As filed with the Securities and Exchange Commission on May 28, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HARMON INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Missouri 44-0657800
(State of incorporation) (I.R.S. Employer Identification Number)
1300 Jefferson Court, Blue Springs, Missouri 64015
816/229-3345
(Address of principal executive offices)
Harmon Industries, Inc. 1998 Director Stock Plan
(Full title of plan)
BJORN E. OLSSON, President
1300 Jefferson Court, Blue Springs, Missouri 64015
(Name and address of agent for service)
816/229-3345
(Telephone number, including area code, of agent for service)
Copy to:
James O. Selzer, Esq.
Morrison & Hecker, L.L.P.
2600 Grand Avenue, Kansas City, Missouri 64108
816/691-2600
________________________
CALCULATION OF REGISTRATION FEE
====================================================================
Title of Amount to Proposed Proposed Amount of
Securities be Maximum Maximum Registration
to be Registered Registered Offering Aggregate Fee
(1) Price Per Offering
Share Price
====================================================================
Common Stock,
$.25 par value.... 30,000 $23.4375(2) $703,125 $207.00
====================================================================
(1) In the event of a stock split, stock dividend, or similar transaction
involving the common stock of the Company (the "Common Stock"), the number
of shares registered hereby shall automatically be increased to cover such
additional shares as may be issued, in accordance with Rule 416(a) under
the Securities Act of 1933, as amended (the "Securities Act").
(2) Computed pursuant to Rule 457(h) under the Securities Act.
(3) Pursuant to Rule 457(c) and (h) under the Securities Act, the offering
price is estimated, solely for the purpose of determining the registration
fee, using the average of the high and low sales prices for the Common
Stock on May 21, 1998, as reported by the Nasdaq National Market.
Page 1 of 34
<PAGE>
CROSS-REFERENCE SHEET SHOWING LOCATION OF THE INFORMATION REQUIRED BY PART I OF
THE FORM S-8.
Location or Caption in
Item Number and Caption in Form S-8 Registration Statement
PART I. INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
1. Plan Information *
2. Registrant Information and *
Employee Plan Annual Information
*Not applicable. This information will be sent or given to
participants pursuant to Rule 428(b)(1).
Page 2 of 34
<PAGE>
CROSS-REFERENCE SHEET SHOWING
LOCATION OF INFORMATION REQUIRED BY ITEMS OF PART I OF FORM S-3
Item Number and Caption Location in Prospectus
----------------------- ----------------------
1. Forepart of Registration Forepart and Outside Front
Statement and Outside Front Cover Page
Cover Page of Prospectus
2. Inside Front and Outside Inside Front Cover Page;
Back Cover Pages of Available Information;
Prospectus Incorporation of Documents by
Reference; Description of
Capital Stock
3. Summary Information; Risk Not Applicable
Factor; and Ratio of
Earnings to Fixed Charges
4. Use of Proceeds Not Applicable -- See Cover
Page of Prospectus
5. Determination of Offering Not Applicable
Price
6. Dilution Not Applicable
7. Selling Security Holders Selling Stockholders
8. Plan of Distribution Outside Front Cover Page
9. Description of Securities Not Applicable
to be Registered
10. Interests of Named Not Applicable
Experts and Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Incorporation of Documents by
Information by Reference Reference; Description of
Capital Stock
13. Disclosure of Commission Indemnification of Directors
and Position on Indemnifi- and Officers
cation for Securities Act
Liabilities
Page 3 of 34
<PAGE>
EXPLANATORY NOTE
The Reoffer Prospectus which is filed as a part of this Registration
Statement has been prepared in accordance with the requirements of Part I of
Form S-3 and may be used for reoffers or resales of the Common Stock of Harmon
Industries, Inc., a Missouri corporation (the "Company"), acquired by
"affiliates" (as such term is defined in Rule 405 of the General Rules and
Regulations under the Securities Act of 1933, as amended) pursuant to the
issuance of Common Stock under the Company's 1998 Director Stock Plan.
Page 4 of 34
<PAGE>
Reoffer Prospectus
30,000 Shares of Common Stock of Harmon Industries, Inc.
This Reoffer Prospectus relates to an aggregate of 30,000 shares of Common
Stock, $.25 par value (the "Common Stock") of Harmon Industries, Inc. (the
"Company") that may be offered from time to time by certain selling shareholders
(the "Selling Stockholders") who may be deemed "affiliates" of the Company (as
such term is defined in Rule 405 of the General Rules and Regulations under the
Securities Act of 1933, as amended) subsequent to the issuance of shares of
Common Stock that have been granted or that may in the future be granted
pursuant to the Company's 1998 Director Stock Plan (the "Plan"). The Company's
Common Stock trades on the Nasdaq National Market under the symbol "HRMN". The
1998 Director Stock Plan grants each director, who is not an "employee" of the
Company, an annual grant of 360 shares during his or her tenure on the Board of
Directors of the Company. Such grants are partial compensation for non-employee
directors. When acquired by the Selling Stockholders as a result of grants
pursuant to the Plan, shares of Common Stock may be sold, from time to time, in
ordinary brokers' transactions through the Nasdaq National Market at the price
prevailing at the time of such sales. The commission payable will be the regular
commission a broker receives for effecting such sales. Shares of Common Stock
may also be offered in block trades, private transaction or otherwise. The net
proceeds to the Selling Stockholders will be the proceeds received by them upon
such sales, less brokerage commissions incurred in connection therewith. The
Company will receive no proceeds from the sale of such shares of Common Stock.
Information regarding the Selling Stockholders is set forth below under the
heading "Selling Stockholders". All expenses of registration incurred in
connection with this offering are being borne by the Company, but the selling
and other expenses incurred by individual Selling Stockholders will be borne by
each such person.
No person is authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus in connection with the offer contained in this Prospectus, and, if
given or made, any such information or representation must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy securities in any state or
other jurisdiction where, or to any person to whom, it is unlawful to make such
an offer or solicitation. The delivery of this Prospectus or any sale made
hereunder shall not, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date hereof. On May
21, 1998, the last reported sale price of the Common Stock on the Nasdaq
National Market was $23.6875 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Reoffer Prospectus is May 28, 1998.
Page 5 of 34
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the Commission's office at
450 Fifth Street, N.W., Washington, DC 20549 and the Commission's Regional
Offices in New York (Seven World Trade Center, 13th Floor, New York, New York
10048) and Chicago (Northwest Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661). Copies of such material can be obtained from the
Public Records section of the Commission at 450 Fifth Street, N.W., Washington,
DC 20549, at prescribed rates. The Commission maintains an Internet Web site
that contains reports, information statements and other information regarding
the registrants that file electronically with the Commission. The address of
such Internet Web site is http://www.sec.gov.
The Company has filed a registration statement (the "Registration Statement")
on Form S-8 with respect to the Common Stock offered hereby with the Commission
under the Securities Act. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all the information set forth in the
Registration Statement, certain items of which are contained in schedules and
exhibits to the Registration Statement as permitted by the rules and regulations
of the Commission. Statements contained in this Prospectus as to the contents of
any agreement, instrument or other document referred to are not necessarily
complete. With respect to each such agreement, instrument or other document
filed as an exhibit to the Registration Statement, reference is made to the
exhibit for a more complete description of the matter involved, and each such
statement shall be deemed qualified in its entirety by such reference.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed previously with the Commission are specifically
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the Company's fiscal year
ended December 31, 1997; and
(2) All other reports filed with the Commission by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31, 1997 and prior to
the date of this Prospectus;
All documents filed by the Company pursuant to Sections 13, 14 or 15(d) of
the Exchange Act after the date of this Prospectus and before the termination of
the offering contemplated herein shall be incorporated by reference into this
Prospectus and be a part hereof on the date such documents are filed by the
Company with the Commission. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein, or in any document filed subsequent to the date of this
Prospectus which also is or is deemed to be incorporated by reference, modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
Any person receiving a copy of this Prospectus, including any prospective
beneficial owner of Common Stock, may obtain without charge and upon request a
copy of any and all of the documents incorporated herein by reference, except
for the exhibits to such documents. Written requests should be mailed to the
principal executive office of the Company, as follows: Harmon Industries, Inc.,
1300 Jefferson Court, Blue Springs, Missouri 64015, Attention: Mr. Charles M.
Foudree. Telephone requests may be directed to Mr. Foudree at (816) 229-3345,
which is the telephone number for the principal executive office of the Company.
Page 6 of 34
<PAGE>
THE COMPANY
Harmon Industries, Inc. and its wholly-owned subsidiaries (collectively the
"Company") are leading suppliers of signal and train control products to
railroads throughout North America and the world. The Company sells its products
to Class I and short line freight railroads and to rail transit customers. The
Company designs, manufactures, markets and services an extensive line of
products beneficial to the operating efficiency and safety of freight railroads
and rail transit systems. The Company's products include an extensive line of
railroad signal and train control systems and related components and services.
The Company emphasizes innovation and technology to develop timely and
sophisticated solutions to problems that confront its customers. The Company
also provides customized asset management services through a warehousing and
distribution business. The Company's strategy is to utilize its technological
expertise, ability to install turnkey systems, broad product line, extensive
sales network and customer service orientation to provide high quality products
and services to its customers. The Company plans to continue to expand and
improve its product lines to meet its customers' needs. Customer service is an
important focus of all aspects of the Company's business.
DESCRIPTION OF CAPITAL STOCK
The Company has authorized capital consisting of 50,000,000 shares of Common
Stock, $.25 par value. The shares offered by the Selling Stockholders hereby are
validly issued, fully paid and nonassessable, have no conversion or preemptive
rights and are not subject to redemption. In the event of liquidation, holders
of Common Stock are entitled to receive pro rata all net assets of the Company.
Holders of Common Stock are entitled to such dividends as the Board of Directors
of the Company, in its discretion, may declare out of funds available therefor.
Common Stock is the only class of securities authorized and issued by the
Company.
The Missouri Control Share Acquisition Act, as amended in 1987, imposes
limitations on the voting rights of "control shares" of an "issuing public
corporation" that are acquired in a "control share acquisition." A "control
share acquisition" is generally defined as an acquisition by any person of the
ownership of or the right to vote "control shares," which are defined as shares
owned by a person who, immediately after acquisition of such shares, surpasses
the 20%, 33-1/3% or 50% levels for ownership of or voting control over
outstanding shares of a company. The approval of certain stockholder groups are
required before voting rights are restored to control shares. Such approval must
be sought by the holder of the control shares. Because the Company is an issuing
public corporation, a person holding control shares of Common Stock would have
the right to require the Company to hold a special meeting of stockholders of
the Company to consider its request for restoration of voting rights, but only
if that person undertakes to pay the expenses of the Company incurred in calling
such a meeting. Under certain circumstances, redemption rights would be
available to stockholders of the Company who vote against the restoration of
voting rights to control shares. The acquisition of shares of Common Stock
pursuant to this offering would not result in a control share acquisition. The
Company has not adopted any amendment to its articles or bylaws that would
exempt the Company or any of its stockholders from this statute.
Holders of Common Stock are entitled to one vote for each share held of
record on each matter submitted to a vote of stockholders, including the
election of directors. Shareholders do not have the right to accumulate votes in
the election of directors. Directors are elected by a plurality.
SELLING STOCKHOLDERS
Shares of Common Stock offered pursuant to this Prospectus have been or will
be acquired by Selling Stockholders upon the exercise of stock options granted
by the Company pursuant to the Plan.
The following table sets forth: (i) the name of each Selling Stockholder and
his or her position with the Company during the past three years; (ii) the
number of shares of Common Stock (including all shares subject to unexercised
stock options) owned beneficially by him or her as of March 16, 1998; (iii) the
maximum number of shares of Common Stock that may be offered by him or her
pursuant to this Prospectus as of the date of this Prospectus; and (iv) the
number of shares of Common Stock that will be owned by him or her assuming sale
of the maximum number of shares of Common Stock offered for sale pursuant to
this Prospectus. Mr. Robert E. Harmon is the only Selling Shareholder who will
own more than 1% of the outstanding Common Stock after completion of the
offering contemplated hereby. The number of shares of Common Stock shown across
from Mr. Harmon's name in the fourth column of the following table is equal to
approximately 3.7% of the outstanding Common Stock.
Page 7 of 34
<PAGE>
Common Stock
(Including All
Shares Subject Common Stock Common
to Options) to be Stock to
Owned on Acquired be Owned
Name and Position(s) March 16, Pursuant to after
with Company 1998(1)(2) Plan Offering
------------ ---------- ---- --------
Bruce M. Flohr, Director 6,000 3,600 6,000
Rodney L. Gray, Director 12,000 3,600 12,000
Robert E. Harmon, Chairman 386,938 3,600 386,938
of the Board of Directors
Herbert M. Kohn, Director 40,650 3,600 40,650
Douglass Wm. List, Director 6,300 3,600 6,300
Gerald E. Myers, Director 46,376 3,600 46,376
John A. Sprague, Director 0 3,600 0
Judith C. Whittaker, Director 6,000 3,600 6,000
(1) The number of shares shown includes the Shares of Common Stock actually
owned as of March 16, 1998 and the shares of Common Stock that the identified
person had the right to acquire within 60 days of March 16, 1998 pursuant to the
exercise of stock options or conversion of securities.
(2) As of the date of this Prospectus, May 28, 1998, none of the Common Stock
subject to the Plan had been issued to any Director.
PLAN OF DISTRIBUTION
It is anticipated that the shares of Common Stock offered hereby will be
offered by the Selling Stockholders from time to time through the Nasdaq
National Market at the prices prevailing at the time of such sales. The
commissions payable will be the regular commissions of brokers for effecting
such sales. Shares of Common Stock may also be offered in block trades, private
transactions or otherwise. The Selling Stockholders will pay all brokerage
commissions incurred in connection with any such sale. There is no assurance
that any of the Selling Stockholders will sell any of the shares of Common Stock
granted them pursuant to the 1998 Director Stock Plan, or that the Selling
Stockholders will acquire the total number of shares of Common Stock that are
shown under the column "Common Stock to be Acquired Pursuant to Plan" above.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed upon
for the Company by Morrison & Hecker L.L.P., 2600 Grand Avenue, Kansas City,
Missouri 64108.
EXPERTS
The consolidated financial statements of the Company and subsidiaries as of
December 31, 1997 and 1996, and for each of the years in the three-year period
ended December 31, 1997 have been incorporated by reference herein in reliance
on the report of KPMG Peat Marwick LLP, independent certified public
accountants, and upon the authority of said firm as experts in accounting and
auditing.
Page 8 of 34
<PAGE>
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 351.355 of the Missouri Revised Statutes (1986) allows
indemnification of corporate directors and officers by a corporation under
certain circumstances against liabilities, expenses, counsel fees and costs
reasonably incurred in connection with or arising out of any action, suit,
proceeding or claim to which such person is made a party by reason of such
person being or having been such director or officer. Section 351.355 also
permits such persons to seek indemnification under any applicable bylaw,
agreement, vote of stockholders or disinterested directors or otherwise and
permits corporations to maintain insurance for officers and directors against
liabilities incurred while acting in such capacities, whether or not the
corporation would be empowered to indemnify such persons under this section.
Reference is made to the Restated Articles of Incorporation of the Company
and Article XI of the Bylaws of the Company, which provide broad indemnification
rights to the officers and directors.
The Company has entered into an Indemnity Agreement with each member of its
Board of Directors pursuant to which it indemnifies such persons against certain
liabilities.
The Company maintains a policy insuring its officers and directors against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission pursuant to
the Exchange Act are incorporated in this Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 1997; and
(2) All other reports filed with the Commission by the Company pursuant
to Section 13(a) or 15(d) of the Exchange Act since December 31, 1997
and prior to the date of this Prospectus;
(3) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, filed pursuant to Section 12 of
the Exchange Act on November 4, 1974 (File No. 0-7916), including any
amendment or report filed for the purpose of
updating such information.
All documents filed by the Company subsequent to the date of this
Registration Statement pursuant to Section 13, 14 or 15 (d) of the Exchange Act
prior to any filing by the Company of a post-effective amendment indicating that
all securities offered hereby have been sold or de-registering all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other document filed subsequently which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statements so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Page 9 of 34
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 351.355 of the Missouri Revised Statutes (1986) allows
indemnification of corporate directors and officers by a corporation under
certain circumstances against liabilities, expenses, counsel fees and costs
reasonably incurred in connection with or arising out of any action, suit,
proceeding or claim to which such person is made a party by reason of such
person being or having been such director or officer. Section 351.355 also
permits such persons to seek indemnification under any applicable bylaw,
agreement, vote of stockholders or disinterested directors or otherwise and
permits corporations to maintain insurance for officers and directors against
liabilities incurred while acting in such capacities, whether or not the
corporation would be empowered to indemnify such persons under this section.
Reference is made to the Restated Articles of Incorporation of the Company
and Article XI of the Bylaws of the Company, which provide broad indemnification
rights to the officers and directors.
The Company has entered into an Indemnity Agreement with each member of its
Board of Directors pursuant to which it indemnifies such persons against certain
liabilities.
The Company maintains a policy insuring its officers and directors against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
The following exhibits are filed herewith or are incorporated herein by
reference to the indicated documents filed by the Company (File No. 0-7916) with
the Commission.
Exhibit No.
4.1 Harmon Industries, Inc. 1998 Director Stock Plan.
4.2 The Restated Articles of Incorporation of the Company.
4.3 The Bylaws of the Company as of the date of this Prospectus.
4.4. Specimen Stock Certificate (incorporated by reference to Exhibit 3(ii)
of the Company's Registration Statement on Form S-2 filed with the
Commission on March 22, 1993).
5 Opinion of Morrison & Hecker L.L.P. regarding legality of shares.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Morrison & Hecker L.L.P. (included in Exhibit 5).
24.1 Power of Attorney for certain members of the Board of Directors of the
Company.
24.2 Power of Attorney for John A. Sprague.
Page 10 of 34
<PAGE>
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(i) To file, during any period in which offers or sells securities, a
post-effective amendment to this Registration Statement to:
(a) include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933:
(b) reflect in the prospectus any facts or events which,
individually or together, represents a fundamental change in the
information in the Registration Statement: and
(c) include any additional or changed information on the plan of
distribution;
provided, however, that clauses (a) and (b) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the
information required in a post-effective amendment is incorporated by
reference from periodic reports filed by the Registrant under the
Securities Exchange Act of 1934.
(ii) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(iii) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the security being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
Page 11 of 34
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Blue Springs, State of Missouri, on May 28, 1998.
HARMON INDUSTRIES, INC.
By: /s/ Bjorn E. Olson
------------------
Bjorn E. Olsson, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
/s/ Bjorn E. Olsson
- -------------------
Bjorn E. Olsson President, Chief Executive May 28, 1998
Officer, Director
/s/ Charles M. Foundree
- -----------------------
Charles M. Foudree Executive Vice President May 28, 1998
- Finance, Treasurer (Chief
Financial Officer), Director
/s/ Stephen L. Schmitz
- ----------------------
Stephen L. Schmitz Vice President-Controller May 28, 1998
(Chief Accounting Officer)
/s/ Robert E. Harmon
- --------------------
Robert E. Harmon Chairman of the Board May 28, 1998
and Director
/s/Bruce M.Flohr
- ----------------
*Bruce M. Flohr Director May 28, 1998
Page 12 of 34
<PAGE>
/s/ Rodney L. Gray
- ------------------
*Rodney L. Gray Director May 28, 1998
/s/ Herbert M. Kohn
- -------------------
*Herbert M. Kohn Director May 28, 1998
/s/ Douglass Wm. List
- ---------------------
*Douglass Wm. List Director May 28, 1998
/s/ Gerald E. Myers
- -------------------
*Gerald E. Myers Director May 28, 1998
/s/ John A. Sprague
- -------------------
*John A. Sprague Director May 28, 1998
/s/ Judith C. Whittaker
- -----------------------
*Judith C. Whittaker Director May 28, 1998
By: /s/ Robert E. Harmon As Attorney-in-Fact for May 28, 1998
-------------------- the Directors whose names
Robert E. Harmon are marked by an asterisk
Attorney-in-Fact
Page 13 of 34
HARMON INDUSTRIES, INC.
1998 DIRECTOR STOCK PLAN
1. Purpose. The purpose of the Harmon Industries, Inc. 1998 Director Stock
Plan (the "Plan") is to advance the interests of the Corporation by encouraging
and providing for the acquisition of an equity interest in the success of the
Corporation by providing a means whereby non-employee directors of Harmon
Industries, Inc. (the "Corporation"), will, after the establishment of the Plan,
receive as a part of their director compensation, shares of Corporation common
stock. The Board of Directors of the Corporation believes that the Plan will
enable the Corporation to attract and retain the services of highly qualified
directors upon whose judgment, interest, leadership and special efforts the
successful supervision of the Corporation's business is largely dependent.
2. Number of Shares. Shares under the Plan shall be granted annually to
each director other than any Advisory Director or any director who is then an
employee of the Company in an annual amount of 360 shares of the Corporation's
regular common stock. Such shares shall be issued at such times as the Board of
Directors shall provide in accordance with Section 3 of this Plan. The aggregate
number of shares of the regular common stock of the Corporation which maybe
issued pursuant to the Plan shall not exceed 30,000 shares, subject to
adjustment as described in Section 5. Such shares may, at the discretion of the
Board of Directors, consist either in whole or in part of shares of the
Corporation's authorized but unissued regular common stock or shares of the
Corporation's authorized and issued regular common stock reacquired by the
Corporation and held in its treasury.
3. Administration and Eligibility.
(a) This Plan shall be administered by the Board of Directors. The Board
of Directors shall establish rules for the proper administrative of the Plan.
The Board of Directors of the Corporation shall have the authority to establish
uniform rules for the timing of issuance of shares as it determines are
appropriate, so long as no more than 360 shares per year per director are
issued.
(b) Non-employee directors, elected by the shareholders, shall be eligible
to receive shares under the Plan. Employees who are also elected by the
shareholders as directors or advisory directors of the Corporation, shall not be
eligible to receive shares under the Plan.
4. Use of Proceeds. The consideration received by or charged to (with
respect to compensation) the Corporation for shares of its regular common stock
issued pursuant to the Plan shall be allocated to stated capital to the extent
of the aggregate par value of that stock. All amounts of such consideration
received by the Corporation in excess of the aggregate par value shall
constitute capital surplus.
5. Adjustments Upon Changes in Stock. If there shall be any change in the
stock of the Corporation subject to the Plan through merger, consolidation,
reorganization, stock split, stock dividend of 5% or more in any year, or other
change in the corporation structure, appropriate adjustment shall be made in (a)
the aggregate number of shares subject to the Plan, (b) the number of shares
which may be granted under it to any director. Any stock dividend or stock
amounting to less than 5% in any one year shall not require adjustment in the
number of shares of the stock under this Plan.
6. Commencement and Suspension or Termination of Plan. The Plan shall
become effective upon election of directors at the annual shareholders meeting
of the Corporation on May 12, 1998. The Board of Directors may at any time
suspend or terminate the Plan. No shares under this Plan may be issued during
such suspension or after such termination of this Plan. If not sooner terminated
by the Board of Directors, this Plan shall terminate and expire immediately
prior to the Annual Shareholders meeting in May 2008, but in no event later than
May 31, 2008.
Page 14 of 34
<PAGE>
7. Amendment of Plan. The Board of Directors may at any time amend the
Plan in such respects as the Board of Directors may deem advisable, or in order
to conform to any change in the law, or in any other respect which the Board of
Directors may deem to be in the best interest of the Corporation, but only to
the extent permitted (i) by the rules of the exchange, on which the
Corporation's stock is traded, and (ii) by applicable law.
Adopted: December 11, 1997
(Adjusted for 3 for 2 stock split on February 27, 1998)
Page 15 of 34
RESTATED ARTICLES OF INCORPORATION
OF
HARMON INDUSTRIES, INC.
The undersigned, for the purpose of adopting Restated Articles of
Incorporation under The General Business and Corporation Law of Missouri,
Chapter 351 RSMO, hereby adopt the following Restated Articles of Incorporation
as the Articles of Incorporation of Harmon Industries, Inc., a Missouri
corporation (the "Corporation"), and hereby certify that said Restated Articles
of Incorporation correctly set forth without change the corresponding provisions
of the Articles of Incorporation as heretofore amended, and that the Restated
Articles of Incorporation supersede the original Articles of Incorporation and
all amendments thereto.
Article I
The name of this Corporation is Harmon Industries, Inc.
Article II
The address of the Corporation's registered office in the State of
Missouri is 2600 Grand Avenue, Kansas City, Missouri 64108, and the name of its
registered agent at that address is
James O. Selzer.
Article III
The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is fifty million (50,000,000) shares,
all of which will be common stock having a par value of Twenty-Five Cents ($.25)
per share.
No holder of common stock of the Corporation shall be entitled as of right
to subscribe for, purchase, or receive any part of any new or additional issue
of stock of any class, whether now or hereafter authorized or of any bonds,
debentures, or other securities convertible into stock of any class, and all
such additional shares of stock, bonds, debentures, or other securities
convertible into stock may be issued and disposed of by the Board of Directors
to such person or persons and on such terms and for such consideration (so far
as may be permitted by law) as the Board of Directors in its absolute
discretion, may deem advisable.
Page 16 of 34
<PAGE>
Article IV
The number of shares of common stock to be issued before the Corporation
shall commence business is Five (5), and the consideration to be paid therefor
and the capital with which the Corporation shall commence business is Five
Hundred ($500.00) Dollars, all of said Five (5) shares having first been duly
subscribed by the incorporators and paid up in cash at the rate of One Hundred
($100.00) Dollars per share, which said sum is in the hands of the subscribers
and incorporators.
Article V
The names and places of residence of the initial shareholders and the
number of shares of stock subscribed by each are as follows:
Name Residence No. of Shares
---- --------- -------------
Robert C. Harmon Route #1, Grain Valley, MO 3
Robert E. Harmon Route #1, Grain Valley, MO 1
Mildred I. Harmon Route #1, Grain Valley, MO 1
Article VI
The number of Directors to constitute the current Board of Directors of
the Corporation is ten. Hereafter, the number of Directors of the Corporation
shall be fixed by, or in the manner provided in, its Bylaws; provided, that the
Board of Directors shall be no less than seven nor more than twelve. Any changes
in the number of Directors shall be reported to the Secretary of State of the
State of Missouri within 30 calendar days of such change.
Article VII
The duration and number of years the Corporation is to continue shall be
perpetual.
Article VIII
The Corporation is formed for the following purposes: 1. To design,
manufacture, repair, buy, sell, job, distribute and otherwise acquire or
dispose of, and to deal in any and all kinds of electronic, electrical or
atomic equipment, supplies, parts, appliances, apparatus, or merchandise
incident thereto.
2. To engage in any lawful act or activity for which corporations may be
organized under The General and Business Corporation Law of Missouri.
Page 17 of 34
<PAGE>
Article IX
The Board of Directors may repeal or amend the Bylaws of this Corporation
and may adopt new or additional Bylaws.
The foregoing Restated Articles of Incorporation were adopted by the Board
of Directors of the Corporation on May 12, 1998.
IN WITNESS WHEREOF, the undersigned Charles M. Foudree, Executive Vice
President-Finance of the Corporation, has executed this instrument and James O.
Selzer, Assistant Secretary of the Corporation, has affixed its corporate seal
hereto and attested said seal on the 19th day of May, 1998.
HARMON INDUSTRIES, INC.
By: /s/ Charles M. Fondree
----------------------
Charles M. Foudree
Executive Vice President -
Finance
By: /s/ James O. Selzer
-------------------
James O. Selzer
Assistant Secretary
Page 18 of 34
<PAGE>
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
I, Patricia J. Beebe, a notary public, do hereby certify that on this 19th
day of May, 1998, personally appeared before me CHARLES M. FOUDREE, who, being
by me first duly sworn, declared that he is the Executive Vice President-Finance
of Harmon Industries, Inc., that he signed the foregoing document as Executive
Vice President-Finance of the Corporation, and that the statements therein
contained are true.
/s/ Patricia J. Beebe
---------------------
Notary Public
(Notarial Seal)
My Commission Expires:
9/30/01
Page 19 of 34
BYLAWS
OF
HARMON INDUSTRIES, INC.
* * * * *
ARTICLE I
Offices
The principal office of the Corporation in the State of Missouri shall be
located in Jackson County, Missouri. The Corporation may have such other
offices, either within or without the State of Missouri, as the businesses of
the Corporation may require from time to time.
The registered office of the Corporation required by The General and
Business Corporation Act of Missouri to be maintained in the State of Missouri
may be, but need not be, identical with the principal office in the State of
Missouri, and the address of the registered office may be changed from time to
time by the Board of Directors.
ARTICLE II
Shareholders
Section 1. Annual Meeting: The Annual Meeting of the Shareholders shall be
held at any hour during normal business hours as determined by the President on
the second Tuesday in May of each year, beginning with the year 1990, for the
purpose of electing Directors and for the transaction of such other business as
may come before the meeting. If the day fixed for the Annual Meeting shall be a
legal holiday, such meeting shall be held on the next succeeding business day.
If the election of Directors shall not be held of the date designated herein for
any annual meeting, or at any adjournment thereof, the Board of Directors shall
cause the election to be held at a special meeting of the Shareholders as soon
thereafter as conveniently may be.
Section 2. Special Meetings: Special meetings of the Shareholders may be
called by the President, by the Board of Directors or by the holders of not less
than one-fifth of all the outstanding shares of the Corporation.
Section 3. Places of Meeting: The Board of Directors may designate any
place, either within or without the State of Missouri, as the place of meeting
for any annual meeting of the Shareholders or for any special meeting of the
Shareholders called by the Board of Directors. The Shareholders may designate
any place, either within or without the State of Missouri, as the place for the
holding of such meeting, and may include the same in a waiver of notice of any
meeting. If no designation is made, or if a special meeting be otherwise called,
the place of meeting shall be the registered office of the Corporation in the
State of Missouri, except as otherwise provided in Section 5 of this Article.
Section 4. Notice of Meetings: Written or printed notice stating the
place, day and hour of the meeting and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than fifty days before the date of the meeting, either
personally or by mail, by or at the direction of the President, or the
Secretary, or the office or persons calling the meeting, to each Shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail in a sealed envelope
addressed to the Shareholder at his address as it appears on the records of the
Corporation, with postage thereon prepaid.
Page 20 of 34
<PAGE>
Section 5. Meeting of All Shareholders: If all of the Shareholders shall
meet at any time and place, either within or without the State of Missouri, and
consent to the holding of a meeting, such meeting shall be valid, without call
or notice, and at such meeting any corporate action may be taken.
Section 6. Business which may be Transacted at Annual and Special
Meetings: At each annual meeting of the Shareholders, the Shareholders shall
elect, by ballot, a Board of Directors to hold office until the next succeeding
annual meeting and they may transact such other business as may be desired,
whether or not the same are specified in the notice of the meeting, unless the
consideration of such other business without its having been specified in the
notice of the meeting as one of the purposes thereof, is prohibited by law.
Business transacted at all special meetings shall be confined to the
purposes stated in the notice of such meetings, unless the transaction of other
business is consented to by the holders of all of the outstanding shares of
stock of the Corporation entitled to vote thereat.
Section 7. Closing of Transfer Books or Fixing of Record Date: The Board
of Directors of the Corporation may close its stock transfer books for a period
not exceeding fifty days preceding the date of any meeting of Shareholders, or
the date for the payment of any dividend or for the allotment of rights, or the
date when any exchange or reclassification of shares shall be effective; or, in
lieu thereof, may fix in advance a date, not exceeding seventy days preceding
the date of any meeting of Shareholder, or to the date for the payment of any
dividends or for the allotment of rights, or to the date when any exchange or
reclassification of shares shall be effective, as the record date for
determination of Shareholders entitled to notice of, or to vote at, such
meeting, or Shareholders entitled to receive payment of any such dividend or to
receive any such allotment of rights, or to exercise rights in respect to any
exchange or reclassification of shares; and the Shareholders of record on such
date of closing the transfer books, or on the record date so fixed, shall be the
Shareholders entitled to notice of and to vote at, such meeting, or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights in the event of an exchange or reclassification of shares, as the
case may be. If the Board of Directors shall not have closed the transfer books
or set a record date for the determination of its stockholders entitled to vote
as hereinabove provided, no person shall be admitted to vote directly or by
proxy except those in whose names the shares of the Corporation shall have stood
on the transfer books on a date fifty days previous to the date of the meeting.
Section 8. Voting Lists: At least ten days before each meeting of
Shareholders, the officer or agent having charge of the transfer book for shares
of the Corporation shall make a complete list of the Shareholders entitled to
vote at such meeting, arranged in alphabetical order with the address of, and
the number of shares held by, each Shareholder which list, for a period of ten
days prior to such meeting, shall be kept on file at the registered office of
the Corporation and shall be subject to inspection by any Shareholder at any
time during usual business hours. Such list shall also be produced and kept open
at the time and place of the meeting and shall be subject to inspection of any
Shareholder during the whole time of the meeting. The original share ledger or
transfer book, or a duplicate thereof kept in this state, shall be prima facie
evidence as to who are the Shareholders entitled to examine such list or share
ledger or transfer book or to vote at any meeting of Shareholders.
Section 9. Quorum: A majority of the outstanding shares of the
Corporation, represented in person or by proxy, shall constitute a quorum at any
meeting of the Shareholders; provided, that if less than a majority of the
outstanding shares are represented at said meeting, a majority of the shares so
represented may adjourn the meeting, from time to time, without further notice,
to a date not longer than ninety days from the date originally set for such
meeting.
Section 10. Proxies: At all meetings of Shareholders, a Shareholder may
vote by proxy executed in writing by the Shareholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the Secretary of the
Page 21 of 34
<PAGE>
Corporation before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in the
proxy.
Section 11. Voting of Shares: Subject to the provisions of Section 13,
each outstanding share of capital stock having voting rights shall be entitled
to one vote upon each matter submitted to a vote at a meeting of Shareholders.
Section 12. Voting of Shares by Certain Holders: Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the bylaws of such corporation may prescribe, or, in the
absence of such provision, as the Board of Directors of such corporation may
determine.
Shares standing in the name of a deceased person may be voted by his
administrator or executor, either in person or by proxy. Shares standing in the
name of a guardian, conservator, or trustee may be voted by such fiduciary,
either in person or by proxy, but no guardian, conservator, or trustee shall be
entitled, as such fiduciary, to vote shares held by him without a transfer of
such shares into his name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority so to do be
contained in an appropriate order of the court by which such receiver was
appointed.
A Shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Section 13. Vacancies and Newly Created Directorships; Nominations of
Directors; Election.
(a) Newly created directorships resulting from any increase in the number
of Directors and any vacancies on the Board resulting from death, resignation,
disqualification, removal, or other cause will be filled solely by the
affirmative vote of a majority of the remaining Directors then in office, even
though less than a quorum of the Board, or by a sole remaining Director. Any
Director elected in accordance with the preceding sentence will hold office for
the remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and which the new directorship
was created or the vacancy occurred and until such Director's successor is
elected and qualified. No decrease in the number of Directors constituting the
Board will shorten the term of an incumbent Director.
(b) Other than persons nominated and elected pursuant to Paragraph (a),
only persons who are nominated in accordance with the following procedures will
be eligible for election as Directors of the Corporation.
(c) Nominations of persons for election as Directors of the Corporation
may be made at a meeting of stockholders (i) by or at the direction of the Board
(including the Director Nomination and Compensation Committee thereof) or (ii)
by any stockholder who is a stockholder of record at the time of giving of
notice provided for in this Bylaw 13 who is entitled to vote for the election of
such Director at the meeting and who complies with the procedures set forth in
this Bylaw 13. All nominations by stockholders must be made pursuant to timely
notice in proper written form to the Secretary.
(d) To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
90 calendar days prior to the meeting. To be in proper written form, such
stockholder's notice must set forth or include (i) the name and address, as they
appear on the Corporation's books, of the stockholder giving the notice and of
the beneficial owner, if any, on whose behalf the nomination is made; (ii) a
representation that the stockholder giving the notice is a stockholder of record
of the Corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting for such Director to nominate the person or
persons specified in the notice; (iii) the number of shares of stock of the
Corporation owned beneficially and of record by the stockholder giving the
notice and by the beneficial owner, if any, on whose behalf the nomination is
made; (iv) a
Page 22 of 34
<PAGE>
description of all arrangements or understandings between or among any of (A)
the stockholder giving the notice, (B) the beneficial owner, if any, on whose
behalf the notice is given, (C) each nominee, and (D) any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder giving the notice; (v) such other
information regarding each nominee proposed by the stockholder giving the notice
as would be required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had the nominee been
nominated, or intended to be nominated, by the Board; and (vi) the signed
consent of each nominee to serve as a Director of the Corporation if so elected.
At the request of the Board, any person nominated by the Board for election as a
Director must furnish to the Secretary that information required to be set forth
in a stockholder's notice of nomination which pertains to the nominee. The
presiding officer of the meeting for election of Directors will, if the facts
warrant, determine that a nomination was not made in accordance with the
procedures prescribed by this Bylaw 13, and if so determined, so declare to the
meeting and the defective nomination will be disregarded.
(e) Stockholders shall not have a right to cumulate their votes for
Directors. Directors shall be elected by a plurality of the votes cast by the
shares entitled to vote in the election at a meeting at which a quorum is
present.
Section 14. Informal Action by Shareholders: Any action required to be
taken at a meeting of the Shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the Shareholders entitled to vote with respect to the subject matter thereof.
Section 15. Removal of Directors: The Shareholders shall have the power by
a two-thirds vote of the holders of shares at any regular meeting or special
meeting expressly called for that purpose, to remove any director from office
with or without cause.
ARTICLE III
Directors
Section 1. Powers of the Board of Directors: The property and business of
the Corporation shall be managed by the directors, acting as a Board. The Board
of Directors shall have and is vested with all and unlimited powers and
authorities, except as may be expressly limited by law, the Articles of
Incorporation or by these Bylaws, to do or cause to be done any and all lawful
things for and in behalf of the Corporation, to exercise or cause to be
exercised any or all of its powers, privileges and franchises, and to seek the
effectuation of its objects and purposes.
Section 2. Number, Tenure and Qualifications: The provisions of Article VI
of the Corporation's Articles of Incorporation provide for an indefinite number
of directors, not less than seven (7) nor more than twelve (12), and require the
exact number of directors to be set forth in the Bylaws. It is specified that
the Corporation shall have ten (10) directors. Such number may be increased or
decreased from time to time within the above-mentioned limits by amendment of
these Bylaws. Each director shall hold office for the term for which he is
elected or until his successor shall have been duly elected and qualified.
Section 3. Regular Meetings: A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw, immediately after, and at
the same place as the annual meeting of Shareholders. The Board of Directors may
provide, by resolution, the time and place, either within or without the State
of Missouri, for the holding of additional regular meetings with notice of such
resolution to all directors.
Section 4. Special Meetings: Special meetings of the Board of Directors
may be called by or at the request of the President or any two directors. The
person or persons authorized to call special meetings of the Board of Directors
may fix any place in the United States, either within or without the State of
Missouri, as the place for holding any special meeting of the Board of Directors
called by them.
Page 23 of 34
<PAGE>
Section 5. Notice: Notice of any special meeting shall be given at least
five days previous thereto by written notice delivered personally or mailed to
each director at his business address, or by telegram provided, however, that if
the designated meeting place is without the State of Missouri, an additional
five days notice be given. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail in a sealed envelope so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any director may waive notice of any meeting. The attendance
of a director at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose of
objecting that the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. Quorum: A majority of the Board of Directors shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors,
provided that if less than a majority of the directors are present at said
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice.
Section 7. Manner of Acting: The act of the majority of the directors
present at a meeting of the directors at which a quorum is present shall be the
act of the Board of Directors.
Section 8. Vacancies: In case of the death or resignation or
disqualification of one or more of the directors, a majority of the survivors or
remaining directors may fill such vacancy or vacancies until the successor or
successors are elected at the next annual meeting of the Shareholders. A
director elected to fill a vacancy shall serve as such until the next annual
meeting of the Shareholders.
Section 9. Compensation: Directors shall be entitled to receive the annual
fee as shall be determined from time to time by resolution of the Board of
Directors; provided that any such fee shall be applicable only to subsequent
terms of the Board of Directors. In addition, the Board of Directors by
resolution may establish a fixed sum to be paid for attendance at each regular
or special meeting of the Board of Directors; provided that any such fee shall
be applicable only to subsequent terms of the reasonable out of pocket expenses
incurred by the directors in attendance at any special or regular meeting of the
Board of Directors. Notwithstanding the foregoing, nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 10. Appointment of 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 in said resolution or resolutions,
in the management of the business and affairs of the Corporation, and may have
power to authorize the seal of the Corporation to be affixed to all papers which
may require it. Such committee or committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board of
Directors.
Section 11. Advisory Director: The Board of Directors of the Corporation
may, in its sole discretion, select one Advisory Director per year from the
group consisting of (i) the Presidents of the Corporation's subsidiaries or (ii)
the executive officers of the Corporation; provided, that the outstanding common
stock of such subsidiaries must be at least eighty percent (80%) owned by the
Corporation. Said Advisory Director shall be selected at the Annual Board of
Directors' Meeting of the Corporation and shall serve for a one year period
only, terminating upon the earlier of the selection of a successor Advisory
Director or the expiration of one year from the date of acceptance of the
Advisory Director position. The Advisory Director shall not be entitled to vote
on any matters on which the Board of Directors may vote. The Advisory Director
shall not be counted for purposes of determining a majority of the Board or a
quorum present at any meeting. The Advisory Director shall be permitted to
participate in discussion of matters coming before the Board but shall not be
authorized or empowered to present or second motions coming for consideration to
the Board
Page 24 of 34
<PAGE>
of Director or otherwise present resolutions for adoption by the Board of
Directors. Compensation for the Advisory Director shall be as determined by the
Board of Directors.
Section 12. Qualification for Directors: In order to be nominated to serve
as a director of the Corporation, a nominee must not yet have attained his/her
seventieth birthday. Directors who shall have attained his/her seventieth
birthday may not be renominated to serve another term. However, any director who
reaches his/her seventieth birthday during his/her term as a director shall not
be prohibited from completing such term by application of this Section;
provided, however, that this Section 12 shall not be applicable to any Board
member serving as of March 15, 1988.
ARTICLE IV
Officers
Section 1. Number: The officers of the Corporation shall be a Chairman of
the Board, a President, one or more Vice-Presidents (the number thereof to be
determined by the Board of Directors), a Treasurer, a Secretary and such other
officers as the Board may elect. The Chairman of the Board, President and the
Vice-President or if there is more than one Vice-President, then at least one
Vice-President shall be chosen from the Members of the Board of Directors. The
remaining officers of the Corporation need not be chosen from the Members of the
Board, but they may be so chosen. The Board of Directors, by resolution, may
create the offices of one or more Assistant Treasurers and Assistant
Secretaries, all of whom shall be elected by the Board of Directors.
The Board of Directors from time to time may also appoint such other
officers and agents for the Corporation as it shall deem necessary or advisable.
All appointed officers and agents shall hold their respective positions at the
pleasure of the Board of Directors or for such terms as the Board of Directors
may specify, and they shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors or by an elected
officer empowered by the Board of Directors to make such determination.
All officers and agents of the Corporation, as between themselves and the
Corporation, shall have such authority and perform such duties in the management
of the property and affairs of the Corporation as may be provided in the Bylaws,
or, in the absence of such provisions, as may be determined by resolution of the
Board of Directors.
Section 2. Delegation of Authority to Hire, Discharge, Etc. The Board of
Directors from time to time may delegate to the Chairman of the Board, the
President or other officer or executive employee of the Corporation, authority
to hire, discharge and fix and modify the duties, salary or other compensation
of employees of the Corporation under their jurisdiction, and the Board of
Directors may delegate to such officer or executive employee similar authority
with respect to obtaining and retaining for the Corporation the services of
attorneys, accountants and other experts.
Section 3. Election and Term of Office: The officers of the Corporation
shall be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after each annual meeting of Shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the Board of Directors. Each
officer shall hold office until his successor shall have been duly elected and
shall have qualified or until his death or until he shall resign or shall have
been removed in the manner hereinafter provided.
Section 4. Removal: Any officer or agent elected or appointed by the Board
of Directors may be removed by the Board of Directors whenever in its judgment
the best interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 5. Vacancies: A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Page 25 of 34
<PAGE>
Section 6. Chairman of the Board: The Chairman of the Board shall preside
at all meetings of the Shareholders and Board of Directors at which he is
present. He shall, subject to the direction of the Board of Directors, have
general oversight over the affairs of the Corporation and shall, from time to
time, consult and advise with the President in the direction and management of
the Corporation's business and affairs. He shall also do and perform such other
duties as may, from time to time, be assigned to him by the Board of Directors.
Section 7. President: The President shall be the principal executive
officer of the Corporation and shall in general supervise and control all of the
business and affairs of the Corporation. In the absence of the Chairman of the
Board, he shall preside at all meetings of the Shareholders and Board of
Directors. He shall be an ex officio member of all standing committees. He may
sign with Secretary or Treasurer or any other proper officer thereunto
authorized by the Board of Directors, certificates for shares of the
Corporation, any deeds, mortgages, bonds, contracts, or other instruments which
the Board of Directors or any authorized committee have authorized to be
executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
signed or executed; and in general shall perform such other duties as may be
prescribed by the Board of Directors from time to time.
Section 8. The Vice-Presidents: In the absence of the President or in the
event of his inability or refusal to act, the Vice-President (or in the event
there be more than one Vice-President, the Vice-Presidents in the order of their
election) 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. Any Vice-President may sign, with the Secretary or an Assistant
Secretary, or with the Treasurer or an Assistant Treasurer, certificates for
shares of the Corporation and shall perform such other duties as from time to
time may be assigned to him by the President or by the Board of Directors.
Section 9. The Treasurer: If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with surety or sureties as the Board of Directors shall determine. He shall:
(a) have charge and custody of and be responsible for all funds and securities
of the Corporation; receive and give receipts for moneys due and payable to the
Corporation from any source whatsoever, and deposit all such moneys in the name
of the Corporation in such banks, trust companies or other depositaries as shall
be selected in accordance with the provisions of Article V of these Bylaws; (b)
in general perform all the duties as from time to time may be assigned to him by
the President or by the Board of Directors.
Section 10. The Secretary: The Secretary shall: (a) keep the minutes of
the Shareholders' and of the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law; (c) be custodian of
the corporate records and of the seal of the Corporation and see that the seal
of the Corporation is affixed to all certificates for shares prior to the issue
thereof and to all documents, the execution of which on behalf of the
Corporation under its seal is duly authorized in accordance with the provisions
of these Bylaws; (d) keep a register of the post office address of each
Shareholder which shall be furnished to the Secretary by such Shareholder; (e)
sign with the President, or a Vice-President, certificates for shares of the
corporation, the issue of which shall have been authorized by resolution of the
Board of Directors; (f) have general charge of the stock transfer books of the
Corporation; (g) in general perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the President or by the Board of Directors.
Section 11. Assistant Treasurers and Assistant Secretaries: The Assistant
Treasurers shall respectively, if required by the Board of Directors, give bonds
for the faithful discharge of their duties in such sums and with such sureties
as the Board of Directors shall determine. Assistant Secretaries and Treasurers,
as thereunto authorized by the Board of Directors, may sign with the President
or a Vice-President certificates for shares of the Corporation, the issue of
which shall have been authorized by a resolution of the Board of Directors. The
Assistant Treasurers and Assistant Secretaries, in general, shall perform such
duties as shall be assigned to them by the Treasurer or the Secretary,
respectively, or by the President or the Board of Directors.
Page 26 of 34
<PAGE>
Section 12. Salaries: The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation.
ARTICLE V
Contracts, Loans, Checks and Deposits
Section 1. Contracts: The Board of Directors may authorize any officer or
officers, agent or agents, 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.
Section 2. Loans: No loans shall be contracted on behalf of the Corporation
and no evidences or indebtedness shall be issued in its name unless authorized
by a resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
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, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits: All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositaries as the Board of Directors may
select.
ARTICLE VI
Certificates for Shares and Their Transfer
Section 1. Certificates for Shares of Stock: The certificates for shares
of stock of the Corporation shall be numbered, shall be in such form as may be
prescribed by the Board of Directors in conformity with law, and shall be
entered in the stock books of the Corporation as they are issued, and such
entries shall show the name and address of the person, firm, partnership,
corporation or association to whom each certificate is issued. Each certificate
shall have printed, typed or written thereon the name of the person, firm,
partnership, corporation or association to whom it is issued, and number of
shares represented thereby and shall be signed by the President or a
Vice-President, and the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary of the Corporation and sealed with the seal of the
Corporation, which seal may be facsimile, engraved or printed. If the
Corporation has a registrar, a transfer agent, or a transfer clerk who actually
signs such certificates, the signature of any of the other officers above
mentioned may be facsimile, engraved or printed. In case any such officer who
has signed or whose facsimile signature has been placed upon any such
certificate shall have ceased to be such officer before such certificate is
issued, such certificate may nevertheless be issued by the Corporation with the
same effect as if such officer were an officer at the date of its issue.
Section 2. Transfer of Shares - Transfer Agent Registrar: Transfers of
shares of stock shall be made on the stock record or transfer books of the
Corporation only by the person named in the stock certificate, or by his
attorney lawfully constituted in writing, and upon surrender of the certificate
therefor. The stock record book and other transfer records shall be in the
possession of the Secretary or of a transfer agent or clerk for the Corporation.
The Corporation, by resolution of the Board of Directors may from time to time
appoint a transfer agent, and, if desired, a registrar, under such arrangements
and upon such terms and conditions as the Board of Directors deems advisable;
but until and unless the Board of Directors appoints some other person, firm or
corporation as its transfer agent (and upon the revocation of any such
appointment, thereafter until a new appointment is similarly made) the Secretary
of the Corporation shall be the
Page 27 of 34
<PAGE>
transfer agent or clerk of the Corporation, without the necessity of any formal
action of the Board of Directors, and the Secretary shall perform all of the
duties thereof.
Section 3. Lost or Destroyed Certificates: In case of the loss or
destruction of any certificate for shares of stock of the Corporation, upon due
proof of the registered owner thereof or his representatives, by affidavit of
such loss or otherwise, the President and Secretary may issue a duplicate
certificate (plainly marked "duplicate") in its place, upon the Corporation
being fully indemnified therefor.
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of January
in each year and end of the last day of December in each year.
ARTICLE VIII
Dividends
The Board of Directors may from time to time, declare, and the Corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law and its Articles of Incorporation.
ARTICLE IX
Seal
The Board of Directors shall provide a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the
Corporation and the words, "Corporate Seal, Missouri."
ARTICLE X
Waiver of Notice
Whenever any notice whatever is required to be given under the provisions
of these Bylaws or under the provisions of the Articles of Incorporation or
under the provisions of The General and Business Corporation Act of Missouri,
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE XI
Indemnification of Officers and Directors
Against Liabilities and Expenses in Actions
Section 1. Indemnification in Non-Derivative Actions: The Corporation will
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 proceedings, 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 nominee for a director position) or office of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any 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
Page 28 of 34
<PAGE>
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to be 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 determination of any action, suit, or proceeding by judgment,
order, settlement, conviction or upon a plead 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 be in 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. Indemnification in Derivative Actions: The Corporation will
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 nominee for a director position) or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the defense or
settlement of the 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; provided, however, 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 for gross negligence or misconduct in the performance of his duty
to the Corporation unless and only to the extent that the court in which the
action or suit was brought determines upon application that, despite the
adjudication of liability and in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity of such expenses which the
court shall deem proper.
Section 3. Mandatory Indemnification Whenever Defense is Successful: To
the extent that a director or officer of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
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 with the action, suit or proceeding.
Section 4. Expenses Must be Authorized in Each Case: Any indemnification
under Section 1 and 2, 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, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
these sections. The determination shall be made by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to the
action, suit, proceeding, or if such a quorum is not attainable, or even if
obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or by the Shareholders.
Section 5. Expenses to be Advanced: Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the Corporation in advance
of the final disposition of the action, suit, or proceeding as authorized by the
Board of Directors of the Corporation in the specific case upon receipt of an
undertaking by or on behalf of said director or officer to repay such amount to
be indemnified by the Corporation.
Section 6. Non-Exclusive Indemnification: The indemnification provided by
this section shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any Bylaw, agreement, vote of
Shareholder or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director or
officer of the Corporation and shall inure to the benefit of the heirs,
executors and administrators of such person.
Section 7. Insurance: The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director (or nominee for a director
position) or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust 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 to indemnify him against such liability under the provisions of this
amendment.
Page 29 of 34
<PAGE>
ARTICLE XII
Amendments
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted at any annual meeting of the Shareholders or at any special meeting of
the Shareholders called for that purpose or at any meeting of the Board of
Directors provided, however, that the Board of Directors shall take no such
action contrary to the provisions of any resolution of the Shareholders
directing the Board not to do so.
Page 30 of 34
May 28, 1998
Harmon Industries, Inc.
1300 Jefferson Court
Blue Springs, Missouri 64015
Re: Registration Statement on Form S-8
30,000 Shares of Common Stock
Ladies and Gentlemen:
In connection with the filing of a Registration Statement on Form S-8 for
Harmon Industries, Inc. (the "Company") relating to both the issuance pursuant
to the Harmon Industries, Inc. 1998 Director Stock Plan ("Plan") and the
subsequent reoffering and resale of shares of common stock of the Company, par
value $.25 per share (the "Shares"), you have requested our opinion on the
legality of the Shares being issued thereunder. We have examined the Articles of
Incorporation of the Company, as amended, the Bylaws of the Company, as amended,
minutes of applicable meetings of the Board of Directors and Stockholders, the
Plan, and such other records and documents, together with applicable
certificates of public officials, that we have deemed relevant to this opinion.
Based on the foregoing, it is our opinion that:
All necessary corporate actions have been taken to authorize the issuance
and sale of up to 30,000 Shares in the manner and as provided for in the
Registration Statement on Form S-8, and when such Registration Statement becomes
effective and the Shares are issued and the payment received therefore in
accordance with the Plan, the Shares will be validly issued, fully paid, and
nonassessable.
We hereby consent to the reference to our firm in the Registration
Statement on Form S-8, and consent to the filing of this letter, or copies
hereof, as an exhibit to such Registration Statement.
Very truly yours,
MORRISON & HECKER L.L.P.
/s/ Morrison & Hecker L.L.P.
Page 31 of 34
ACCOUNTANTS' CONSENT
The Board of Directors
Harmon Industries, Inc. and Subsidiaries:
We consent to incorporation by reference in the registration statement on Form
S-8 of our report dated May 21, 1998 relating to the consolidated balance
sheets of Harmon Industries, Inc. and subsidiaries as of December 31, 1996 and
1997 and the related consolidated statements of earnings, stockholders' equity
and cash flows for each of the years in the three-year period ended December 31,
1997, and all related schedules, which report appears in the December 31, 1997
annual report on Form 10-K of Harmon Industries, Inc. and subsidiaries.
Kansas City, Missouri
May 21, 1998
Page 32 of 34
POWER OF ATTORNEY
WHEREAS, Harmon Industries, Inc., a Missouri corporation (the "Company"),
intends to file with the Securities and Exchange Commission ("Commission") under
the Securities Act of 1933, as amended (the "Act"), a Registration Statement on
Form S-8 (the "Registration Statement"), including a Prospectus and a Resale
Prospectus, and any amendments thereto as may be required by the Commission
pursuant to the Act and the rules and regulations of the Commission promulgated
thereunder, along with any and all exhibits and other documents relating
thereto, which filing will be in connection with the registration of shares of
the Company's common stock, par value $0.25 per share ("Common Stock") to be
issued pursuant to the Company's 1998 Director Stock Plan;
NOW, THEREFORE, the undersigned, in their capacities as members of the
Board of Directors of the Company, do hereby appoint Robert E. Harmon their true
and lawful attorney, with full power of substitution and resubstitution, to
execute in the name, place and stead in the capacity as a director of the
Company, the Registration Statement and any and all amendments to such
Registration Statement, and all instruments necessary or incidental in
connection therewith and to file the same with the Commission. The attorney
shall have full power and authority to do and perform in the name and on behalf
of the undersigned in any and all capacities every act whatsoever necessary or
desirable to be done in the premises as fully and to intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying and
approving the acts of said attorney.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the 28 day of April, 1998.
/s/ Bruce M. Flohr /s/ Douglass Wm. List
- ------------------ ---------------------
Bruce M. Flohr Douglass Wm. List
/s/ Herbert M. Kohn /s/ Rodney L. Gray
- ------------------- ------------------
Herbert M. Kohn Rodney L. Gray
/s/Gerald E. Myers /s/ Judith C. Whittaker
- ------------------ -----------------------
Gerald E. Myers Judith C. Whittaker
Page 33 of 34
POWER OF ATTORNEY
WHEREAS, Harmon Industries, Inc., a Missouri corporation (the "Company"),
intends to file with the Securities and Exchange Commission ("Commission") under
the Securities Act of 1933, as amended (the "Act"), a Registration Statement on
Form S-8 (the "Registration Statement"), including a Prospectus and a Resale
Prospectus, and any amendments thereto as may be required by the Commission
pursuant to the Act and the rules and regulations of the Commission promulgated
thereunder, along with any and all exhibits and other documents relating
thereto, which filing will be in connection with the registration of shares of
the Company's common stock, par value $0.25 per share ("Common Stock") to be
issued pursuant to the Company's 1998 Director Stock Plan;
NOW, THEREFORE, the undersigned, in his capacity as a member of the Board
of Directors of the Company, does hereby appoint Robert E. Harmon his true and
lawful attorney, with full power of substitution and resubstitution, to execute
in the name, place and stead in the capacity as a director of the Company, the
Registration Statement and any and all amendments to such Registration
Statement, and all instruments necessary or incidental in connection therewith
and to file the same with the Commission. The attorney shall have full power and
authority to do and perform in the name and on behalf of the undersigned in any
and all capacities every act whatsoever necessary or desirable to be done in the
premises as fully and to intents and purposes as the undersigned might or could
do in person, the undersigned hereby ratifying and approving the acts of said
attorney.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of the
12th day of May, 1998.
/s/ John A. Sprague
-------------------
John A. Sprague
Page 34 of 34
