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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 19, 1997
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ENVIRODYNE INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-5485 95-2677354
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(State or other jurisdiction of (Commission (I.R.S.
incorporation or organization) File No.) Employer
Identification
No.)
701 Harger Road, Suite 190, Oak Brook, Illinois 60521
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (630) 571-8800
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Item 5. - Other Events
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On March 19, 1997, the Board of Directors of Envirodyne Industries,
Inc. ("Envirodyne") amended the Amended and Restated By-Laws of
Envirodyne Industries, Inc. (the "By-Laws") to provide that any
stockholder of record wishing to nominate a person for election as
director or to bring any other business before an annual meeting of
stockholders must provide to the Secretary of Envirodyne notice of
such nomination or other business to be brought, in the proper
written form specified in the By-Laws, not less than ninety (90)
days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of
stockholders, provided, however, that in the event that the annual
meeting of stockholders is called for a date that is not within
thirty (30) days before or after such anniversary date, notice by
the stockholder in order to be timely must be received not later
than the close of business on the tenth (10th) day following the
day on which such notice of the date of the annual meeting was
mailed or public disclosure of the date of the annual meeting was
made, whichever first occurs.
With respect to the 1997 Annual Stockholders' Meeting currently
scheduled to be held on May 16, 1997, however, the amended By-Laws
provide that the stockholder's notice to the Secretary of any
nomination or other business to be brought must be received at the
principal executive offices of Envirodyne on or before March 28,
1997.
Item 7. - Financial Statements and Exhibits
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(c) Exhibits
EX-3.2 Amended and Restated By-Laws of Envirodyne Industries,
Inc.
EX-99 Press release dated March 20, 1997.
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SIGNATURES
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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.
ENVIRODYNE INDUSTRIES, INC.
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Registrant
By: /S/
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Gordon S. Donovan
Vice President, Chief
Financial Officer and
Treasurer
March 20, 1997
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Exhibit No. Description of Exhibits Page
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EX-3.2 Amended and Restated By-Laws of Envirodyne
Industries, Inc., as amended through March 19,
1997.
EX-99 Press release dated March 20, 1997.
[DESCRIPTION] AMENDED RESTATED BY-LAWS OF ENVIRODYNE INDUSTRIES
AMENDED AND RESTATED
BY-LAWS
OF
ENVIRODYNE INDUSTRIES, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
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Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Dover, County of Kent, State of
Delaware.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
Section 1. Place of Meetings. Meetings of the stockholders
for the election of directors or for any other purpose shall be
held at such time and 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 Meetings of
Stockholders shall be held on such date and at such time as shall
be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Written notice of the Annual
Meeting stating the place, date and hour of the meeting shall be
given to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the
meeting.
Section 3. Notice of Stockholder Nominations of
Directors. Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of
the Corporation, except as may be otherwise provided in the Amended
and Restated Certificate of Incorporation of the Corporation.
Nominations of persons for election to the Board of Directors may
be made at any annual meeting of stockholders (a) by or at the
direction of the Board of Directors (or any duly authorized
committee thereof) or (b) by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving of the
notice provided for in this Section 3 and on the record date for
the determination of stockholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set forth
in this Section 3.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary
of the Corporation.
For such notice to be timely for the 1997 Annual
Stockholders' Meeting on May 16, 1997, a stockholder's notice to
the Secretary must be delivered to or mailed and received at the
principal executive offices of the Corporation on or before March
28, 1997. Thereafter, to be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than ninety
(90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or public
disclosure of the date of the annual meeting was made, whichever
first occurs. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the
giving of a stockholder's notice as described above.
To be in proper written form, a stockholder's notice to
the Secretary must set forth (a) as to each person whom the
stockholder proposes to nominate for election as a director (i) the
name, age, business address and residence address of the person,
(ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person
and (iv) any other information relating to the person that would be
required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of
such stockholder, (ii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements
or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of the directors pursuant to
Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to be named as a nominee
and to serve as a director if elected.
No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures
set forth in this Section 3. If the Chairman of the meeting
determines that a nomination was not made in accordance with the
foregoing procedures, the Chairman shall declare to the meeting
that the nomination was defective and such defective nomination
shall be disregarded.
Notwithstanding anything in the third paragraph of this
Section 3 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 disclosure by the
Corporation naming all of the nominees for director or specifying
the size of the increased Board of Directors at least one hundred
100 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 10th
day following the day on which such public disclosure is first made
by the Corporation.
Section 4. Notice of Stockholder Proposals of
Business. No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in
the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the
annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of record on
the date of the giving of the notice provided for in this Section
4 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 4.
In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation.
For such notice to be timely for the 1997 Annual
Stockholders' Meeting on May 16, 1997, a stockholder's notice to
the Secretary must be delivered to or mailed and received at the
principal executive offices of the Corporation on or before March
28, 1997. Thereafter, to be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than ninety
(90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or public
disclosure of the date of the annual meeting was made, whichever
first occurs. In no event shall the public disclosure of an
adjournment of an annual meeting commence a new time period for the
giving of a stockholder's notice as described above.
To be in proper written form, a stockholder's notice to
the Secretary must set forth as to each matter such stockholder
proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting,
(ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such
stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of
such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 4;
provided, however, that, once business has been properly brought
before the annual meeting in accordance with such procedures,
nothing in this Section 4 shall be deemed to preclude discussion by
any stockholder of any such business. If the Chairman of an annual
meeting determines that business was not properly brought before
the annual meeting in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be
transacted.
Section 5. Definition. For purposes of Sections 3
and 4 of these By-laws, "public disclosure" shall mean disclosure
in a press release reported by the Dow Jones News Service,
Associated Press, PR Newswire, Bloomberg 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.
Section 6. Special Meetings. Special Meetings of
Stockholders may be called as provided for in the Amended and
Restated Certificate of Incorporation. Written notice of a Special
Meeting stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called shall be given
not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such
meeting. Business transacted at all Special Meetings shall be
confined to the purposes stated in the call.
Section 7. Quorum. Except as otherwise provided by law or by
the Amended and Restated Certificate of Incorporation, the holders
of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such
quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 8. Voting. Unless otherwise required by law, the
Amended and Restated Certificate of Incorporation or these Amended
and Restated By-Laws, (i) any question brought before any meeting
of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat and
(ii) each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of the capital
stock entitled to vote thereat held by such stockholder. Such
votes may be cast in person or by proxy but no proxy shall be voted
on or after three years from its date, unless such proxy provides
for a longer period. The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 9. List of Stockholders Entitled to Vote. The
officer of the Corporation who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder.
Such list 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 (10) 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 of the Corporation who is present.
Section 10. Stock Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of
stockholders.
ARTICLE III
DIRECTORS
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Section 1. Number of Directors. In the absence of the Board
of Directors setting a different number, the number of directors
shall be seven (7). No decrease in the number of directors shall
shorten the term of any incumbent director.
Section 2. Duties and Powers. The business of the
Corporation shall be managed by or under the direction of the Board
of Directors which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by
the Amended and Restated Certificate of Incorporation or by these
Amended and Restated By-Laws directed or required to be exercised
or done by the stockholders.
Section 3. Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either
within or without the State of Delaware. Regular meetings of the
Board of Directors may be held without notice at such time and at
such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be
called by the President or by a majority of the Board of Directors.
Notice thereof stating the place, date and hour of the meeting
shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram on twenty-four (24)
hours' notice, or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the
circumstances.
Section 4. Quorum. Except as may be otherwise specifically
provided by law, the Amended and Restated Certificate of
Incorporation or these Amended and Restated By-Laws, at all
meetings of the Board of Directors, a majority of the entire Board
of Directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 5. Actions of Board. Unless otherwise provided by
the Amended and Restated Certificate of Incorporation or these
Amended and Restated By-Laws, any action required or permitted to
be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all the
members of the Board of Directors or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed
with the minutes or proceedings of the Board of Directors or
committee.
Section 6. Regulations; Manner of Acting. To the extent
consistent with applicable law, the Amended and Restated
Certificate of Incorporation and these Amended and Restated
By-Laws, the Board of Directors may adopt such rules and
regulations for the conduct of meetings of the Board of Directors
and for the management of the property, affairs and business of the
Corporation as the Board of Directors may deem appropriate. The
directors shall act only as a Board, and the individual directors
shall have no power as such.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Amended and Restated Certificate of
Incorporation or these Amended and Restated By-Laws, members of the
Board of Directors of the Corporation, or any committee designated
by the Board of Directors, 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, and
participation in a meeting pursuant to this Section 7 shall
constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors,
designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member
at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of
a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, 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 absent or disqualified member. Any
committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may exercise
all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation. Each
committee shall keep regular minutes and report to the Board of
Directors when required.
Section 9. Reliance on Accounts and Reports, etc. A
director, or a member of any Committee designated by the Board of
Directors shall, in the performance of his duties, be fully
protected in relying in good faith upon the records of the
Corporation and upon information, opinions, reports or statements
presented to the Corporation by any of the Corporation's officers
or employees, or Committees designated by the Board of Directors,
or by any other person as to the matters the member reasonably
believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on
behalf of the Corporation.
Section 10. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors and/or a stated salary as
director. No such payment shall 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 for attending committee meetings.
Section 11. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or
have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present
at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose if
(i) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship
or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by
vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee
thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract
or transaction.
ARTICLE IV
OFFICERS
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Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a
Secretary and a Treasurer. The Board of Directors, in its
discretion, may also choose one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number
of offices may be held by the same person, unless otherwise
prohibited by law, the Amended and Restated Certificate of
Incorporation or these Amended and Restated By-Laws.
Section 2. Election. The Board of Directors at its first
meeting held after each Annual Meeting of Stockholders shall elect
the officers of the Corporation, who shall hold their offices for
such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors;
and all officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their earlier
resignation or removal. Any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of
Directors. The salaries of all officers of the Corporation shall
be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation.
Powers of attorney, proxies, waivers of notice of meeting, consents
and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the
Corporation by the President or any Vice President and any such
officer may, in the name of and on behalf of the Corporation, take
all such action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any
such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and
possessed if present. The Board of Directors may, by resolution,
from time to time confer like powers upon any other person or
persons.
Section 4. President. The President shall preside at all
meetings of the stockholders and the Board of Directors at which he
is present. He shall be the Chief Executive Officer of the
Corporation and shall, subject to the control of the Board of
Directors, have general supervision of the business of the
Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. He shall execute all
bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation,
except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation
may sign and execute documents when so authorized by these Amended
and Restated By-Laws, the Board of Directors or the President. The
President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by
these Amended and Restated By-Laws or by the Board of Directors.
Section 5. Vice Presidents. At the request of the President
or in his absence or in the event of his inability or refusal to
act, the Vice President or the Vice Presidents if there is more
than one (in the order designated by the Board of Directors) shall
perform the duties of the President, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the
President. Each Vice President shall perform such other duties and
have such other powers as the Board of Directors from time to time
may prescribe. If there be no Vice President, the Board of
Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or
refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 6. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of stockholders
and record all the proceedings thereat in a book or books to be
kept for that purpose; the Secretary shall also perform like duties
for the standing committees when required. The Secretary shall
give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board
of Directors or President, under whose supervision he shall be. If
the Secretary shall be unable or shall refuse to cause to be given
notice of all meetings of the stockholders and special meetings of
the Board of Directors, and if there be no Assistant Secretary,
then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary
shall have custody of the seal of the Corporation and the Secretary
or any Assistant Secretary, if there be one, shall have authority
to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by
the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by his
signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required
by law to be kept or filed are properly kept or filed, as the case
may be.
Section 7. Treasurer. The Treasurer shall have the custody
of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of
Directors, at its regular meetings, or when the President or the
Board of Directors so requires, an account of all his transactions
as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and
other properly of whatever kind in his possession or under his
control belonging to the Corporation.
Section 8. Assistant Secretaries. Except as may be otherwise
provided in these Amended and Restated By-Laws, Assistant
Secretaries, if there be any, shall perform such duties and have
such powers as from time to time may be assigned to them by the
Board of Directors, the President, any Vice President, if there be
one, or the Secretary, and in the absence of the Secretary or in
the event of his disability or refusal to act, 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.
Section 9. Assistant Treasurers. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of
Directors, the President, any Vice President, if there be one, or
the Treasurer, and in the absence of the Treasurer or in the event
of his disability or refusal to act, 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. If required
by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his
control belonging to the Corporation.
Section 10. Other Officers. Such other officers as the Board
of Directors may choose shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of
Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers
and to prescribe their respective duties and powers.
ARTICLE V
STOCK
---------
Section 1. Form of Certificates. Every holder of stock in
the Corporation shall be entitled to have a certificate signed, in
the name of the Corporation (i) by the President or a Vice
President and (ii) by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned
by (i) a transfer agent other than the Corporation or its employee,
or (ii) a registrar other than the Corporation or its employee, any
other signature on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a 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 he were such officer, transfer agent or registrar
at the date of issue.
Section 3. Lost Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact
by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to
advertise the same in such manner as the Board of Directors shall
require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these Amended
and Restated By-Laws. Transfers of stock shall be made on the
books of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, which shall be
cancelled before a new certificate shall be issued.
Section 5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less
than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be
entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a
person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
ARTICLE VI
NOTICES
---------
Section 1. Notices. Whenever written notice is required by
law, the Amended and Restated Certificate of Incorporation or these
Amended and Restated By-Laws to be given to any director, member of
a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder,
at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United
States mail. Written notice may also be given personally or by
electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is
required by law, the Amended and Restated Certificate of
Incorporation or these Amended and Restated By-Laws to be given to
any director, member of a committee or stockholder, 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.
ARTICLE VII
GENERAL PROVISIONS
------------------
Section 1. Dividends. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Amended and
Restated Certificate of Incorporation, if any, may be declared by
the Board of Directors at any regular or special meeting, and may
be paid in cash, in property, or in shares of the capital stock.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums
as the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such
reserve.
Section 2. Disbursements. All checks or demands for money
and notes of the Corporation shall be signed by such officer or
officers or such other person or persons as the Board of Directors
may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Delaware". The seal
may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
---------------
Section 1. Power to Indemnify in Actions, Suits or
Proceedings other Than Those by or in the Right of the Corporation.
Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director or
officer of the Corporation, or is or was a director or officer of
the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject to
Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation; except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only
to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director or
officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or Section 2
of this Article VIII, as the case may be. Such determination shall
be made (i) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such action,
suit or proceeding, or (ii) if such a quorum is not obtainable, or,
even if obtainable, a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person shall
be deemed to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal action or proceeding,
to have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books of account
of the Corporation or another enterprise, or on information
supplied to him by the officers of the Corporation or another
enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information
or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the
Corporation or another enterprise. The term "another enterprise"
as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which such person is or was
serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this
Article VIII shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to have met
the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this
Article VIII, and notwithstanding the absence of any determination
thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification
to the extent otherwise permissible under Section 1 and Section 2
of this Article VIII. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because he has
met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a
contrary determination in the specific case under Section 3 of this
Article VIII nor the absence of any determination thereunder shall
be a defense to such application or create a presumption that the
director or officer seeking indemnification has not met any
applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII
shall be given to the Corporation promptly upon the filing of such
application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid
the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by
a director or officer in defending or investigating a threatened or
pending action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and
Advancement of Expenses. The indemnification and advancement of
expenses provided by or granted pursuant to this Article VIII shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction or otherwise, both
as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in
Section 1 and Section 2 of this Article VIII or designated under
Section 12 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be
deemed to preclude the indemnification of any person who is not
specified in Section 1 or Section 2 of this Article VIII but whom
the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware,
under Section 12 of this Article VIII or otherwise.
Section 8. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or
was a director or officer of the Corporation serving at the request
of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the Corporation would
have the power or the obligation to indemnify him against such
liability under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers,
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was a director or officer of such constituent corporation
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions
of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent
corporation if its separate existence had continued. For purposes
of this Article VIII, references to "fines" shall include any
excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person. Any repeal or modification of
this Article VIII by the stockholders of the Corporation shall not
adversely affect any rights to indemnification and advancement of
expenses existing pursuant to this Article VIII with respect to any
acts or omissions occurring prior to such repeal or modification.
Section 11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for
proceedings to enforce rights to indemnification (which shall be
governed by Section 5 of this Article VIII), the Corporation shall
not be obligated to indemnify any director or officer in connection
with a proceeding (or part thereof) initiated by such person unless
such proceeding (or part thereof) was authorized or consented to by
the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and
officers of the Corporation.
ARTICLE IX
AMENDMENTS
----------
These Amended and Restated By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted, as
provided by Section (7) of Article FIFTH of the Amended and
Restated Certificate of Incorporation of the Corporation.
Nasdaq SmallCap - EDYN For additional information contact:
S.M. Schuster or G.S. Donovan
(630) 575-2400
ENVIRODYNE INDUSTRIES, INC.
AMENDS BY-LAWS
OAK BROOK, ILLINOIS, March 20, 1997 - Envirodyne Industries, Inc.
(Nasdaq SmallCap: EDYN) today announced that on March 19, 1997, the
Board of Directors of Envirodyne Industries, Inc. ("Envirodyne")
amended the Amended and Restated By-Laws of Envirodyne Industries,
Inc. (the "By-Laws") to provide that any stockholder of record
wishing to nominate a person for election as director or to bring
any other business before an annual meeting of stockholders must
provide to the Secretary of Envirodyne notice of such nomination or
other business to be brought, in the proper written form specified
in the By-Laws, not less than ninety (90) days nor more than one
hundred twenty (120) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders, provided,
however, that in the event that the annual meeting of stockholders
is called for a date that is not within thirty (30) days before or
after such anniversary date, notice by the stockholder in order to
be timely must be received not later than the close of business on
the tenth (10th) day following the day on which such notice of the
date of the annual meeting was mailed or public disclosure of the
date of the annual meeting was made, whichever first occurs.
With respect to the 1997 Annual Stockholders' Meeting currently
scheduled to be held on May 16, 1997, however, the amended By-Laws
provide that the stockholder's notice to the Secretary of any
nomination or other business to be brought must be received at the
principal executive offices of Envirodyne on or before March 28,
1997.
Envirodyne operates through wholly owned subsidiaries that are
industry segment leaders in food packaging and foodservice
supplies. Principal subsidiaries are: Viskase Corporation; Clear
Shield National, Inc.; and Sandusky Plastics, Inc.
Principal products manufactured are:
- cellulosic casings used in the preparation and packaging of
processed meat products;
- heat shrinkable plastic bags and specialty plastic films for
packaging and preserving fresh and processed meat, poultry
and cheese products;
- disposable plastic cutlery, drinking straws and custom
dining kits;
- thermoformed plastic containers for cultured dairy products,
delicatessen, foodservice and other uses.
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