SECURITIES and EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1999
Commission File Number 1-134
CURTISS-WRIGHT CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 13-0612970
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1200 Wall Street West
Lyndhurst, New Jersey 07071
(Address of principal executive offices) (Zip Code)
(201) 896-8400
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer=s classes of
common stock, as of the latest practicable date.
Common Stock, par value $1.00 per share:10,140,742 shares (as of April 30, 1999)
Page 1 of 36
<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
TABLE of CONTENTS
PAGE
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements:
Consolidated Balance Sheets 3
Consolidated Statements of Earnings 4
Consolidated Statements of Cash Flows 5
Consolidated Statements of Stockholders' Equity 6
Notes to Consolidated Financial Statements 7 - 10
Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations 11 - 14
Forward-Looking Statements 15
PART II - OTHER INFORMATION
Item 4 - Submission of Matters to a Vote of Security Holders 16
Item 6 - Exhibits and Reports on Form 8-K 17
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<PAGE>
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(In thousands)
March 31, December 31,
1999 1998
Assets:
Cash and cash equivalents $ 10,685 $ 5,809
Short-term investments 60,474 66,444
Receivables, net 62,448 60,912
Deferred tax assets 7,782 7,841
Inventories 56,225 54,048
Other current assets 3,057 3,519
----------- -----------
Total current assets 200,671 198,573
----------- ---------
Property, plant and equipment, at cost 241,744 237,215
Less, accumulated depreciation 163,517 162,704
----------- ---------
Property, plant and equipment, net 78,227 74,511
Prepaid pension costs 45,189 43,822
Goodwill 32,079 30,724
Other assets 4,830 5,110
---------- -----------
Total assets $360,996 $352,740
========== ========
Liabilities:
Current portion of long-term debt $ 20,523 $ 20,523
Accounts payable and accrued expenses 30,370 30,687
Dividends payable 1,325
Income taxes payable 7,672 5,052
Other current liabilities 10,483 11,548
---------- -----------
Total current liabilities 70,373 67,810
---------- ----------
Long-term debt 20,162 20,162
Deferred income taxes 10,304 9,714
Other liabilities 26,753 25,461
---------- ----------
Total liabilities 127,592 123,147
---------- ----------
Stockholders' equity:
Common stock, $1 par value 15,000 15,000
Capital surplus 51,655 51,669
Retained earnings 348,875 342,218
Unearned portion of restricted stock (36) (40)
Accumulated other comprehensive income (3,946) (2,800)
---------- ---------
411,548 406,047
Less, cost of treasury stock 178,144 176,454
---------- ---------
Total stockholders' equity 233,404 229,593
--------- ---------
Total liabilities and stockholders' equity $360,996 $352,740
========= =========
See notes to consolidated financial statements.
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CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
CONSOLIDATED STATEMENTS of EARNINGS
(UNAUDITED)
(In thousands except per share data)
Three Months Ended
March 31,
1999 1998 (a)
---- ----
Net sales $70,350 $60,846
Cost of sales 45,332 42,724
-------- --------
Gross margin 25,018 18,122
Research and development costs 1,148 305
Selling expense 4,031 3,118
General and administrative 9,347 6,868
--------- ----------
Operating income 10,492 7,831
Investment income, net 705 1,079
Rental income, net 826 913
Pension income, net 1,281 813
Other income (expense), net (85) 99
Interest expense 303 89
--------- ----------
Earnings before tax 12,916 10,646
Provision for tax 4,934 4,041
--------- ---------
Net earnings $ 7,982 $ 6,605
========= =========
Weighted average shares outstanding 10,165 10,178
======== ========
Basic earnings per common share $0.79 $0.65
===== =====
Diluted earnings per common share $0.78 $0.64
===== =====
Dividends per common share $0.13 $0.13
===== =====
(a) Includes reclassification to conform to current presentation
See notes to consolidated financial statements.
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CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
CONSOLIDATED STATEMENTS of CASH FLOWS
(UNAUDITED)
(In thousands)
Three Months Ended
March 31
1999 1998
---- ----
Cash flows from operating activities:
Net earnings $ 7,982 $ 6,605
-------- --------
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization 2,853 2,432
Net gains on short-term investments (24) (432)
Increase in deferred taxes 649 508
Changes in operating assets and liabilities:
Proceeds from sales of trading securities 75,390 82,258
Purchases of trading securities (69,396) (88,384)
(Increase) decrease in receivables (1,184) 747
(Increase) decrease in inventory (1,652) 3,160
Decrease in progress payments (877) (6,468)
Decease in accounts payable
and accrued expenses (317) (1,899)
Increase in income taxes payable 2,620 1,931
Increase in other assets (1,192) (559)
Increase (decrease) in other liabilities 227 (414)
Other, net (1,119) 1,398
-------- --------
Total adjustments 5,978 (5,722)
-------- --------
Net cash provided by operating activities 13,960 883
-------- --------
Cash flows from investing activities:
Proceeds from sales of real estate and equipment 0 20
Additions to property, plant and equipment (7,357) (2,447)
-------- --------
Net cash used by investing activities (7,357) (2,427)
-------- --------
Cash flow from financing activities:
Common stock repurchases (1,727) 0
-------- --------
Net cash used for financial activities (1,727) 0
-------- --------
Net increase (decrease) in cash and cash equivalents 4,876 (1,544)
Cash and cash equivalents at beginning of period 5,809 6,872
-------- --------
Cash and cash equivalents at end of period $10,685 $ 5,328
======== ========
See notes to consolidated financial statements.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
CONSOLIDATED STATEMENTS of STOCKHOLDERS' EQUITY
(UNAUDITED)
(In thousands)
<TABLE>
<CAPTION>
Unearned Accumulated
Portion of Other
Common Capital Retained Restricted Comprehensive Treasury
Stock Surplus Earnings Stock Awards Income Stock
<S> <C> <C> <C> <C> <C> <C>
December 31, 1997 $15,000 $52,010 $318,474 $(342) $(3,289) $177,000
Net earnings 29,053
Common dividends (5,309)
Common stock repurchased 612
Stock options exercised, net (449) (376)
Amortization of earnings portion
of restricted stock 108 302 (1,158)
Translation adjustments, net 489
-------- -------- --------- ------ -------- ---------
December 31, 1998 15,000 51,669 342,218 (40) (2,800) 176,454
Net earnings 7,982
Common dividends (1,325)
Common stock repurchased 1,727
Stock options exercised, net (14) (37)
Amortization of earned portion
of restricted stock 4
Translation adjustment, net (1,146)
-------- ------- --------- ------ --------- ---------
March 31, 1999 $15,000 $51,655 $348,875 $ (36) $(3,946) $178,144
======== ======== ========= ====== ========= =========
</TABLE>
See notes to consolidated financial statements.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS of PRESENTATION
Curtiss-Wright Corporation (the "Corporation") is a diversified
multi-national manufacturing and service concern that designs,
manufactures and overhauls precision components and systems and
provides highly engineered services to the aerospace, defense,
automotive, shipbuilding, oil, petrochemical, agricultural equipment,
power generation, railroad, metalworking and fire & rescue industries.
The Corporation's principal operations include five manufacturing
facilities (four domestic and one in Switzerland), thirty-six metal
treatment service facilities located in North America and Europe, and
four component overhaul locations.
The information furnished in this report has been prepared in
conformity with generally accepted accounting principles and as such
reflects all adjustments, consisting primarily of normal recurring
accruals, which are, in the opinion of management, necessary for a fair
statement of the results for the interim periods presented. The
unaudited consolidated financial statements should be read in
conjunction with the consolidated financial statements and notes
thereto included in the Corporation's 1998 Annual Report on Form 10-K.
The results of operations for these interim periods are not necessarily
indicative of the operating results for a full year. Certain
reclassifications of prior year amounts have been made in order to
conform to the current presentation.
2. RECEIVABLES
Receivables, at March 31, 1999 and December 31, 1998, include amounts
billed to customers and unbilled charges on long-term contracts
consisting of amounts recognized as sales but not billed at the dates
presented. Substantially all amounts of unbilled receivables are
expected to be billed and collected within a year. The composition of
receivables for those periods is as follows:
(In thousands)
March 31, December 31,
1999 1998
---------- ------------
Accounts receivable, billed $64,874 $63,412
Less: progress payments applied 11,687 11,687
--------- ---------
53,187 51,725
--------- ---------
Unbilled charges on long-term
contracts 17,141 17,447
Less: progress payments applied 5,998 6,350
--------- ---------
11,143 11,097
--------- ---------
Allowance for doubtful accounts (1,882) (1,910)
--------- ---------
Receivables, net $62,448 $60,912
========= =========
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CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS, Continued
(UNAUDITED)
3. INVENTORIES
Inventories are valued at the lower of cost (principally average cost)
or market. The composition of inventories at March 31, 1999 and
December 31, 1998 is as follows:
(In thousands)
March 31, December 31,
1999 1998
----------- -----------
Raw materials $ 8,247 $ 8,862
Work-in-process 23,566 22,802
Finished goods 26,818 23,130
Inventoried costs related to U.S.
Government and other long-term
contracts 2,595 4,780
--------- ---------
Total inventories 61,226 59,574
Less: progress payments applied,
principally related to long-term
contracts 5,001 5,526
--------- ---------
Net inventories $56,225 $54,048
========= =========
4. ENVIRONMENTAL MATTERS
The Corporation establishes a reserve for a potential environmental
responsibility when it concludes that a determination of legal
liability is probable, based upon the advice of counsel. Such amounts,
if quantified, reflect the Corporation=s estimate of the amount of that
liability. If only a range of potential liability can be estimated, a
reserve will be established at the low end of that range. Such reserves
represent today=s values of anticipated remediation not reduced by any
potential recovery from insurance carriers or through contested
third-party legal actions, and are not discounted for the time value of
money.
The Corporation is joined with many other corporations and
municipalities as potentially responsible parties (PRPs) in a number of
environmental cleanup sites, which include the Sharkey Landfill
Superfund Site, Parsippany, N. J., Caldwell Trucking Company Superfund
Site, Fairfield, N. J., Pfohl Brothers Landfill Site, Cheektowaga, N.Y.
and PJP Landfill, Jersey City, N. J. identified to date as the most
significant sites.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS, Continued
(UNAUDITED)
The Corporation believes that the outcome of any of these matters would
not have a material adverse effect on the Corporation's results of
operations or financial condition.
5. SEGMENT INFORMATION
(In thousands)
<TABLE>
<CAPTION>
Three Months Ended Three Months Ended
March 31, 1999 March 31, 1998
---------------------------------- ------------------------------------
Precision Actuation Flow Precision Actuation Flow
Mfg. & Control Control Mfg. & Control Control
Products Products Products Products Products Products
& Svcs & Svcs & Svcs & Svcs & Svcs & Svcs
<S> <C> <C> <C> <C> <C> <C>
Revenue from external customers $26,002 $ 30,309 $14,039 $25,868 $28,362 $ 6,616
Intersegment revenues 119 115
Segment net income 3,831 923 1,132 4,610 (851) 882
Segment assets 71,116 120,699 37,961 58,510 87,316 15,713
</TABLE>
Reconciliation: March 31, March 31,
1999 1998
--------- ---------
Total segment net income $5,886 $4,641
Rental income, net 444 423
Investment income, net 475 842
Pension income 758 488
Corporate and other 419 211
-------- --------
Consolidated net income $7,982 $6,605
======== ========
6. COMPREHENSIVE INCOME
Effective January 1, 1998, the Corporation adopted Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive
Income" (SFAS No. 130). SFAS No. 130 establishes standards for
reporting and displaying changes in equity from non-owner sources.
Total comprehensive income for the three months ended March 31, 1999
and 1998 is as follows:
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CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
NOTES to CONSOLIDATED FINANCIAL STATEMENTS, Continued
(UNAUDITED)
(In thousands)
March 31, March 31,
1999 1998
--------- ---------
Net earnings $7,982 $6,605
Equity adjustments from foreign
currency translations (1,146) 191
--------- ---------
Total comprehensive income $6,836 $6,796
========= =========
7. EARNINGS PER SHARE
The Corporation accounts for its earnings per share (EPS) in accordance
with Statement of Financial Accounting Standards No. 128, "Earnings per
Share" (SFAS No. 128). Diluted earnings per share were computed based
on the weighted average number of shares outstanding plus all
potentially dilutive common shares issuable for the periods. Dilutive
common shares for the three months ended March 31, 1999 and 1998 were
118 and 134, respectively, consisting primarily of outstanding stock
options.
8. RECENTLY ISSUED ACCOUNTING STANDARDS
On June 15, 1998 the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 133, "Accounting for
Derivatives and Hedging Activities" (SFAS No. 133). SFAS No. 133 is
effective for all fiscal quarters of all fiscal years beginning after
June 15, 1999 (January 1, 2000 for the Corporation). SFAS No. 133
requires that all derivative instruments be recorded on the balance
sheet at their fair value. Changes in the fair value of derivatives are
recorded each period in current earnings or other comprehensive income,
depending on whether a derivative is designated as part of a hedge
transaction and, if it is, the type transaction. Management of the
Corporation anticipates that, due to its limited use of derivative
instruments, the adoption of SFAS No. 133 will not have a significant
effect on its results of operations or its financial position.
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<PAGE>
PART I - ITEM 2
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
MANAGEMENT'S DISCUSSION and ANALYSIS of
FINANCIAL CONDITION and RESULTS of OPERATIONS
RESULTS of OPERATIONS
The Corporation's consolidated net earnings for the first quarter of
1999 were 21% above net earnings for the first quarter of 1998. Net earnings for
the first quarter of 1999 totaled $8.0 million, or $.78 per diluted share,
compared with $6.6 million or $.64 per diluted share for the same period of
1998. Operating income in the aggregate rose 34% to $10.5 million for the first
quarter of 1999 as compared with $7.8 million in the first quarter of 1998. In
the first quarter of 1998, inventory write-offs and increased provisions for
development programs, impaired operating income results. Absent these charges,
net income did not increase and operating income declined slightly on a period
to period basis.
Sales for the first quarter of 1999 increased 16% to $70.4 million
compared with $60.8 million for the prior year quarter. The sales improvement
largely reflects the Corporation's three acquisitions made in 1998, Alpha Heat
Treaters, Enertech and SIG Drive Technology (now known as Curtiss-Wright Drive
Technology). New orders received for the first quarter of 1999 totaled $70.8
million representing a 24% increase above orders of $56.9 million for the first
quarter of 1998, and reflect a substantial new contribution by the three new
business units. The Corporation's backlog of unshipped orders at March 31, 1999,
$197.0 million, was substantially higher than the $145.3 million backlog of a
year ago.
Operating Performance
The Corporation's Precision Manufacturing Products & Services (PMPS)
segment reported level sales, when comparing the first quarter of 1999 to the
same period of 1998. During 1998, PMPS had consistently produced record sales
levels of metal-treatment services. Thus far in 1999, this segment has
experienced a general softening in several of its primary markets. Services
provided for oil tool and agricultural customers have declined compared to the
prior year. Net earnings for the first quarter of 1999 were below those of the
first quarter of 1998 generally reflecting lower margins on sales and increased
operating expenses.
Results for the first quarter of 1999 reflect an increase in sales from
our Actuation and Control Products & Services (ACPS) segment largely as a result
of the December 31, 1998 acquisition of SIG Drive Technology. The Corporation's
overhaul and repair businesses reported slightly higher sales when comparing the
first quarter of 1999 to the same prior year period, largely in their foreign
markets. The ACPS segment continues to proceed with the previously announced
consolidation of its manufacturing operations into its Shelby, N.C. plant as
planned. Expenses related to the move were incurred during the first quarter and
will continue at an increasing rateduring the year. As anticipated, sales of
military actuation products showed a sharp decline during this transition
period. Sales of commercial actuation spare parts also declined slightly on a
period-to-period basis. During the first quarter of 1998, net earnings for this
segment had been reduced by adjustments principally on account of inventory
write-offs and a provision for higher costs anticipated on military development
programs.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
MANAGEMENT'S DISCUSSION and ANALSIS of
FINANCIAL CONDITION and RESULTS of OPERATIONS, Continued
The Corporation's Flow Control Products & Services (FCPS) segment
produced substantially higher sales when comparing the first quarter of 1999
with the same period of 1998. Sales were bolstered by the acquisition of
Enertech in July of 1998 and benefited from additional U. S. Navy orders
received in 1998. Net earnings for the segment also increased generally
reflecting the improved sales and the Enertech business acquired.
CHANGES IN FINANCIAL CONDITION:
Liquidity and Capital Resources:
The Corporation's working capital was $130.3 million at March 31, 1999,
slightly below working capital at December 31, 1998 of $130.8 million. The ratio
of current assets to current liabilities was 2.85 to 1 at March 31, 1999,
compared with a current ratio of 2.93 to 1 at December 31, 1998. Cash, cash
equivalents and short-term investments totaled $71.2 million in aggregate at
March 31, 1999, also decreasing slightly from $72.3 million at the prior year
end.
Changes in working capital reflect a substantial increase in accounts
receivable from trade customers. Gross inventory also increased principally for
goods related to component overhaul and repair services. Working capital was
reduced overall by an increase in income taxes payable at March 31, 1999, from
December 31, 1998 and accrued dividends payable for the first quarter of 1999.
The Corporation has two credit agreements, a Revolving Credit Agreement
and a Short-Term Credit Agreement, in effect aggregating $45.0 million with a
group of three banks. The credit agreements allow for borrowings to take place
in U. S. or certain foreign currencies. The Revolving Credit Agreement commits a
maximum of $22.5 million to the Corporation for cash borrowings and letters of
credit. The unused credit available under this facility at March 31, 1999 was
$1.1 million. The commitments made under the Revolving Credit Agreement expire
October 29, 2001, but may be extended annually for successive one-year periods
with the consent of the bank group. The Corporation also has in effect a
Short-Term Credit Agreement which allows for cash borrowings of $22.5 million,
of which $2.0 million was available at March 31, 1999. The Short-Term Credit
Agreement expires October 22, 1999. The Short-Term Credit Agreement may be
extended, with the consent of the bank group, for an additional period not to
exceed 364 days. Cash borrowings under the two credit agreements at March 31,
1999 were at a U. S. Dollar equivalent of $21.9 million. The loans had variable
interest rates averaging 2.03% for the first quarter of 1999. No cash borrowings
were outstanding at March 31, 1998.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
MANAGEMENT'S DISCUSSION and ANALSIS of
FINANCIAL CONDITION and RESULTS of OPERATIONS, Continued
During the first quarter of 1999, internally generated funds were
adequate to meet capital expenditures of $7.4 million. Expenditures incurred
during the first quarter were for machinery and equipment needed for the
expansion of our Precision Manufacturing Products and Services segment. The
Corporation also purchased a 53,000-square-foot building in Gastonia, North
Carolina for a portion of its commercial aircraft component repair and overhaul
operations. Operations in the Gastonia facility began in the second quarter of
1999. The Corporation is expected to make capital expenditures of an additional
$14 million during the balance of the year.
During the first quarter of 1999, the Corporation repurchased 47,250
shares of its common stock at a cost of $1.7 million.
Other Developments
At the first meeting of the newly elected Board of Directors on April
27, 1999, following the Annual Meeting of Shareholders on April 23, 1999, the
Board elected Martin R. Benante as a member of the Board of Directors concurrent
with his election to the officer positions of President and Chief Operating
Officer of the Company. Director David Lasky, who had been President of the
Company retained his officer positions of Chairman and Chief Executive Officer
of the Company. Additionally Brian D. O'Neill was elected Secretary of the
Company.
YEAR 2000
As is more fully described under the subheading "Year 2000" under the
caption "Management's Discussion and Analysis of Financial Condition and Results
of Operations," as referenced in the Corporation's annual report on Form 10-K
for the fiscal year ended December 31, 1998, the Corporation is modifying or
replacing portions of its software as well as certain hardware to permit
continued operations beyond December 31, 1999 without systems failures or
processing errors that might arise as a result of the so-called Year 2000(Y2K)
issue.
Each operating entity of the Corporation is at a different stage of readiness.
Identification of the internal business systems of the Corporation that are
susceptible to system failures or processing errors as a result of the Y2K issue
is substantially complete. The Corporation is using both internal and external
resources for its remediation efforts, including the modification of code and
test of the resulting modifications. Based on the current schedule, the
Corporation expects its internal business systems to be functioning properly
with respect to the Y2K issue well before January 1, 2000.
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<PAGE>
CURTISS-WRIGHT CORPORATION and SUBSIDIARIES
MANAGEMENT'S DISCUSSION and ANALSIS of
FINANCIAL CONDITION and RESULTS of OPERATIONS, Continued
Additionally, significant service providers, vendors, suppliers and
customers that are believed to be critical to on-going business operations have
been identified and contacted in an attempt to ascertain their stage of
readiness. Where necessary, the Corporation intends to seek alternative
suppliers, service providers or contractors who have demonstrated Y2K readiness.
Concurrently, with the Y2K readiness measures described above, the Corporation
and its operating units are developing contingency plans intended to mitigate
the possible disruption in business operations that may result from the Y2K
issue and are developing cost estimates for such plans. Based on the current
schedule, the Corporation expects such plans to be in place by the end of the
third quarter of 1999.
It is currently estimated that the incremental costs of the
Corporation's Y2K remediation efforts will be approximately $.5 million of which
approximately $.2 million has been spent. Remediation costs are being expensed
as they are incurred. The costs associated with the replacement of computerized
systems and hardware are currently estimated to be $.3 million, which amount is
being capitalized. These amounts do not include any costs associated with the
implementation of contingency plans that are in the process of being developed.
The Corporation's Y2K readiness program is an on-going process and the
estimates of costs and completion dates are subject to change.
RECENTLY ISSUED ACCOUNTING STANDARDS
As discussed in Note 8 to the Consolidated Financial Statements, the
Corporation has reviewed Statement of Financial Accounting Standards No. 133,
"Accounting for Derivatives and Hedging Activities." Due to the limited use of
derivative instruments by the Corporation, this statement will not have a
material effect on the Corporation's results of operations or financial
condition. The statement is effective for the Corporation beginning January
1, 2000.
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<PAGE>
FORWARD-LOOKING INFORMATION
Except for historical information, this Quarterly Report on Form 10-Q may be
deemed to contain "forward looking" information. Examples of forward looking
information include, but are not limited to, (a) projections of or statements
regarding return on investment, future earnings, interest income, other income,
earnings or loss per share, investment mix and quality, growth prospects,
capital structure and other financial terms, (b) statements of plans and
objectives of management, (c) statements of future economic performance, and (d)
statements of assumptions, such as economic conditions underlying other
statements. Such forward looking information can be identified by the use of
forward looking terminology such as "believes," "expects," "may," "will,"
"should," "anticipates," or the negative of any of the foregoing or other
variations thereon or comparable terminology, or by discussion of strategy. No
assurance can be given that the future results described by the forward looking
information will be achieved. Such statements are subject to risks,
uncertainties, and other factors which could cause actual results to differ
materially from future results expressed or implied by such forward looking
information. Such statements in this Report include, without limitation, those
contained in Part I, Item 2, Management's Discussion and Analysis of Financial
Condition and Results of Operations and the Notes to the Consolidated Financial
Statements including, without limitation, the Environmental Matters Note.
Important factors that could cause the actual results to differ materially from
those in these forward-looking statements include, among other items, (i) a
reduction in anticipated orders; (ii) an economic downturn; (iii) unanticipated
environmental remediation expenses or claims; (iv) changes in the need for
additional machinery and equipment and/or in the cost for the expansion of the
Corporation's operations; (v) changes in the competitive marketplace and/or
customer requirements; (vi) an inability to perform customer contracts at
anticipated cost levels and (vii) other factors that generally affect the
business of companies operating in the Corporation's Segments.
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<PAGE>
PART II - OTHER INFORMATION
Item 4. SUBMISSION of MATTERS to a VOTE of SECURITY HOLDERS
On April 23, 1999, the Registrant held its annual meeting of
stockholders. The matters submitted to a vote by the stockholders were
the election of directors and the retention of independent accountants
for the Registrant.
The vote received by the director nominees was as follows:
For Withheld
Thomas R. Berner 8,841,481 21,053
James B. Busey IV 8,841,985 20,549
David Lasky 8,842,020 20,514
William B. Mitchell 8,841.388 21,146
John R. Myers 8,840,764 21,770
William W. Sihler 8,842,388 20,146
J. McLain Stewart 8,840,143 22,391
There were no votes against or broker non-votes.
The stockholders approved the retention of PricewaterhouseCoopers LLP,
independent accountants for the Registrant. The holders of 8,844,680
shares voted in favor; 13,673 voted against; 4,181 abstained. There
were no broker non-votes.
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<PAGE>
Item 6. EXHIBITS and REPORTS on FORM 8-K
(a) Exhibits
Exhibit 3 - By Laws as Amended (Page 18)
Exhibit 27 - Financial Data Schedules (Page 36)
(b) Reports on Form 8-K
The Registrant did not file any report on Form 8-K during the
quarter ended March 31, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
CURTISS-WRIGHT CORPORATION
(Registrant)
By: /s/ Robert A. Bosi
-----------------------
Robert A. Bosi
Vice President-Finance
By: /s/ Kenneth P. Slezak
------------------------
Kenneth P. Slezak
Controller
Dated: May 14, 1999
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Exhibit 3
CURTISS-WRIGHT CORPORATION
B Y - L A W S
AS AMENDED THROUGH APRIL 1999
ARTICLE I.
OFFICES.
SECTION 1. Registered Office. The registered office of Curtiss-Wright
Corporation (hereinafter called the Corporation) in the State of Delaware, shall
be in the City of Wilmington, County of New Castle.
SECTION 2. Other Offices. The Corporation may also have an office or
offices at such other place or places either within or without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation require.
ARTICLE II.
MEETING OF STOCKHOLDERS.
SECTION 1. Place of Meetings. All meetings of Stockholders for the
election of directors or for any other purpose shall be held at such place
either within or without the State of Delaware as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting or in
a duly executed waiver of notice thereof.
SECTION 2. Annual Meetings. The annual meeting of the stockholders for
the election of directors and for the transaction of such other proper business
as may come before the meeting shall be held on a date and at a time as may be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof. If the election
of directors shall not be held on the date so designated for any annual meeting
or at any adjournment of such meeting, the Board of Directors shall cause the
election to be held at a special meeting as soon thereafter as conveniently may
be. At such special meeting the stockholders may elect the directors and
transact other business with the same force and effect as at an annual meeting
duly called and held.
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SECTION 3. Special Meetings. A special meeting of the stockholders for
any purpose or purposes, unless otherwise prescribed by statute, may be called
at any time by the Chairman, or in his absence by the President, by the Board of
Directors, or by the Secretary at the request in writing of holders of a
majority of the shares of the Corporation outstanding and entitled to vote.
SECTION 4. Notice of Meetings. Except as otherwise provided by statute,
notice of each meeting of the stockholders, whether annual or special, shall be
given not less than ten days nor more than sixty days before the day on which
the meeting is to be held, to each stockholder of record entitled to vote at
such meeting by delivering a written or printed notice thereof to him
personally, or by mailing such notice in a postage prepaid envelope addressed to
him at his post office address furnished by him to the Secretary of the
Corporation for such purpose, or, if he shall not have furnished to the
Secretary of the Corporation his address for such purpose, then at his post
office address as it appears on the records of the Corporation, or by
transmitting a notice thereof to him at such address by telegraph, cable, telex,
facsimile transmitter or other similar means. Except where expressly required by
law, no publication of any notice of a meeting of stockholders shall be
required. Every such notice shall state the place, date and hour of the meeting
and in the case of special meetings, and annual meetings where business other
than the election of directors may be transacted, the purpose or purposes for
which the meeting is called. 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 except as otherwise provided by statute; and if any stockholder
shall in person or by attorney thereunto authorized, in writing or by telegraph,
cable, telex, facsimile transmitter or other similar means, waive notice of any
meeting, whether before or after such meeting be held, notice thereof need not
be given to him. Notice of any adjourned meeting of the stockholders shall not
be required to be given, except when expressly required by law. Notice of any
meeting of stockholders as herein provided shall not be required to be given to
any stockholder where the giving of such notice is prohibited or is rendered
impossible by the laws of the United States of America.
SECTION 5. List of Stockholders. It shall be the duty of the Secretary
or other officer who shall have charge of the stock ledger either directly or
through a transfer agent appointed by the Board of Directors, to prepare and
make, at least ten days before every meeting of stockholders, complete lists of
the stockholders entitled to vote thereat, arranged in alphabetical order, and
showing the address of each stockholder, the holders of each class of stock
appearing separately, and indicating the number of shares held by each,
certified by the Secretary or Transfer Agent. For said ten days such lists shall
be open to the examination of any stockholder for any purpose germane to the
meeting at the place where said meeting is to be held, or at a place permitted
by the Delaware General Corporation Law, and shall be produced and kept at the
time and place of the meeting during the whole time thereof, and subject to the
inspection of any stockholder who may be present. Upon the willful neglect or
refusal of the directors to produce such lists at any meeting, they shall be
ineligible to any office at such meeting. The original or a duplicate stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, such lists, or the books of the Corporation or to vote
in person or by proxy at such meeting.
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SECTION 6. Quorum. At each meeting of the stockholders, the holders of
not less than a majority of the issued and outstanding stock of the Corporation
present either in person or by proxy and entitled to vote at such meeting shall
constitute a quorum except where otherwise provided by law or by the Certificate
of Incorporation or these by-laws. In the absence of a quorum, the stockholders
of the Corporation present in person or by proxy and entitled to vote, by
majority vote, or, in the absence of all the stockholders, any officer entitled
to preside or act as Secretary at such meeting, shall have the power to adjourn
the meeting from time to time, until stockholders holding the requisite amount
of stock shall be present or represented. At any such adjourned meeting at which
a quorum may be present any business may be transacted which might have been
transacted at the meeting as originally called. The absence from any meeting of
the number required by the laws of the State of Delaware or by the Certificate
of Incorporation of the Corporation or by these by-laws for action upon any
given matter shall not prevent action at such meetings upon any other matter or
matters which may properly come before the meeting, and if the holders of not
less than a majority of the issued and outstanding stock of the Corporation
entitled to vote at that time upon such other matter or matters shall be present
either in person or by proxy at such meeting, a quorum for the consideration of
such other matter or matters shall be present and the meeting may proceed
forthwith and take action upon such other matter or matters.
SECTION 7. Organization. The Chairman or, in his absence, the
President, or, in the absence of both of them, any Vice President present, shall
call meetings of the stockholders to order and shall act as Chairman thereof. In
the absence of all of the foregoing officers, the holders of a majority in
interest of the stock present in person or by proxy and entitled to vote may
elect any stockholder of record present and entitled to vote to act as Chairman
of the meeting until such time as any one of the foregoing officers shall
arrive, whereupon he shall act as Chairman of the meeting. The Secretary or, in
his absence, an Assistant Secretary shall act as secretary at all meetings of
the stockholders. In the absence from any such meeting of the Secretary and the
Assistant Secretary or Secretaries, the Chairman may appoint any person present
to act as secretary of the meeting. Such person shall be sworn to the faithful
discharge of his duties as such secretary of the meeting before entering
thereon.
SECTION 8. Business and Order of Business. At each meeting of the
stockholders such business may be transacted as may properly be brought before
such meeting, except as otherwise in these by-laws expressly provided. The order
of business at all meetings of the stockholders shall be as determined by the
Chairman.
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SECTION 9. Voting. Each stockholder of the Corporation shall, except as
otherwise provided by statute or in these by-laws or in the Certificate of
Incorporation of the Corporation, at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
of the Corporation registered in his name on the books of the Corporation on the
date fixed pursuant to Section 6 of Article VII of these by-laws as the record
date for the determination of stockholders entitled to vote at such meeting.
Persons holding in a fiduciary capacity stock having voting rights shall be
entitled to vote the shares so held, and persons whose stock having voting
rights is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books he shall have expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or his proxy, may represent said stock
and vote thereon. Any vote on stock may be given by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in writing,
subscribed by such stockholder or by his attorney thereunto authorized, and
delivered to the secretary of the meeting; provided, however, that no proxy
shall be voted on after three years from its date unless said proxy provides for
a longer period. At all meetings of the stockholders, all matters (except those
specified in Sections 3 and 12 of Article III and Article XI of these by-laws,
and except also in special cases where other provision is made by statute, and
except as otherwise provided in the Certificate of Incorporation) shall be
decided by the vote of a majority in interest of the stockholders present in
person or by proxy and entitled to vote thereat, a quorum being present. Except
as otherwise provided by statute, the vote on any question need not be by
ballot. On a vote by ballot each ballot shall be signed by the stockholder
voting, or in his name by his proxy if there be such proxy, and shall state the
number of shares voted by him.
SECTION 10. Inspectors of Election. On each matter or election at each
meeting of the stockholders where a vote by ballot is taken, the polls shall be
opened and closed, the proxies and ballots shall be received and be taken in
charge, and all questions touching the qualification of voters and the validity
of proxies and the acceptance or rejection of votes, shall be decided by two
inspectors of election who shall be appointed by the Chairman of such meeting.
The inspectors of election need not be stockholders. No candidate for the office
of director shall act as inspector at any election of directors. Inspectors
shall count and ascertain the number of shares voted; and shall declare the
result of the election or of the voting as the case may be; and shall make out a
certificate accordingly, stating the number of shares issued and outstanding and
entitled to vote at such election or on such matters and the number of shares
voted and how voted. Inspectors shall be sworn to faithfully perform their
duties and shall certify to the returns in writing. They shall hold office from
the date of their appointment until their successors shall have been appointed
and qualified.
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SECTION 11. Action by Consent. Whenever the vote of stockholders at a
meeting thereof is required or permitted to be taken for or in connection with
any corporate action, by any provision of statute or of the Certificate of
Incorporation or of these by-laws, the meeting, prior notice thereof, and vote
of stockholders may be dispensed with, and the action taken without such
meeting, notice and vote, if a consent in writing, setting forth 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 of stock of the Corporation entitled to
vote thereon were present and voted. 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 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. Such
written notice shall be directed to the Secretary at the Corporation's principal
place of business, shall be by hand or by certified or registered mail, return
receipt requested, and shall set forth the corporate action proposed to be
taken. The Board of Directors shall promptly, but in all events within ten days
after the date on which such a request is received by the Secretary, adopt a
resolution fixing the record date. If no record date has been fixed by the Board
of Directors within ten days of the date on which such a request is received,
the record date for determining stockholders entitled to consent to such
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 such action taken or proposed to be taken
is delivered to the Corporation by delivery to its principal place of business,
or any officer or agent of the Corporation having custody of the book in which
proceedings of stockholders meetings are recorded, to the attention of the
Secretary of the Corporation. Delivery shall be by hand or by certified or
registered mail, return receipt requested. 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 the close of business
on the date on which the Board of Directors adopts the resolution taking such
prior action. No consent to corporate action without a meeting of stockholders
shall be effective prior to the record date determined as set forth herein.
Prompt notice of the taking of any corporate action without a meeting of
stockholders by less than unanimous written consent shall be given to those
stockholders who have not consented to such action in writing.
ARTICLE III
BOARD OF DIRECTORS.
SECTION 1. General Powers. The property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 2. Number, Qualifications and Terms of Office. The number of
directors may be fixed from time to time by the affirmative vote of a majority
of the whole Board of Directors, but the number may be diminished to not less
than three, by amendment of these by-laws. Directors need not be stockholders.
The directors shall be elected annually and each director shall hold office
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.
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SECTION 3. Election of Directors. At each meeting of the stockholders
for the election of directors, at which a quorum is present, the persons
receiving the greatest number of votes shall be the directors. In case of any
increase in the number of directors, the additional directors may be elected by
the directors then in office at any regular meeting or special meeting, or by
the stockholders at the first annual meeting held after such increase or at a
special meeting called for the purpose.
SECTION 4. Quorum and Manner of Acting. Except as otherwise provided by
statute or by these by-laws, one-third 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 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 be given only to those directors who were not present at
any meeting at which the adjournment was taken, provided the time and place of
the adjourned meeting were announced at the meeting at which the adjournment was
taken. The directors shall act only as a board and the individual directors
shall have no power as such.
SECTION 5. Place of Meeting, etc. The Board of Directors may hold its
meetings, at such place or places within or without the State of Delaware as the
Board of Directors may from time to time determine or as shall be specified or
fixed in the respective notices or waivers of notice thereof.
SECTION 6. First Meeting. After each annual election of directors and
within a reasonable time thereafter, the Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business at such hours and place as shall be convenient. Notice of such meeting
shall be given as hereinafter provided for special meetings of the Board of
Directors or in a consent and waiver of notice thereof signed by all the
directors.
SECTION 7. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place and at such times as the Board of Directors shall
from time to time by resolution determine or as shall be specified in the Notice
of Meeting. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at the same hour on the next
succeeding business day not a legal holiday. Notice of the regular meetings need
not be given.
SECTION 8. Special Meetings: Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman, the President or by one
of the directors. Notice of each such meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least two days
before the day on which the meeting is to be held, or shall be sent to him at
such place by telegraph, cable, telex, facsimile transmitter or other similar
means, or be delivered personally or by telephone, not later than the day before
the day on which the meeting is to be held. Every such notice shall state the
time and place of the meeting but need not state the purpose thereof except as
otherwise in these by-laws or by statute expressly provided. Notice of any
meeting of the Board of Directors need not be given to any director, however, if
waived by him in writing or by telegraph, cable, telex, facsimile transmitter or
other similar means whether before or after such meeting be held or if he shall
be present at the meeting; and any meeting of the Board of Directors shall be a
legal meeting without any notice thereof having been given if all of the
directors shall be present thereat.
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SECTION 9. Organization. At each meeting of the Board of Directors, the
Chairman or, in his absence, the President, or, in the absence of both of them,
a director chosen by a majority of the directors present 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 10. Order of Business. At all meetings of the Board of
Directors business shall be transacted in the order determined by the Board of
Directors.
SECTION 11. Resignations. Any director of the Corporation may resign at
any time by giving written notice to the Chairman, the President or to the
Secretary of the Corporation. The resignation of any director shall take effect
at the time of the 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 12. 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 meeting
of the stockholders and the vacancy in the Board of Directors caused by any such
removal may be filled by the stockholders at such meeting.
SECTION 13. Vacancies.
13.1 Any vacancy in the Board of Directors caused by death,
resignation, removal, disqualification, an increase in the number of directors,
or any cause may be filled by the directors then in office or by the
stockholders of the Corporation at the next annual meeting or any special
meeting called for the purpose and at which a quorum is present, and each
director so elected shall hold office until his successor shall be duly elected
and qualified, or until his death or until he shall resign or shall have been
removed in the manner herein provided. In case of a vacancy in the Board of
Directors, the remaining Directors shall continue to act, but if at any time the
number of directors in office shall be reduced to less than a majority of the
number necessary to constitute a full Board of Directors, the remaining
directors shall forthwith call a special meeting of the stockholders for the
purpose of filling vacancies. In case all the directors shall die or resign or
be removed or disqualified, any officer or any stockholder having voting power
may call a special meeting of the stockholders, upon notice given as herein
provided for meetings of the stockholders, at which directors for the unexpired
term may be elected.
13.2 A director who resigns, retires, or does not stand for reelection
may, in the discretion of the Board of Directors, be elected a Director
Emeritus. A Director Emeritus shall receive reimbursement for reasonable
expenses for attendance at meetings of the Board to which he is invited. Such
attendance shall be in a consulting capacity and he shall not be entitled to
vote or have any duties or powers of a Director of the Corporation.
SECTION 14. Regular Stipulated Compensation and Fees. Each director
shall be paid such regular stipulated compensation, if any, as shall be fixed by
the Board of Directors and/or such fee, if any, for each meeting of the Board of
Directors which he shall attend as shall be fixed by the Board of Directors and
in addition such transportation and other expenses actually incurred by him in
connection with services to the Corporation.
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SECTION 15. Action by Consent. Unless restricted by the Certificate of
Incorporation, any action required or permitted to be taken by the Board of
Directors or any Committee thereof may be taken without a meeting if all members
of the Board of Directors or such Committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or such Committee, as the case may be.
SECTION 16. Telephonic Meeting. Unless restricted by the Certificate of
Incorporation, any one or more members of the Board of Directors or any
Committee thereof may participate in a meeting of the Board of Directors or such
Committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other.
Participation by such means shall constitute presence in person at a meeting.
ARTICLE IV.
COMMITTEES.
SECTION 1. Committees. The Board of Directors may by resolution or
resolutions passed by a majority of the whole Board, designate one or more
Committees, each Committee to consist of two or more of the directors of the
Corporation, which, to the extent provided for in said resolution or resolutions
or in these by-laws, shall have and may exercise such powers as shall be
permitted by law to be, and shall be delegated to such Committee by the Board.
The Committee or Committees appointed by the Board shall be subject to the
supervision and direction of the Board of Directors.
SECTION 2. Term of Office and Vacancies. Each member of a Committee
shall continue in office until a director to succeed him shall have been elected
and shall have qualified, or until his death or until he shall have resigned or
shall have been removed in the manner hereinafter provided. Any vacancy in a
Committee shall be filled by the vote of a majority of the whole Board of
Directors at any regular or special meeting thereof.
SECTION 3. Organization. Except as otherwise provided in these by-laws,
the Chairman of each Committee shall be designated by the Board of Directors.
The Chairman of each Committee may designate a secretary of each such Committee.
In the absence from any meeting of any Committee of its Chairman or its
secretary such Committee shall appoint a temporary Chairman or secretary, as the
case may be, of the meeting unless otherwise provided in these by-laws. Each
Committee shall keep a record of its acts and proceedings and report the same
from time to time to the Board of Directors.
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SECTION 4. Resignations. Any member of a Committee may resign at any
time by giving written notice to the Chairman, President or Secretary of the
Corporation. Such resignation shall take effect at the time of the 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 5. Removal. Any member of a Committee may be removed with or
without cause at any time by the affirmative vote of a majority of the whole
Board of Directors given at any regular meeting or at any special meeting called
for the purpose.
SECTION 6. Meetings. Regular meetings of each Committee, of which no
notice shall be necessary, shall be held on such days and at such place as shall
be fixed by a resolution adopted by the vote of a majority of all the members of
such Committee. Special meetings of each Committee may be called by the Chairman
of such Committee or by the Chairman, President or Secretary of the Corporation.
Notice of each special meeting of the Committee shall be sent by mail to each
member thereof, addressed to him at his residence or usual place of business,
not later than the day before the day on which the meeting is to be held, or
shall be sent to each such member by telegraph, cable, telex, facsimile
transmitter or other similar means, or delivered to him personally or by
telephone, not less than three (3) hours before the time set for the meeting.
Every such notice shall state the time and place, but need not state the
purposes, of the meeting. Notice of any such meeting need not be given to any
member of a Committee, however, if waived by him in writing or by telegraph,
cable, telex, facsimile transmitter or other similar means, or if he shall
attend such meeting in person, and any meeting of a Committee shall be a legal
meeting without any notice thereof having been given if all of the members of
the Committee shall be present thereat.
SECTION 7. Quorum and Manner of Acting. Unless otherwise provided by
resolution of the Board of Directors one less than a majority of a Committee,
but not less than two, shall constitute a quorum for the transaction of business
and the act of a majority of those present at a meeting at which a quorum is
present shall be the act of such Committee. If at any time it shall be
determined that a quorum of a Committee for any regular or special meeting
thereof cannot be had, any member or members thereof shall have the right to
invite one or more members of the Board of Directors who are not members of such
Committee to attend any such meeting and to be counted as a member thereof for
the purpose of making a quorum. The members of each Committee shall act only as
a Committee and the individual members shall have no power as such.
SECTION 8. [RESERVED]
SECTION 9. Fees. Each member of a Committee shall be paid such fee, if
any, as shall be fixed by the Board of Directors, for each meeting of such
Committee which he shall attend, and in addition such transportation and other
expenses actually incurred by him in connection with his services as such
member.
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ARTICLE V.
OFFICERS, EMPLOYEES AND AGENTS: POWERS AND DUTIES.
SECTION 1. Officers. The elected officers of the Corporation shall be a
Chairman and a President (each of whom shall be a director), a Chief Executive
Officer, a Chief Operating Officer, such Executive Vice Presidents, such Senior
Vice Presidents and other Vice Presidents as the Board may elect, a Controller,
a Treasurer, and a Secretary. The Board of Directors or any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose
may also appoint one or more Assistant Controllers, one or more Assistant
Treasurers, one or more Assistant Secretaries, and such other officers and
agents as, from time to time, may appear to be necessary or advisable in the
conduct of the affairs of the Corporation. Any number of offices may be held by
the same person, except that any person serving as Chairman or President shall
not also serve as Secretary.
SECTION 2. Term of Office: Vacancies. So far as practicable, all
elected officers shall be elected at the organization meeting of the Board of
Directors in each year, and shall hold office until their respective successors
are chosen and qualified or until their earlier resignations or removals. All
other officers shall hold office during the pleasure of the Board. If any
vacancy occurs in any office, the Board of Directors, or, in the case of an
appointive office, any Committee constituted pursuant to Article IV of these
by-laws with power for the purpose, may elect or appoint a successor to fill
such vacancy for the remainder of the term.
SECTION 3. Removal of Elected Officers. Any elected officer may be
removed at any time, either for or without cause, by affirmative vote of a
majority of the whole Board of Directors, at any meeting called for the purpose.
SECTION 4. Chairman. The Chairman shall function under the general
supervision of the Board of Directors and shall perform such duties and exercise
such powers as from time to time may be assigned to him by the Board. During any
period in which there is a vacancy in the office of the President, the Chairman
shall, pending action by the Board, perform the duties and exercise the powers
of the President. The Chairman shall preside, when present, at all meetings of
the stockholders and of the Board of Directors and shall see to it that
appropriate agendas are developed for such meetings.
SECTION 5. President. The President shall perform such duties and
exercise such powers as from time to time may be assigned to him by the Board or
the Chairman. At the request of the Chairman or in case of the Chairman's
absence or inability to act, the President shall perform the duties of the
Chairman and, when so acting, shall have the powers of, and shall be subject to
the restrictions upon, the Chairman.
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SECTION 6. Chief Executive Officer. The Chief Executive Officer shall
be designated from time to time by a resolution adopted by the Board of
Directors and shall be either the Chairman or the President. He shall have,
subject to the direction and control of the Board, general and active
supervision over the business and affairs of the Corporation and over its
several officers. He shall perform all duties incident to his position and such
other duties as may from time to time be assigned to him by the Board. He shall
see that all orders of the Board shall be carried into effect. He may sign,
execute and deliver all deeds, mortgages, contracts, stock certificates and
other instruments in the name of the Corporation, except in cases where the
signing, execution or delivery thereof shall be expressly delegated by the Board
or by a duly authorized Committee of the Board or by these By-Laws to some other
officer or agent of the Corporation or where any of them shall be required by
law otherwise to be signed, executed or delivered. He may cause the seal of the
Corporation to be affixed to any documents the execution of which on behalf of
the Corporation shall have been duly authorized. He shall have authority to
cause the employment or appointment of such employees and agents of the
Corporation as the proper conduct of operations may require, to fix their
compensation, subject to the provisions of these By-Laws, to remove or suspend
any employee or agent under authority of an officer to him, to suspend for
cause, pending final action by the authority which shall have elected or
appointed him, any officer subordinate to him, and to have all the duties and
exercise all the powers usually pertaining to the office held by the Chief
Executive Officer of a Corporation, except as otherwise provided in these
By-Laws.
SECTION 7. Chief Operating Officer. A Chief Operating Officer may be
designated from time to time by a resolution adopted by the Board of Directors,
and shall be subject to the direction and control of the Board, and the Chief
Executive Officer. He shall directly report to and assist the Chief Executive
Officer in the general and active supervision over the business and affairs of
the Corporation and over its several officers, and shall perform all duties
incident to his position and such other duties as may from time to time be
assigned to him by the Board, or the Chief Executive Officer.
SECTION 8. Vice Presidents. Under the direction of the Chief Executive
Officer or the Chief Operating Officer, the Executive Vice Presidents, Senior
Vice Presidents, and Vice Presidents of the Corporation shall perform all such
duties and exercise all such powers as may be provided by these by-laws or as
may from time to time be determined by the Board of Directors, any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose,
the Chief Executive Officer, or the Chief Operating Officer.
SECTION 9. Controller. The Controller shall be the chief accounting
officer of the Corporation and shall see that the accounts of the Corporation
and its subsidiary corporations are maintained in accordance with generally
accepted accounting principles; and all decisions affecting the accounts shall
be subject to his approval or concurrence. He shall supervise the manner of
keeping all vouchers for payments by the Corporation and its subsidiary
corporations and all other documents relating to such payments, shall receive
and consolidate all operating and financial statements of the Corporation, its
various departments, divisions and subsidiary corporations; shall have
supervision of the books of account of the Corporation and its subsidiary
corporations, their arrangement and classification; shall supervise the
accounting practices of the Corporation and its subsidiary corporations and
shall have charge of all matters relating to taxation.
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SECTION 10. Assistant Controllers. At the request of the Controller or
in his absence or disability the Assistant Controller designated by him or
(failing such request or designation) the Assistant Controller or other officer
designated by the President shall perform all the duties of the Controller and,
when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the Controller.
SECTION 11. Treasurer. The Treasurer shall be the fiscal officer of the
Corporation. He shall have the care and custody of all moneys, funds and
securities of the Corporation, and shall cause the same to be deposited in such
bank or banks or depositories as from time to time may be designated, pursuant
to Section 4 and Section 5 of Article VI of these by-laws; shall advise upon all
terms of credit granted by the Corporation and its subsidiary corporations,
respectively; shall be responsible for the collection of their accounts, and
shall cause to be recorded, daily, a statement of all receipts and disbursements
of the Corporation and its subsidiary corporations, in order that proper entries
may be made in the books of account; and shall have power to give proper
receipts or discharges for all payments to the Corporation. He shall also have
power to sign any or all certificates of stock of the Corporation.
SECTION 12. Assistant Treasurers. At the request of the Treasurer or in
his absence or disability the Assistant Treasurer designated by him or (failing
such request or designation) the Assistant Treasurer or other officer designated
by the President shall perform all the duties of the Treasurer and, when so
acting, shall have the powers of, and be subject to all the restrictions upon,
the Treasurer.
SECTION 13. Secretary. The Secretary shall attend to the giving of
notice of all meetings of stockholders and of the Board of Directors and shall
record all the proceedings of the meetings thereof in books to be kept for that
purpose. He shall have charge of the corporate seal and have authority to attest
any and all instruments or writings to which the same may be affixed. He shall
be custodian of all books, documents, papers and records of the Corporation,
except those for which some other officer or agent is properly accountable. He
shall have authority to sign any or all certificates of stock of the
Corporation, and, in general, shall have all the duties and powers usually
appertaining to the office of secretary of a corporation.
SECTION 14. Assistant Secretaries. At the request of the Secretary or
in his absence or disability the Assistant Secretary designated by him or
(failing such request or designation) the Assistant Secretary or other officer
designated by the President shall perform all 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.
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<PAGE>
SECTION 15. Additional Duties and Powers. In addition to the foregoing
especially enumerated duties and powers, the several officers of the Corporation
shall perform such other duties and exercise such further powers as may be
provided in these by-laws or as may from time to time be determined by the Board
of Directors, or any Committee constituted pursuant to Article IV of these
by-laws with power for the purpose, or by any competent superior officer.
SECTION 16. Compensation. The compensation of all officers, except
assistant officers, of the Corporation shall be fixed, from time to time by the
Board of Directors, or any Committee constituted pursuant to Article IV of these
by-laws with power for the purpose.
SECTION 17. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors, the Chairman, the President, the Chief
Executive Officer, the Chief Operating Officer, or 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.
ARTICLE VI.
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Contracts, etc., How Executed. The Board of Directors, or
any Committee constituted pursuant to Article IV of these by-laws with power for
the purpose, except as in these by-laws otherwise provided, may authorize any
officer or officers, 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 such
Committee or by these by-laws, no officer, agent, or employee shall have any
power or authority to bind the Corporation by any contract or agreement or to
pledge its credit or to render it liable pecuniarily for any purpose or to any
amount.
SECTION 2. Loans. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board of Directors or by any Committee constituted pursuant to
Article IV of these by-laws with power for the purpose. When so authorized, the
Chairman, President, Chief Executive Officer, Chief Operating Officer, or a Vice
President or the Secretary or the Treasurer or the Assistant Treasurer of the
Corporation may effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation or
individual and for such loans and advances may make, execute and deliver
promissory notes or other evidences of indebtedness of the Corporation and, when
authorized as aforesaid, as security for the payment of any and all loans,
advances, indebtedness and liabilities of the Corporation, may mortgage, pledge,
hypothecate or transfer any real or personal property at any time held by the
Corporation and to that end execute instruments of mortgage or pledge or
otherwise transfer such property. Such authority may be general or confined to
specific instances.
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<PAGE>
SECTION 3. 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, of the Corporation as shall from time to time be determined by
resolution of the Board of Directors or by any Committee constituted pursuant to
Article IV of these by-laws with power for the purpose, or by any officer or
officers authorized pursuant to Section 4 or Section 5 of this Article to
designate depositaries or to open bank accounts.
SECTION 4. 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 depositories as the Board of Directors or any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose
may from time to time designate, or as may be designated by an officer or
officers of the Corporation to whom such power may be delegated by the Board of
Directors, or by such Committee, and for the purpose of such deposit, the
President, the Chief Executive Officer, the Chief Operating Officer, or a Vice
President, or the Treasurer, or an Assistant Treasurer, or the Secretary, or an
Assistant Secretary, 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 5. General and Special Bank Accounts. The Board of Directors or
any Committee constituted pursuant to Article IV of these by-laws with power for
the purpose, or any officer or officers of the Corporation to whom such powers
may be delegated by the Board of Directors, or by such Committee, may from time
to time authorize the opening and keeping with such banks, trust companies or
other depositaries as it, or they, 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, or they, may deem
expedient.
SECTION 6. 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, or of any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose,
the Chairman or President or Chief Executive Officer 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.
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<PAGE>
SECTION 7. Independent Public Accountants. The stockholders of the
Corporation shall, at each annual meeting, appoint independent public
accountants for the purpose of auditing and certifying the annual financial
statements of the Corporation for its current fiscal year as sent to
stockholders or otherwise published by the Corporation. If the stockholders
shall fail to appoint such independent public accountants or if the independent
public accountants so appointed by the stockholders shall decline to act or
resign, or for some other reason be unable to perform their duties, the Board of
Directors shall appoint other independent public accountants to perform the
duties herein provided.
ARTICLE VII.
SHARES AND THEIR TRANSFER.
SECTION 1. Shares. The shares of the Corporation shall be represented
by certificates or shall be uncertificated. Each registered holder of shares,
upon request to the Corporation, shall be provided with a certificate of stock,
representing the number of shares owned by such holder. Absent a specific
request for such a certificate by the registered owner or transferee thereof,
all shares shall be uncertificated upon the original issuance thereof by the
Corporation or upon the surrender of the certificate representing such shares to
the Corporation. Certificates for shares of the capital stock of the Corporation
shall be in such form as shall be approved by the Board of Directors or by any
Committee constituted pursuant to Article IV of these by-laws with power for the
purpose. They shall be numbered, shall certify the number of shares held by the
holder thereof and shall be signed by the Chairman, President, Chief Executive
Officer, Chief Operating Officer or a 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. Where any
such certificate is countersigned by a transfer agent, other than the
Corporation or its employee, or by a registrar, other than the Corporation or
its employee, any other signature and the seal of the Corporation on such
certificate may be a facsimile, engraved, stamped or printed. In any case any
such officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon any such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such officer, transfer
agent, or registrar were such officer, transfer agent or registrar at the date
of its issue.
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, properly endorsed, or upon receipt of proper
transfer instructions from the owner of uncertificated shares, or upon the
escheat of said shares under the laws of any state of the United States. 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, 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 as
it appears on the records of the Corporation.
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<PAGE>
SECTION 4. Lost, Stolen, Destroyed and Mutilated Certificates. To deal
with the eventuality of lost, stolen, destroyed and mutilated certificates of
stock the Board of Directors or any Committee constituted pursuant to Article IV
of these by-laws with power for the purpose may establish by appropriate
resolutions such rules and regulations as they deem expedient concerning the
issue to such holder uncertificated shares or, if requested by such holder, a
new certificate or certificates of stock, including, without limiting the
generality of the foregoing, such rules and regulations as they may deem
expedient with respect to the proof of loss, theft or destruction and the
surrender of mutilated certificates and the requirements as to the giving of a
bond or bonds to indemnify the Corporation against any claim which may be made
against it on account of the alleged loss, theft or destruction of any such
certificate. The holder of any stock of the Corporation shall immediately notify
the Corporation and/or the appropriate transfer agent of such stock of any loss,
theft, destruction or mutilation of the certificate therefor.
SECTION 5. Transfer Agent and Registrar: Regulations. The Corporation
shall, if and whenever the Board of Directors or any Committee constituted
pursuant to Article IV of these by-laws with power for the purpose shall so
determine, maintain one or more transfer offices or agencies, each in charge of
a transfer agent designated by the Board of Directors or by such Committee,
where the shares of the capital stock of the Corporation shall be directly
transferable, and also one or more registry offices, each in charge of a
registrar designated by the Board of Directors or by such Committee, 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 transfer
agent shall have been designated, shall be valid unless countersigned by such
transfer agent and registered by such registrar. A firm may act at the same time
as both transfer agent and registrar of the Corporation. The Board of Directors
or any such Committee may also make such additional rules and regulations as it
may deem expedient concerning the issue, transfer and registration of
uncertificated shares or certificates for shares of the capital stock of the
Corporation.
SECTION 6. Fixing Record Date. The Board of Directors or any Committee
constituted pursuant to Article IV of these by-laws with power for the purpose
may fix, in advance, a date, not exceeding sixty days preceding the date of any
meeting of stockholders, or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversation or
exchange of capital stock shall go into effect, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any change,
conversation or exchange of the capital stock, and in each such case only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to notice of, or to vote at, such meeting, or to receive payment of
such dividend, or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date as aforesaid.
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<PAGE>
SECTION 7. Examination of Books by Stockholders. The Board of Directors
or any Committee constituted pursuant to Article IV of these by-laws with power
for the purpose shall, subject to the laws of the State of Delaware, have power
to determine, from time to time, whether and to what extent and under what
conditions and regulations the accounts and books of the Corporation, or any of
them, shall be open to the inspection of the stockholders; and no stockholder
shall have any right to inspect any account, book or document of the
Corporation, except as conferred by the laws of the State of Delaware, unless
and until authorized so to do by resolution of the Board of Directors or any
Committee constituted pursuant to Article IV of these by-laws with power for the
purpose or of the stockholders of the Corporation.
ARTICLE VIII.
DIVIDENDS, SURPLUS, ETC.
Subject to the provisions of the Certificate of Incorporation and any
restrictions imposed by statute, the Board of Directors may declare dividends
from the surplus of the Corporation or from the net profits arising from its
business, whenever, and in such amounts as, in its opinion, the condition of the
affairs of the Corporation shall render advisable. If the date appointed for the
payment of any dividend shall in any year fall on a legal holiday then the
dividend payable on such date shall be payable on the next succeeding business
day. The Board of Directors in its discretion may from time to time set aside
from such surplus or net profits such sum or sums as it, in its absolute
discretion, may think proper as a working capital or as a reserve fund to meet
contingencies, or for the purpose of maintaining or increasing the property or
business of the Corporation, or for any other purpose it may think conducive to
the best interests of the Corporation. All such surplus or net profits, until
actually declared in dividends, or used and applied as aforesaid, shall be
deemed to have been so set aside by the Board for one or more of said purposes.
ARTICLE IX.
SEAL.
The corporate seal of the Corporation shall consist of a metallic stamp,
circular in form, bearing in its center the figures and word "1929, Delaware",
and at the outer edge the name of the Corporation.
ARTICLE X.
FISCAL YEAR.
The fiscal year of the Corporation shall begin on the first day of
January in each year.
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<PAGE>
ARTICLE XI.
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 or by the Board of Directors at
any regular or special meeting.
-35-
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