Exhibit 3.2
BY-LAWS OF MALLINCKRODT INC.
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(As amended through August 18, 1999)
Article I
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MEETINGS OF STOCKHOLDERS
Section 1. The annual meeting of stockholders of this Corporation
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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 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 has been so
fixed, on the third Wednesday in October. 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
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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 votes
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of capital stock outstanding and entitled to vote thereat either in
person or by proxy, shall constitute a quorum, except as may be
otherwise provided by law.
Section 4. The Board of Directors may fix a date not more than sixty
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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
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determined by a majority of the votes cast by the holders of shares
entitled to vote thereon in person or by proxy, except as otherwise
provided by law.
Section 6. Except as may otherwise be required by applicable law
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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 ninety days and not more
than one hundred and twenty 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
one hundred 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 one hundred days in advance of the annual
meeting if the annual meeting is called for the third Wednesday in
October (or on any day within a thirty day period before or after such
date, provided that in any such case the third Wednesday in October
shall be deemed the "day of the meeting" for purposes of calculating
the ninety and one hundred and twenty day periods set forth above)
without regard for when the notice or public disclosure thereof is
actually given or made. The stockholder's 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.
Notwithstanding anything in this Section 6 to the contrary, in
the event that the number of directors to be elected to the Board of
Directors of the Corporation is increased and either all of the
nominees for director or the size of the increased Board of Directors
is not publicly announced or disclosed by the Corporation at least 100
days prior to the first anniversary of the preceding year's annual
meeting, a Shareholder Notice shall also be considered timely
hereunder, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary of
the Corporation at the principal executive office of the Corporation
not later than the close of business on the tenth day following the
first date all of such nominees or the size of the increased Board of
Directors shall have been publicly announced or disclosed.
For purposes of this Section 6, a matter shall be deemed to have
been "publicly announced or disclosed" and "public disclosure" shall
be deemed to have been made if such matter is disclosed 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.
In no event shall the adjournment of an annual meeting, or the
postponement of any annual meeting keeping the same record date, or
any announcement thereof, commence a new period for the giving of
notice as provided in this Section 6.
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.
Section 7. Except as may otherwise be required by applicable law or
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by rules and regulations adopted by the Board of Directors, the Chair
of any meeting of stockholders shall prescribe such rules, regulations
and procedures and do such acts, including causing an adjournment of
the meeting without a vote of stockholders, that the Chair deems
appropriate. Such rules, regulations or procedures, whether adopted
by the Board or prescribed by the Chair of the meeting, may include,
but are not limited to, the following: (a) the establishment of an
agenda or order of business for the meeting, including fixing the time
for opening and closing the polls for voting on each matter; (b) rules
and procedures for maintaining order at the meeting and the safety of
those present; (c) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their duly
authorized and constituted proxies or such other persons as the Chair
shall permit; (d) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (e) limitations on the time
allotted for questions or comments by participants. Unless and to the
extent determined by the Board or the Chair of the meeting, meetings
of stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
Article II
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DIRECTORS
Section 1. The number of directors of the Corporation may be
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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 eight 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 series 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
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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
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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
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the entire Board of Directors as from time to time fixed under these
By-Laws shall constitute a quorum.
Article III
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OFFICERS
Section 1. The officers of the Corporation shall be a President
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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CAPITAL STOCK
Section 1. Subscriptions to the capital stock must be paid to the
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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
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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
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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
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COMMITTEES OF THE BOARD
Section 1. The Board of Directors may elect from among its members,
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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
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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
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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
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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
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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.
Section 6. The Audit Committee of the Board of Directors shall be
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composed exclusively of independent, non-employee directors of the
Corporation. For purposes of determining a director's independence,
the Board of Directors shall use the definition of "independent" as
proposed in February 1999 by the Blue Ribbon Committee on Improving
the Effectiveness of Corporate Audit Committees, which is repeated
below in its entirety.
Members of the audit committee shall be considered
independent if they have no relationship to the
corporation that may interfere with the exercise of
their independence from management and the corporation.
Examples of such relationships include:
- a director being employed by the corporation or any
of its affiliates for the current year or any of the
past five years;
- a director accepting any compensation from the
corporation or any of its affiliates other than
compensation for board service or benefits under a tax-
qualified retirement plan;
- a director being a member of the immediate family of
an individual who is, or has been in any of the past five
years, employed by the corporation or any of its affiliates
as an executive officer;
- a director being a partner in, or a controlling
shareholder or an executive officer of, any for-profit
business organization to which the corporation made, or
from which the corporation received, payments that are
or have been significant to the corporation or business
organization in any of the past five years;
- a director being employed as an executive of another
company where any of the corporation's executives serves
on that company's compensation committee.
A director who has one or more of these relationships
may be appointed to the audit committee, if the board,
under exceptional and limited circumstances, determines
that membership on the committee by the individual is
required by the best interests of the corporation and
its shareholders, and the board discloses in the next
annual proxy statement subsequent to the determination,
the nature of the relationship and the reasons for that
determination.
Article VI
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MEETINGS BY CONSENT
Section 1. Any action required or permitted to be taken by the Board
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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
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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
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INDEMNIFICATION
Section 1. The Company shall, to the fullest extent permitted by
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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
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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
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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)
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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
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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
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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
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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
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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
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AMENDMENTS
Section 1. These By-Laws may be amended at any stockholders' meeting
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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
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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.