
No
committee shall have the power or authority to do any of the
following:
|
|
|
(i)
|
Amend
the Articles of Incorporation;
|
|
|
(ii)
|
Adopt
an agreement of merger or share
exchange;
|
|
|
(iii)
|
Recommend
to shareholders the sale, lease, or exchange of all or of substantially
all of the Corporation's property and
assets;
|
|
|
(iv)
|
Recommend
to shareholders a dissolution of the Corporation or a revocation of a
dissolution;
|
|
|
(v)
|
Amend
the Bylaws of the Corporation;
|
|
|
(vi)
|
Fill
vacancies in the board; and
|
|
|
(vii)
|
Declare
a distribution, dividend, or authorize the issuance of shares of the
Corporation.
|
ARTICLE
V.
Officers
Section
1. Positions. The Corporation's officers shall be
chosen and appointed by the Board and shall consist of a chief executive
officer, president, one or more vice presidents (if and to the extent required
by law or if not required, if the Board from time to time appoints a vice
president or vice presidents), a secretary and a treasurer, one or more
assistant secretaries and/or assistant treasurers and such other officers and/or
agents as the Board from time to time deems necessary or
appropriate. The Board may delegate to the chief executive
officer or the president of the Corporation the authority to appoint any officer
or agent of the Corporation and to fill a vacancy other than the Chairman of the
Board, president, secretary or treasurer. The election or appointment
of any officer of the Corporation in itself shall not create contract rights for
any such officer. All officers of the Corporation shall exercise such
powers and perform such duties as from time to time shall be determined by the
Board. Any two or more offices may be held by the same
person.
Section 2. Term of Office;
Removal. Each officer of the Corporation shall hold office at
the pleasure of the Board and any officer may be removed, with or without cause,
at any time by the affirmative vote of a majority of the directors then in
office, provided that any officer appointed by the president pursuant to
authority delegated to the president by the Board may be removed, with or
without cause, at any time whenever the president in his or her absolute
discretion shall consider that the best interests of the Corporation shall be
served by such removal. Removal of an officer by the Board or by the
president, as the case may be, shall not prejudice the contract rights, if any,
of the person so removed. Vacancies (however caused) in any office
may be filled for the unexpired portion of the term by the Board (or by the
president in the case of a vacancy occurring in an office to which the president
has been delegated the authority to make appointments).
Section
3. Compensation. The salaries of all officers of
the Corporation shall be fixed from time to time by the Board, and no officer
shall be prevented from receiving a salary by reason of the fact that he also
receives from the Corporation compensation in any other capacity.
Section 4. Action With
Respect to Securities of Other Corporations. Unless otherwise directed by
the Board, the president or any officer of the Corporation authorized by the
president shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of Shareholders of or with
respect to any action of Shareholders of any other corporation in which this
Corporation may hold securities and otherwise to exercise any and all rights and
powers which this Corporation may possess by reason of its ownership of
securities in such other corporation.
Section 5. Chairman of the
Board. The Chairman of the Board shall be elected by the Board
of Directors and, subject to the direction of the Board, shall perform such
functions and duties as from time to time may be assigned to him or her by the
Board. The Chairman of the Board, if present, shall preside at all
meetings of the Shareholders and all meetings of the Board or may appoint
another member of the board to preside. The Board of Directors shall
determine, in its discretion, whether any individual appointed to the position
of Chairman of the Board is deemed to be an officer of the
Corporation.
Section 6. Chief Executive
Officer. The chief executive officer shall have the powers and
perform the duties incident to that position. Subject to the powers
of the Board of Directors, he or she shall be in the general and active charge
of the entire business and affairs of the Corporation, and shall be its chief
policy-making officer. The chief executive officer shall, in the
absence or disability of its Chairman of the Board, act with all of the powers,
perform all of the duties and be subject to all of the restrictions of the
Chairman of the Board. The chief executive officer shall have such
other powers and perform such other duties as may be prescribed by the Chairman
of the Board or the Board of Directors or as may be provided in these
Bylaws.
Section
7. President. The President, subject to the
direction of the Chief Executive Officer, shall have general charge of the
business, affairs and property of the Corporation and general supervision of its
other officers and agents. In general, the president shall
perform all duties incident to the office of president of a stock corporation
and shall see that all orders and resolutions of the Board are carried into
effect. Unless otherwise prescribed by the Board, the president shall
have full power and authority on behalf of the Corporation to attend, act and
vote at any meeting of security holders of other corporations in which the
Corporation may hold securities. At any such meeting the president
shall possess and may exercise any and all rights and powers incident to the
ownership of such securities which the Corporation possesses and has the power
to exercise. The Board from time to time may confer like powers upon
any other person or persons.
Section 8. Vice
Presidents. In the absence or disability of the president, the
vice president, if any (or in the event there is more than one, the vice
presidents in the order designated, or in the absence of any designation, in the
order of their election), shall perform the duties and exercise the powers of
the president. The vice president(s) also generally shall assist the
president and shall perform such other duties and have such other powers as from
time to time may be prescribed by the Board.
Section
9. Secretary. The secretary shall attend all
meetings of the Board and of the Shareholders and shall record all votes and the
proceedings of all meetings in a book to be kept for such purposes. The
secretary also shall perform like duties for the committees, if required by any
such committee. The secretary shall give (or cause to be given)
notice of all meetings of the Shareholders and all special meetings of the Board
and shall perform such other duties as from time to time may be prescribed by
the Board, the Chairman of the Board or the president. The secretary
shall have custody of the seal of the Corporation, shall have authority (as
shall any assistant secretary) to affix the same to any instrument requiring it,
and to attest the seal by his or her signature. The Board may give
general authority to officers other than the secretary or any assistant
secretary to affix the seal of the Corporation and to attest the affixing
thereof by his or her signature.
Section 10. Assistant
Secretary. The assistant secretary, if any, in the absence or
disability of the secretary, shall perform the duties and exercise the powers of
the secretary. The assistant secretary(ies) shall perform such other
duties and have such other powers as from time to time may be prescribed by the
Board.
Section
11. Treasurer. The treasurer shall have the custody
of the corporate funds, securities, other similar valuable effects, and evidence
of indebtedness, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as from time to time may be designated by the
Board. The treasurer shall disburse the funds of the Corporation in
such manner as may be ordered by the Board from time to time and shall render to
the Chairman of the Board, the president and the Board, at regular meetings of
the Board or whenever any of them may so require, an account of all transactions
and of the financial condition of the Corporation.
Section 12. Assistant
Treasurer. The assistant treasurer, if any (or in the event
there is more than one, the assistant treasurers in the order designated, or in
the absence of any designation, in the order of their election), in the absence
or disability of the treasurer, shall perform the duties and exercise the powers
of the treasurer. The assistant treasurer(s) shall perform such other
duties and have such other powers as from time to time may be prescribed by the
Board.
ARTICLE
VI.
Notices
Section 1. Form;
Delivery. Any notice required or permitted to be given to any
director, officer, Shareholder or committee member shall be given in writing,
either personally, by first-class mail with postage prepaid, or facsimile
addressed to the recipient at his or her address as it appears in the records of
the Corporation. Personally delivered and facsimile notices shall be deemed to
be given at the time they are delivered at the address of the named recipient as
it appears in the records of the Corporation, and mailed notices shall be deemed
to be given at the time they are deposited in the United States
mail. Notice to a director also may be given by telegram sent to his
address as it appears on the records of the Corporation and shall be deemed
given at the time delivered at such address.
Section 2. Waiver; Effect
of Attendance. Whenever any notice is required to be given by
law, the Articles or these Bylaws, a written waiver thereof, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be the equivalent of the giving of such
notice. Any director or committee member who attends a meeting of the
Board or a committee thereof shall be deemed to have had timely and proper
notice of the meeting, unless such director or committee member attends for the
express purpose of objecting to the transaction of any business on the grounds
that the meeting is not lawfully called or convened. A Shareholder's
attendance at a meeting (whether in person or by proxy) shall result in: (i)
waiver of objection to lack of notice or defective notice of the meeting, unless
the Shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting and (ii) waiver of objection to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the Shareholder
objects to considering the matter when it is presented.
ARTICLE
VII.
Indemnification
Section
1. Indemnification. The Corporation shall indemnify
each of the directors and officers of the Corporation, and may indemnify any
other individual, to the fullest extent permitted by Sections 561 and 562 of the
Business Corporation Act of Michigan, as it may be amended from time to time
(the "Act") and as otherwise permitted by law, and shall promptly make or cause
to be made any determination required by Section 564a of the Act. The
Corporation shall pay and reimburse each of the directors and officers of the
Corporation, and may pay and reimburse any other individual, to the fullest
extent permitted by Section 564b of the Act and as otherwise permitted by law,
and the Corporation shall promptly make or cause to be made any determination
required by Section 564b.
Section
2. Insurance. The Corporation shall maintain
insurance to the extent reasonably available, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or of 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
Act.
Section 3. Effect of
Amendment. Any amendment, repeal or modification of any
provision of this Article VII by the Shareholders or the directors of the
Corporation shall not adversely affect any right or protection of a director,
officer, employee or agent of the Corporation existing at the time of such
amendment, repeal or modification.
ARTICLE
VIII.
Stock
Certificates
Section 1. Form;
Signatures. Each Shareholder who has fully paid for any stock
of the Corporation shall be entitled to receive a certificate representing such
shares, which shall be non-assessable, and such certificate shall be signed by
the Chairman of the Board or the president or a vice president and by the
treasurer or an assistant treasurer or the secretary or an assistant secretary
of the Corporation. Signatures on the certificate may be facsimile,
in the manner prescribed by law. Each certificate shall exhibit on
its face the number and class (and series, if any) of the shares it represents.
Each certificate also shall state upon its face the name of the person to whom
it is issued and that the Corporation is organized under the laws of the State
of Michigan. Each certificate may (but need not) be sealed with the
seal of the Corporation or facsimile thereof. In the event any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate ceases to be such officer, transfer agent or
registrar before the certificate is issued, the certificate nevertheless may be
issued by the Corporation with the same effect as if such person were such
officer at the date of issue of the certificate. All stock
certificates representing shares of common stock which are subject to
restrictions on transfer or to other restrictions may have imprinted thereon a
notation or legend of such restriction.
A
certificate representing shares issued by the Corporation shall substantially
set forth on its face or back that the Corporation will furnish to a Shareholder
upon request and without charge a full statement of the designation, relative
rights, preferences, and limitations of the shares, and if any class of shares
has been issued in series, the designation, relative rights, preferences, and
limitations of each series so far as the same have been prescribed and the
authority of the Board to designate and prescribe the relative rights,
preferences, and limitations of other series.
Section 2. Registration of
Transfer. Upon surrender to the Corporation or to any transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation, or its transfer agent, shall issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction upon the Corporation's books.
Section 3. Registered
Shareholders. Except as otherwise provided by law, the
Corporation shall be entitled to recognize the exclusive right of a person who
is registered on its books as the owner of shares of its common stock
to receive dividends or other distributions (to the extent otherwise
distributable or distributed) and to vote (in the case of voting stock) as such
owner, and to hold liable for calls and assessments a person who is registered
on its books as the owner of shares of its common stock. The
Corporation shall not be bound to recognize any equitable or legal claim to or
interest in such shares on the part of any other person. The
Corporation (or its transfer agent) shall not be required to send notices or
dividends to a name or address other than the name and address of the
Shareholders appearing on the stock ledger maintained by the Corporation (or by
the transfer agent or registrar, if any), unless any such Shareholder shall have
notified the Corporation (or the transfer agent or registrar, if any), in
writing, of another name or address at least 10 days prior to the mailing of
such notice or dividend.
Section 4. Record
Date. In order that the Corporation may determine the
Shareholders of record who are entitled (i) to notice of or to vote at any
meeting of Shareholders or any adjournment thereof, (ii) to receive payment of
any dividend or other distribution or allotment of any rights, or (iii) to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board, in advance, may fix a
date as the record date for any such determination. Such date shall
not be more than 60 days nor less than 10 days before the date of such meeting,
nor more than 60 days prior to the date of any other action. A
determination of Shareholders of record entitled to notice of or to vote at a
meeting of the Shareholders shall apply to any adjournment of the meeting taken
pursuant to Section 6 of Article II; provided, however, that the Board, in its
discretion, may fix a new record date for the adjourned meeting.
Section 5. Lost, Stolen or
Destroyed Certificate. The Board may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation
which is claimed to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost, stolen
or destroyed. When authorizing such issue of a new certificate, the Board, in
its discretion, may require as a condition precedent to issuance that the owner
of such lost, stolen or destroyed certificate, or his or her legal
representative, advertise the same in such manner as the Board shall require
and/or to give the Corporation a bond in such sum, or other security in such
form, as the Board may direct, as indemnity against any claim that may be made
against the Corporation with respect to the certificate claimed to have been
lost, stolen or destroyed.
Section
6. Regulations. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board may establish.
ARTICLE
IX.
General
Provisions
Section
1. Dividends. Subject to the Act and to any
provisions of the Articles relating to dividends, dividends upon the outstanding
common stock of the Corporation may be declared by the Board at any annual,
regular or special meeting and may be paid in cash, in property or in shares of
the Corporation's common stock. Any distribution to Shareholders of
income or capital assets of the Corporation will be accompanied by a written
statement disclosing the source of the funds distributed. If, at the
time of distribution, this information is not available, a written explanation
of the relevant circumstances will accompany the distribution and the written
statement disclosing the source of the funds distributed will be sent to the
Shareholders not later than 60 days after the close of the fiscal year in which
the distribution was made.
Section
2. Reserves. The Board, in its sole discretion, may
fix a sum which may be set aside or reserved over and above the paid-in capital
of the Corporation for working capital or as a reserve for any proper purpose,
and from time to time may increase, diminish or vary such fund or
funds.
Section 3. Fiscal
Year. The fiscal year of the Corporation shall be as
determined from time to time by the Board.
Section
4. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its incorporation and the words
"Corporate Seal" and "State of Michigan".
Section 5. Amendment of
the Bylaws. The Board is expressly empowered to adopt, amend
or repeal Bylaws of the Corporation. Any adoption, amendment or
repeal of Bylaws by the Board shall require the approval of the affirmative vote
of 2/3 of the entire Board of Directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the
Board). The Shareholders shall also have power to adopt, amend or
repeal the Bylaws. In addition to any vote of the holders of any
class or series of stock of the Corporation required by law or by these Bylaws,
the affirmative vote of the holders of at least 66-2/3% of the voting power of
all of the then-outstanding shares of the common stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to adopt, amend or repeal any provisions of the
Bylaws.
Section
6. Reports.
|
|
(a)
|
The
Chairman of the Board or the president shall prepare or cause to be
prepared annually a full and correct annual report ("Annual Report")
concerning the operations of the Corporation and containing audited
financial statements of the Corporation and its subsidiaries for the
preceding fiscal year prepared in accordance with generally accepted
accounting principles.
|
|
|
(b)
|
The
Annual Report shall be mailed or delivered to each Shareholder as of a
record date after the end of such fiscal year and each holder of other
publicly held securities of the Corporation within 150 days after the end
of the fiscal year, and shall be filed at the time the Annual Report is
distributed to the Shareholders with any Exchange on which the
Corporation's shares are listed and
traded.
|
|
|
(c)
|
There
shall be an annual meeting of the Corporation's Shareholders upon
reasonable notice following delivery of the Annual Report. The
Annual Report shall also be submitted at the annual meeting and shall be
placed on file thereafter at the principal office of the
Corporation.
|
|
|
(d)
|
To
the extent that the Corporation is required to file with the Securities
Exchange Commission ("SEC") quarterly reports, including statements of
operating results, the Corporation shall make copies of such quarterly
reports available to the Shareholders on a timely basis. The
statement of operations contained in such quarterly reports shall
disclose, as a minimum, any substantial items of an unusual or
non-recurrent nature and net income before and after estimated federal
income tax or net income in the amount of estimated federal
taxes.
|
|
|
(e)
|
To
the extent that the Corporation is required to file with the SEC or
another federal or state regulatory authority interim reports
relating primarily to operations and financial positions, the Corporation
shall make reports which reflect the information contained in such interim
reports available to the Shareholders before or as soon as practicable
after such interim reports are filed with the SEC or other regulatory
authority. If the form of the report provided to the
Shareholders differs from the interim report filed with the SEC or the
regulatory authority, the Corporation shall file a copy of the report
provided to the Shareholders with any Exchange (including
NASDAQ) on which the Corporation's shares are listed and
traded.
|
Section 7. Inspection of
Books and Records. Inspection of the Corporation's books and
records (including Shareholder records) shall be provided to the Shareholders
and to the official or agency administering the securities laws of the various
states upon reasonable notice for any proper purpose and as is consistent with
applicable laws and regulations.
Section 8. Review of
Transactions. As long as the Corporation's shares are listed
and traded on any Exchange (including NASDAQ), the Corporation shall conduct an
appropriate review of all related party transactions on an ongoing basis and
shall utilize the Corporation's Audit Committee or a comparable body for the
review of potential conflict of interest situations where
appropriate.
Section 9. Special Voting
Provisions. The affirmative vote of two-thirds
(2/3) of the entire Board of Directors shall be required for the
approval of any of the following corporate actions:
|
|
(a)
|
The
sale or disposition of all or substantially all of the assets of the
Corporation;
|
|
|
(b)
|
The
liquidation, winding up or dissolution of the
Corporation;
|
|
|
(c)
|
The
issuance of or receipt of subscription for any capital stock of the
Corporation to Sun Pharmaceutical Industries Ltd and/or it's
affiliates.
|
|
|
(d)
|
The
amendment of the Corporation's Articles of Incorporation or
Bylaws.
|
Section 10. Electronic
Transmission. In accordance with the Michigan Business
Corporation Act and the Articles of Incorporation, any shareholder or Board of
Director action which requires the notice to a shareholder or director or
written signature of a shareholder or director may be delivered to or by such
shareholder or director via electronic transmission, including, but not limited
to, notices of shareholder and director meetings and shareholder and director
consents. “Electronic transmission” or “electronically transmitted”
means any form of communication that meets all of the following: (i)
it does not directly involve the physical transmission of paper; (ii) it creates
a record that may be retained and retrieved by the recipient; (iii) it may be
directly reproduced in paper form by the recipient through an automated
process.
Section 11. Opt Into
Control Share Acquisition Statute. The provisions of Chapter
7B, Control Share Acquisitions, of the Michigan Business Corporation Act, as
amended from time to time, relating to control share acquisitions, shall be
applicable to this Corporation.