As filed with the Securities and Exchange Commission
on February 5, 1998
Registration Statement No. 333_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Varlen Corporation
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
13-2651100
(I.R.S. Employer Identification No.)
55 Shuman Boulevard, Naperville, Illinois 60566
(Address of Principal Executive Offices)
Varlen Corporation Profit Sharing and Retirement Savings Plan
(Full Title of the Plan)
Richard L. Wellek
Chairman and Chief Executive Officer
55 Shuman Boulevard, P.O. Box 3089
Naperville, Illinois 60566-7089
(Name and Address of Agent for Service)
(630) 420-0400
(Telephone Number, Including Area Code, of Agent for Service)
Copy to: Vicki L. Casmere, Esq.
Vice President, General Counsel & Secretary
55 Shuman Boulevard, P.O. Box 3089
Naperville, Illinois 60566-7089
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
Common Stock, 50,000 $24.97 $1,248,500 $368.31
par value $.10
(and associated
Rights)(2)
Interests in
Plan(3) --- --- --- -
(1) Estimated solely for purposes of determining the registration fee
in accordance with Rule 457(h) under the Securities Act of 1933 on
the basis of $24.97 per share, the average of the high and low
prices of the Registrant's Common Stock as reported in the National
Association of Securities Dealers Automated Quotation System on
February 2, 1998.
(2) Includes associated rights (the "Rights") to purchase the
Registrant's Common Stock. Until the occurrence of certain
prescribed events, none of which has occurred, the Rights are
not exercisable, are evidenced by the certificates representing
such Common Stock and will be transferred along with and
only with such Common Stock.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I, Item 1 to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with the introductory Note to
Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I, Item 2 to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with the introductory Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of Varlen Corporation
(the "Registrant") and the Varlen Corporation Profit
Sharing and Retirement Savings Plan (the "Plan") filed
with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference in
this Registration Statement:
(a)(1) Annual Report on Form 10-K of the Registrant filed
with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), for
the Registrant's fiscal year ended January 31, 1997,
including the portions of the Registrant's
Proxy Statement dated April 17, 1997 incorporated
into Part III of such Form 10-K.
(a)(2) Annual Report on Form 11-K of the Plan filed with
the Commission pursuant to the Exchange Act, for the
Plan's fiscal year ended December 31, 1996.
(b)(1) Quarterly Report on Form 10-Q for the Registrant filed
with the Commission pursuant to the Exchange Act,
for the Registrant's fiscal quarter ended May 3, 1997.
(b)(2) Quarterly Report on Form 10-Q for the Registrant filed
with the Commission pursuant to the Exchange Act,
for the Registrant's fiscal quarter ended August 2, 1997.
(b)(3) Quarterly Report on Form 10-Q for the Registrant filed
with the Commission pursuant to the Exchange Act,
for the Registrant's fiscal quarter ended November 1, 1997.
(b)(4) Current Report on Form 8-K for the Registrant filed
with the Commission pursuant to the Exchange Act,
dated August 19, 1997.
(b)(5) Current Report on Form 8-K for the Registrant filed
with the Commission pursuant to the Exchange Act,
dated August 25, 1997.
(b)(6) Current Report on Form 8-K for the Registrant filed
with the Commission pursuant to the Exchange Act,
dated September 5, 1997.
(c)(1) The description of the Common Stock of the Registrant
contained in the Registrant's Registration Statement
on Form 8-B filed with the Commission in February
1971 pursuant to Section 12(g) of the Exchange
Act, together with all amendments or reports, if
any, filed for the purpose of updating such
description, to the extent of such updating.
(c)(2) The description of the Rights of the Registrant
contained in the Registrant's Registration Statement
on Form 8-A filed with the Commission on June 19,
1996 pursuant to Section 12(g) of the Exchange
Act, together with all amendments or reports, if
any, filed for the purpose of updating such
description, to the extent of such updating.
All documents subsequently filed by the Registrant or the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post effective amendment to this Registration
Statement which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be
part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated or is
deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable
Item 6. Indemnification of Directors and Officers.
Article VII, Section 4 of the Registrant's By-Laws
provide that the Registrant shall, to the full extent
permitted by the General Corporation Law of the
State of Delaware and the Registrant's Certificate of
Incorporation, indemnify all persons whom it has the
power to indemnify pursuant thereto. The Registrant has entered
into written indemnification agreements with its officers and
directors whereby the Registrant has agreed to indemnify and
advance expenses to such persons to the fullest extent permitted by
applicable law. The Registrant has obtained a directors and
officers liability insurance policy which insures such persons
against loss arising from certain claims made by reason of their
being directors or officers of the Registrant.
Article 102 of the General Corporation Law of Delaware
and Article TENTH of the Registrant's Certificate of
Incorporation permit the limitation of directors' personal
liability to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director except in
certain situations including the breach of director's duty of
loyalty or acts or omissions not in good faith.
The Registrant's Plan provides that to the extent
permitted by law each Employer (as defined in the Plan)
shall indemnify and hold harmless each member (and
former member) of the Board of Directors, each member
(and former member) of the Committee (as defined in
the Plan), and each officer and employee (and each
former officer and employee) of an Employer to whom are
(or were) delegated duties, responsibilities, and
authority with respect to the Plan against all claims,
liabilities, fines and penalties, and all expenses
reasonably incurred by or imposed upon him (including
but not limited to reasonable attorney fees and
amounts paid in any settlement relating to the Plan) by
reason of his service under the Plan if he did not act
dishonestly, with gross negligence, or otherwise in
knowing violation of the law under which such liability, loss,
cost or expense arises. This indemnity does not
preclude such other indemnities as may be available
under insurance purchased or provided by an Employer under
any by-law, agreement, or otherwise, to the extent
permitted by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith:
Exhibit No. Description
(4)(i) Certificate of Incorporation of Registrant, as
amended through May 26, 1987 (incorporated
herein by reference to Exhibit (3)(a) to the
Registrant's Annual Report on Form 10-K for
the fiscal year ended January 31, 1988) and as
further amended through June 17, 1993
(incorporated herein by reference to Exhibit
(3)(i) to the Registrant's Annual Report on
Form 10-K for the fiscal year ended January
31, 1996 (Commission File No. 0-5374)).
(4)(ii) By-laws of Registrant, as amended May 29, 1997.
(4)(iii) Rights Agreement, dated as of June 17, 1996,
between Varlen Corporation and Harris Trust and
Savings Bank (incorporated herein by reference
to Exhibit (1) to the Registrant's Registration
Statement on Form 8-A filed with the Commission
on June 19, 1996 (Commission File No. 0-5374)).
(10)(i) Varlen Corporation Profit Sharing and Retirement
Savings Plan as amended and restated generally
effective July 1, 1994 (incorporated herein by
reference to Exhibit 10(b) of Registrant's Annual
Report on Form 10-K for the fiscal year ended
January 31, 1995 (Commission File No. 0-5374)).
(10)(ii) First Amendment to the Varlen Corporation Profit
Sharing and Retirement Savings Plan, effective
January 1, 1997.
(23.1) Consent of Deloitte & Touche LLP.
(23.2) Consent of McGladrey & Pullen.
(24) Power of Attorney (included on page II-7).
Item 9. Undertakings.
Undertakings required by Item 512(a) of Regulation S-K
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
this registration statement (or the most recent
posteffective amendment thereof) which,
individually or in the aggregate, represent
a fundamental change in the information set
forth in this registration statement
(Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if
the total dollar value of securities offered
would not exceed that which was registered)
and any deviation from the low or high end of
the estimated maximum offering range may be
reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if,
in the aggregate, changes in volume and price
represent no more than a 20% change in the
maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table
in the effective registration statement.); and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this registration
statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (1)(i) and
(1)(ii) shall not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such posteffective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(3) To remove from registration by means of a post effective
amendment any of the securities being registered which
remain unsold at the termination
of the offering.
Undertakings required by Item 512(b) of Regulation S-K
The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration
Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Undertakings required by Item 512(h) of Regulation S-K
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the
payment by the registrant in the successful defense of
any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection
with the securities being registered, the registrant
will, unless in the opinion of counsel the matter
has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such
indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such.
SIGNATURE
Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto
duly authorized, in Naperville, Illinois, on this 5th
day of February, 1998.
Varlen Corporation
By: /s/Richard L. Wellek
Richard L. Wellek
Chairman and Chief Executive Officer
Plan. Pursuant to the requirements of the
Securities Act of 1933, the Plan's Committee has duly
caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly
authorized, in Naperville, Illinois, on this 5th day of
February, 1998.
Varlen Corporation Profit Sharing and
Retirement Savings Plan
By: /s/Richard A. Nunemaker
Richard A. Nunemaker, Member of
the Committee
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and
appoints Richard L. Wellek, Richard A.Nunemaker and Vicki L. Casmere,
and each of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to
sign any and all amendments (including posteffective amendments)
to this Registration Statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission under the
Securities Act of 1933.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed by the
following persons in the capacities indicated on the dates indicated.
Signature Title Date
/s/Richard L. Wellek Chairman of the Board, February 5, 1998
Richard L. Wellek Chief Executive Officer,
and Director (Principal
Executive Officer)
/s/Richard A. Nunemaker Vice President,Finance February 5, 1998
Richard A. Nunemaker and Chief Financial Officer,
Treasurer, and Assistant Secretary
(Principal Financial and
Accounting Officer)
/s/Rudolph Grua Director February 5, 1998
Rudolph Grua
/s/Raymond A. Jean President and Chief February 5, 1998
Raymond A. Jean Operating Officer and
Director
/s/Ernest H. Lorch Senior Chairman of February 5, 1998
Ernest H. Lorch the Board and Director
/s/L. William Miles Director February 5, 1998
L. William Miles
/s/Greg A. Rosenbaum Director February 5, 1998
Greg A. Rosenbaum
/s/Joseph J. Ross Director February 5, 1998
Joseph J. Ross
/s/Theodore A. Ruppert Director February 2, 1998
Theodore A. Ruppert
EXHIBIT INDEX
Exhibit No. Description
(4)(i) Certificate of
Incorporation of Registrant, as amended
through May 26, 1987 (incorporated
herein by reference to Exhibit (3)(a) to
the Registrant's Annual Report on Form 10-K
for the fiscal year ended January 31,
1988) and as further amended through
June 17, 1993 (incorporated herein by
reference to Exhibit (3)(i) to the
Registrant's Annual Report on Form 10K for
the fiscal year ended January 31, 1996
(Commission File No. 0-5374)).
(4)(ii) By-laws of Registrant, as amended May 29, 1997.
(4)(iii) Rights Agreement, dated as of June 17,
1996, between Varlen Corporation and Harris
Trust and Savings Bank (incorporated
herein by reference to Exhibit (1) to the
Registrant's Registration Statement on
Form 8-A filed with the Commission on
June 19, 1996 (Commission File No. 0-5374)).
(10)(i) Varlen Corporation Profit Sharing and Retirement
Savings Plan as amended and restated generally
effective July 1, 1994 (incorporated by reference
to Exhibit 10(b) of Registrant's Annual Report
on Form 10-K for the fiscal year ended January 31,
1995 (Commission File No. 0-5374)).
(10)(ii First Amendment to the Varlen Corporation Profit
Sharing and Retirement Savings Plan, effective
January 1, 1997.
(23.1) Consent of Deloitte & Touche LLP.
(23.2) Consent of McGladrey & Pullen.
(24) Power of Attorney (included on page II-7).
As amended through May 29, 1997
BY-LAWS
OF
VARLEN CORPORATION
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. Subject to change
by resolution of the Board of Directors, the annual meeting
of the stockholders of the Corporation for the purpose
of electing directors and for the transaction of such other
business as may be brought before the meeting shall be
held on the fourth Tuesday in May of each year, if not a
legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday. The meeting may be
held at such time and such place within or without the
State of Delaware as shall be fixed by the Board of
Directors and stated in the notice of the meeting.
SECTION 2. Special Meetings. Special meetings of
the stockholders may be called at any time by the Board of
Directors, by the Chairman of the Board or by the
President of the Corporation. Special meetings shall be
held on the date and at the time and place either within
or without the State of Delaware specified in the notice
thereof.
SECTION 3. Notice of Meetings. Except as
otherwise expressly required by law or the Certificate of
Incorporation of the Corporation, written notice stating
the place and time of the meeting, and in the case of a
special meeting, the purpose or purposes of such meeting,
shall be given by the Secretary to each stockholder entitled
to vote thereat at his address as it appears on the records
of the Corporation not less than ten nor more than fifty
days prior to the meeting. No business other than that
stated in the notice shall be transacted at any special
meeting. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend
such meeting in person or by proxy; and if any
stockholder shall, in person or by attorney thereunto
duly authorized, in writing or by telegraph, cable or
wireless, waive notice of any meeting, whether before or
after such meeting be held, the notice thereof need not be
given to him. Notice of any adjourned meeting of
stockholders need not be given except as provided in SECTION
4 of this ARTICLE 1.
SECTION 4. Quorum. Subject to the provisions of
law in respect of the vote that shall be required for a
specific action, the number of shares the holders of which
shall be present or represented by proxy at any meeting of
stockholders in order to constitute a quorum for the
transaction of any business shall be a majority of all the
shares issued and outstanding and entitled to vote at such
meeting.
At any meeting of stockholders, whether or not
there shall be a quorum present, the holders of a majority
of shares voting at the meeting, whether present in person
at the meeting or represented by proxy at the meeting, may
adjourn the meeting from time to time without notice
other than by announcement at the meeting of the time
and place of the adjourned meeting, except that a new
notice must be sent out if the adjournment is for more than
thirty days, or if a new record date for voting is fixed.
At any adjourned meeting at which a quorum shall be
present, any business may be transacted which might have
been transacted at the meeting as originally called.
SECTION 5. Organization. The Chairman of the
Board, or in his absence or nonelection the President, or in
the absence of both the foregoing officers the Executive
Vice President, or in the absence of any of the foregoing
officers a Vice President, shall call meetings of the stockholders
to order, and shall act as Chairman of such meetings.
In the absence of the Chairman of the Board, the President,
the Executive Vice President or a Vice President, the holders
of a majority in number of the shares of the capital stock of the
Corporation present in person or represented by proxy
and entitled to vote at such meeting shall elect a
Chairman, who may be the Secretary of the Corporation. The
Secretary of the Corporation shall act as secretary of all
meetings of the stockholders; but in the absence of
the Secretary, the Chairman may appoint any person to
act as secretary of the meeting.
SECTION 6. Voting. Each stockholder shall, except as
otherwise provided by law or by the Certificate of
Incorporation, at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share
of capital stock entitled to vote held by such
stockholder, but no proxy shall be voted after three years
from its date, unless said proxy provides for a longer
period. Upon the demand of any stockholder, the vote for
directors and the vote upon any matter before the meeting
shall be by ballot. Except as otherwise provided by law
or by the Certificate of Incorporation or by these By-
laws, all elections for directors shall be decided by
plurality vote; all other matters shall be decided by
votes cast thereon.
A complete list of the stockholders entitled to
vote at any meeting of stockholders, arranged in
alphabetical order, with the address of each, and the number
of shares held by each, shall be open to the examination
of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place
within the city 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. The list shall also be produced and kept at the
time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is
present.
SECTION 7. Inspectors of Election. The
Board of Directors may at any time appoint two or more
persons to serve as Inspectors of Election at the next
succeeding annual meeting of stockholders or at any other
meeting or meetings, and the Board of Directors may at
any time fill any vacancy in the office of Inspector.
If the Board of Directors fails to appoint
Inspectors, or if any Inspector appointed be absent or
refuse to act, or if his office becomes vacant and be not
filled by the Board of Directors, the Chairman of any meeting
of the stockholders may appoint one or more temporary Inspectors
for such meeting. All proxies shall be filed with the
Inspectors of Election of the meeting before being voted
upon.
SECTION 8. Consent of Stockholders in Lieu of Meeting.
(A) Any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any
action which may be taken at any annual or special
meeting of the stockholders, may be taken without a
meeting, without prior notice and without a vote, if a
consent or consents in writing, setting for the action so
taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were
present and voted and shall be delivered to the
Corporation by delivery to its registered office in
Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered
office shall be made by hand or by certified or
registered mail, return receipt request.
(B) Every written consent shall bear the
date of signature of each stockholder who signs the
consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days
of the date the earliest dated consent is delivered to
the Corporation, a written consent or consents signed
by a sufficient number of holders to take action are
delivered to the Corporation in the manner prescribed in
paragraph (C) of this Section.
(C) In order that the Corporation may determine
the stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the
date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which date shall
not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the
Board of Directors. Any stockholder of record seeking to
have the stockholders authorize or take corporate action
by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all
events within ten (10) days after the date on which such a
request is received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of
Directors within ten (10) days of the date on which such
a request is received, the record date for determining
stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, shall be
the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered
to the Corporation in accordance with paragraphs (A) and
(B) of this Section. If no record date has been fixed by
the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date
for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at
the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
(D) Within five (5) business days after receipt
of the earliest dated consent delivered to the Corporation
in the manner provided in this Section, the Corporation,
shall retain nationally recognized independent inspectors
of elections for the purposes of performing a ministerial
review of the validity of consents and any revocations thereof.
The cost of retaining inspectors of election shall be borne
by the Corporation.
(E) At any time that stockholders soliciting
consents in writing to corporate action have a good faith
belief that the requisite number of valid and unrevoked
consents to authorize or take the action specified has been
received by them, the consents shall be delivered by the
soliciting stockholders of the Corporation's registered
office in the State of Delaware or principal place of
business or to the Secretary of the Corporation,
together with a certificate stating their belief that
the requisite number of valid and unrevoked consents has
been received as of a specific date, which date
shall be identified in the certificate. In the event that
delivery shall be made to the Corporation's registered
office in Delaware, such delivery shall be made by hand
or by certified or registered mail, return receipt
requested. Upon receipt of such consents, the Corporation
shall cause the consents to be delivered promptly to the
inspectors of election. The Corporation also shall
deliver promptly to the inspectors of election any
revocations of consents in its possession, custody or
control as of the time of receipt of the consents.
(F) As promptly as practicable after the
consents and revocations are received by them, the
inspectors of election shall issue a preliminary report to
the Corporation stating: (i) the number of shares
represented by valid and unrevoked consents; (ii) the
number of shares represented by invalid consents; (iii) the
number of shares represented by invalid revocations; and
(iv) the number of shares entitled to submit consents as of the
record date. Unless the Corporation and the soliciting
stockholders agree to a shorter or longer period, the Corporation
and the soliciting stockholders shall have five (5) days to review
the consents and revocations and to advise the inspectors
and the opposing party in writing as to whether they
intend to challenge the preliminary report. If no timely
written notice of an intention to challenge the preliminary
report is received, the inspectors shall certify the preliminary
report (as corrected or modified by virtue or the detection by the
inspectors of clerical errors) as their final report and
deliver it to the Corporation. If the Corporation or the
soliciting stockholders give timely written notice of
an intention to challenge the preliminary report, a
challenge session shall be scheduled by the inspectors as
promptly as practicable. A transcript of the challenge
session shall be recorded by a certified court reporter.
Following completion of the challenge session, the inspectors
shall issue as promptly as practicable their final report
and deliver it to the Corporation. A copy of the final
report shall be included in the book in which the
proceedings of meetings of stockholders are required.
(G) The Corporation shall give prompt notice to the
stockholders of the results of any consent solicitation or
the taking of corporate action without a meeting by
less than unanimous written consent.
(H) This Section shall in no way impair or diminish
the right of any stockholder or director, or any officer
whose title to office is contested, to contest the validity of any
consent or revocation thereof, or to take any other action
with respect thereto.
SECTION 9. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board
of Directors of the Corporation and the proposal of business
to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's
notice of meeting delivered pursuant to Article I, Section 3
of these by laws, (b) by or at the direction of the Chairman
of the Board of Directors or (c) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complied
with the notice procedures set forth in clauses (2) and (3) of this
paragraph (A) of this by-law and who was a stockholder of
record at the time such notice is delivered to the
Secretary of the Corporation.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder
pursuant to clause (c) of paragraph (A)(1) of this by-
law, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the
Corporation not less than seventy days nor more than
ninety days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by
more than twenty days, or delayed by more than seventy days, from such
anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the ninetieth day
prior to such annual meeting and not later than the close
of business on the later of the seventieth day prior to
such annual meeting or the tenth day following the day on which
public announcement of the date of such meetings if first made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-
election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies
for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including
such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if
elected; (b) as to any other business desired to be
brought before the meeting, the reasons for conducting
such business at the meeting and any material interest
in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and
(c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address
of such stockholder, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and
number of shares of the Corporation which are owned
beneficially and or record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second
sentence of paragraph (A)(2) of this by-law 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 there is no public announcement naming
all of the nominees for director or specifying the
size of the increased Board of Directors made by the
Corporation at least eighty days prior to the first
anniversary of the preceding year's annual
meeting, a stockholder's notice required by this by-
law shall also be considered timely, but only with
respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not
later than the close of business on the tenth day following
the day on which such public announcement is first made by
the Corporation.
(B) Special Meetings of Stockholders.
Only such business shall be conducted at a
special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of
meeting pursuant to Article I, Section 3 of these by-laws.
Nominations of persons for election to the Board of
Directors may be made at a special meeting of
stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at
the direction of the Board of Directors or (b) by any
stockholder of the Corporation who is entitled to vote
at the meeting, who complies with the notice procedures
set forth in this by-law and who is a stockholder of
record at the time such notice is delivered to the
Secretary of the Corporation. Nominations by stockholders
of persons for election to the Board of Directors may be
made at such a special meeting of stockholders if the
stockholder's notice as required by paragraph (A)(2) of this
by law shall be delivered to the Secretary at the
principal executive offices of the Corporation not
earlier than the ninetieth day prior to such special
meeting and not later than the close of business on the
later of the seventieth day prior to such special meeting
or the tenth day following the day on which public
announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event
shall the public announcement of an adjournment of a
special meeting commence a new time period for the
giving of a stockholder's notice as described above.
(C) General.
(1) Only persons who are nominated in accordance
with the procedures set forth in this by-law shall be
eligible to service as director and only such business
shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the
procedures set forth in this by law. Except as otherwise
provided by law, the Certificate of Incorporation or these
by-laws, the chairman of the meeting shall have the power
and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance
with the procedures set forth in this by-law and, if
any proposed nomination or business is not compliance with
this by-law, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this by-law, "public
announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press
or comparable national news service or in a document
publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act.
(3) Notwithstanding the foregoing provisions of
this by-law, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set
forth in this by-law. Nothing in this by-law shall be
deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The property, affairs and
business of the Corporation shall be managed by the Board of
Directors.
SECTION 2. Number, Qualification and Term of Office.
The number of directors shall be such as the Board
of Directors may by resolution direct, but not less than
three nor more than nine, except that where all the stock
of the Corporation is owned beneficially and of record by
either one or two stockholders, the number of directors may
be less than three, but not less than the number of
stockholders. Directors need not be stockholders. Each
director shall hold office for the term for which he is
appointed or elected and until his successor shall have
been elected and shall qualify, or until his death or until he
shall resign or shall have been removed in the manner
hereinafter provided. Directors need not be elected by ballot,
except upon demand of any stockholder.
SECTION 3. Quorum and Manner of Action. Except as
otherwise provided by statute or these By-laws, one-half of the
whole Board of Directors (but not less than two) shall be
required to constitute a quorum for the transaction of business
at any meeting, and the act of a majority of the directors
present and voting at any meeting at which a quorum is present
shall be the act of the Board of Directors. In the absence of a
quorum, a majority of the directors present may adjourn any
meeting from time to time until a quorum be had. Notice of any
adjourned meeting need not be given. The directors shall act
only as a board and individual directors shall have no power as
such.
SECTION 4. Place of Meeting, etc. The Board of
Directors may hold its meetings, have one or more offices, and
keep the books and records of the Corporation, at such place or
places within or without the State of Delaware as the Board may
from time to time determine or as shall be specified or fixed in
the respective notices or waivers of noticethereof.
SECTION 5. Regular Meetings. A regular meeting of the
Board of Directors shall be held as soon as practicable after
each annual meeting of stockholders, for the election of officers
and the transaction of other business, and other regular meetings
of said Board shall be held at such times and places as said
Board shall direct. No notice shall be required for any regular
meeting of the Board of Directors but a copy of every resolution
fixing or changing the time or place of regular meetings shall be
mailed to every director at least three days before the first
meeting held in pursuance thereof.
SECTION 6. Special Meetings. Special meetings of the
Board of Directors may be called by the Chairman of the Board,
the President, the Executive Vice President, a Vice President or
any two Directors. The Secretary or an Assistant Secretary shall
give notice of the time and place of each special meeting by
mailing a written notice of the same to each Director at his last
known post office address at least two days before the meeting or
by causing the same to be delivered personally or to be
transmitted by telegraph, cable, wireless, telephone or verbally
at least twenty-four hours before the meeting to each Director.
SECTION 7. Action by Consent. Any action required or
permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting, if prior to
such action a written consent thereto is signed by all members of
the Board or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the
Board or committee.
SECTION 8. Organization. At each meeting of the Board
of Directors, the Chairman of the Board, or in his absence or
nonelection the President, or in the absence of both of the
foregoing officers a director chosen by a majority of the
directors, shall act as Chairman. The Secretary, or in his
absence an Assistant Secretary, or in the absence of both the
Secretary and Assistant Secretaries any person appointed by the
Chairman, shall act as Secretary of the meeting.
SECTION 9. Resignations. Any director of the
Corporation may resign at any time by giving written notice
to the Board of Directors or to the President or to the Secretary
of the Corporation. The resignation of any directors shall
take effect at the time specified therein, and unless otherwise
specified therein, the acceptance of such resignation shall not
be necessary tomake it effective.
SECTION 10. Removal of Directors. Any director may be
removed, either with or without cause, at any time by the
affirmative vote of a majority in interest of the holders of
record of the stock having voting power at a special meeting of
the stockholders called for the purpose; and the vacancy in the
Board caused by any such removal may be filled by the
stockholders at such meeting.
SECTION 11. Vacancies. Subject to the rights of the
holders of any series of Preferred Stock, or any other series or
class of stock as set forth in the Certificate of Incorporation,
to elect additional directors under specified circumstances, and
unless the Board of Directors otherwise determines, vacancies
resulting from death, resignation, retirement, disqualification,
removal from office or other cause, and newly created
directorships resulting from any increase in the authorized
number of directors, may be filled only by the affirmative vote
of a majority of the remaining directors, though less than a
quorum of the Board of Directors, and directors so chosen shall
hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which
they have been elected expires and until such director's
successor shall have been duly elected and qualified.
SECTION 12. Compensation of Directors. Directors
shall receive such sum for their services and expenses as may be
directed by resolution of the Board; provided that nothing herein
contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees
may be allowed like compensation of their services and expenses.
SECTION 13. Committees. By resolution or resolutions
passed by a majority of the whole Board at any meeting of the
Board of Directors, the directors may designate one or more
committees, each committee to consist of two or more directors,
which, to the extent provided in said resolution or resolutions,
shall have and may exercise the powers of the Board of Directors
in the management of the business and affairs of the Corporation,
including the power and authority to authorize the seal of the
Corporation to be affixed to all papers which may require it, to
declare dividends and to authorize the issuance of shares of
capital stock of the Corporation. Further, the Board of
Directors may designate one or more directors as alternate
members of a committee who may replace an absent or disqualified
member at any meeting.
SECTION 14. Executive Committee. The Board of
Directors, by the affirmative vote of a majority of the members
of the Board at the time in office, may appoint an Executive
Committee, each of such members to be a director. The number of
members of the Executive Committee shall be such as the Board of
Directors by resolution directs, but not less than three nor more
than nine. The Executive Committee, except as limited from time
to time by the Board of Directors, shall have and may exercise,
during the intervals between the meetings of the directors, all
of the powers vested in the Board or committees generally, except
to change the membership of the Executive Committee; provided,
however, that in the absence or disqualification of any member of
the Executive Committee, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the
place of any such absent of disqualified member. The Executive
Committee shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it, to
declare dividends and to authorize the issuance of shares of
capital stock of the Corporation. The Board shall have the power
at any time to fill vacancies in, to change the membership of, or
to dissolve, the Executive Committee. The Executive Committee
may make rules for the conduct of its business and may appoint
such committees and assistants as it shall from time to time deem
necessary. One-third of the Executive Committee, but not less
than two, shallconstitute a quorum for the transaction of
business.Regular meetings of the Executive Committee shall be held
at such times as the said Executive Committee shall from
time to time by resolution determine. No notice
shall be required for any regular meeting of the Executive
Committee but a copy of every resolution fixing or changing
the time or place of regular meetings shall be mailed to
every member of the Executive Committee at least three days
before the first meeting held in pursuance thereof.
Special meetings of the Executive Committee may be called
by the Chairman of the Executive Committee or the Secretary
of the Executive Committee, or any two members thereof. The
Secretary of the Corporation or the Secretary of the
Executive Committee shall give notice of the time and place of
each Special Meeting by mail at least two days before
such meeting or by telegraph, cable, wireless, telephone or
verbally at least 24 hours before the meeting to each
member of the Executive Committee.
SECTION 15. Audit Committee. The audit committee
shall consist solely of directors who are independent
of management. The audit committee shall assist the
board in fulfilling its fiduciary responsibilities by
reviewing the financial information, the systems of internal
controls which management and the board of directors have
established, and the audit process. To accomplish the foregoing,
the audit committee shall help directors discharge their
responsibilities especially for accountability; provide communication
between directors and external and internal auditors; ensure the
external and internal auditors' independence; and maintain the
credibility and objectivity of financial reports.
SECTION 16. Compensation Committee. The
compensation committee shall consist solely of directors who
are independent of management. The compensation committee
shall review and recommend to the board of directors
policies, practices and procedures relating to the compensation
of the Corporation's executive officers and operating unit
presidents and the establishment and administration of the
Corporation's stock options plan, stock purchase plans and
employee benefit plans.
SECTION 17. Nominating and Organization Committee.
The nominating and organization committee shall assist and
advise the board of directors in connection with board
membership, board committee structure, membership and
CEO succession. The nominating and organization
committee shall evaluate and recommend to the board of
directors candidates for election or re election as
directors.
ARTICLE III
Officers
SECTION 1. Number. The officers of the
Corporation shall be a President, a Treasurer, and a
Secretary. In addition, the Board may elect one or more
Executive Vice Presidents, one or more Vice Presidents, and
such other officers as may be appointed in accordance with
the provisions of SECTION 3 of this ARTICLE. Any number of
offices may be held by the same person. The board may
elect a Chairman of the Board and/or Senior Chairman. Such
Chairman of the Board or Senior Chairman shall not be an
officer of the Corporation unless such person holds
another officer position of the Corporation. The Chief
Executive Officer of the Corporation shall be either the
Chairman of the Board or the President, as determined by
the Board.
SECTION 2. Election, Term of Office and
Qualifications. The officers shall be elected annually by
the Board of Directors at their first meeting after
each annual meeting of the stockholders of the
Corporation. Each officer, except such officers as may be
appointed in accordance with the provisions of SECTION 3 of
this ARTICLE, shall hold office until his successor shall
have been duly elected and qualified in his stead, or
until his death or until he shall have resigned or shall
have become disqualified or shall have been removed in the
manner hereinafter provided. The Chairman of the Board
shall be chosen from among the directors.
SECTION 3. Subordinate Officers. The Board
of Directors or the President may from time to time
appoint such other officers, including one or more
Assistant Treasurers and one or more Assistant
Secretaries, and such agents and employees of the
Corporation as may be deemed necessary or desirable. Such
officers, agents and employees shall hold office for such
period and upon such terms and conditions, have such
authority and perform such duties as in these By-laws
provided or as the Board of Directors or the President
may from time to time prescribe. The Board of Directors or
the President may from time to time authorize any officer
to appoint and remove agents and employees and to prescribe
the powers and duties thereof.
SECTION 4. Removal. Any officer may be removed
either with or without cause, by the vote of a majority of
the whole Board of Directors at a special meeting called
for the purpose, or except in case of any officer
elected by the Board of Directors, by any committee or
superior officer upon whom the power of removal may be
conferred by the Board of Directors or by these By-laws.
SECTION 5. Resignations. Any officer may
resign at any time by giving written notice to the Board of
Directors or to the President or to the Secretary. Any
such resignation shall take effect at the date of receipt
of such notice or at any later time specified therein; and
unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 6. Vacancies. A vacancy in any office
because of death, resignation, removal, disqualification or
any other cause shall be filled for the unexpired portion
of the term in the manner prescribed in these By-laws for
regular election or appointment to such office.
SECTION 7. The Chairman of the Board and Senior
Chairman.
(A) The Chairman of the Board shall perform all
duties incidental to his or her office which may be required
by law and all such other duties as are properly required
of him or her by the Board of Directors. Except where by
law the signature of the President is required, the
Chairman of the Board shall possess the same power as
the President to sign all certificates, contracts, and
other instruments of the Corporation which may be
authorized by the Board of Directors.
(B) The Chairman of the Board shall preside at
all meetings of the stockholders and of the Board of
Directors. The Chairman shall make reports to the Board
of Directors and the stockholders, and shall perform all
such other duties as are properly required of him or her
by the Board of Directors. The Chairman shall see that all
orders and resolutions of the Board of Directors and of
any committee thereof are carried into effect.
(C) In the event the Chairman of the Board is
unable to serve, the Senior Chairman in addition to
serving as lead outside director shall fulfill the
duties and responsibilities and have such powers and
authority of the Chairman of the Board as set forth in
these By-laws.
SECTION 8. The President. The President shall
have general direction of the affairs of the Corporation
and general supervision over its several officers, subject,
however, to the control of the Board of Directors and,
if the Chairman of the Board be the Chief Executive
Officer of the Corporation, the Chairman of the Board.
The President shall at each annual meeting and from time
to time report to the stockholders and to the Board of
Directors all matters within his knowledge which the
interest of the Corporation require to be brought to
their notice; may sign with the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary any
and all certificates of stock of the Corporation; in the
absence of the Chairman of the Board, shall preside at
all meetings of the stockholders; shall sign and execute
in the name of the Corporation all contracts, or other
instruments authorized by the Board of Directors, except
in cases where the signing and execution thereof shall
be expressly declared or permitted by the Board or
by these By-laws to some other officer or agent of
the Corporation; and, in general, shall perform all duties
incident to the office of President and such other duties
as from time to time may be assigned to him by the Board of
Directors or as are presented by these By-laws.
SECTION 9. The Executive Vice President.
The Executive Vice President, if one be elected, shall at
the request of the President, or in his absence or
disability, except as otherwise provided herein, perform
the duties of the President, and, when so acting, shall
have all the powers of, and be subject to all of the
restrictions upon, the President; in the absence of the
Chairman of the Board and the President, shall preside at
all meetings of the stockholders; may sign with the
Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary any or all certificates of stock
of the Corporation; and shall perform such duties and have
such powers as from time to time may be assigned to him by
the President or the Board of Directors or prescribed by
these By-laws.
SECTION 10. The Vice Presidents. Each Vice
President shall have such powers and shall perform such
duties as may from time to time be assigned to him by the
Board of Directors or by the President. A Vice President
may also sign with the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary
certificates of stock of the Corporation.
SECTION 11. The Secretary. The Secretary shall
keep or cause to be kept in books provided for the purpose
the minutes of the meetings of the stockholders, of the
Board of Directors and of any committee when so required;
shall see that all notices are duly given in accordance with
the provisions of these By-laws and as required by law;
shall be custodian of the records and of the seal of the
Corporation and see that the seal is affixed to all
documents, the execution of which on behalf of the
Corporation under its seal is duly authorized in accordance
with the provisions of these By-laws; shall keep or cause
to be kept, a register of the post office address of each
stockholder; may sign with the President, the Executive
Vice President or Vice President certificates of stock
of the Corporation; and, in general, the Secretary shall
perform all duties incident to the office of Secretary
and such other duties as may, from time to time, be
assigned to him by the Board of Directors, or by the
President.
SECTION 12. Assistant Secretaries. At the
request of the Secretary, or in his absence or disability,
the Assistant Secretaries shall perform the duties of the
Secretary and, when so acting, shall have all the powers
of, and be subject to all the restrictions upon, the
Secretary. The Assistant Secretaries shall perform such
other duties as from time to time may be assigned to them
by the President, the Secretary or the Board of Directors.
SECTION 13. The Treasurer. The Treasurer shall
have charge and custody of, and be responsible for, all
funds and securities of the Corporation, and deposit all
such funds in the name of the Corporation in such banks,
trust companies or other depositaries as shall be
selected in accordance with the provisions of these By-
laws; at all reasonable times exhibit his books of account
and records, and cause to be exhibited the books of
accounts and records of any corporation controlled by
the Corporation, to any of the directors of the
Corporation upon application during business hours at the
office of the Corporation, or such other corporation, where
such books and records are kept; render a statement of the
condition of the finances of the Corporation at all regular meetings
of the Board of Directors and a full financial report at
the annual meeting of the stockholders; if called upon to
do so, receive, and give receipts for, moneys due and
payable to the Corporation from any source whatsoever;
may sign with the President, the Executive Vice President or
Vice President certificates of stock of the Corporation; and,
in general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 14. Assistant Treasurers. At the
request of the Treasurer, or in his absence or disability,
the Assistant Treasurers shall perform the duties of the
Treasurer, and, when so acting, shall have all the powers
of, and be subject to all the restrictions upon, the
Treasurer. The Assistant Treasurers shall perform such
duties as from time to time may be assigned to them by the
President, the Treasurer or the Board of Directors.
SECTION 15. Salaries. The salaries of the officers
shall be fixed from time to time by the Board of Directors.
No officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the
Corporation.
ARTICLE IV
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 1. Contracts, etc., How Executed. The
Board of Directors, except as in these By-laws otherwise
provided, may authorize any officer or officers, employee or
employees or agent or agents of the Corporation to enter
into any contract or execute and deliver any instrument
in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances;
and, unless so authorized by the Board of Directors or by
any committee or by these By-laws, no officer, employee
or agent shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its
credit or to render it liable pecuniarily for any purpose
or to any amount.
SECTION 2. Checks, Drafts, etc. All checks,
drafts or other orders for the payment of money, notes, or
other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or
officers, employee or employees or agent or agents of the
Corporation as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 3. Deposits. All funds of the
Corporation shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies
or other depositaries as the Board of Directors may from
time to time designate, or as may be designated by any
officer or officers, employee or employees or agent or
agents of the Corporation to whom such power may be
delegated by the Board of Directors, and for the purpose
of such deposit, any officer or officers, employee or
employees or agent or agents of the Corporation as shall
from time to time be determined by resolution of the
Board of Directors may endorse, assign and deliver
checks, drafts and other orders for the payment of money
which are payable to the order of the Corporation.
SECTION 4. General and Special Bank Accounts.
The Board of Directors may from time to time authorize the
opening and keeping with such banks, trust companies
or other depositaries as it may designate of general
and special bank accounts, and may make such special
rules and regulations with respect thereto, not
inconsistent with the provisions of these By laws, as it may
deem expedient.
SECTION 5. Proxies. Except as otherwise in
these By laws or in the Certificate of Incorporation of
the Corporation provided, and unless otherwise provided by
resolution of the Board of Directors, the President may
from time to time appoint an attorney or attorneys, or
agent or agents, of the Corporation, in the name and on
behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a
stockholder or otherwise in any other corporation any of
whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or
other securities of such other
corporation, or to consent in writing to any action by such
other corporation, and may instruct the person or persons so
appointed as to the manner of casting such votes or giving
such consent, and may execute or cause to be executed in
the name and on behalf of the Corporation and under its
corporate seal, or otherwise, all such written proxies or
other instruments as he may deem necessary or proper in
the premises.
ARTICLE V
Shares and Their Transfer
SECTION 1. Certificates of Stock. Certificates
for shares of the capital stock of the Corporation shall be
in such form not inconsistent with law as shall be
approved by the Board of Directors. They shall be numbered
in order of their issue, and shall be signed by the
President, the Executive Vice President or Vice
President and the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the
Corporation, and the seal of the Corporation shall be
affixed thereto, provided that where any such certificate is
signed by a transfer agent or an assistant transfer agent
or by a transfer clerk acting on behalf of the Corporation
and by a registrar, if any, the signatures of any such
President, Executive Vice President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary and the seal of the Corporation upon such
certificate may be facsimiles. In case of any officer or
officers who shall have signed, or whose facsimile
signature or signatures shall have been used on any such
certificate or certificates, shall cease to be such officer
or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or
certificates shall have been delivered by the
Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued
and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile
signature shall have been used thereon had not ceased to
be such officer or officers of the Corporation.
SECTION 2. Transfer of Stock. Transfers of
shares of the capital stock of the Corporation shall be
made only on the books of the Corporation by the
holder thereof, or by his attorney thereunto
authorized by a power of attorney duly executed and
filed with the Secretary of the Corporation, or a transfer
agent of the Corporation, if any, and on surrender of the
certificate or certificates for such shares properl
endorsed. A person in whose name shares of stock stand on
the books of the Corporation shall be deemed the owner
thereof as regards the Corporation, and the Corporation
shall not be bound to recognize any equitable or other
claim to, or interest in, such shares on the part of any
other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the
laws of Delaware; provided that whenever any transfer of
shares shall be made for collateral security, and not
absolutely, such fact, if known to the Secretary or to
said transfer agent, shall be so expressed in the entry of
transfer.
SECTION 3. Addresses of Stockholders. Each
stockholder shall designate to the Secretary of the
Corporation an address at which notices of meetings and all
other corporate notices may be served or mailed to him,
and if any stockholder shall fail to designate such
address, corporate notices may be served upon him by mail
directed to him at his last known post office address.
SECTION 4. Lost, Destroyed and Mutilated
Certificates. The holder of any stock issued by the
Corporation shall immediately notify the Corporation of any
loss, destruction or mutilation of the certificate
therefor, or failing to receive a certificate of stock
issued by the Corporation, and the Board of Directors or the
Secretary of the Corporation may, in its or his discretion,
cause to be issued to him a new certificate or
certificates of stock, upon compliance with such
rules, regulations and/or procedure as may be prescribed or
have been prescribed by the Board of Directors with respect
to the issuance of new certificates in lieu of such lost,
destroyed or mutilated certificate or certificates of
stock issued by the Corporation which are not received.
SECTION 5. Transfer Agent and Registrar; Regulations.
The Corporation shall, if and whenever the Board of
Directors shall so determine, maintain one or more
transfer offices or agencies, each in the charge of a
transfer agent designated by the Board of Directors, where
the shares of the capital stock of the Corporation shall
be directly transferable, and also one or more registry
offices, each in the charge of a registrar designated
by the Board of Directors, where such shares of stock shall
be registered, and no certificate for shares of the capital
stock of the Corporation, in respect of which a Registrar
and/or Transfer Agent shall have been designated, shall be
valid unless countersigned by such Transfer Agent and
registered by such Registrar, if any. The Board of
Directors shall also make such additional rules and
regulations as it may deem expedient concerning the
issue, transfer and registration of certificates for shares
of the capital stock of the Corporation.
ARTICLE VI
Seal
The Board of Directors shall provide a suitable
seal containing the name of the Corporation, which seal
shall be in the charge of the Secretary and which may be
used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise. If and when so
directed by the Board of Directors, a duplicate of the seal
may be kept and be used by any officer of the Corporation
designated by the Board.
ARTICLE VII
Miscellaneous Provisions
SECTION 1. Fiscal Year. The fiscal year of the
Corporation shall end on January 31 of each year unless otherwise
provided by the Board of Directors of the Corporation.
SECTION 2. Waivers of Notice. Whenever any notice
whatever is required to be given by law, or under the
provisions of the Certificate of Incorporation or of these
By-laws, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent
thereto.
SECTION 3. Qualifying in Foreign Jurisdictions. The
directors shall have the power at any time and from time to
time to take or cause to be taken any and all measures
which they may deem necessary for qualification to do
business as a foreign corporation in any one or more
foreign jurisdictions and for withdrawal therefrom.
SECTION 4. Indemnification.
(A) Right to Indemnification.
The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable
law as it presently exists or may hereafter be amended, any
person (an "Indemnitee") who was or is made or is
threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceed
ing"), by reason of the fact that he, or a person for whom
he is the legal representative, is or was a director or
officer of the Corporation or, while a director or officer
of the Corporation, is or was serving at the request
of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including
attorneys' fees) reasonably incurred by such
Indemnitee. Notwithstanding the preceding sentence,
except as otherwise provided in Section 4(C) hereof,
the Corporation shall be required to indemnify an
Indemnitee in connection with a proceeding (or part
thereof) commenced by such Indemnitee only if the
commencement of such proceeding (or part thereof) by the
Indemnitee was authorized by the Board of Directors of
the Corporation.
(B) Prepayment of Expenses.
The Corporation shall pay the expenses
(including attorneys' fees) incurred by an Indemnitee in
defending any proceeding in advance of its final
disposition, provided, final disposition of the proceeding
shall be made only upon receipt of an undertaking by the
Indemnitee to repay all amounts advanced if it should be
ultimately determined that the Indemnitee is not entitled
to be indemnified under this Section 4 or otherwise.
(C) Claims.
If a claim for indemnification or payment of
expenses under this Section 4 is not paid in full within
sixty days after a written claim therefor by the Indemnitee
has been received by the Corporation, the Indemnitee may
file suit to recover the unpaid amount of such claim
and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden
of proving that the Indemnitee is not entitled to the
requested indemnification or payment of expenses under
applicable law.
(D) Nonexclusivity of Rights.
The rights conferred on any Indemnitee by this
Section 4 shall not be exclusive of any other rights
which such Indemnitee may have or hereafter acquire
under any statute, provision of the Certificate of
Incorporation, these by-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
(E) Other Sources.
The Corporation's obligation, if any, to
indemnify or to advance expenses to any Indemnitee who
was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership,
joint venture, trust, enterprise or nonprofit entity
shall be reduced by any amount such Indemnitee may collect
as indemnification or advancement of expenses from such
other corporation, partnership, joint venture, trust,
enterprise or nonprofit enterprise.
(F) Amendment or Repeal.
Any repeal or modification of the foregoing
provisions of this Section 4 shall not adversely affect
any right or protection hereunder of any Indemnitee in
respect of any act or omission occurring prior to the
time of such repeal or modification.
(G) Other Indemnification and Prepayment of Expenses.
This Section 4 shall not limit the right of the
Corporation, to the extent and in the manner permitted by
law, to indemnify and to advance expenses to persons
other than Indemnitees when and as authorized by
appropriate corporate action.
ARTICLE VIII
Amendments
All By-laws of the Corporation shall be subject
to alteration or repeal, and new By-laws not inconsistent
with any provision of the Certificate of Incorporation of
the Corporation or any provision of law may be made,
either by the affirmative vote of the holders of record
of a majority of the outstanding stock of the Corporation
entitled to vote in respect thereof, given at an annual
meeting or at any special meeting, provided that notice
of the proposed alteration or repeal or of the proposed
new By-laws be included in the notice of such meeting, or
by the Board of Directors at any regular or special meeting.
Exhibit(10)(ii)
FIRST AMENDMENT TO THE VARLEN CORPORATION PROFIT
SHARING AND RETIREMENT SAVINGS PLAN
The Varlen Corporation Profit Sharing and Retirement Savings
Plan (the "Plan") shall be and hereby is amended, effective
January 1, 1997, as follows:
I.
Section 1.14 of the Plan shall be and hereby is amended
in its entirety to read as follows:
1.14 "Compensation" means an Eligible Employee's:
(a) wages, salaries and all other amounts
required to be reported on an Eligible Employee's
Form W-2 under Sections 6041 (d), 6051 (a)(3) and
6052 of the Code and which are received by an
Eligible Employee from the Employer for services
rendered in the course of employment with the
Employer (including but not limited to overtime,
shift differential, commissions and bonuses), but
specifically excluding reimbursements or other
expense allowances, fringe benefits (cash and
noncash), moving expenses, deferred compensation
and welfare benefits; and
(b) elective amounts excludable from gross
income under Code Sections 125 and 402(e)(3).
In addition to other applicable limitations
set forth in the Plan, and notwithstanding any
other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994,
the annual Compensation of each Employee taken
into account under the Plan shall not exceed the
OBRA `93 annual compensation limit. The OBRA `93
annual compensation limit is $150,000, as adjusted
by the Commissioner for increases in the cost of
living in accordance with section 401 (a)(17)(B)
of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies
to any period, not exceeding twelve (12) months,
over which Compensation is determined
(determination period) beginning in such calendar
year. If a determination period consists of fewer
than twelve (12) months, the OBRA `93 annual
compensation limit will be multiplied by a
fraction, the numerator of which is the number of
months in the determination period, and the
denominator of which is 12.
For Plan Years beginning on or after January
1, 1994, any reference in this Plan to the
limitation under section 401 (a)(17) of the Code
shall mean the OBRA `93 annual compensation limit
set forth in this provision.
If compensation for any prior determination
period is taken into account in determining an
Employee's benefits accruing in the current Plan
Year, the Compensation for that prior
determination period is subject to the OBRA `93
annual compensation limit in effect for that prior
determination period. For this purpose, for
determination periods beginning before the first
day of the first Plan Year beginning on or after
January 1, 1994, the OBRA `93 annual compensation
limit is $150,000.
II.
In all other respects, the Plan shall remain in full
force and effect.
Dated: April 7, 1997
VARLEN CORPORATION
By: /s/Richard A. Nunemaker
Richard A. Nunemaker
Title:
Vice President, Finance and
Chief Financial Officer
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Varlen Corporation on Form S-8 of
our reports dated March 3, 1997, appearing in and
incorporated by reference in the Annual Report on Form 10-K
of Varlen Corporation for the year ended January 31, 1997.
/s/Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Chicago, Illinois
February 4, 1998
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement Form S-8 pertaining to registration of 50,000 common
shares of Varlen Corporation of our report dated June 5, 1997, on
our audits of the financial statements of Varlen Corporation
Profit Sharing and Retirement Savings Plan as of December 31,
1996 and 1995, and for each of the two years ended December 31,
1996, and supporting schedules as of December 31, 1996, which is
included in the Annual Report on Form 11-K for the year ended
December 31, 1996.
/s/McGladrey & Pullen, LLP
McGladrey & Pullen, LLP
Schaumburg, Illinois
February 3, 1998
