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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-K/A Amendment No. 2
/X/ Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (Fee Required)
For the fiscal year ended December 31, 1995
OR
/ / Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (No Fee Required)
For the transition period from ________ to _________
Commission File No. 0-8591
FIGGIE INTERNATIONAL INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 52-1297376
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(State or Other Jurisdiction of (IRS Employer Identification
Incorporation or Organization) No.)
4420 Sherwin Road, Willoughby, Ohio 44258
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (216) 953-2700
Securities registered pursuant to Section 12(b) of the Act:
10-3/8% Subordinated Debentures Pacific Stock Exchange, Inc.
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(Title of Class) (Name of Exchange on which Registered)
Securities registered pursuant to Section 12(g) of the Act:
Class A Common Stock, par value $.10 per share
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(Title of Class)
Class B Common Stock, par value $.10 per share
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(Title of Class)
The undersigned registrant hereby amends the following items, financial
statements, exhibits and other portions of its Annual Report on Form 10-K/A1 for
the fiscal year ended December 31, 1995 as set forth in the following pages.
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Item 14, "Exhibits, Financial Statement Schedules, and Reports on Form
8-K," paragraphs (a)(3) and (a)(23) is hereby amended and restated to include
additional consents of Independent Public Accountants as follows:
"(3) Articles of Incorporation and By-laws:
(i) The Restated Certificate of Incorporation of the Company,
as amended, as Exhibit 19 to the Company's Quarterly
Report on Form 10-Q for the quarters ending June 30,
1987, File No. 1-8591, is hereby incorporated herein by
reference.
(ii) The By-laws of the Company, as amended and restated,
effective August 15, 1995."
and
"(23) Consents of Independent Public Accountants
(i) Consent of Arthur Andersen LLP, dated February 22,
1996, included as Exhibit 23 to the Company's Annual
Report on Form 10-K for the year ending December 31,
1995, is hereby incorporated by reference;
(ii) Consent of Arthur Andersen LLP, dated September 5,
1996;"
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SIGNATURES
Pursuant to the requirements of Section 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly authorized.
<TABLE>
<S> <C>
FIGGIE INTERNATIONAL INC.
Date: September 10, 1996 By: /s/ Steven L. Siemborski
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Steven L. Siemborski
Chief Financial Officer and Senior Vice President
</TABLE>
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EXHIBIT INDEX
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(3) Articles of incorporation and by-laws:
(i) The Restated Certificate of Incorporation of the Company, as
amended, as Exhibit 19 to the Company's Quarterly Report on
Form 10-Q for the quarter ending June 30, 1987, File No.
1-8591, is hereby incorporated herein by reference.
(ii) The Bylaws of the Company, as amended and restated, effective
August 15, 1995.
(4) Instruments defining rights of security holders, including indentures,
for the following classes of securities:
(i) Class A Common Stock, par value $.10 per shares, are contained
in the Restated Certificate of Incorporation, as amended,
incorporated by reference in Exhibit (3) above and are
incorporated herein by reference.
(ii) Class B Common Stock, par value $.10 per share, are contained
in the Restated Certificate of Incorporation, as amended, and
incorporated by reference in Exhibit (3) above and are
incorporated herein by reference.
(iii) Indenture, dated as of October 1, 1989, between Figgie
International Inc. and Continental Bank, National Association,
as Trustee, with respect to the 9.875% Senior Notes due October
1, 1999, included as Exhibit (4) (c) to the Company's Annual
Report on Form 10-K for the year ending December 31, 1989, is
hereby incorporated herein by reference. State Street Trust
succeeded Continental Bank as Trustee pursuant to an agreement
dated as of February 7, 1994, which was included as Exhibit
(4)(c) to the Company's Annual Report on From 10-K for the year
ending December 31, 1993, and is hereby incorporated herein by
reference.
(iv) Second Supplemental Indenture, dated as of December 31, 1986,
among Figgie International Inc. and Marine Midland Bank, N.A.,
as Trustee, with respect to the 10.375% Subordinated Debentures
due April 1, 1998, included as Exhibit (4)(c) to the Company's
Annual Report on Form 10-K for the year ending December 31,
1986, File NO. 1-8591, and the First Supplemental Indenture,
dated as of July 18, 1983, among Figgie International Inc.,
Figgie International Holdings Inc., and Marine Midland Bank,
N.A., as Trustee with respect to the 10-3/8% Subordinated
Debentures due 1998, along with the Original Indenture dated as
of April 1, 1978, included as Exhibit (3)(4)(f) to the
Company's Form 8-B filed October 19 1983, (File No. 1-8591)
with the Commission are hereby incorporated herein by reference.
(10) Material contracts:
(i) The Company's Compensation Plan for Executives, included as
Exhibit (3)(10)(b) to the Company's Form 8-B filed October 19,
1983 with the Commission, is hereby incorporated herein by
reference.
(ii) The Company's Senior Executive Benefits Program, as amended,
included as Exhibit (19) to the Company's Quarterly Report on
Form 10-Q for the quarter ending September 30, 1988, is hereby
incorporated herein by reference.
(iii) The Company's 1983 Deferred Compensation Agreement, included as
Exhibit (3)(10)(f) to the Company's Form 8-B filed on October
19, 1983 with the Commission, is hereby incorporated herein by
reference.
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(iv) The Company's 1982 Deferred Compensation Agreement, included as
Exhibit 10(g) to the Company's Annual Report on Form 10-K for
the year ending December 31, 1984, File No. 1-8591, is hereby
incorporated by reference.
(v) The Company's Split Dollar Life Insurance Plan, included as
Exhibit 10(h) to the Company's Annual Report on Form 10-K for
the year ending December 31, 1985, File No. 1-8591, is hereby
incorporated herein by reference.
(vi) The Company's 1993 Restricted Stock Purchase Plan for
Employees, included as Exhibit A to the Company's definitive
Proxy Statement dated May 25, 1993, is hereby incorporated
herein by reference.
(vii) The Company's 1993 Restricted Stock Purchase Plan for
Directors, included as Exhibit B to the Company's definitive
Proxy Statement dated May 25, 1993, is hereby incorporated
herein by reference.
(viii) The Company's Key Employees' Stock Option Plan, included as
Exhibit A to the Company's definitive Proxy Statement dated
September 22, 1994, is hereby incorporated herein by reference.
(ix) Form of Agreement, dated as of May 1, 1989, among the Company
and corporate officers and department heads who report to the
Company's Chief Executive Officer, included as Exhibit 10.1 to
the Company's Quarterly Report on Form 10-Q for the quarter
ending March 31, 1991, is hereby incorporated herein by
reference.
(x) Employment agreement dated July 1, 1994, by and between the
Company and Steven L. Siemborski, included as Exhibit 10(b) to
the Company's Quarterly Report on Form 10Q for the quarter
ending September 30, 1994, is hereby incorporated herein by
reference.
(xi) Employment Agreement, dated as of October 28, 1994, by and
between Walter M. Vannoy and the Company, included as Exhibit
10(o) to the Company's Annual Report on Form 10K for the year
ending December 31, 1994, is hereby incorporated herein by
reference.
(xii) Employment Agreement, dated as of January 1, 1995, by and
between John P. Reilly and the Company, included as Exhibit
10(b) to the Company's Annual Report on Form 10K for the year
ending December 31, 1994, is hereby incorporated herein by
reference.
(xiii) Management Agreement, dated April 28, 1995, by and between
Luther A. Harthun and the Company, included as Exhibit 10.1 to
the Company's Quarterly Report on Form 10Q for the quarter
ending September 30, 1995, is hereby incorporated herein by
reference.
(xiv) Credit Agreement between the Company and General Electric
Credit Corporation, dated as of December 19, 1995; Waiver and
Amendment No. 1 dated as of January 30, 1996; Amendment No. 2
dated as of February 19, 1996. Previously filed with the
Company's Annual Report on Form 10-K, dated December 31, 1995.
(21) Subsidiaries of the Company. Previously filed with the Company's
Annual Report on Form 10-K, dated December 31, 1995.
(23) Consents of Independent Public Accountants
(i) Consent of Arthur Andersen LLP, dated February 22, 1996,
included as Exhibit 23 to the Company's Annual Report on Form
10-K for the year ending December 31, 1995, is hereby
incorporated by reference;
(ii) Consent of Arthur Andersen LLP, dated September 5, 1996;
(27) Financial Data Schedule. Previously filed with the Company's Annual
Report on Form 10-K, dated December 31, 1995.
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EXHIBIT 3(ii)
AUGUST 15, 1995
BYLAWS
OF
FIGGIE INTERNATIONAL INC.
ARTICLE I
STOCKHOLDERS
SECTION 1. Meetings of Stockholders.
(a) Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held at such date and time as shall be determined by the
Board of Directors. Upon due notice, there may also be considered and acted
upon at an annual meeting any matter which could properly be considered and
acted upon at a special meeting.
(b) Special Meetings. Special meetings of the stockholders of the
Corporation may be held on any business day when called at any time by the Board
of Directors or by a committee of the Board of Directors which has been duly
designated by the Board of Directors and whose powers and authority, as provided
in a resolution of the Board of Directors, include the power to call such
meetings, but special meetings may not be called by any other person or persons.
(c) Place of Meetings. Any meetings of the stockholders may be held at
such place within or without the State of Delaware as may be designated in the
notice of said meeting.
(d) Notice of Meeting and Waiver of Notice.
(1) Notice. Written notice of the place, date and hour of every
meeting of the stockholders, whether annual or special, shall be given to
each stockholder of record entitled to vote at the meeting not less than
10 nor more than 60 days before the date of the meeting. Every notice of a
special meeting shall state the purpose or purposes thereof. Such notice
shall be given by mail to each stockholder entitled thereto, and shall be
directed to the stockholder at his address as it appears on the records of
the Corporation. Notice shall be deemed to have been given on the day on
which it was deposited in the mail.
(2) Record Holder of Shares. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable or
other claims to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
(3) Waiver. Whenever any written notice is required to be given
under the provisions of the Certificate of Incorporation, these Bylaws, or
by statute, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Neither the
business to be transacted at nor the purpose of any meeting of the
stockholders need be specified in any written waiver of notice of such
meeting.
Attendance of a person, either in person or by proxy, at any meeting,
shall constitute a waiver of notice of such meeting, except where a person
attends a meeting for the express purpose of objecting to the transaction
of any business because the meeting was not lawfully called or convened.
(c) Quorum, Manner of Acting and Adjournment. The holders of record of
shares entitled to cast a majority of the votes entitled to be cast by the
holders of all shares of the capital stock issued and outstanding (not including
treasury stock) and entitled to vote, thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute, by the
Certificate of Incorporation, or by these Bylaws. Whether or not a quorum is
present, the holders of shares entitled to cast a majority of the votes entitled
to be cast by the holders present
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in person or represented by proxy at the meeting shall have power to adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At any such adjourned
meeting, at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. When a quorum is present at any meeting, the vote of a
majority of the votes entitled to be cast by the holders of all issued and
outstanding shares present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon which, by
express provision of the applicable statute or the Certificate of Incorporation
or these Bylaws, a different vote is required, in which case such express
provision shall govern and control the decision of such question. Except upon
those questions governed by the aforesaid express provisions, the stockholders
present in person or by proxy at a duly organized meeting can continue to do
business until adjournment, notwithstanding withdrawal of enough stockholders
to leave less than a quorum.
(f) Organization of Meetings.
(1) Presiding Officer. Any "executive officer" of the Corporation,
as that term is defined in section 3(g) of Article III of these Bylaws, may
call all meetings of the stockholders to order and shall act as Chairman
thereof.
(2) Minutes. The Secretary of the Corporation, or, in his absence or
by his designation, an Assistant Secretary, or, in the absence of both, a
person appointed by the Chairman of the meeting, shall act as Secretary of
the meeting and shall make and keep a record of the proceedings thereat.
(3) Stockholders' List. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting. The list shall be arranged in alphabetical order
showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination
of any stockholder for any purpose germane to the meeting, during ordinary
business hours, for a period of at least 10 days prior to the meeting
either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
(g) Voting. Except as otherwise provided by statute or the Certificate
of Incorporation, every stockholder entitled to vote shall be entitled to cast
the vote per share to which stock share is entitled, in person or by proxy, on
each proposal submitted to the meeting for each share held of record by him on
the record date for the determination of the stockholders entitled to vote at
the meeting. At any meeting at which a quorum is present, all questions and
business which may come before the meeting shall be determined by a majority of
votes cast, except when a greater proportion is required by law, the
Certificate of Incorporation, or these Bylaws.
(h) Proxies. A person who is entitled to attend a stockholders' meeting,
to vote thereat, and execute consents, waivers and releases, may be represented
at such meeting or vote thereat, and execute consents, waivers and releases,
and exercise any of his rights by proxy or proxies appointed by a writing
signed by such person, or by his duly authorized attorney, as provided by the
laws of the State of Delaware.
SECTION 2. Consent of Stockholders in Lieu of Meeting.
Any action required to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by all the holders of outstanding
stock entitled to vote thereon, except as the Certificate of Incorporation may
otherwise provide.
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SECTION 3. Determination of Stockholders of Record.
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than 60 or less than 10 days before the date of such meeting, or more than
60 days prior to any other action.
If no record date is fixed:
(1) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(2) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which
the first written consent is expressed.
(3) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
ARTICLE II
DIRECTORS
SECTION 1. General Powers.
The business, power, and authority of this Corporation shall be exercised,
conducted, and controlled by the Board of Directors, except where the law, the
Certificate of Incorporation, or these Bylaws require action to be authorized
or taken by the stockholders.
SECTION 2. Number, Classification, and Election of Directors.
(a) Number. The Board of Directors shall consist of not less than 9 nor
more than 16 members. The initial Board of Directors shall consist of 14
members. At any annual meeting, the stockholders by a vote of a majority of the
votes entitled to be cast by the holders of all issued and outstanding shares,
may increase or decrease the number of the members of the Board of Directors
within the above limitation of 9 to 16 members, and may increase or decrease
the number of directors of the class whose term shall expire in that year,
provided that such class shall continue to consist of, as nearly as may be,
one-third (1/3) of the whole number of the Board of Directors and in any case
of not less than three member. If the Board of Directors determines prior to
any annual meeting that an increase in the number of directors of the class
whose term shall expire in that year would cause such class not to consist of,
as nearly as may be, one-third (1/3) of the whole number of the Board of
Directors, then the stockholders, by the vote specified in this Section 2(a),
may increase by one (1) the number of directors of one (1) of the other
classes, provided that such class shall continue to consist of, as nearly as
may be, one-third (1/3) of the whole number of the Board of Directors. In
addition, the Board of Directors may increase or decrease the number of the
members of the Board of Directors within the above limitation of 9 to 16
members, and may increase or decrease the number of directors of any class,
provided that such class shall continue to consist of, as nearly as may be,
one-third (1/3) of the whole number of the Board of Directors. No reduction in
the number of directors shall itself have the effect of shortening the term of
any incumbent director.
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(b) Classification. The directors shall be classified in respect of the
time for which they shall hold office by dividing them into three classes, each
class consisting, as nearly as may be, of one-third (1/3) of the whole number
of the Board of Directors, but each class in any case to consist of not less
than three members.
(c) Election. The directors of the appropriate class shall be elected at
the annual meeting of stockholders, or if not so elected, at a special meeting
of stockholders called for that purpose. At any meeting of stockholders at
which directors are to be elected, only persons nominated as candidates shall
be eligible for election, and the candidates receiving the greatest number of
votes entitled to be cast by the holders of all issued and outstanding shares
shall be elected.
Directors of the Corporation need not be residents of Delaware or
stockholders. No person shall be appointed or elected a director of the
Corporation unless:
(1) such person is elected to fill a vacancy in the Board of Directors
pursuant to section 3(d) of this Article II;
(2) such person is nominated for election as a director of the
Corporation by the Board of Directors or a committee thereof; or
(3) in the case of a nomination to be made by a stockholder of the
Corporation at an annual or special meeting of the stockholders, except in
the case a nomination for which proxies are being solicited under
applicable regulations of the Securities and Exchange Commission, or a
nomination permitted by the affirmative vote of two-thirds (2/3) of the
"whole board," but only if a majority of the members of the Board of
Directors acting upon the matter are "continuing directors" (as these terms
are defined in section (a) of Article Sixth of the Certificate of
Incorporation), written notice of a stockholder's intent to make a
nomination at a meeting of stockholders is filed with the Secretary of the
Corporation not later than 10 days after the Notice to Stockholders for
that meeting is sent to stockholders, or at least 21 days prior to the date
fixed for holding the meeting at which the nomination is intended to be
made, whichever is later. Such notice of intent to nominate must contain
or be accompanied by the following information, which shall be accurate and
current as of the date of such notice, or as of a date no earlier than 60
days prior to the meeting at which the nomination is intended to be made,
whichever is later:
(A) the name and residence of the stockholder of the Corporation
who intends to make the nomination:
(B) a representation that the stockholder is a holder of record
of the voting shares of the Corporation and intends to appear in
person or by proxy at the meeting to nominate the person or persons
specified in the notice;
(C) such information regarding each nominee as would have been
required to be included in a proxy statement filed pursuant to the
Securities and Exchange Commission's proxy rules had the Board of
Directors of the Corporation nominated or intended to nominate each
nominee;
(D) a description of all arrangements or understandings among the
nominating stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; and
(E) the consent of each nominee to serve as a director of the
Corporation if so elected.
SECTION 3. Term of Office of Directors.
(a) Term. The term of office of each class of directors shall be three
years (so that the term of one class of directors shall expire each year), and
the directors shall hold office for the respective terms to which elected until
their respective successors are elected and qualified, subject only to prior
resignation, death or removal by the directors as provided by law, and subject
to the provisions of the Certificate of Incorporation.
(b) Removal. Other than as herein stated, no director may be removed from
office except for cause. With prior notice thereof, all the directors, or all
the directors of a particular class, or any individual director may be removed
for cause by a vote of a majority of the votes entitled to be cast by the
holders of all issued and outstanding shares at any meeting of stockholders
properly called for that purpose.
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(c) Resignation. Any director of the Corporation may resign at any time by
giving written notice to the Chairman of the Board of Directors or to the
President or the Secretary of the Corporation. A resignation from the Board of
Directors shall be deemed to take effect immediately or at such other time as
the director may specify.
(d) Vacancy. If there shall be any vacancy in the Board of Directors for
any reason, including but not limited to death, resignation, or as provided by
law, the Certificate of Incorporation, or these Bylaws (including any increase
in the authorized number of directors), the remaining directors shall
constitute the Board of Directors until such vacancy is filled. The remaining
directors may fill any vacancy in the Board for the unexpired term.
SECTION 4. Meetings of Directors.
(a) Meetings. Meetings of the Board of Directors may be held at any time
upon call by the Chairman of the Board, or by the President, or by any Vice
President, or by any two directors. Unless otherwise indicated in the notice
thereof, any business may be transacted at any such meeting.
(b) Place of Meeting. Any meeting of directors may be held at such place
within or without the State of Delaware as may be designated in the notice of
said meetings.
(c) Notice of Meeting and Waiver of Notice. Notice of the time and place
of any meeting of the Board of Directors and the waiver thereof shall be
governed by such rules as the Board of Directors may prescribe.
SECTION 5. Quorum and Voting.
At any meeting of directors, not less than one-half (1/2) of the directors
then in office (or, in the event that the directors than in office are an
uneven number, the nearest full number of directors less than one-half (1/2) of
such number) is necessary to constitute a quorum for such meeting, except that
any meeting duly called, whether a quorum is present or otherwise, may, by vote
of a majority of the directors present, be adjourned from time to time. At any
meeting at which a quorum is present, all acts, questions and business which
may come before the meeting shall be determined by a majority of votes cast by
the directors present at such meeting, unless the vote of a greater number is
required by the Certificate of Incorporation or Bylaws.
SECTION 6. Action of Board of Directors Without a Meeting.
Any action which may be authorized or taken at a meeting of the Board of
Directors may be authorized or taken without a meeting if approved and
authorized by a writing or writings, signed by all the directors, which are
filed with the minutes of proceedings of the Board.
SECTION 7. Compensation.
The Board of Directors is authorized to fix a reasonable salary for
directors or a reasonable fee for attendance at any meeting of the Board, the
Executive and Finance Committee, or other committees appointed by the Board of
Directors, or any combination of salary and attendance fee. In addition,
directors may be reimbursed for any expenses incurred by them in traveling to
and from such meetings.
SECTION 8. Committees.
(a) Appointment. The Board of Directors may from time to time, by
resolution adopted by a majority of the whole Board, appoint one or more of its
members to act as a committee or committees. Each such committee and each member
thereof shall serve at the pleasure of the Board. Vacancies occurring in any
such committee may be filed by the Board of Directors.
(b) Executive and Finance Committee. In particular, the Board of Directors
may create from its membership an Executive and Finance Committee, the members
of which shall hold office during the pleasure of the Board of Directors, and
may be removed at any time, with or without cause, by action thereof. During
the intervals between meetings of the Board of Directors, the Executive and
Finance Committee shall possess and may exercise all of the powers of the Board
of Directors in the management and control of the
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business of the Corporation to the extent permitted by law. All action taken by
the Executive and Finance Committee shall be reported to the Board of Directors.
(c) Committee Action. Unless otherwise provided by the Board of Directors,
a majority of the members of any committee appointed by the Board of Directors
pursuant to this section shall constitute a quorum at any meeting thereof and
the act of a majority of the members present at a meeting at which a quorum is
present shall be the act of such committee. Action may also be taken by any
such committee without a meeting by a writing or writings, signed by all its
members, which is filed with the minutes of proceedings of the committee. Any
such committee shall appoint one of its own number as Chairman who shall
preside at all meetings and may appoint a Secretary (who need not be a member
of the committee) who shall hold office during the pleasure of such committee.
Meetings of any such committee may be held without notice of the time, place or
purpose thereof and may be held at such times and places within or without the
State of Delaware, as the committee may from time to time determine, at the
call of the Chairman or any two members thereof. Any such committee may
prescribe such other rules as it shall determine for calling and holding
meetings and its method of procedure, subject to any rules prescribed by the
Board of Directors.
SECTION 9. Conference Telephone Meetings.
One or more directors may participate in a meeting of the Board, or of a
committee of the Board, by means of conference telephone or similar
communications equipment enabling all persons participating in the meeting to
hear each other. Participants in a meeting pursuant to this section shall
constitute presence in person at such meeting.
ARTICLE III
OFFICERS
SECTION 1. General Provisions
The Board of Directors at such time as it determines may elect such
executive officers, as defined in section 3(g), as the Board deems necessary.
The Chairman of the Board shall be, but the other executive officers may, but
need not, be chosen from the members of the Board. Any two or more executive
offices may be held by the same person. Other officers may be appointed in the
manner provided for in these Bylaws. The election or appointment of an officer
for a given term, or a general provision in the Certificate of Incorporation or
in the Bylaws with respect to term of office, shall not be deemed to create any
contract rights.
SECTION 2. Term of Office, Removal, and Vacancies.
(a) Term. Each executive officer of the Corporation shall hold office
during the pleasure of the Board of Directors and until his successor is
elected and qualified, unless he sooner dies or resigns or is removed by the
Board of Directors or the Chairman.
(b) Removal. The Board of Directors by a majority vote of the members
present at a meeting at which a quorum is present or the Chairman acting alone
may remove any executive officer at any time, with or without cause.
(c) Vacancies. Any vacancy in any executive office may be filled by the
Board of Directors or by the Chairman.
SECTION 3. Powers and Duties.
(a) In general. All officers, as between themselves and the Corporation,
shall respectively have such authority and perform such duties as are
customarily incident to their respective offices, and as may be specified from
time to time by the Board of Directors, regardless of whether such authority and
duties are customarily incident to such office. In the absence of any officer of
the Corporation, or for any other reason the Board of Directors may deem
sufficient, the Board of Directors may delegate from time to time the powers or
duties of such officer, or any of them, to any other officer or to any Director.
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(b) Chairman of the Board. The Chairman of the Board shall, subject to the
provisions of these Bylaws, preside at all meetings of the stockholders and of
the Board of Directors. The Chairman of the Board shall have general supervision
over the Corporation's property, business, and affairs, and perform all the
duties usually incident to such office, subject to the direction of the Board of
Directors. He may execute all authorized deeds, mortgages, bonds, contracts, and
other obligations in the name of the Corporation and shall have such other
powers and duties as may be prescribed by the Board of Directors.
(c) President. In the absence of the Chairman of the Board, and subject to
the provisions of these Bylaws, the President shall preside at all meetings of
the stockholders. The President shall be the chief operating officer of the
Corporation and perform all the duties usually incident to such office, subject
to the direction of the Board of Directors. In case of the absence or disability
of the Chairman of the Board, or when circumstances prevent the Chairman of the
Board from acting, the President shall perform the duties of the Chairman of the
Board, and in such case, may execute all authorized deeds, mortgages, bonds,
contracts and other obligations, in the name of the Corporation.
(d) Vice Presidents. The Vice Presidents shall have such powers, duties
and titles as may be prescribed by the Board of Directors or as may be
delegated by the Chairman of the Board of by the President.
(e) Secretary. The Secretary shall keep the minutes of all meetings of the
stockholders and the Board of Directors. He shall keep such books as may be
required by the Board of Directors, shall have charge of the scal, if any, of
the Corporation and shall be permitted, subject to the provisions of these
Bylaws, to give notices of stockholders' and directors' meetings required by
law or by these Bylaws, or otherwise, and have such other powers and duties as
may be prescribed by the Board of Directors or the Chairman of the Board.
(f) Treasurer. The Treasurer shall receive and have charge of all money,
bills, notes, bonds, stock in other corporations and similar property belonging
to the Corporation, and shall do with the same as shall be ordered by the Board
of Directors. He shall keep accurate financial accounts, and hold the same open
for inspection and examination by the directors. On the expiration of his term
of office, he shall turn over to his successors, or to the Board of Directors,
all property, books, papers, and money of the Corporation in his hands, and
shall possess such other powers and duties as may be prescribed by the Board of
Directors or the Chairman of the Board.
(g) Executive Officers. The officers referred to in subparagraphs
(b), (c), (d), (e), and (f) of this section and such other officers as the Board
of Directors may be resolution identify shall be executive officers of the
Corporation and may be referred to as such.
(h) Other Officers. The Assistant Secretaries, Assistant Treasurers, if
any, and any other subordinated officers shall be appointed and removed by the
executive officer at whose pleasure each shall serve and shall have such powers
and duties as such executive officer may prescribe.
SECTION 4. Compensation.
The Board of Directors is authorized to determine or to provide the method
of determining the compensation of all officers.
ARTICLE IV
SECURITIES HELD BY CORPORATION
SECTION 1. Transfer of Securities Owned by the Corporation.
All endorsements, assignments, transfers, share powers, or other
instruments of transfer of securities standing in the name of the Corporation
shall be executed for an in the name of the Corporation by the Chairman of the
Board, or by the President, or by any Vice President, or by the Secretary or
Treasurer or by any additional person or persons as may be thereunto authorized
by the Board of Directors.
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SECTION 2. Voting Securities Held by the Corporation.
The Chairman of the Board, or the President, or any Vice President, or the
Secretary or Treasurer, in person or by another person thereunto authorized by
the Board of Directors, in person or by proxy or proxies appointed by him,
shall have full power and authority on behalf of the Corporation to vote, act
and execute consents, waivers and releases with respect to any securities
issued by other corporations which the Corporation may own.
ARTICLE V
SHARE CERTIFICATES
SECTION 1. Transfer and Registration of Certificates.
The Board of Directors shall have authority to make such rules and
regulations, not inconsistent with law, the Certificate or these Bylaws, as it
deems expedient concerning the issuance, transfer and registration of
certificates for shares and the shares represented thereby.
SECTION 2. Certificates for Shares.
Each holder of shares is entitled to one or more certificates for shares
of the Corporation in such form not inconsistent with law and the Certificate
of Incorporation as shall be approved by the Board of Directors. Each such
certificate shall be signed by the Chairman of the Board or the President or
any Vice President, and by the Secretary, an Assistant Secretary, the
Treasurer, or an Assistant Treasurer of the Corporation, which certificate
shall certify the number and class of shares held by each stockholder in the
Corporation, but no certificates for shares shall be executed or delivered
until such shares are fully paid. Any of or all the signatures upon such
certificate may be a facsimile, engraved or printed. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any share certificate shall have ceased to be such officer,
transfer agent or registrar, before the certificate is issued, it may be issued
with the same effect as if he were such officer, transfer agent or registrar at
the date of its issue.
SECTION 3. Transfer Agents, Registrars and Dividend Disbursing Agents.
The Board of Directors may from time to time by resolution appoint one or
more incorporated transfer agents and registrars (which may or may not be the
same corporation) for the shares of the Corporation, and the Board of Directors
from time to time by resolutions may appoint a dividend disbursing agent to
disburse any and all dividends authorized by the Board of Directors payable
upon the shares of the Corporation.
SECTION 4. Transfers.
Upon surrender to the Corporation or the transfer agent of the Corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. No transfer
shall be made which would be inconsistent with the provisions of Article 8,
Title 6 of the Delaware Uniform Commercial Code--Investment Securities.
SECTION 5. Lost, Stolen or Destroyed Certificates.
The Corporation may issue a new certificate for shares in place of any
certificate or certificates heretofore issued by the Corporation alleged to
have been lost, stolen or destroyed and upon the making of an affidavit of that
fact by the person claiming the certificate of stock to have been lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion, and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representatives, to attest the same
in such manner as it shall require and to give the Corporation a bond in such
sum and containing such terms as the Board may direct as indemnity against any
claim that may be made against the Corporation with respect to the certificate
or certificates alleged to have been lost, stolen, or destroyed.
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SECTION 6. Protection of Corporation.
The Corporation may treat a fiduciary as having capacity and authority to
exercise all rights of ownership in respect to shares of record in the name of
the decedent holder, person, firm or corporation in conservation, receivership
or bankruptcy, minor, incompetent person, or person under disability, as the
case may be, for whom he is acting, or a fiduciary acting as such, and the
Corporation, its transfer agent and registrar, upon presentation of evidence of
appointment of such fiduciary shall be under no duty to inquire as to the
powers of such fiduciary and shall not be liable to any firm, person, or
corporation for loss caused by any act done or omitted to be done by the
Corporation or its transfer agent or registrar is reliance thereon.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
AND OTHER AUTHORIZED REPRESENTATIVES
SECTION 1. Indemnification of Authorized Representative in Third Party
Proceedings.
The Corporation shall indemnify any person who was or is an "authorized
representative" of the Corporation (which shall mean for purposes of this
Article a director or officer of the Corporation, or a person serving at the
request of the Corporation as a director, officer, or trustee, of another
corporation, partnership, join venture, trust or other enterprise) and who was
or is a "party" (which shall include for purposes of this Article the giving of
testimony or similar involvement) or is threatened to be made a party to any
"third party proceeding" (which shall mean for purposes of this Article the
giving of testimony or similar involvement) or is threatened to be made a party
to any "third party proceeding" (which shall mean for purposes of this Article
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative, other than an action by or in the
right of the Corporation) by reason of the fact that such person was or is an
authorized representative of the Corporation, against expenses (which shall
include for purposes of this Article attorneys' fees), judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such third party proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in, or not
opposed to , the best interests of the Corporation and, with respect to any
criminal third party proceedings (which could or does lead to a criminal third
party proceeding) had no reasonable cause to believe such conduct was unlawful.
The termination of any third party proceeding by judgment, order, settlement,
indictment, conviction, or upon a plea of nolo contendere or its equivalent,
shall not of itself create a presumption that the authorized representative did
not act in good faith and in a manner which such person reasonably believed to
be in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal third party proceeding, had reasonable cause to believe
that such conduct was unlawful.
SECTION 2. Indemnification of Authorized Representatives in Corporate
Proceedings.
The Corporation shall indemnify any person who was or is an authorized
representative of the Corporation and who was or is a party or is threatened to
be made a party to any "corporate proceeding" (which shall mean for purposes of
this Article any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor or investigative
proceeding by the Corporation) by reason of the fact that such person was or is
an authorized representative of the Corporation, against expenses actually and
reasonably incurred by such person in connection with the defense or settlement
of such corporate action if such person acted in good faith and in a manner
reasonably believed to be in, or not opposed to , the best interests of the
Corporation, except that no indemnification shall be made in respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such corporate proceeding was pending shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such authorized representative is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
SECTION 3. Mandatory Indemnification of Authorized Representatives.
To the extent that an authorized representative of the Corporation has
been successful on the merits or otherwise in defense of any third party or
corporate proceedings or in defense of any claim, issue or matter
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therein, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith.
SECTION 4. Determination of Entitlement to Indemnification.
Any indemnification under section 1, 2, or 3 of this Article
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the authorized
representative is proper in the circumstances because such person has either
met the applicable standard of conduct set forth in section 1 or 2 or has been
successful on the merits or otherwise act forth in section 3 and that the
amount requested has been actually and reasonably incurred. Such determination
shall be made:
(1) by the Board of Directors by a majority of a quorum consisting of
directors who were not parties to such third party or corporate
proceedings; or
(2) If such a quorum is not obtainable, or, even if obtainable, a
majority vote of such a quorum so directs, by independent legal counsel in
a written opinion; or
(3) by the stockholders.
SECTION 5. Advancing Expenses.
Expenses actually and reasonably incurred in defending a third party or
corporate proceeding shall be paid on behalf of an authorized representative by
the Corporation in advance of the final disposition of such third party or
corporate proceedings upon receipt of an undertaking by or on behalf of the
authorized representative to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation as authorized in this Article.
SECTION 6. Employee Benefit Plans.
For purposes of this Article, the Corporation shall be deemed to have
requested an authorized representative to serve an employee benefit plan where
the performance by such person of duties to the Corporation also imposes duties
on, or otherwise involves services by, such person to the plan or participants
or beneficiaries of the plan; excise taxes assessed on an authorized
representative with respect to an employee benefit plan pursuant to applicable
law shall be deemed "fines"; and action taken or omitted by such person with
respect to an employee benefit plan in the performance of duties for a purpose
reasonably believed to be in the interest of the participant and beneficiaries
of the plan shall be deemed to be for a purpose which is not opposed to the
best interest of the Corporation.
SECTION 7. Scope of Article.
The indemnification of and advancement of expenses to authorized
representatives, as authorized by this Article, shall (1) not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any statute, agreement, vote of
stockholders or disinterested directors or otherwise both as to action in an
official capacity and as to action in other capacities, (2) continued as to a
person who has ceased to be an authorized representative, and (3) inure to the
benefit of the heirs, executors, and administrators of such person.
SECTION 8. Reliance on Provisions.
Each person who shall act as an authorized representative of the
Corporation shall be deemed to be doing so in reliance upon rights of
indemnification provided by this Article.
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ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors and shall remain as fixed until changed by resolution of the
Board from time to time.
ARTICLE VIII
CONSISTENCY WITH CERTIFICATE OF INCORPORATION
If any provision of these Bylaws shall be inconsistent with the
Corporation's Certificate of Incorporation (and as they may be amended from
time to time), the Certificate of Incorporation (as so amended at the time)
shall govern.
ARTICLE IX
AMENDMENTS
Except as otherwise provided in the Certificate of Incorporation, these
Bylaws may be altered, amended, or repealed or new bylaws may be adopted by the
stockholders or by the Board of Directors at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting of the
stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new bylaws be contained in the notice of such
special meeting.
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EXHIBIT 23 (ii)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of
our report contained in this Form 10-K/A, into the Company's previously filed
Registration Statement File No. 33-33177.
ARTHUR ANDERSEN LLP
Cleveland, Ohio,
September 16, 1996
E-1
