As filed with the Securities and Exchange Commission on January
19, 1999.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
___________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Milacron Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
31-1062125
(I.R.S. Employer Identification No.)
4701 Marburg Avenue, Cincinnati, Ohio 45209
(Address of Principal Executive Offices) (Zip Code)
Plan for the Deferral of Director's Compensation
(Full Title of the Plan)
Wayne F. Taylor
Milacron Inc.
4701 Marburg Avenue
Cincinnati, Ohio 45209
(Name and Address of Agent For Service)
(513) 841-8100
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share 1/ Price 1/ Fee
___________________________________________________________________
Common Stock, 60,000 Shares $19.9375 $1,196,250 $332.56
Par Value $1.00
Per Share
___________________________________________________________________
1/ Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(h) and Rule 457(c)
under the Securities Act of 1933, based on the average of the
high and low prices for shares of Common Stock reported on the
New York Stock Exchange on January 13, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS 1/
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual
Information.
__________________________________________
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The annual report of Milacron Inc. (the "Company" or
"Milacron") on Form 10-K for the fiscal year ended December 27,
1997, and all other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") since December 27, 1997, are incorporated
herein by reference. All documents subsequently filed by
Milacron pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act subsequent to the date of this registration
statement and prior to the filing of a post-effective amendment
to this registration statement, which indicates that all
securities offered hereby have been sold or which deregisters 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 herein by reference 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 subsequently
filed document which also is or is deemed to be incorporated
herein 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
registration statement.
_______________________
1/ This information is not required to be included in, and
is not incorporated by reference in, this Registration Statement.
The description of Milacron common stock, par value
$1.00 per share included or incorporated by reference in
Milacron's registration statement on Form 8-B, File No. 1-8485,
filed pursuant to Section 12(b) of the Exchange Act, and any
amendments or reports filed for the purpose of updating such
descriptions are incorporated herein by reference.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State
of Delaware permits indemnification of the directors and officers
of Milacron involved in a civil or criminal action, suit or
proceeding, including, under certain circumstances, suits by or
in the right of Milacron, for any expenses, including attorneys'
fees, and (except in the case of suits by or in the right of
Milacron) any liabilities which they have incurred in consequence
of such action, suit or proceeding under conditions stated in
said section.
Article XI of the Restated Certificate of
Incorporation, as amended, of Milacron and Article XII of the By-
Laws, as amended, of Milacron provides, in effect, for
indemnification of the directors and officers of Milacron to the
fullest extent permitted by Section 145. In addition, Milacron
maintains liability insurance for its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
Instruments Defining the Rights of Security Holders,
Including Indentures:
4.1 Restated Certificate of Incorporation of Milacron filed with
the Secretary of State of the State of Delaware on November
17, 1998
-Filed herewith
4.2 By-Laws, as amended, of Milacron
-Filed herewith
5 Opinion of Cravath, Swaine & Moore, counsel for registrant,
as to legality of the securities offered under the Plan
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Cravath, Swaine & Moore-see Exhibit 5
24 Powers of Attorney
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or
sales are being made, a post-effective
amendment to this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act
of 1933;
(ii) to reflect in the prospectus any facts
or events arising after the effective
date of this registration statement (or
the most recent post-effective amendment
thereof) which, individually or in the
aggregate, represent a fundamental
change in the information set forth in
this registration statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in this
registration statement or any material
change to such information in this
registration statement;
provided, however that paragraphs
(1)(a)(i) and (1)(a)(ii) do not apply if
this registration statement is on Form
S-3 or Form S-8 and the information
required to be included in a post-
effective amendment by those paragraphs
is contained in periodic reports filed
by the registrant pursuant to Section 13
or Section 15(d) of the Securities
Exchange Act of 1934 that are
incorporated by reference in this
registration statement;
(b) 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 herein,
and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof; and
(c) to remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
(2) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under
the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant
to 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 herein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering hereof.
(3) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted
to directors, officers and controlling persons of
the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and
Exchange Commission such indemnification is
against public policy as expressed in the
Securities Act of 1933 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
securities 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
Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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 of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Cincinnati, State of Ohio, on this 14th day of
January, 1999.
MILACRON INC.
By: /s/ Ronald D. Brown
___________________
Ronald D. Brown
Senior Vice President-Finance
and Administration
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed below by the
following persons in the capacities indicated and on this 14th
day of January, 1999.
Signature Title
* Chairman, President and Chief
Daniel J. Meyer Executive Officer and Director
(Principal Executive Officer)
* Director
Darryl F. Allen
* Director
Neil A. Armstrong
* Director
David L. Burner
* Director
Barbara Hackman Franklin
* Director
Harry A. Hammerly
* Director
James E. Perrella
* Director
Joseph A. Pichler
* Director
Joseph A. Steger
* Director
Harry C. Stonecipher
* Senior Vice President-
Ronald D. Brown Finance and Administration
and Chief Financial Officer
(Principal Financial officer)
* Controller (Chief Accounting
Jerome L. Fedders Officer)
/s/ Ronald D. Brown
____________________________
Ronald D. Brown
Attorney-In-Fact
*Original Powers of Attorney authorizing Daniel J. Meyer, Ronald
D. Brown and Wayne F. Taylor and each of them to sign this
registration statement on behalf of the above named directors and
officers of the registrant are filed as Exhibit 24 to the
registration statement.
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of Milacron filed with
the Secretary of State of the State of Delaware on November
17, 1998
-Filed herewith
4.3 By-Laws, as amended, of Milacron
-Filed herewith
5 Opinion of Cravath, Swaine & Moore, counsel for registrant,
as to legality of the securities offered under the Plan
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Cravath, Swaine & Moore-see Exhibit 5
24 Powers of Attorney
RESTATED CERTIFICATE OF INCORPORATION
of
MILACRON INC.
Milacron Inc., a corporation organized and existing under
the laws of the State of Delaware (originally incorporated
under the name Cincinnati Milacron Holdings, Inc. on March
18, 1983), hereby certifies as follows:
FIRST: The name of the corporation (hereinafter referred
to as the Company) is Milacron Inc.
SECOND: The address of the Company's registered office in
the State of Delaware is Corporation Trust Center, 1209
Orange Street, Wilmington, DE 19801, County of New Castle.
The name of the Company's registered agent at such address
is The Corporation Trust Company.
THIRD: The purpose of the Company is to engage in any
lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of all classes of stock
which the Company shall have authority to issue is
60,060,000, consisting of (1) 60,000 shares of 4% Cumulative
Preferred Stock, par value $100 per share (hereinafter
referred to as the Preferred Stock), (2) 10,000,000 shares
of Serial Preference Stock, par value $1.00 per share
(hereinafter referred to as the Serial Preference Stock) and
(3) 50,000,000 shares of Common Stock, par value $1.00 per
share (hereinafter referred to as the Common Stock).
The following is a statement of the designation and the
powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, in respect of the
Preferred Stock and the Common Stock and the designations
and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, in
respect of the Serial Preference Stock, which the Board of
Directors is herein authorized to fix.
SECTION A: PROVISIONS RELATING TO PREFERRED STOCK
I. Out of the net assets of the Company legally available
for dividends, the holders of Preferred Stock shall be
entitled to receive, when and as declared by the Board of
Directors, dividends in cash at the rate of 4% per annum
upon the par value thereof, and no more, payable quarterly
on the first days of March, June, September and December in
each year (the quarterly periods commencing on the first
days of such months, respectively, being herein designated
as dividend periods), from March 1, 1983, before (subject to
the provisions of paragraphs II and V of this Section A) any
sum or sums shall be set aside for or applied to the
purchase or redemption of Preferred Stock, and before any
dividends shall be declared or paid upon or set apart for,
or any other distribution shall be ordered or made in
respect of Serial Preference Stock or Common Stock, and
before any Serial Preference Stock or Common Stock shall be
purchased, redeemed or otherwise acquired by the Company;
and such dividends shall be cumulative (whether or not in
any dividend period or periods there shall be net assets of
the Company legally available for the payment of such
dividends), so that if at any time dividends upon all the
outstanding Preferred Stock at the rate of 4% per annum upon
the par value thereof from March 1, 1983, to the end of the
then current dividend period shall not have been paid or
declared and a sum sufficient for the payment thereof set
apart for such payment, then (subject to the provisions of
paragraphs II and V of this Section A) the amount of the
deficiency shall be fully paid, but without interest, or
dividends in such amount declared and a sum sufficient for
the payment thereof set apart for such payment, before any
sum or sums shall be set aside for or applied to the
purchase or redemption of Preferred Stock, and before any
dividends shall be declared or paid upon or set apart for,
or any other distribution shall be ordered or made in
respect of, Serial Preference Stock, or Common Stock, and
before any Serial Preference Stock or Common Stock shall be
purchased, redeemed, or otherwise acquired by the Company.
II. Out of any remaining net assets of the Company legally
available for dividends after or concurrently with making
payment of full dividends upon Preferred Stock then
outstanding at the rate of 4% per annum upon the par value
thereof for all past dividend periods, and after or
concurrently with making payment of, or declaring and
setting apart for payment, full dividends at said rate on
all Preferred Stock then outstanding to the end of the then
current dividend period, then, and not otherwise, the
holders of Serial Preference Stock and Common Stock shall,
subject to the provisions hereof, be entitled to receive
such dividends as may from time to time be declared by the
Board of Directors; provided, however, that if at any time
full dividends upon all Preferred Stock then outstanding at
the rate of 4% per annum upon the par value thereof shall
have been paid for all past dividend periods and declared
and set apart for payment for the current dividend period,
dividends on the Serial Preference Stock and (subject to the
provisions of Section B of this Article FOURTH) the Common
Stock, payable in the next succeeding dividend period, may
be declared by the Board of Directors and, when so declared,
may be paid in the next succeeding dividend period,
notwithstanding any restriction hereinabove in paragraph I
of this Section A or in this paragraph II set forth; and
provided further that, so long as any Preferred Stock shall
be outstanding, in no event shall any dividends whatsoever,
whether in cash, shares or otherwise (other than dividends
payable in Serial Preference Stock or Common Stock), be
declared or paid upon or set apart for, or any other
distribution be ordered to be made in respect of, Serial
Preference Stock or Common Stock, or any expenditures be
made by the Company for the purchase, redemption, retirement
or other acquisition of any Serial Preference Stock or
Common Stock, if at the time such dividend is so declared or
such distribution is so ordered or such expenditures are so
made:
(1) consolidated net current assets remaining after
deducting the amount of such dividend or distribution or
expenditure would be less than $100 for each share of
Preferred Stock outstanding; or
(2) consolidated net tangible assets remaining after
deducting the amount of such dividend or distribution or
expenditure would be less than $200 for each share of
Preferred Stock outstanding.
III. The Preferred Stock shall be preferred as to both
earnings and assets over the Serial Preference Stock and the
Common Stock and, in the event of any voluntary or
involuntary liquidation or dissolution or winding up of the
Company or any sale of all or substantially all of its
assets, the holders of Preferred Stock shall be entitled to
receive out of the assets of the Company available for
distribution to its shareholders, whether from capital,
surplus or earnings, an amount equal to $100 per share, if
such liquidation, dissolution, winding up or sale be
involuntary, and, if voluntary, an amount equal to $105 per
share, in each case plus an amount equal to all dividends
accrued or in arrears thereon to the date of distribution,
for every share of their holdings of Preferred Stock, before
any distribution of assets shall be made to the holders of
Serial Preference Stock or Common Stock, and the holders of
Serial Preference Stock and Common Stock shall be entitled,
to the exclusion of the holders of Preferred Stock, to share
in all the assets of the Company then remaining, in
accordance with the provisions of Section B hereof. If upon
any such voluntary or involuntary liquidation or
dissolution, winding up or sale, the assets thus
distributable among the holders of Preferred Stock shall be
insufficient to permit the payment to such holders of
Preferred Stock of the preferential amounts aforesaid, then
the entire assets of the Company to be distributed shall be
distributed ratably among the holders of Preferred Stock
according to the amounts which they respectively would be
entitled to receive if such assets available for
distribution as aforesaid were sufficient to permit the
payment in full of said sums. No merger or consolidation of
the Company with or into another corporation organized under
the laws of the State of Delaware or any other state and no
merger or consolidation of any such other corporation into
the Company, which shall not in fact result in the
liquidation of the enterprise and the distribution of assets
to shareholders, shall be deemed to be a liquidation,
dissolution, or winding up of the Company or sale of
aforesaid.
IV. The term "dividends accrued or in arrears" whenever
used in this Section A with reference to the Preferred Stock
shall be deemed to mean (whether or not in any dividend
period or in any part thereof in respect of which such term
is used there shall have been net assets of the Company
legally available for the payment of such dividends) that
amount which shall be equal to dividends in cash at the rate
of 4% per annum upon the par value thereof from March 1,
1983, to the date as of which dividends accrued or in
arrears are or are to be determined for such shares
(including an amount equal to the dividend at such rate for
the elapsed portion of the current dividend period) less the
amount of all dividends paid upon such shares, or deemed to
have been paid on such shares in accordance with the
provisions of the following sentence. In the event of the
issuance of additional Preferred Stock (unless such
additional shares have been classified into a new series
pursuant to paragraph IX of this Section A), all dividends
paid on Preferred Stock outstanding prior to the issuance of
such additional Preferred Stock and all dividends declared
and payable to the holders of Preferred Stock of record on
any date prior to such additional issue shall be deemed to
have been paid on the additional Preferred Stock so issued.
V. The Preferred Stock, or any part thereof, at any time
outstanding may be redeemed by the Company at its election
expressed by resolution of the Board of Directors, at any
time or from time to time, upon not less than 30 days nor
more than 60 days previous notice to the holders of record
of the Preferred Stock to be redeemed, mailed to the holders
of the Preferred Stock to be redeemed, at their respective
addresses as the same shall appear on the books of the
Company, at the redemption price of $105 per share plus all
dividends accrued or in arrears thereon to the date fixed in
such notice as the date of redemption; provided, however,
that less than all Preferred Stock at the time outstanding
may be redeemed only after or concurrently with making
payment of all dividends accrued or in arrears upon all
Preferred Stock then outstanding for all past dividend
periods and after or concurrently with making payment of, or
declaring and setting apart for payment, full dividends on
all Preferred Stock then outstanding (other than the shares
to be redeemed) to the end of the then current dividend
period. If less than all the outstanding Preferred Stock is
to be redeemed, the redemption may be made either by lot or
pro rata in such manner as may be determined or prescribed
by resolution of the Board of Directors, or may be limited
to fractional shares, if any, outstanding. From and after
the date fixed in any such notice as the date of redemption
(unless default shall be made by the Company in providing
monies for the payment of the redemption price pursuant to
such notice), or, if the Company shall so elect, from and
after a date (hereinafter called the date of deposit and
which shall be prior to the date fixed as the date of
redemption) on which the Company shall provide monies for
the payment of the redemption price by depositing the amount
thereof for account of the holders of Preferred Stock
entitled thereto with a bank or trust company doing business
either in the City of Cincinnati in the State of Ohio or in
the Borough of Manhattan in the City and State of New York,
and having a capital and surplus of at least $5,000,000
pursuant to notice of such election included in the notice
of redemption specifying the date on which such deposit will
be made, all dividends on Preferred Stock thereby called for
redemption shall cease to accrue and all rights of the
holders thereof as shareholders of the Company, except the
right to receive the redemption price as herein provided,
shall cease and terminate. After the deposit of such amount
with such bank and trust company, the respective holders of
record of Preferred Stock to be redeemed shall be entitled
to receive the redemption price at any time upon the actual
delivery to such bank or trust company of certificates for
the shares to be redeemed properly stamped from transfer (if
required) and duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly
endorsed in blank. Any monies so deposited which shall
remain unclaimed by the holders of Preferred Stock called
for redemption at the end of six years after the redemption
date, together with any interest thereon which shall be
allowed by the bank or trust company with which the deposit
shall have been made, shall be paid by such bank or trust
company to the Company.
VI. Subject to the provisions of the By-laws of the
Company, as from time to time amended, with respect to the
closing of the transfer books or the fixing of a record date
for the determination of shareholders entitled to vote, at
each meeting of the shareholders each holder of record of
Preferred Stock shall be entitled to 24 votes for each such
share of Preferred Stock held by him, each holder of record
of Common Stock shall be entitled to one or ten votes for
each such share of Common Stock held by him, as provided in
Section C, and each holder of record of Serial Preference
Stock of each series shall be entitled to the number of
votes, if any, as he may be entitled to in accordance with
the resolution or resolutions adopted by the Board of
Directors in accordance with the provisions of paragraph II
of Section B of this Article FOURTH providing for the
issuance of such series; provided, however, that anything
herein contained to the contrary notwithstanding, the
holders of Preferred Stock shall also have the additional
rights hereinafter in this paragraph VI set forth, to which
additional rights the aforesaid voting rights of the holders
of Serial Preference Stock and Common Stock shall be
subject. Except as may otherwise be required by law, by
this Article FOURTH or by resolutions adopted by the Board
of Directors in accordance with the provisions of paragraph
II of Section B, the holders of record of Common Stock,
Preferred Stock and Serial Preference Stock shall vote
together as a single class. If at any time dividends
accrued or in arrears upon Preferred Stock then outstanding
shall amount to $4 per share or more, a default in preferred
dividends, for the purposes of this paragraph VI, shall be
deemed to have occurred; and, having so occurred, such
default in preferred dividends shall be deemed to exist
thereafter until, but only until, all dividends accrued or
in arrears on all Preferred Stock then outstanding shall
have been paid to the end of the last preceding dividend
period and the full dividend thereon to the end of the then
current dividend period shall have been paid or declared and
a sum sufficient for the payment thereof set apart for such
payment. If and whenever a default in preferred dividends
shall exist, then at the next annual meeting of shareholders
of the Company for the election of directors (unless at the
time of such meeting such default in preferred dividends
shall no longer exist) and at each other meeting annual or
special, for the election of directors, held thereafter and
during the existence of such default in preferred dividends,
the holders of the outstanding Preferred Stock, voting
separately as a class, shall have the right, at each such
meeting at which at least 35% of the outstanding Preferred
Stock is represented (but not otherwise), to elect one-third
of the members of the Board of Directors to be elected, but
if the number of directors to be elected when divided by
three shall result in a fraction, such fraction shall be
disregarded if less than one-half and shall be increased to
one if more than one-half. The right to elect one-third of
the number of directors to be elected shall be in addition
to the right of the holders of the outstanding Preferred
Stock to vote with the holders of Serial Preference Stock
and Common Stock in the election of the remaining directors
of the Company. If, during the existence of a default
entitling the holders of Preferred Stock to elect one-third
of the directors, any annual meeting of shareholders is not
held when and as required by the By-laws of the Company, a
special meeting of the shareholders for the purpose of
electing directors may be called by the holders of record of
at least 10% of the Preferred Stock outstanding. Any
director elected by the holders of Preferred Stock, voting
as a class pursuant to the aforesaid right, shall continue
to serve as such director for the full term for which he
shall have been elected, notwithstanding that prior to the
end of such term the default in preferred dividends which
permitted his election by the holders of Preferred Stock
shall cease to exist. If, prior to the end of the term of
any director so elected by the holders of Preferred Stock, a
vacancy in the office of such director shall occur by reason
of the death, resignation, removal or disability of such
director, or for any other cause, such vacancy shall be
filled for the unexpired term in the manner provided in the
By-laws of the Company.
VII. Anything contained herein or in the By-laws of the
Company to the contrary notwithstanding, so long as any
Preferred Stock shall be outstanding the Company shall not,
without the consent, given by resolution adopted at a
meeting duly called for that purpose, or if permitted by
law, given in writing, of the holders of at least two-thirds
of the Preferred Stock at the time outstanding,
(1) amend, alter or repeal any of the terms and
provisions of the outstanding Preferred Stock in any
material respect prejudicial to the holders thereof; or
(2) increase the authorized amount of Preferred Stock
or authorize any new class of stock having preference over,
or being on a parity with, the Preferred Stock as to
dividends or assets, or create any obligation or security of
the Company directly or indirectly convertible into or
exchangeable for shares of any class having preference over,
or being on a parity with, the Preferred Stock as to
dividends or assets; or
(3) sell or transfer all or substantially all of its
assets or merge into or consolidate with any other
corporation or merge or consolidate any such other
corporation (except a wholly-owned subsidiary) into the
Company.
VIII. As used in this Section A:
The term "funded debt" shall mean any debt maturing by its
terms more than one year from the date thereof, and shall
include all such debt created, assumed or guaranteed by the
Company or any subsidiary. If the terms of any debt shall
include an option on the part of the Company or the
subsidiary to extend (by way of renewal or otherwise) its
maturity on any conditions, the maturity shall be deemed to
be the last date to which the maturity may be so extended.
The term "consolidated funded debt" shall mean the total
funded debt of the Company and its subsidiaries.
The term "consolidated net tangible assets" shall mean
consolidated tangible assets less (i) consolidated funded
debt, (ii) consolidated current liabilities, as hereinafter
defined, except such portion thereof, if any, as is included
in consolidated funded debt, and (iii) deferred credits and
all reserves other than reserves deducted from consolidated
tangible assets or reserves included in consolidated current
liabilities or reserves representing an appropriation of
retained earnings.
The term "consolidated tangible assets" shall mean (i) the
fixed assets (namely plant, property, equipment and all
other kinds of tangible fixed assets) owned by the Company
and its subsidiaries as at December 31, 1944, plus
subsequent additions to such fixed assets, in all cases
taken at cost to the Company or its subsidiaries and less
reserves for depreciation and other proper deductions; (ii)
consolidated current assets, as hereinafter defined; and
(iii) other investments and receivables and other tangible
assets of the Company and its subsidiaries taken at cost
less proper reserves, excluding, however, any securities
issued by the Company or by any of its subsidiaries. The
cost of tangible assets acquired by the Company or any
subsidiary after December 31, 1944, for a consideration
other than cash shall be the fair value of such assets as
determined by the Board of Directors of the Company. In
arriving at consolidated tangible assets, the Company may
substitute for the value of any or all fixed assets acquired
subsequent to December 31, 1944, calculated in accordance
with the foregoing provisions of this paragraph, the fair
value thereof as determined by an appraisal by such
independent engineer or engineers or other independent
expert or experts as the Board of Directors of the Company
shall employ for the purpose.
The term "consolidated net current assets" shall mean
consolidated current assets, as hereinafter defined, less
consolidated current liabilities, as hereinafter defined.
The term "consolidated current assets" shall mean the
following assets of the Company and its subsidiaries:
(1) cash and cash items on hand or in transit or on
deposit in any solvent bank or trust company;
(2) shares, bonds and other securities or obligations
(other than shares, bonds, securities or obligations of the
Company or of any subsidiary) which are readily marketable,
taken at the market value thereof;
(3) good and collectible notes, trade acceptances,
accounts and bills receivable, determined to be properly
current in accordance with principles approved by certified
or independent public accountants or auditors as hereinafter
in this paragraph VII provided, in each case taken at the
face amount thereof, less reserves determined to be
sufficient by the Company in accordance with principles
approved by said accountants or auditors;
(4) any amount required to be paid during the period of
twelve months after the date as of which consolidated
current liabilities are being determined, as a purchase fund
or sinking fund with respect to any funded debt, less,
however, any funded debt which has been reacquired by the
Company or a subsidiary and is held by it, or a purchase
fund or sinking fund agent, earmarked for the purpose of
meeting the amount so required to be paid on account of such
purchase fund or sinking fund, taken at the amount at which
the Company or the subsidiary issuing the same is entitled,
under the instrument under which such funded debt was
issued, to receive credit with respect thereto against such
purchase fund or sinking fund obligation; and
(5) such other liabilities as may be properly
classified as current liabilities under sound accounting
practice, as approved by said accountants or auditors.
The term "subsidiary" shall mean any corporation,
association, or business trust, at least a majority of the
shares of which at the time outstanding having voting power
for the election of a majority of the directors or trustees
thereof (except shares having such voting power only upon
default in payment of dividends or other defaults) is owned,
directly or indirectly, by the Company and/or by one or more
other subsidiaries; provided, however, that neither The
Factory Power Company, an Ohio corporation, nor any
successor thereto nor any subsidiary thereof, shall be
deemed to be a subsidiary of the Company for any purpose of
this Section A; and provided further that a corporation
incorporated under the laws of a jurisdiction other than the
United States of any state thereof or the District of
Columbia may or may not, as the Company may elect in
connection with any determination made pursuant to this
paragraph VIII, be deemed to be a subsidiary of the Company
for the purposes of such determination.
The term "wholly-owned subsidiary" shall mean any
corporation, association or business trust, all the shares
of which at the time outstanding (exclusive of directors'
qualifying shares), except shares having a limited
participation as to assets, shall be owned, directly or
indirectly, by the Company and/or by one or more other
wholly-owned subsidiaries.
All determinations of funded debt, consolidated funded debt,
consolidated net tangible assets, consolidated tangible
assets, consolidated net current assets, consolidated
current assets and consolidated current liabilities, and of
the status of any corporation, association or business trust
as a subsidiary or a wholly-owned subsidiary of the Company,
shall be made, in accordance with good accounting practice,
by such firm of certified or independent public accountants
or auditors as shall regularly examine and report on the
financial statements of the Company for inclusion in its
annual report to shareholders or such firm of certified or
independent public accountants or auditors as shall be
employed by the Board of Directors for the purpose of such
determination. In all such determinations, all material
intercompany items shall be eliminated and appropriate
adjustments shall be made to adjust for and eliminate
minority interests in subsidiaries, all as approved by such
accountants or auditors. The determinations of such
accountants or auditors shall be final and conclusive.
IX. The Board of Directors shall have authority, subject
to such limitations as may be stated herein, to adopt
amendments to this Certificate of Incorporation, in respect
of any unissued or treasury Preferred Stock, to fix or alter
the division of such shares into series, the designation and
number of shares of each series, the dividend rate, dates of
payment of dividends and dates from which they are
cumulative, redemption rights and price, liquidation price,
sinking fund requirements, conversion rights, and
restrictions on issuance of shares of the same series or of
any other class or series.
SECTION B. PROVISIONS RELATING TO SERIAL PREFERENCE
STOCK
I. The Serial Preference Stock may be issued from time to
time in one or more series, the shares of each series to
have such designations and powers, preferences and rights,
and qualifications, limitations and restrictions thereof, as
are stated and expressed herein and in the resolution or
resolutions providing for the issue of such series adopted
by the Board of Directors as hereafter provided.
II. Authority is hereby expressly granted to the Board of
Directors, subject to the provisions of this Article FOURTH,
to authorize the issue of one or more series of Serial
Preference Stock, and with respect to each such series to
fix by resolution or resolutions providing for the issue of
such series:
(1) the designation of such series, the number of
shares to constitute such series and the stated value
thereof if different from the par value thereof;
(2) whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law,
and, if so, the terms of such voting rights;
(3) the annual dividend rate, if any, payable on such
series expressed in a dollar amount per share, the
conditions and dates upon which such dividends shall be
payable, the preference or relation which such dividends
shall bear to the dividends payable on any other class or
any other series of this class;
(4) whether the shares of such series shall be subject
to redemption by the Company, and, if so, the times, prices
and other conditions of such redemption;
(5) the amount or amounts payable upon shares of such
series upon, and the rights of the holders of such series
in, the voluntary or involuntary liquidation, dissolution or
winding up of the Company;
(6) whether the shares of such series shall be subject
to the operation of a purchase, retirement or sinking fund
and, if so, the extent to and manner in which any such
purchase, retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and
provisions relative to the operation thereof;
(7) whether the shares of such series shall be
convertible into, or exchangeable for, shares of stock of
any other class or of any other series of this class and, if
so, the price or prices or the rate or rates of conversion
or exchange and the method, if any, of adjusting the same;
(8) the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding
upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or other
acquisition by the Company of, the Common Stock or any other
class or any other series of this class;
(9) the conditions or restrictions, if any, upon the
creation of indebtedness of the Company or upon the issue of
any additional stock, including additional shares of such
series or of any other series of this class or of any other
class; and
(10) any other powers, preferences or rights, or any
qualifications, limitations or restrictions thereof
III. Except as otherwise provided by such resolution or
resolutions, all shares of Serial Preference Stock shall be
of equal rank. All shares of any one series of Serial
Preference Stock shall be identical in all respects with all
other shares of such series, except that shares of any one
series issued at different times may differ as to the dates
from which dividends thereon shall be cumulative.
IV. No holder of Serial Preference Stock shall have any
pre-emptive rights to subscribe to stock obligations,
warrants, rights to subscribe to stock or other securities
of the Company of any class, whether now or hereafter
authorized.
SECTION C: PROVISIONS RELATING TO COMMON STOCK
I. The holders of record of Common Stock shall be entitled
to one vote per shares for all purposes, except as otherwise
provided in subsection (1), and subject to subsection (7).
(1) A holder of record of a share of Common Stock shall
be entitled to ten votes on each matter submitted to a vote
by the shareholders at a meeting of shareholders for each
such share held of record by such holder on the record date
for such meeting if, with respect to such share, each and
every beneficial owner thereof meets one or both of the
following criteria:
(i) each and every such beneficial owner was the
beneficial owner on April 22, 1986 and at all times since
such date; or
(ii) each and every such beneficial owner has been
the continuous beneficial owner for at least 36 consecutive
calendar months (dating from the first day of the first full
month on or after the date such owner acquired beneficial
ownership of such share) prior to the record date for such
meeting;
subject, in the case of a beneficial owner referred to in
subsection (3) hereof, to the presumptions set forth in such
subsection (3).
(2) A beneficial owner of any share of Common Stock
acquired as a direct result of an Exempt Transfer (as
hereinafter defined) will be deemed to have been the
continuous beneficial owner of such share from the date such
share was acquired by the prior beneficial owner thereof.
The occurrence of any of the following events shall
constitute an "Exempt Transfer":
(i) the transfer of the beneficial ownership of such
share by gift, by bequest or otherwise through the laws of
descent and distribution, outright or to a trust or
custodianship, in each case to or for the benefit of a
member or members of the transferor's family, or by a
trustee to a trust beneficiary or beneficiaries under the
terms of the trust, or to a charitable lead rust or a
charitable remainder trust, but only in cases where a member
or members of the transferor's family are the beneficiaries
of the annual return or the remainder interest in such
trust; or
(ii) the transfer of the beneficial ownership of
such share to a committee of the property or conservator of
an individual, to a guardian for an individual, to a trustee
in bankruptcy, or to any similar legally appointed successor
to a beneficial owner; or
(iii) the transfer of the beneficial ownership of
such share to a successor executor, trustee, guardian,
committee, conservator, custodian or similar fiduciary with
respect to such share; or
(iv) the transfer of the beneficial ownership of
such share from one spouse to another by reason of
separation or divorce or under or pursuant to community
property laws or other similar laws of any jurisdiction; or
(v) the transfer of the beneficial ownership of such
share from one employee benefit plan of the Company to
another employee benefit plan of the Company.
For purposes of clause (i) above, a family member shall
include only the transferor's spouse, ancestors, lineal
descendants, siblings and their descendants, aunts and
uncles, mother-in-law, father-in-law, sons-in-law, daughters-
in-law, brothers-in-law, sisters-in-law and first cousins;
and a legally adopted child of an individual shall be
treated as a child of such individual by blood.
(3) A beneficial owner of any share of the Common Stock
held of record on a record date for determining the holders
entitled to vote on any matter submitted to a vote by the
shareholders (a "Record Date") in "street" or "nominee" name
or by a broker, clearing agency, voting trustee, bank, trust
company or other nominee (including any share so held on
April 22, 1986 shall be presumed to have acquired the
beneficial ownership of such share subsequent to April 22,
1986) shall be presumed to have acquired the beneficial
ownership of such share subsequent to April 22, 1986 and to
have been the continuous beneficial owner of such share for
a period of less than 36 consecutive calendar months prior
to such Record Date. Such presumptions shall be rebuttable
by showing that beneficial ownership of such share with
respect to each and every beneficial owner thereof complies
with subsection (1) above.
(4) A beneficial owner of any share of the Common Stock
acquired as a direct result of a stock split, stock
dividend, reclassification, rights offering or other
distribution of shares or rights by the Company with respect
to existing shares ("dividend shares") will be deemed to
have been the continuous beneficial owner of such share from
the date on which the original shares with respect to which
the dividend shares were issued, were acquired.
(5) A beneficial owner of any share of Common Stock
beneficially owned by reason of participation in any
savings, thrift, stock bonus, incentive, employee stock
ownership, stock option, pension or other similar individual
account employee benefit plan or arrangement either
qualified under Section 401(a) of the Internal Revenue Code
of 1954, as amended (or similar successor provision), or
approved by the shareholders of the Company shall be deemed
for purposes of this paragraph I to have acquired such
beneficial ownership on the date such share was allocated to
the account of such beneficial owner under such plan or
arrangement, or on the date such beneficial owner was
granted an option or right to acquire such share, as the
case may be, and the distribution of such share to such
beneficial owner pursuant to such plan or arrangement, or
the purchase by such beneficial owner of such share upon the
exercise of an option or a right, as the case may be, shall
not be deemed to be a change in beneficial ownership for
purposes of this paragraph I.
(6) For purposes of this paragraph I, the terms
"beneficial owner", "beneficial ownership" and "beneficially
owned" shall be determined in accordance with Rule 13d-3, as
in effect on April 22, 1986, promulgated by the Securities
and Exchange Commission under the Securities Exchange Act of
1934, as amended, except as provided otherwise in this
paragraph I.
(7) If at any two consecutive annual meetings of the
Company's shareholders the number of outstanding shares of
Common Stock with respect to which holders of record have
the right to cast ten votes per share, as shown on the
Company's records as of the respective Record Dates for such
meetings, is less than 15% of the total number of
outstanding shares of the Common Stock (including in each
such number dividend shares (as such term is defined in
subsection (4) of this paragraph 1) issued by the Company
after April 22, 1986, but excluding from each such number
other shares issued by the Company after April 22, 1986),
the holders of record of Common Stock will have at each
annual or special meeting of shareholders thereafter one
vote per share, and, without any action by the Board of
Directors or the holders of record of Common Stock, the
provisions of subsections (1) through (6) inclusive of this
paragraph I shall not be of any further effect.
II. Subject to the provisions of law and the respective
preferences of the Preferred Stock and the Serial Preferred
Stock, dividends may be paid on the Common Stock of the
Company at such time and in such amounts as the Board of
Directors may deem advisable.
III. The Board of Directors of the Company is authorized to
effect the elimination of shares of its Common Stock
purchased or otherwise reacquired by the Company from the
authorized capital stock or number of shares of the Company
in the manner provided for in the General Corporation Law of
Delaware.
IV. No holder of Common Stock shall have any pre-emptive
right to subscribe to stock, obligations, warrants, rights
to subscribe to stock or other securities of any class,
whether now or hereafter authorized.
V. On April 22, 1986, each issued shares of the existing
Common Stock of the Company, par value $1.00 per share,
shall be changed and converted into one share of new Common
Stock of the Company, par value $1.00 per share, having the
terms specified in this Article FOURTH.
SECTION D. GENERAL
Subject to the provisions of law and the foregoing
provisions of this Certificate of Incorporation, the Company
may issue shares of its Preferred Stock and Serial
Preference Stock or Common Stock, from time to time, for
such consideration (not less than the par value or stated
value thereof) as may be fixed by the Board of Directors,
which is expressly authorized to fix the same in its
absolute and uncontrolled discretion, subject as aforesaid.
Shares so issued, for which the consideration has been paid
or delivered to the Company, shall be deemed fully paid
stock, and shall not be liable to any further call or
assessments thereon, and the holders of such shares shall
not be liable for any further payments in respect of such
shares.
FIFTH: Except for any action which may be taken solely
upon the vote or consent of holders of the Preferred Stock
no action required to be taken or which may be taken at any
annual or special meeting of the shareholders of the Company
may be taken by written consent without a meeting, except
that any such action may be taken without prior notice and
without a vote, if consent in writing, setting forth the
action so taken, shall be signed by all the shareholders of
the Company who would be entitled to notice of a meeting of
the shareholders held for such purpose.
SIXTH: The Board of Directors shall have the power to
amend, alter or repeal the By-laws of the Company.
SEVENTH: (a) The directors shall be divided into
three classes, each of which shall be composed, as nearly as
may be, of one-third of the directors. The term of office
of the directors of the first class is to expire at the
annual meeting to be held during the calendar year 1984, the
term of office of the directors of the second class is to
expire at the annual meeting to be held during the calendar
year 1985 and the term of office of the directors of the
third class is to expire at the annual meeting to be held
during the calendar year 1986. At each annual meeting,
commencing with the annual meeting to be held during the
calendar year 1984, each of the successors to the directors
of the class whose term shall have expired that year shall
be elected for a term running until the third annual meeting
next succeeding his election and until his successors shall
have been duly elected and shall have qualified, except
that, upon the filing of any vacancy in the Board of
Directors occurring other than by expiration of term of
office, a successor shall be elected for the unexpired term.
The Board of Directors may determine the class or classes to
which directors shall be elected when there is a total
number of directors in excess of a number divisible by
three. A decrease in the number of directors shall not
deprive any director of his office as such before the
expiration of his term, but shall become effective until as
and when the term or terms of office for directors of the
class or classes affected thereby shall expire or a vacancy
or vacancies in such class or classes shall occur.
(b) The provisions of this Article SEVENTH may not
be amended, altered or repealed unless such amendment,
alteration or repeal, as the case may be, shall have been
approved by the affirmative vote of the holders of not less
than two-thirds of the total voting power of the outstanding
stock of the Company entitled to vote thereon.
EIGHTH: Election of directors of the Company need not
be by ballot unless and to the extent that the By-laws of
the Company shall so provide.
NINTH: Whenever a compromise or arrangement is
proposed between the Company and its creditors or any class
of them and/or between the Company and its shareholders or
any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a
summary way of the Company or of any shareholder thereof or
on the application of any receiver or receivers appointed
for this Company under the provisions of section 291 of
Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers
appointed for this Company under the provisions of section
279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of creditors, and/or of the shareholders
or class of shareholders of this Company, as the case may
be, to be summoned in such manner as the said court directs.
If a majority in number representing three-fourths in value
of the creditors or class of creditors, and/or of the
shareholders or class of shareholders of the Company, as the
case may be, agree to any compromise or arrangement and to
any reorganization of the Company as the consequence of such
compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned
by the court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or
on all shareholders or class of shareholders, of the
Company, as the case may be, and also on the Company.
TENTH: The Company reserves the right to amend, alter,
change or repeal any provision contained in this Certificate
of Incorporation, and any other provisions authorized by the
laws of the State of Delaware at the time in force may be
added or inserted, in the manner now or hereafter prescribed
by law; and all rights, preferences and privileges of
whatsoever nature conferred upon shareholders, directors or
any other person whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved
in this Article TENTH.
ELEVENTH: (a) To the fullest extent that the General
Corporation Law of the State of Delaware as it exists on the
date hereof or as it may hereafter be amended permits the
limitation or elimination of the liability of directors, no
director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. No amendment to or
repeal of this Article shall apply to or have any effect on
the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
(b) In addition to any requirements of law and any
other provisions herein or in the terms of any class or
series of capital stock having a preference over the common
stock of the Corporation as to dividends or upon liquidation
(and not withstanding that a lesser percentage may be
specified by law), the affirmative vote of the holders of
2/3 or more of the voting power of the then outstanding
voting stock of the Corporation, voting together as a single
class, shall be required to amend, alter or repeal any
provision of this Article.
This Restated Certificate of Incorporation was duly adopted
by the Board of Directors of the Company in accordance with
the provisions of Section 245 of the General Corporation Law
of the State of Delaware. This Restated Certificate of
Incorporation only restates and integrates and does not
further amend the provisions of the original Certificate of
Incorporation of the Company as heretofore amended or
supplemented. There is no discrepancy between the
provisions of the original Certificate of Incorporation as
heretofore amended or supplemented and the provisions of
this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, the Company has caused its corporate
seal to be hereunto affixed and this certificate to be
signed by Daniel J. Meyer, its Chairman, President and
C.E.O., and attested by Wayne F. Taylor, its Vice President,
General Counsel and Secretary, this 29th day of October,
1998.
Milacron Inc.
by_________________________________
Daniel J. Meyer
Chairman, President and C.E.O.
(Corporate Seal)
Attest:
by_________________________________
Wayne F. Taylor
Vice President, General Counsel and Secretary
(As Amended October 29, 1998)
BY-LAWS
of
Milacron Inc.
(Incorporated under the Laws of the State of Delaware)
ARTICLE I
Offices
Section 1. Principal Office. The registered office of
Milacron Inc. (hereinafter called the Company) in the State of
Delaware shall be at 1209 Orange Street, City of Wilmington,
19801, County of New Castle, and the registered agent in charge
thereof shall be Corporation Trust Center.
Section 2. Other Offices. The Company may also have an
office or offices, and keep the books and records of the Company,
except as may otherwise be required by the laws of the State of
Delaware, at such other place or places, either within or without
the State of Delaware, as the Board of Directors may from time to
time determine or the business of the Company require.
ARTICLE II
Meetings of Shareholders
Section 1. Place of Meeting. All meetings of the
shareholders of the Company shall be held at the principal office
of the Company in the State of Ohio or at such other places,
within or without the State of Delaware, as may from time to time
be fixed by the Board of Directors or as shall be specified or
fixed in the respective notices or waivers of notice thereof.
Section 2. Annual Meetings. The annual meeting of
shareholders of the Company for the election of directors and for
the transaction of such other business as may come before the
meeting shall be held on the fourth Tuesday in April in the year
1984 and in each year thereafter, if not a legal holiday under
the laws of the state in which the meeting shall be held, and, if
a legal holiday, then on the next succeeding business day not a
legal holiday under the laws of said state, or on such other date
as may from time to time be fixed by the Board of Directors and
designated in the notices or waivers of notice thereof.
Section 3. Special Meetings. A special meeting of the
shareholders for any purpose or purposes, unless otherwise
prescribed by law, may be called by (i) the Chairman of the
Board, (ii) the President, or, in case of the President's
absence, death or disability, the Vice President authorized to
exercise the authority of the President or (iii) the Board of
Directors or (iv) as otherwise provided in the Certificate of
Incorporation of the Company.
Section 4. Notice of Meetings. Except as otherwise
provided by law, written notice stating the time, place, and
purposes of a meeting of the shareholders, whether annual or
special, shall be given, by or at the direction of the Chief
Executive Officer or the Secretary either by personal delivery or
by mail not less than 10 nor more than 60 days before the date of
the meeting to each shareholder of record entitled to notice of
the meeting. If mailed, such notice shall be addressed to the
shareholder at his address as it appears on the records of the
Company. Notice of any meeting of shareholders shall not be
required to be given to any shareholder who shall attend such
meeting in person or by proxy without protesting, prior to or at
the commencement of the meeting, the lack of proper notice to
him, or who shall have waived notice thereof as provided in
Article IX of these By-laws. Notice of adjournment of a meeting
of shareholders need not be given if the time and place to which
it is adjourned are fixed and announced at such meeting, unless
the adjournment is for more than 30 days, or the directors, after
adjournment, fix a new record date for the adjourned meeting.
Section 5. Quorum. The holders of shares entitling them to
exercise a majority of the voting power, or, if the vote is to be
taken by classes, the holders of shares of each class entitling
them to exercise a majority of the voting power of that class,
present in person or by proxy at any meeting of the shareholders,
shall constitute a quorum, unless by law or by the provisions of
the Certificate of Incorporation of the Company the affirmative
vote of a greater percentage of the voting power, or of any class
thereof, is required for the approval of any specified matter, in
which case, as to such matter, the holders of shares entitling
them to exercise such percentage of the voting power, or the
holders of shares of such class entitling them to exercise such
percentage of the voting power of that class, as the case may be,
shall constitute a quorum with respect to such matter; provided,
however, that nothing contained in this Section 5 or in Section 6
of this Article II shall be deemed to modify in any way the
provisions of paragraph VII of Section A of Article Fourth of the
Certificate of Incorporation of the Company.
Section 6. Adjournments. If at any annual or special
meeting, a quorum shall fail to attend in person or by proxy, a
majority in interest of the shareholders attending in person or
by proxy at the time and place of such meeting may adjourn the
meeting from time to time without further notice, other than by
announcement of the time and place of the adjourned meeting at
the meeting at which such adjournment is taken, until a quorum
shall be present. At any such adjourned meeting at which a
quorum shall be present, any business may be transacted which
might have been transacted at the meeting as originally called.
Section 7. Organization. At every meeting of the
shareholders, the Chairman of the Board, or, in his absence, the
President, or, in the absence of both the Chairman of the Board
and the President, any Vice President, or, in the absence of all
such officers, a chairman chosen by a majority vote of the
shareholders present in person or by proxy and entitled to vote
thereat, shall act as chairman. The Secretary, or, in his
absence, an Assistant Secretary, shall act as secretary at all
meetings of the shareholders. In the absence of the Secretary
and the Assistant Secretaries, the chairman may appoint any
person present to act as secretary of the meeting.
Section 8. List of Shareholders. It shall be the duty of
the Secretary or other officer of the Company who shall have
charge of the stock ledger to prepare and make, at least ten days
before every meeting of the shareholders, a complete list of the
shareholders entitled to vote thereat, arranged in alphabetical
order, and showing the addresses of each shareholder and the
number of shares registered in his name. Such list shall be
produced and kept available at the times and places, required by
law.
Section 9. Order of Business. The order of business at all
meetings of the shareholders shall be as determined by the
chairman, unless a majority in interest of the shareholders
present in person or by proxy at such meeting and entitled to
vote thereat shall otherwise determine.
Section 10. Voting. Except as otherwise provided by law or
by the Certificate of Incorporation of the Company, at each
meeting of the shareholders each holder of record of Preferred
Stock shall be entitled to 24 votes for each such share of
Preferred Stock held by him, each holder of record of Common
Stock shall be entitled to one or ten votes for each such share
of Common Stock held by him, as provided in Section C of Article
FOURTH of the Company's Certificate of Incorporation, and each
holder of record of Serial Preference Stock of each series shall
be entitled to the number of votes, if any, as he may be entitled
to in accordance with the resolution or resolutions adopted by
the Board of Directors in accordance with the provisions of
paragraph II of Section B of Article FOURTH of the Company's
Certificate of Incorporation providing for the issuance of such
series.
Section 11. Inspectors. Inspectors of election for each
meeting of shareholders may be appointed in the manner provided
by law, and shall have the duties and authority and shall make
the determinations provided by law. Inspectors need not be
shareholders.
Section 12. Business and Nominations at Meetings of
Shareholders.
a. At any meeting of the shareholders, only such business
shall be conducted as shall have been brought before the meeting
(i) by or at the direction of the Board of Directors or (ii) by
any shareholder of the Company who is entitled to vote with
respect thereto and who complies with the notice procedures set
forth in this Section 12(a). For business to be properly brought
before a shareholders meeting by a shareholder, the shareholder
must have given timely notice thereof in writing to the Secretary
of the Company, which notice must be received by the Secretary at
the principal office of the Company not later than the close of
business on the 10th day following the day on which notice of the
date of the meeting was mailed. A shareholder's notice shall set
forth (x) a brief description of each matter of business desired
to be brought before the meeting, (y) the name and address of the
shareholder as they appear on the Company's books and (z) the
class and number of shares of the Company's capital stock that
are owned of record and, if different, beneficially owned by such
shareholder.
b. Nominations of persons for election to the Board of
Directors of the Company may be made at a meeting of shareholders
at which directors are to be elected only (i) by or at the
direction of the Board of Directors or (ii) by any shareholder of
the Company entitled to vote for the election of directors at the
meeting who complies with the notice procedures set forth in this
Section 12(b). Such nominations, other than those made by or at
the direction of Directors, shall be made by timely notice in
writing to the Secretary of the Company, which notice must be
received by the Secretary at the principal office of the Company
not later than the close of business on the 10th day following
the day on which notice of the date of the meeting was mailed.
Such shareholder's notice shall set forth (x) as to each nominee
all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors,
or as otherwise required, in each case pursuant to the Securities
Exchange Act of 1934 and Rules, as amended, including such
person's written consent to being named as a nominee and to
serving as a director if elected; and (y) as to the shareholder
giving notice (a) the name and address of such shareholders as
they appear on the Company's books and (b) the class and number
of shares of the Company's capital stock that are owned of record
and, if different, beneficially by such shareholder. At the
request of the Board of Directors, any person nominated by the
Board of Directors for election as a director shall furnish to
the Secretary of the Company that information required to be set
forth in a shareholders' notice of nomination which pertains to
the nominee.
c. The chairman of the shareholders' meeting shall
determine whether or not the item of business or nomination for
election of director was properly brought before the meeting in
accordance with the provisions of this Section 12. If the
determination is that the item or nomination was not properly
brought before the meeting, the item of business or nominee will
not be considered at the meeting. The timely notice requirements
will not apply to items of business or director nominations by or
at the direction of the Board of Directors of the Company.
ARTICLE III
Board of Directors
Section 1. General Powers. The Board of Directors shall
manage and conduct the property, business and affairs of the
Company and may exercise all such authority and powers of the
Company and do all such lawful acts and things as are not by law,
the Certificate of Incorporation of the Company or these By-laws
directed or required to be exercised or done by the shareholders.
Section 2. Number and Term of Office. The number of
directors of the Company shall initially be five. Effective
immediately upon the issuance of more than 1,000 shares of Common
Stock, the number of directors of the Company shall be 11 or such
other number as may be fixed from time to time by resolution of a
majority of the whole Board of Directors, provided, however, that
the number of directors shall not be less than nine nor more than
15.
The directors shall be divided into three classes as provided in
Article SEVENTH of the Certificate of Incorporation of the
Company. At each annual meeting of shareholders, there shall be
elected (i) the directors of the class the term of office of
which shall then expire, (ii) directors to fill any vacancies in
any other class, (iii) directors to succeed any directors who
shall have been elected, as hereinafter provided in Section 16 of
these By-laws to fill vacancies in any other class since the next
preceding annual meeting and (iv) directors to be added to a
respective class as a result of an increase in the number of
directors. Directors to be elected as provided in clause (ii)
and clause (iii) shall be elected for the unexpired portions of
the original terms of the respective classes. Directors to be
elected as provided in clause (iv) shall be elected to the class
recommended by the Board of Directors.
The provisions of Section 3 of this Article shall apply,
separately, to the election of directors of each class to be
elected at any meeting of shareholders, and at any such meeting
where directors of more than one class are to be elected, the
directors of the class or classes being elected for the shortest
terms shall be elected first.
Section 3. Election of Directors. At each meeting of the
shareholders for the election of directors at which a quorum is
present, the persons receiving the greatest number of votes, up
to the number of directors to be elected as recommended by the
Board of Directors or voted upon by the shareholders, or, in the
case of the election of directors voted for by the holders of the
Preferred Stock of the Company voting separately as a class
pursuant to the provisions of the Certificate of Incorporation of
the Company, the persons receiving the greatest number of votes,
up to the number of directors to be elected, of such holders of
Preferred Stock shall be deemed elected.
Section 4. Quorum and Manner of Acting. Except as
otherwise provided by law or by these By-laws, a majority of the
whole Board of Directors shall constitute a quorum for the
transaction of business at any meeting, and the act of a majority
of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors. In the
absence of a quorum, a majority of the directors present may
adjourn any meeting from time to time until a quorum is present.
Notice of any adjourned meeting shall be given as set forth in
Section 9 of this Article III.
Section 5. Place of Meeting. The Board of Directors may
hold its meetings at such place or places within or without the
State of Delaware as the Board may from time to time determine,
or as shall be specified or fixed in the respective notices or
waivers of notice thereof.
Section 6. Annual Meeting. The Board of Directors shall
meet for the purpose of organization, the election of officers
and the transaction of other business, as soon as practicable
after each election of directors and on the same day, and at the
same place at which regular meetings of the Board are held, or as
may be otherwise provided by resolution of the Board. Notice of
such meeting need not be given. Such meeting may be held at any
other time or place which shall be specified in a notice given as
hereinafter provided for special meetings of the Board of
Directors or in a consent and waiver of notice thereof signed by
all the directors.
Section 7. Regular Meetings. Regular meetings of the Board
of Directors shall be held at such places and at such times as
the Board shall from time to time by resolution determine. If
any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which
would otherwise be held on that day shall be held at the same
hour on the next succeeding business day not a legal holiday.
Section 8. Special Meetings. Special meetings of the Board
of Directors shall be held only when called by the Chief
Executive Officer or by a majority of the whole Board of
Directors.
Section 9. Notice of Meetings. Notice of each regular and
special meeting of the Board of Directors shall be mailed to each
director, addressed to him at his residence or usual place of
business, or shall be sent to him at such place by telegraph,
cable or facsimile, or be given personally or by telephone, at
least two days before the day on which the meeting is to be held.
Every such notice shall state the time and place of the meeting,
but need not state the purposes thereof except as otherwise in
these By-laws expressly provided. Notice of any meeting of the
Board of Directors need not be given to any director who shall
have waived notice thereof as provided in Article IX of these By-
laws; and any meeting of the Board of Directors shall be a legal
meeting without any notice thereof having been given, if all of
the directors shall be present thereat.
Section 10. Organization. At each meeting of the Board of
Directors the Chairman of the Board, or in his absence the
President, or in his absence a director chosen by a majority of
the directors present, shall act as chairman. The Secretary, or
in his absence an Assistant Secretary, or in the absence of the
Secretary and Assistant Secretaries, any person appointed by the
chairman, shall act as secretary of the meeting.
Section 11. Order of Business. At all meetings of the Board
of Directors, business shall be transacted in the order
determined by the chairman of the meeting, subject to the
approval of the Board.
Section 12. Participation in Meeting by Means of
Communications Equipment. Any member of the Board of Directors
or any committee thereof may participate in any meeting of the
Board of Directors or of such committee, as the case may be, by
means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can
hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 13. Action Without Meeting. Any action which may be
authorized or taken at a meeting of the Board of Directors or any
committee thereof may be authorized or taken without a meeting
with the affirmative vote or approval of, and in a writing or
writings signed by, all the directors who would be entitled to
notice of a meeting of the directors held for such purpose, which
writing or writings shall be filed with or entered upon the
records of the Company.
Section 14. Resignations. Any director of the Company may
resign at any time by giving written notice to the Chief
Executive Officer or the Secretary of the Company. The
resignation of any director shall take effect at the date of
receipt of such notice or at any later date specified therein;
and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 15. Removal of Directors. Any director may be
removed by the holders of a majority of the votes entitled to be
cast at an election of directors, provided, however, that the
shareholders may effect such removal only for cause.
Section 16. Vacancies. Any vacancy in the Board of
Directors caused by death, resignation, removal, increase in the
number of directors, or any other cause, may be filled by a
majority vote of the remaining directors, though less than a
quorum; provided, however, that, so long as a default in
preferred dividends, as defined in Article FOURTH of the
Certificate of Incorporation, shall exist, any vacancy in the
office of a director elected by the holders of the Preferred
Stock voting separately as a class pursuant to the provisions of
the Certificate of Incorporation of the Company may be filled by
a majority vote of the remaining directors so elected by the
holders of the Preferred Stock or by an instrument in writing
signed by a majority of the remaining directors so elected by the
holders of the Preferred Stock and filed with the Company, and in
the case of the removal of such director under Section 15 of this
Article III, the vacancy may be filled by the vote of the holders
of a majority of the outstanding Preferred Stock voting
separately as a class, at the same meeting at which such removal
shall be voted; and provided further that so long as a default in
preferred dividends, as defined in Section A of Article FOURTH of
the Certificate of Incorporation of the Company, shall exist, if
any vacancy or vacancies shall be created in the Board of
Directors by any such increase in the number of directors at a
time when the Board of Directors shall include directors elected
by the increase in the number of directors at a time when the
Board of Directors shall include directors elected by the holders
of the Preferred Stock, voting separately as a class as
aforesaid, such directors elected by the holders of the Preferred
Stock of the Company shall have the right to fill such vacancy or
vacancies to the extent necessary to preserve to the holders of
the Preferred Stock of the Company the one-third representation
of the Board of Directors to which they are entitled under
Section A of Article FOURTH of the Certificate of Incorporation.
Each director elected as in this Section 16 provided shall hold
office until the annual meeting of the shareholders held next
after his election, and until his successor shall have been
elected and shall qualify, or until his death, or until he shall
resign, or until he shall have been removed in the manner herein
provided. Each director elected as in this Section 16 provided
by directors, or a director elected by the holders of the
Preferred Stock voting separately as a class as aforesaid, shall
be deemed, for all purposes of these By-laws, to be a director
elected by the holders of the Preferred Stock voting separately
as a class as aforesaid.
Section 17. Compensation. The Board of Directors may, at
any time or from time to time, by resolution provide that the
Company may pay to any Director who shall not be a salaried
officer or employee of the Company or any of its subsidiary
companies (i) a specified sum as his annual compensation as such
director and/or (ii) a fixed sum for attendance at any meeting of
the Board. All Directors shall receive their expenses, if any,
of attendance at meetings of the Board of Directors. Noting
herein contained shall be construed to preclude any director from
serving the Company in any other capacity and receiving proper
compensation therefor.
ARTICLE IV
Executive and Other Committees
Section 1. Appointment and Powers. The Board of Directors
may, by resolution adopted by a majority of the whole Board,
designate annually three's or more of their number, one of whom
shall be the Chief Executive Officer of the Company, to
constitute an Executive Committee to serve at the pleasure of the
Board of Directors. During the intervals between the meetings of
the Board of Directors, unless otherwise determined from time to
time by resolution passed by the whole Board, the Executive
Committee shall possess and may exercise all the powers and
authority of the Board in the management and direction of the
business and affairs of the Company, and may authorize the seal
of the Company to be affixed to all papers which may require it,
except that the Executive Committee shall not have the power or
authority in reference to:
(a) amending the Certificate of Incorporation;
(b) adopting an agreement of merger or consolidation;
(c) recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Company's property and
assets;
(d) recommending to the stockholders a dissolution of the
Company or a revocation of a dissolution;
(e) amending these By-laws; or
(f) declaring a dividend or authorizing the issuance of stock.
Any member of the Executive Committee may be removed at any time
by the vote of a majority of the whole Board of Directors.
Section 2. Procedure; Meetings; Quorum. The Executive
Committee shall fix its own rules or procedure and shall meet at
such times and at such place or places as may be provided by such
rules, or by resolution or the Executive Committee or of the
Board of Directors. At every meeting of the Executive Committee,
the affirmative vote of a majority of the members present shall
be necessary for the adoption by it of any resolution.
Section 3. Resignations. Any member of the Executive
Committee may at any time resign by giving written notice to the
Chief Executive Officer or to the Secretary of the Company. Such
resignation shall take effect at the date of receipt of such
notice or at any later date specified therein; and, unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 4. Other Committees. The Board of Directors, by
resolution adopted by a majority of the whole Board, may
designate from among its members one or more other committees,
each of which shall have such authority of the Board as may be
specified in the resolution of the Board designating such
committee; provided, however, that any such committee so
designated shall not have any powers not allowed to the Executive
Committee under Section 1 of this Article IV. The Board of
Directors shall have power at any time to remove the members of
such committee, designate alternate members of any such committee
and fill vacancies therein; and any such committee shall serve at
the pleasure of the Board.
Section 5. Compensation. No member of any committee
contemplated by these By-laws shall, as such, receive any stated
salary for his services, but by resolution by the Board of
Directors a fixed amount may be allowed to each member of such
committees, other than to salaried officers or employees, for
attendance at each meeting of any such committee. All members of
such committees shall receive their expenses, if any, of
attendance at meetings of such committees. Nothing herein shall
be construed to preclude any members of any such committee from
serving the Company in any other capacity and receiving proper
compensation therefor.
ARTICLE V
Officers
Section 1. Number; Designation of Chief Executive Officer.
The Board of Directors shall elect as officers of the Company, a
Chairman of the Board or a President or both, one or more Vice
Presidents, a Treasurer, a Secretary and a Controller. The Board
of Directors may also determine to elect a Chairman of the
Executive Committee; and the Board of Directors may from time to
time elect such other officers and assistant officers as it may
deem necessary. One person may hold the offices and perform the
duties of any two or more of said officers, except those of
President and Vice President; provided, however, that no officer
shall execute, acknowledge, or verify any instrument in more than
one capacity if such instrument is required by law, the
Certificate of Incorporation of the Company or these By-laws to
be executed, acknowledged or verified by two or more officers.
The Chairman of the Board or the President shall be the Chief
Executive Officer. In the event that both a Chairman of the
Board and a President are elected, the Board shall determine
whether the Chairman of the Board or the President is to be the
Chief Executive Officer.
Section 2. Election, Term of Office and Qualifications.
The officers shall be elected annually by the Board of Directors.
Each officer shall hold office until his successor is chosen and
shall have qualified or until his death or until he shall have
resigned or shall have been removed in the manner hereinafter
provided. The Chairman of the Board, the President and the
Chairman of the Executive Committee shall be chosen from among
the Directors.
Section 3. Appointment of Agents. The Board of Directors
or the Chief Executive Officer may from time to time appoint such
agents of the Company as may be deemed proper. Such agents shall
have such authority and perform such duties as in these By-laws
provided or as the Board of Directors or the Chief Executive
Officer may from time to time prescribe. The Board of Directors
may from time to time authorize any officer to appoint and remove
agents and to prescribe their powers and duties.
Section 4. Removal. The Chairman of the Board, the
President and the Chairman of the Executive Committee may be
removed, either with or without cause, at any time, by a majority
vote of the whole Board of Directors. Other officers may be
removed, either with or without cause, at any time by the Chief
Executive Officer.
Section 5. Resignations. Any officer may resign at any
time by giving notice to the Board of Directors or to the Chief
Executive Officer or to the Secretary. Any such resignation
shall take effect at the date of receipt of such notice or at any
later date specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 6. Vacancies. A vacancy in any office because of
death, resignation, removal or any other cause shall be filled
for the unexpired portion of the term in the manner prescribed in
these By-laws for election to such office.
Section 7. Chairman of the Board. The Chairman of the
Board, if one shall be elected by the Board of Directors, shall,
if present, preside at all meetings of the shareholders and of
the Board of Directors and shall perform such other duties
relating to the business and operations of the Company as may
from time to time be assigned to him by the Board of Directors,
including, if a President is not elected or if the Board shall so
determine, the duties of the Chief Executive Officer of the
Company.
Section 8. Chairman of the Executive Committee. The
Chairman of the Executive Committee, if one shall be elected by
the Board of Directors, shall, if present, preside at all
meetings of the Executive Committee and shall perform such other
duties relating to the business and operations of the Company as
may from time to time be assigned to him by the Board of
Directors.
Section 9. The President. The President, if one shall be
elected by the Board of Directors, shall perform such duties
relating to the business and operations of the Company as may
from time to time be assigned to him by the Board of Directors,
including, if a Chairman of the Board is not elected or if the
Board shall determine, the duties of the Chief Executive Officer
of the Company. The President shall, at the request of the
Chairman of the Board or in case of his absence or inability to
act, also perform the duties of the Chairman of the Board.
Section 10. The Chief Executive Officer. The Chief
Executive Officer of the Company, who shall be either the
Chairman of the Board or the President as hereinabove provided,
shall have general supervisions of the business, affairs and
property of the Company and over its several officers, subject,
however, to the authority of the Board of Directors, and shall
perform such other duties as from time to time may be assigned to
him by the Board of Directors. He shall be ex-officio a member
of all standing committees, except as otherwise determined by the
Board of Directors.
Section 11. Other Officers. The officers of the Company,
other than the Chairman of the Board, the Chairman of the
Executive Committee, the President and the Chief Executive
Officer, shall have such authority and perform such duties as are
from time to time determined by the Board of Directors or the
Chief Executive Officer. The Chairman of the Board, the Chairman
of the Executive Committee, the President and the Chief Executive
Officer shall have such authority and perform such duties as are
specified in Sections 7 through 10 hereof, respectively.
ARTICLE VI
Shares and Their Transfer
Section 1. Certificates for Shares. Certificates for
shares of the Company shall be in such form as shall be approved
by the Board of Directors. They shall be issued in consecutive
order and shall be numbered in the order of their issue, and
shall be signed by the Chairman of the Board or the President or
a Vice President and the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer of the Company, and shall
certify the number and class of shares held by the respective
shareholders of the Company; provided, however, that where any
such certificate is countersigned by an incorporated transfer
agent or registrar, the signatures of any such officers may be
facsimile, engraved, stamped or printed. Although any officer of
the Company whose manual or facsimile signature is affixed to
such a certificate ceases to be such officer before such
certificate has been issued, they may nevertheless be issued by
the Company with the same effect as if such officer were still in
office at the date of their issue.
The share record books and the blank share certificate books
shall be kept by the Secretary or by a transfer agent or by a
registrar or by any other officer or agent designated by the
Board of Directors.
Section 2. Transfer of Shares. Transfers of shares of the
Company shall be made only on the books of the Company by the
holder thereof, or by his attorney thereunto authorized by a
power of attorney duly executed and filed with the Secretary of
the Company or a transfer agent of the Company, if any, and on
surrender of the certificate or certificates for such shares
properly endorsed.
Section 3. Addresses of Shareholders. Each shareholder
shall designate to the Secretary or transfer agent of the Company
an address at which notices of meetings and all other corporate
notices may be served or mailed to him, and, if any shareholder
shall fail to designate such address, corporate notices may be
served upon him by mail directed to him at his post office
address, if any, as the same appears on the share record books of
the Company or at his last known post office address.
Section 4. Lost, Destroyed and Mutilated Certificates. The
holder of any share of stock of the Company shall immediately
notify the Company of any loss, destruction or mutilation of the
certificate therefor. The Board of Directors, or a committee
designated thereby with power so to act, or the transfer agents
and registrars for the stock of the Company by resolution of the
Board of Directors authorizing and directing them so to act, may,
in their discretion, cause to be issued and registered to such
holder a new certificate or certificates for shares, upon the
surrender of the mutilated certificate or, in the case of loss or
destruction of the certificate, upon satisfactory proof of such
loss or destruction. The Board of Directors, or such committee,
or said transfer agents and registrars, may, in their discretion,
require the owner of the lost or destroyed certificate or his
legal representative to give the Company a bond in such sum and
with such surety or sureties as they may direct to indemnify the
Company and said transfer agents and registrars against any claim
that may be made on account of the alleged loss or destruction of
any such certificate.
Section 5. Regulations. The Board of Directors may make
such rules and regulations as it may deem expedient, not
inconsistent with these By-laws, concerning the issue, transfer
and registration of certificates for stock of the Company.
Section 6. Fixing Date for Determination of Shareholders of
Record. In order that the Company may determine the
shareholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
corporate action without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment or any
rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for purpose of any
other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than 60 nor less than ten
days before the date of such meeting, nor more than 60 days prior
to any other action. A determination of stockholders entitled to
notice of or to vote at a meeting of the 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.
ARTICLE VII
Seal
The Board of Directors shall provide a corporate seal, which
shall be in the form of a circle and shall bear the full name of
the Company and the words and figures "Corporate Seal Delaware
1998", or such other words or figures as the Board of Directors
may approve and adopt.
ARTICLE VIII
Fiscal Year
The fiscal year of the Company shall begin and end on such dates
as shall be determined by the Board of Directors.
ARTICLE IX
Waiver of Notice
Whenever any notice whatever is required to be given by these By-
laws or the Certificate of Incorporation of the Company or the
laws of the State of Delaware, the person entitled thereto may,
either before or after the meeting or other matter in respect of
which such notice is to be given, waive such notice in writing,
which writing shall be filed with or entered upon the records of
the meeting or the records kept with respect to such other
matter, as the case may be, and in such event such notice need
not be given to such person and such waiver shall be deemed
equivalent to such notice.
ARTICLE X
Amendments
Any By-law (including this By-law) may be adopted, amended or
repealed by the Board of Directors in any manner not inconsistent
with the laws of the State of Delaware or the Certificate of
Incorporation of the Company.
ARTICLE XI
Miscellaneous
Section 1. Execution of Documents. The Board of Directors
shall designate the officers, employees and agents of the Company
who shall have power to execute and deliver deeds, contracts,
mortgages, bonds, debentures, checks, drafts and other orders for
the payment of money and other documents for and in the name of
the Company, and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate)
by written instrument to other officers, employees or agents of
the Company; and, unless so designated or expressly authorized by
these By-laws, no officer or agent or employee shall have any
power or authority to bind the Company by any contract or
engagement or to pledge its credit or to render it pecuniarily
for any purpose or to any amount.
Section 2. Deposits. All funds of the Company not
otherwise employed shall be deposited from time to time to the
credit of the Company or otherwise as the Board of Directors or
Treasurer or any other officer of the Company to whom power in
this respect shall have been given by the Board shall select.
Section 3. Proxies in Respect of Stock or Other Securities of
Other Corporations. The Board of Directors shall designate the
officers of the Company who shall have authority from time to
time to appoint an agent or agents of the Company to exercise in
the name and on behalf of the Company the powers, and rights
which the Company may have as the holder of stock or other
securities in any other corporation, and to vote or consent in
respect of such stock or securities; such designated officers may
instruct the person or persons so appointed as to the manner of
exercising such powers and rights; and such designated officers
may execute or cause to be executed in the name and on behalf of
the Company and under its corporate seal, or otherwise, such
written proxies, powers of attorney or other instruments as they
may deem necessary or proper in order that the Company may
exercise its said powers and rights.
ARTICLE XII
Indemnification
Section 1. Right to Indemnification. The Company shall to
the fullest extent permitted by applicable law as then in effect
indemnify any person (the "Indemnitee") who is or was a director
or officer of the Company and who is or was involved in any
manner (including, without limitation, as a party or a witness)
or is threatened to be made so involved in any threatened,
pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action, suit or
proceeding by or in the right of the Company to procure a
judgment in its favor) (a "Proceeding") by reason of the fact
that such person is or was a director, officer, employee or agent
of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit
plan) against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such
Proceeding; provided, however, that, except as provided in
Section 4(d), the foregoing shall not apply to a director or
officer of the Company with respect to a Proceeding that was
commenced by such director or officer prior to a Change in
Control (as hereinafter defined). Such indemnification shall be
a contract right and shall include the right to receive payment
in advance of any expenses incurred by the indemnitee in
connection with such Proceeding, consistent with the provisions
of applicable law as then in effect.
Section 2. Insurance, Contracts and Funding. The Company
may purchase and maintain insurance to protect itself and any
person entitled to indemnification under this Article against any
expenses, judgments, fines and amounts paid in settlement as
specified in this Article or incurred by any such person in
connection with any Proceeding referred to in this Article, to
the fullest extent permitted by applicable law as then in effect.
The Company may enter into contracts with any person entitled to
indemnification under this Article in furtherance of the
provisions of this Article and may create a trust fund, grant a
security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such
amounts as may be necessary to effect indemnification as provided
in this Article.
Section 3. Indemnification; Not Exclusive Right. The right
of indemnification provided in this Article shall not be
exclusive of any other rights to which those seeking
indemnification may otherwise be entitled, and the provisions of
this Article shall inure to the benefit of the heirs and legal
representatives of any person entitled to indemnity under this
Article and shall be applicable to Proceedings commenced or
continuing after the adoption of this Article, whether arising
from acts or omissions occurring before or after such adoption.
Section 4. Advancement of Expenses; Procedures; Presumptions
and Effect of Certain Proceedings; Remedies. In furtherance,
but not in limitation of the foregoing provisions, the following
procedures, presumptions and remedies shall apply with respect to
advancement of expenses and the right to indemnification under
this Article:
(a) Advancement of Expenses. All reasonable expenses incurred
by or on behalf of the Indemnitee in connection with any
Proceeding shall be advanced to the Indemnitee by the Company
within 20 calendar days after the receipt by the Company of a
statement or statements from the Indemnitee requesting such
advance or advances from time to time, whether prior to or
after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the expenses incurred by
the Indemnitee and, if required by law at the time of such
advance, shall include or be accompanied by an undertaking by
or on behalf of the Indemnitee to repay the amounts advanced
if it should ultimately be determined that the Indemnitee is
not entitled to be indemnified against such expenses pursuant
to this Article.
(b) Procedure for Determination of Entitlement to
Indemnification.
(i) To obtain indemnification under this Article, an
Indemnitee shall submit to the Secretary of the Company a
written request, including such documentation and
information as is reasonably available to the Indemnitee
and reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification (the
"Supporting Documentation"). The determination of the
Indemnitee's entitlement to indemnification shall be made
not later than 60 calendar days after receipt by the
Company of the written request for indemnification
together with the Supporting Documentation. The
Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board of
Directors in writing that the Indemnitee has requested
indemnification.
(ii) The Indemnitee's entitlement to indemnification under
this Article shall be determined in one of the following
ways: (A) by a majority vote of the Disinterested
Directors (as hereinafter defined), if they constitute a
quorum of the Board of Directors; (B) by a written
opinion of Independent Counsel (as hereinafter defined),
if a Change in Control (as hereinafter defined) shall
have occurred and the Indemnitee so requests or a quorum
of the Board of Directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, a
majority of such Disinterested Directors so directs; (C)
by the stockholders of the Company (but only if a
majority of the Disinterested Directors, if they
constitute a quorum of the Board of Directors, presents
the issue of entitlement to indemnification to the
stockholders for their determination); or (D) as provided
in Section 4(c).
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel
pursuant to Section 4(b)(ii), a majority of the
Disinterested Directors shall select the Independent
Counsel, but only an Independent Counsel to which the
Indemnitee does not reasonably object, provided,
however, that if a Change in Control shall have
occurred, the Indemnitee shall select such Independent
Counsel, but only an Independent Counsel to which the
Board of Directors does not reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Article, the Indemnitee
shall be presumed to be entitled to indemnification under this
Article upon submission of a request for indemnification
together with the Supporting Documentation in accordance with
Section 4(b)(i), and thereafter the Company shall have the
burden of proof to overcome that presumption in reaching a
contrary determination. In any event, if the person or
persons empowered under Section 4(b) to determine entitlement
to indemnification shall not have been appointed or shall not
have made a determination within 60 calendar days after
receipt by the Company of the request therefor together with
the Supporting Documentation, the Indemnitee shall be deemed
to be entitled to indemnification, and the Indemnitee shall be
entitled to such indemnification unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making
the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by
law. The termination of any Proceeding described in Section
1, or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, adversely
affect the right of the Indemnitee to indemnification or
create a presumption that the Indemnitee did not act in good
faith and in a manner which the Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company
or, with respect to any criminal Proceeding, that the
Indemnitee had reasonable cause to believe that his conduct
was unlawful.
(d) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant
to Section 4(b) that the Indemnitee is not entitled to
indemnification under this Article, (A) the Indemnitee
shall be entitled to seek an adjudication of his
entitlement to such indemnification either, at the
Indemnitee's sole option, in an appropriate court of the
State of Delaware or any other court of competent
jurisdiction or an arbitration to be conducted by a
single arbitrator pursuant to the rules of the American
Arbitration Association; (B) any such judicial proceeding
or arbitration shall be de novo and the Indemnitee shall
not be prejudiced by reason of such adverse
determination; and (C) in any such judicial proceeding or
arbitration the Company shall have the burden of proving
that the Indemnitee is not entitled to indemnification
under this Article.
(ii) If a determination shall have been made or deemed to
have been made, pursuant to Section 4(b) or (c), that the
Indemnitee is entitled to indemnification, the Company
shall be obligated to pay the amounts constituting such
indemnification within five days after such determination
has been made or deemed to have been made and shall be
conclusively bound by such determination unless (A) the
Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification
or in the Supporting Documentation or (B) such
indemnification is prohibited by law. In the event that
advancement of expenses is not timely made pursuant to
Section 4(a) or payment of indemnification is not made
within five calendar days after a determination of
entitlement to indemnification has been made or deemed to
have been made pursuant to Section 4(b) or (c), the
Indemnitee shall be entitled to seek judicial enforcement
of the Company's obligation to pay to the indemnitee such
advancement of expenses or indemnification.
Notwithstanding the foregoing, the Company may bring an
action, in an appropriate court in the Sate of Delaware
or any other court of competent jurisdiction, contesting
the right of the Indemnitee to receive indemnification
hereunder due to the occurrence of an event described in
subclause (A) or (B) of this clause (ii) (a
"Disqualifying Event"); provided, however, that in any
such action the Company shall have the burden of proving
the occurrence of such Disqualifying Event.
(iii)The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to
this Section 4(d) that the procedures and presumptions of
this Article are not valid, binding and enforceable and
shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the
provisions of this Article.
(iv) In the event that the Indemnitee, pursuant to this
Section 4(d), seeks a judicial adjudication of or an
award in arbitration to enforce his rights under, or to
recover damages for breach of, this Article, the
Indemnitee shall be entitled to recover from the Company,
and shall be indemnified by the Company against, any
expenses actually and reasonably incurred by the
Indemnitee if the Indemnitee prevails in such judicial
adjudication or arbitration. If it shall be determined
in such judicial adjudication or arbitration that the
Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the
expenses incurred by the Indemnitee in connection with
such judicial adjudication or arbitration shall be
prorated accordingly.
(e) Definitions. Four purposes of this Section 4:
(i) "Change in Control" means a change in control of the
Company of a nature that would be required to be reported
in response to Item 6(e) (or any successor provision) of
Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 (the "Act"), whether or
not the Company is then subject to such reporting
requirement; provided that, without limitation, such a
change in control shall be deemed to have occurred if (A)
any "person" (as such term is used in Sections 13(d) and
14(d) of the Act) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing 50%
or more of the combined voting power of the Company's
then outstanding securities without the prior approval of
at least two-thirds of the members of the Board of
Directors in office in office immediately prior to such
acquisition; (B) the Company is a party to any merger or
consolidation in which the Company is not the continuing
or surviving corporation or pursuant to which shares of
the Company's Common Stock would be converted into cash,
securities or other property, other than a merger of the
Company in which the holders of the Company's Common
Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving
corporation immediately after the merger; (C) there is a
sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all,
or substantially all, the assets of the Company, or a
liquidation or dissolution of the Company; or (D) during
any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of
Directors (including for this purpose any new director
whose election or nomination for election by the
Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board of
Directors.
(ii) "Disinterested Director" means a director of the
Company who is not or was not a party to the Proceeding
in respect of which indemnification is sought by the
Indemnitee.
(iii)"Independent Counsel" means a law firm or a member of a
law firm that neither presently is, nor in the past five
years has been, retained to represent (a) the Company or
the Indemnitee in any matter material to either such
party or (b) any other party to the Proceeding giving
rise to a claim for indemnification under this Article.
Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the
applicable standards of professional conduct then
prevailing under the law of the State of Delaware, would
have a conflict of interest in representing either the
Company or the Indemnitee in an action to determine the
Indemnitee's rights under this Article.
Section 5. Effect of Amendments. Neither the amendment or
repeal of, nor the adoption of a provisions inconsistent with,
any provision of this Article (including, without limitation,
this Section 5) shall adversely affect the rights of any director
or officer under this Article (i) with respect to any Proceeding
commenced or threatened prior to such amendment, repeal or
adoption of an inconsistent provision, or (ii) after the
occurrence of a Change in Control, with respect to any Proceeding
arising out of any action or omission occurring prior to such
amendment, repeal or adoption of an inconsistent provision, in
either case, without the written consent of such director or
officer.
Section 6. Severability. If any provision or provisions of
this Article shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this
Article (including, without limitation, all portions of any
section of this Article containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Article (including, without
limitation, all portions of any section of this Article
containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or
unenforceable.
Section 7. Indemnification of Employees and Agent.
Notwithstanding any other provision or provisions of this
Article, the Company may indemnify (including, without
limitation, by direct payment) any person (other than a director
or officer of the Company) who is or was involved in any manner
(including, without limitation, as a party or a witness) or is
threatened to be made so involved in any Proceeding by reason of
the fact that such person is or was an employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including,
without limitation, any employee benefit plan) against any or all
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred in connection with such
Proceeding.
Exhibit 5
Milacron Inc.
Plan for the Deferral of Director's Compensation
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel for Milacron Inc., a
Delaware corporation (the "Company"), in connection with the
registration under the Securities Act of 1933 on Form S-8
(the "Registration Statement") of 60,000 shares of Common
Stock, par value $1.00 per share, of the Company (the
"Common Stock"), issuable upon distributions from the
Milacron Inc. Plan for the Deferral of Director's
Compensation (the "Plan").
In that connection, we have examined originals, or
copies certified or otherwise identified to our
satisfaction, of such documents, corporate records and other
instruments as we have deemed necessary for the purposes of
this opinion, including the following: (a) the Restated
Certificate of Incorporation of the Company, as amended, (b)
the By-laws of the Company and (c) the Plan.
Based on the foregoing, we are of the opinion as
follows:
(1) The Company has been duly incorporated and is a
validly existing corporation under the laws of the State of
Delaware.
(2) The shares of Common Stock which may be issued or
delivered upon exercise of stock options that may be granted
under the Plan, assuming, except as to treasury shares, that
the per share option price is at least equal to the par
value of the Common Stock, will be, when issued upon
exercise of such option, validly issued, fully paid and
nonassessable.
(3) The shares of Common Stock which may be issued or
delivered pursuant to distribution from the Plan, assuming,
except as to treasury shares, that the per share
consideration is at least equal to the par value of the
Common Stock, will be, when issued or delivered pursuant to
the Plan, validly issued, fully paid and nonassessable.
We are admitted to practice only in the State of New
York and, accordingly, we do not express any opinion as to
any matter governed by any laws other than the laws of the
State of New York, the General Corporation Law of the State
of Delaware and the Federal laws of the United States of
America.
We consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Cravath, Swaine & Moore
Cravath, Swaine & Moore
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the Milacron
Inc. Plan for the Deferral of Director's Compensation of our
report dated February 6, 1998, with respect to the
consolidated financial statements and schedule of Milacron
Inc. and subsidiaries, included in its Annual Report on Form
10-K for the year ended December 27, 1997, filed with the
Securities and Exchange Commission.
Cincinnati, Ohio
January 12, 1999
Exhibit 24
CINCINNATI MILACRON INC.
POWER OF ATTORNEY
Know all men by these presents that each of the undersigned
directors and officers of Cincinnati Milacron Inc., a Delaware
corporation which is preparing to file with the Securities and
Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, a registration statement
for the registration of common shares of Cincinnati Milacron
Inc., par value $1.00 per share ("Common Shares") for purposes of
its Plan for the Deferral of Director's Compensation, hereby
constitutes and appoints Daniel J. Meyer, Ronald D. Brown, and
Wayne F. Taylor, and each of them, his true and lawful attorney-
in-fact and agent, with full power to act without the others, for
him and in his name, place and stead, in any and all capacities,
to sign said registration statement which is about to be filed
and any and all subsequent effective and post-effective
amendments to said registration statement with full power where
appropriate to affix the corporate seal of Cincinnati Milacron
Inc. thereto and to attest said seal and to file said
registration statement and each subsequent amendment so signed,
with all exhibits thereto, and any and all documents in
connection therewith, with the Securities and Exchange
Commission, and to appear before the Securities and Exchange
Commission in connection with any matter relating to said
registration statement and any and all subsequent amendments,
thereby granting said attorneys-in-fact and agents, and each of
them full power and authority to do and perform any and all acts
and things requisite and necessary to be done as he might or
could do in person, and hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, may lawfully do
or cause to be done by virtue hereof.
In witness whereof, each of the undersigned has executed this
Power of Attorney on the date set forth beside his name.
/s/ Daniel J. Meyer 4/28/98
___________________________ _____
Daniel J. Meyer, Chairman, Date
President, Chief Executive Officer
and Director
/s/ Darryl F. Allen 4/28/98
___________________________ _____
Darryl F. Allen, Director Date
/s/ Neil A. Armstrong 4/28/98
___________________________ _____
Neil A. Armstrong, Director Date
/s/ David L. Burner 11/5/98
___________________________ _____
David L. Burner, Director Date
/s/ Barbara Hackman Franklin 4/28/98
__________________________________ _____
Barbara Hackman Franklin, Director Date
/s/ Harry A. Hammerly 4/28/98
___________________________ _____
Harry A. Hammerly, Director Date
/s/ James E. Perrella 4/28/98
___________________________ _____
James E. Perrella, Director Date
/s/ Joseph A. Pichler 4/28/98
___________________________ _____
Joseph A. Pichler, Director Date
/s/ Joseph A. Steger 4/28/98
___________________________ _____
Joseph A. Steger, Director Date
/s/ Harry C. Stonecipher 4/28/98
___________________________ _____
Harry C. Stonecipher, Director Date
/s/ Ronald D. Brown 1/14/99
___________________________ _____
Ronald D. Brown Date
Senior Vice President, Finance
and Administration and Chief
Financial Officer
/s/ Jerome L. Fedders 1/14/99
___________________________ _____
Jerome L. Fedders Date
Controller
