Exhibit 3.2
BY-LAWS OF MALLINCKRODT GROUP INC.
- ---------------------------------------------------------------------
(As Amended through April 15, 1992)
Article I
---------
Meetings of Stockholders
Section 1. The Annual meeting of Stockholders of this Corporation for
- ---------
the election of directors and the transaction of such other business
as may properly come before the meeting shall be held on such day in
September, October or November of each year and at such place and
hour as may be fixed by the Board of Directors prior to the giving of
the notice of the date, place and object of such meeting, or if no
other date, place and hour has been so fixed, on the third Wednesday
in October and in the office of the Corporation, 421 East Hawley
Street, Mundelein, Illinois 60060, at 10:00 o'clock a.m. Chicago
time. Notice of the time, place and object of such meeting shall be
given by mailing at least ten days previous to such meeting, postage
prepaid, a copy of such notice addressed to each stockholder at his
residence or place of business as the same shall appear on the books
of the Corporation.
Section 2. Special meetings of the stockholders other than those
- ---------
regulated by statute may be called at any time by the Chairman of the
Board, the President or by a majority of directors. Notice of every
special meeting stating the time, place and object thereof, shall be
given by mailing, postage prepaid, at least ten days before such
meeting, a copy of such notice addressed to each stockholder at his
post office address as the same appears on the books of the
Corporation.
Section 3. At all meetings of stockholders a majority of the capital
- ---------
stock outstanding, either in person or by proxy, shall constitute a
quorum, excepting as may be otherwise provided by law.
Section 4. The Board of Directors may fix a date not more than fifty
- ---------
days prior to the day of holding any meeting of stockholders as the
day as of which stockholders entitled to notice of and to vote at
such meeting shall be determined.
Section 5. At all meetings of stockholders all questions shall be
- ---------
determined by a majority vote of the stockholders entitled to vote
present in person or by proxy, except as otherwise provided by law.
Section 6. Except as may otherwise be required by applicable law or
- ---------
regulation, a stockholder may make a nomination or nominations for
director of the Corporation at an annual meeting of stockholders or
at a special meeting of stockholders called for the purpose of
electing directors or may bring up any other matter for consideration
and action by the stockholders at an annual meeting of stockholders
only if the provisions of Subsections A, B and C hereto shall have
been satisfied. If such provisions shall not have been satisfied,
any nomination sought to be made or other business sought to be
presented by a stockholder for consideration and action by the
stockholders at the meeting shall be deemed not properly brought
before the meeting, is and shall be ruled by the chairman of the
meeting to be out of order, and shall not be presented or acted upon
at the meeting.
A. The stockholder must, not less than seventy days and not more
than ninety-five days before the day of the meeting, deliver or cause
to be delivered a written notice to the Secretary of the Corporation;
provided, however, that in the event that less than eighty days'
notice or prior public disclosure of the date of the meeting is given
or made to the stockholders by the Corporation, notice by the
stockholder to the Secretary of the Corporation, to be timely, must
be received not later than the close of business on the tenth day
following the day on which such notice or prior public disclosure was
made. Notice by the Corporation shall be deemed to have been given
more than eighty days in advance of the annual meeting if the annual
meeting is called for the third Wednesday in October without regard
for when the notice or public disclosure thereof is actually given or
made. The stockholders' notice shall specify (a) the name and
address of the stockholder as they appear on the books of the
Corporation; (b) the class and number of shares of the Corporation
which are beneficially owned by the stockholder; (c) any interest of
the stockholder in the proposed business described in the notice
which is in the interest of a business or object other than the
business of the Corporation; (d) if such business is a nomination for
director, each nomination sought to be made and a statement signed by
each proposed nominee indicating his or her willingness so to serve
if elected and disclosing the information about him or her that is
required by the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder to be disclosed in the proxy
materials for the meeting involved if he or she were a nominee of the
Corporation for election as one of its directors, and (e) if such
business is other than a nomination for director, a brief description
of such business and the reasons it is sought to be submitted for a
vote of the stockholders.
B. Notwithstanding satisfaction of the provisions of Subsection
A, the proposed business described in the notice may be deemed not to
be properly brought before the meeting if, pursuant to state law or
to any rule or regulation of the Securities and Exchange Commission,
it was offered as a stockholder proposal and was omitted, or had it
been so offered, it could have been omitted, from the notice of, and
proxy material for, the meeting (or any supplement thereto)
authorized by the Board of Directors.
C. In the event such notice is timely given and the business
described therein is not disqualified because of Subsection B, such
business (a) may nevertheless not be presented or acted upon at a
special meeting of stockholders unless in all other respects it is
properly before such meeting; and (b) may not be presented except by
the stockholder who shall have given the notice required by
Subsection A or a representative of such stockholder who is qualified
under the law of New York to present the proposal on the
stockholder's behalf at the meeting.
Article II
----------
Directors
Section 1. The number of directors of the Corporation may be
- ---------
determined from time to time by resolution adopted by a majority of
the entire Board of Directors, except that such number shall not be
less than ten nor more than sixteen, exclusive of directors, if any,
to be elected by the holders of 4% Cumulative Preferred Stock or the
holders of one or more of Series Preferred Stock pursuant to the
provisions of Article Third of the Certificate of Incorporation of
the Corporation. Until the first such resolution is adopted, the
Board shall consist of sixteen directors. As provided in the
Certificate of Incorporation and subject to the provisions of the
ninth sentence of Article Ninth thereof, (i) the directors shall be
divided into three classes as nearly equal in number as possible;
(ii) at each annual meeting directors to replace those whose terms
expire at such annual meeting shall be elected to hold office until
the third succeeding annual meeting and until their successors are
chosen; (iii) if the number of directors is changed, any newly
created directorships or decrease in directorships shall be so
apportioned among the classes as to make all classes as nearly equal
in number as possible; and (iv) if the number of directors is
increased by the Board of Directors and any newly created
directorships are filled by the Board, there shall be no
classification of the additional directors until the next annual
meeting of stockholders. No decrease in the Board shall shorten the
term of any incumbent director. As used in these By-Laws, "entire
Board of Directors" means the total number of directors which the
Corporation would have if there were no vacancies. Vacancies
occurring in the Board of Directors may be filled for the unexpired
term by a majority vote of the remaining directors. The Board of
Directors shall adopt such rules and regulations for the conduct of
the meetings and management of the affairs of the Corporation as they
may deem proper, not inconsistent with the laws of the State of New
York or these By-Laws. This By-Law may be amended only by the
affirmative vote of the holders of two-thirds of the shares of all
classes of stock of the Corporation entitled to vote in elections of
directors, considered for the purposes of this By-Law as one class.
Section 2. The directors shall elect one of their members, who may or
- ---------
may not be an officer of the Corporation, to act as Chairman of the
Board. He shall preside, when present, at all meetings of the Board
of Directors and stockholders.
Section 3. As soon as practicable after the Annual Meeting of
- ---------
Stockholders, the newly elected Board of Directors shall hold its
first meeting for the purpose of organization and the transaction of
business. At such organizational meeting the Board of Directors
shall elect the officers of the Corporation and shall prepare a
schedule fixing the time and place of all regular meetings of the
Board of Directors to be held during the next ensuing calendar year.
All such regular meetings of the Board of Directors may be held
without further notice to any director who shall have attended the
organizational meeting. Notice of the time and place fixed for such
regular meetings shall be given by personal notice or by mail or
telegraph to each director who shall not have attended the
organizational meeting at least ten days prior to the first Board of
Directors' meeting after such organizational meeting which such
director shall be eligible to attend. The Board of Directors shall
have authority to change the time and place of any regular meeting
previously fixed, provided that the foregoing provisions as to notice
thereof shall apply to any such changed regular meeting. The
Chairman of the Board of Directors or the President may, and at the
request of a majority of the Board of Directors in writing must, call
a special meeting of the Board of Directors, not less than
twenty-four hours' notice of which must be given by personal notice
or by mail, telephone, telegraph, facsimile (FAX), or other form of
communication. Nothing herein contained shall prevent a waiver of
notice of meeting by directors.
Section 4. At all meetings of the Board of Directors one-third of the
- ---------
entire Board of Directors as from time to time fixed under these
By-Laws shall constitute a quorum.
Article III
-----------
Officers
Section 1. The officers of the Corporation shall be a President
- ---------
(subject to Section 4 of this Article III), one or more Vice
Presidents, a Secretary, a Controller, a Treasurer, such Assistant
Secretaries, Assistant Controllers and Assistant Treasurers as the
Board of Directors may deem necessary, a Chairman of the Board if the
Board deems this necessary, and a Vice Chairman of the Board if there
is a Chairman and the Board deems a Vice Chairman necessary. Any two
offices, excepting those of Chairman of the Board and Secretary, and
President and Secretary, may be held by one person.
Section 2. The Chairman of the Board or the President, as designated
- ---------
by the Board of Directors, shall be the Chief Executive Officer of
the Corporation and subject to the control and direction of the Board
of Directors shall exercise the powers and perform the duties usual
to the chief executive officer, have general charge of the affairs of
the Corporation, see that all orders and resolutions of the Board are
carried into effect, and do and perform such other duties as from
time to time may be assigned to him by the Board of Directors or
these By-Laws.
Section 3. The Chairman of the Board shall preside at all meetings of
- ---------
the Board of Directors and of the stockholders and perform such other
duties as from time to time may be assigned to that office by the
Board or, when he is not the Chief Executive Officer, by the Chief
Executive Officer, or by these By-Laws.
Section 4. The President shall perform such duties as from time to
- ---------
time may be assigned to him by the Board of Directors, or when he is
not the Chief Executive Officer, by the Chief Executive Officer, or
by these By-Laws, and if there is no Chairman, or in the absence or
disability of the Chairman, the President shall perform the duties of
that office. When the Chairman of the Board is the Chief Executive
Officer, the Board need not designate a President and the duties of
President may be performed by the Chief Executive Officer or in part
by such officer and in part by another officer or officers of the
Corporation, as specified by the Board.
Section 5. The Vice Presidents, one or more of whom may be designated
- ---------
Executive or Senior Vice Presidents, shall perform such duties in
such capacities or as heads of their respective operating units as
may be assigned by the Board of Directors, or by the Chief Executive
Officer. In the absence or disability of the President, and in the
absence or disability of the Chairman when there is no President as
such, the duties of the respective office shall be performed by the
Vice Presidents in the order of priority established by the Board,
and unless and until the Board of Directors shall otherwise direct.
Section 6. The Controller shall be the chief accounting officer of
- ---------
the Corporation and shall be in charge of its books of account,
accounting records and accounting and internal auditing procedures.
He shall be responsible for the verification of all of the assets of
the Corporation and the preparation of all tax returns and other
financial reports to governmental agencies by the Corporation and
shall have such other duties and powers as shall be designated from
time to time by the Board of Directors or the Chairman of the Board.
The Controller shall be responsible to and shall report to the Board
of Directors, but in the ordinary conduct of the Corporation's
business shall be under the supervision of the Chairman of the Board
or such other officer as the Board of Directors shall designate.
Section 7. The Treasurer, subject to the direction and supervision of
- ---------
such officer and to such limitations on his authority as the Board of
Directors may from time to time designate or prescribe, shall have
the care and custody of the funds and securities of the Corporation,
sign checks, drafts, notes and orders for the payment of money, pay
out and dispose of the funds and securities of the Corporation and in
general perform the duties customary to the office of Treasurer.
Section 8. The Secretary shall keep the minutes of meetings of the
- ---------
Board of Directors and the minutes of the stockholders' meetings and
have the custody of the seal of the Corporation and affix and attest
the same to certificates of stock, contracts and other documents when
proper and appropriate. He shall perform all of the other duties
usual to that office.
Section 9. The Assistant Secretaries, Assistant Controllers and
- ---------
Assistant Treasurers shall perform such duties as may be assigned by
the Board of Directors.
Section 10. Each officer elected by the Board of Directors shall hold
- ----------
office until the next annual meeting of the Board of Directors and
until his successor is elected. Any officer may be removed at any
time with or without cause by a vote of a majority of the members of
the Board of Directors. A vacancy in any office caused by the death,
resignation or removal of the person elected thereto or because of
the creation of a new office or for any other reason, may be filled
for the unexpired portion of the term by election of the Board of
Directors at any meeting. In case of the absence or disability, or
refusal to act of any officer of the Corporation, or for any other
reason that the Board of Directors shall deem sufficient, the Board
may delegate, for the time being, the powers and duties, or any of
them of such officer to any other officer or to any director.
Article IV
----------
Capital Stock
Section 1. Subscriptions to the capital stock must be paid to the
- ---------
Treasurer at such time or times, and in such installments as the
Board of Directors may by resolution require.
Section 2. The certificate for shares of the Corporation shall be in
- ---------
such forms as shall be approved by the Board of Directors and 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, and shall be sealed with the
seal of the Corporation or a facsimile thereof. The signatures of
the officers upon a certificate may be facsimiles if the certificate
is countersigned by a transfer agent or registered by a registrar
other than the Corporation itself or its employee. In case any
officer has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer at the date of issue.
Section 3. Registration of transfers of shares shall be made upon the
- ---------
books of the Corporation by the registered holder in person or by
power of attorney, duly executed and filed with the Secretary or
other proper officer of the Corporation, and on surrender of the
certificate or certificates for such shares, properly assigned for
transfer.
Article V
---------
Committees of the Board
Section 1. The Board of Directors may elect from among its members,
- ---------
by resolution adopted by two-thirds of the entire Board of Directors,
an Executive Committee consisting of the Chairman of the Board and
three or more other members of the Board. From such Committee
members, the Board shall elect a Chairman of such Committee.
Section 2. During the intervals between meetings of the Board of
- ---------
Directors, the Executive Committee shall, subject to any limitations
imposed by law or the Board of Directors, possess and may exercise
all the powers of the Board of Directors in the management and
direction of the Corporation in such manner as the Executive
Committee shall deem best for the interests of the Corporation, in
all cases in which specific directions shall not have been given by
the Board of Directors.
Section 3. The Board of Directors may also elect from among its
- ---------
members, by resolutions adopted by a majority of the entire Board of
Directors, such other committee or committees as the Board of
Directors shall determine, each such committee to consist of at least
three members of the Board. The Board shall elect a Chairman of each
such committee, shall fix the number of and elect the other members
thereof, and shall establish the duties and authority thereof,
subject to such limitations as may be required by law.
Section 4. The Board of Directors shall fill any vacancies on any
- ---------
committee established under this Article, with the objective of
keeping the membership of each such committee full at all times.
Section 5. All action by any committee of the Board of Directors
- ---------
shall be referred to the Board of Directors at its meeting next
succeeding such action, and shall be subject to revision or
alteration by the Board of Directors provided that no rights or acts
of third parties shall be affected by any such revision or
alteration. Subject to such applicable resolutions as may be adopted
by the Board, each committee shall fix its own rules of procedure and
shall meet where and as provided in such rules, but in any case the
presence of a majority shall be necessary to constitute a quorum.
Article VI
----------
Meetings by Consent
Section 1. Any action required or permitted to be taken by the Board
- ---------
of Directors or any committee thereof may be taken without a meeting
if all members of the Board or of the committee consent in writing to
the adoption of a resolution authorizing the action. The resolution
and the written consents thereto by the members of the Board or
committee shall be filed with the minutes of the proceedings of the
Board of committee.
Section 2. Any one or more members of the Board or any committee
- ---------
thereof may participate in a meeting of the Board or such committee
by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear
each other at the same time. Participation by such means shall
constitute presence in person at a meeting.
Article VII
-----------
Indemnification
Section 1. The Company shall, to the fullest extent permitted by
- ---------
applicable law, indemnify any person who is or was made, or
threatened to be made, a party to any action or proceeding, whether
civil or criminal, whether involving any actual or alleged breach of
duty, neglect or error, any accountability, or any actual or alleged
misstatement, misleading statement or other act or omission and
whether brought or threatened in any court or administrative or
legislative body or agency, including an action by or in the right of
the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any director or officer of the
Company is serving or served in any capacity at the request of the
Company, by reason of the fact that he, his testator, or intestate,
is or was a director or officer of the Company, or is serving or
served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and
expenses, including attorney's fees, or any appeal therein; provided,
however, that no indemnification shall be provided to any such person
if a judgment or other final adjudication adverse to the director or
officer establishes that (i) his acts were committed in bad faith or
were the result of active and deliberate dishonesty and, in either
case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to
which he was not legally entitled.
Section 2. The Company may indemnify any other person to whom the
- ---------
Company is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted
pursuant to, or provided by, the New York Business Corporation Law or
other rights created by (i) a resolution of shareholders, (ii) a
resolution of directors, or (iii) an agreement providing for such
indemnification, it being expressly intended that these by-laws
authorize the creation of other rights in any such manner.
Section 3. The Company shall, from time to time, reimburse or advance
- ---------
to any person referred to in Section 1 the funds necessary for
payment of expenses, including attorney's fees, incurred in
connection with any action or proceeding referred to in Section 1,
upon receipt of a written undertaking by or on behalf of such person
to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were
committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action
so adjudicated, or (ii) he personally gained in fact a financial
profit or other advantage to which he was not legally entitled.
Section 4. Any director or officer of the Company serving (i) another
- ---------
corporation, of which a majority of the shares entitled to vote in
the election of its directors is held by the Company, or (ii) any
employee benefit plan of the Company or any corporation referred to
in clause (i), in any capacity shall be deemed to be doing so at the
request of the Company.
Section 5. Any person entitled to be indemnified or to the
- ---------
reimbursement or advancement of expenses as a matter of right
pursuant to this Article may elect to have the right to
indemnification (or advancement of expenses) interpreted on the basis
of the applicable law in effect at the time of the occurrence of the
event or events giving rise to the action or proceeding, to the
extent permitted by law, or on the basis of the applicable law in
effect at the time indemnification is sought.
Section 6. The right to be indemnified or to the reimbursement or
- ---------
advancement of expenses pursuant to this Article (i) is a contract
right pursuant to which the person entitled thereto may bring suit as
if the provisions hereof were set forth in a separate written
contract between the Company and the director or officer, (ii) is
intended to be retroactive and shall be available with respect to
events occurring prior to the adoption hereof, and (iii) shall
continue to exist after the rescission or restrictive modification
hereof with respect to events occurring prior thereto.
Section 7. If a request to be indemnified or for the reimbursement or
- ---------
advancement of expenses pursuant hereto is not paid in full by the
Company within thirty days after a written claim has been received by
the Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the Claim and, if
successful in whole or in part, the claimant shall be entitled also
to be paid the expenses of prosecuting such claim. Neither the
failure of the Company (including its Board of Directors, independent
legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in
the circumstances, nor an actual determination by the Company
(including its Board of Directors, independent legal counsel, or its
shareholders) that the claimant is not entitled to indemnification or
to the reimbursement or advancement of expenses, shall be a defense
to the action or create a presumption that the claimant is not so
entitled.
Section 8. A person who has been successful, on the merits or
- ---------
otherwise, in the defense of a civil or criminal action or proceeding
of the character described in Section 1 shall be entitled to
indemnification only as provided in Sections 1 and 3, notwithstanding
any provision of the New York Business Corporation Law to the
contrary.
Article VIII
------------
Amendments
Section 1. These By-Laws may be amended at any stockholders' meeting
- ---------
by a majority of the votes cast at such meeting by the holders of
shares entitled to vote thereon, represented either in person or by
proxy.
Section 2. Subject to the limitations, if any, from time to time
- ---------
prescribed in By-Laws made by stockholders, the Board of Directors at
any regular or special meeting, by the vote of a majority of the
directors may make, alter, amend and repeal any By-Laws, but any
By-Laws made by the Board of Directors may be altered or repealed by
the stockholders.