<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 25, 1997
Registration No. 333-_____
--------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION STATEMENT ON
FORM S-4
Under
The Securities Act of 1933
--------------------
UNISOURCE WORLDWIDE, INC.
<TABLE>
<S> <C> <C>
Delaware 5111 13-5369500
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
</TABLE>
825 Duportail Road
Wayne, Pennsylvania 19087-5589
(610) 296-4470
RAY B. MUNDT Copies to:
Chairman and Chief Executive Officer HOWARD L. SHECTER, ESQUIRE
Unisource Worldwide, Inc. Morgan, Lewis & Bockius LLP
825 Duportail Road 2000 One Logan Square
Wayne, Pennsylvania 19087-5589 Philadelphia, PA 19103-6993
(610) 296-4470 (215) 963-5442
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Registration Statement becomes effective.
--------------------
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED UNIT* PRICE REGISTRATION FEE
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock $0.001 5,000,000 $14.375 $71,875,000 $21,780.30
par value per share
- -------------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c).
** This Registration Statement also relates to an indeterminate number of
shares of Common Stock that may be issued to prevent dilution resulting from
stock splits, stock dividends or similar transactions in accordance with Rule
416.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
UNISOURCE WORLDWIDE, INC.
Cross-Reference Sheet showing the location in the Prospectus of
information required to be included in the Prospectus pursuant to Item
501(b) of Regulation S-K.
<TABLE>
<CAPTION>
Item Number and Caption Location in Prospectus
- ----------------------- ----------------------
<S> <C>
A. Information about the Transaction
1. Forepart of Registration Statement and Facing Page of Form S-4; This Cross-Reference
Outside Front Cover Page of Prospectus Sheet;
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of Available Information; The Company
Prospectus
3. Risk Factors, Ratio of Earnings to Fixed Outside Front Cover Page of Prospectus; The
Charges and Other Information Company; Risk Factors; Selected Financial
Information
4. Terms of the Transaction Outside Front Cover Page of Prospectus; Securities
Covered by this Prospectus; Plan of Distribution
5. Pro Forma Financial Information *
6. Material Contracts With the Company Being *
Acquired
7. Additional Information Required For Resales
Reoffering by Persons and Parties Deemed To
Be Underwriters
8. Interests of Named Experts and Counsel Experts; Legal Matters
9. Disclosure of Commission Position on *
Indemnification for Securities Act Liabilities
B. Information about the Registrant
10. Information with Respect to S-3 Registrants The Company
11. Incorporation of Certain Information by The Company; Documents Incorporated by Reference
reference
12. Information With Respect to S-2 or S-3 Documents Incorporated by Reference
Registrants
13. Incorporation of Certain Information by Documents Incorporated by Reference
Reference
14. Information With Respect to Registrants *
Other Than S-2 or S-3 Registrants
C. Information about the Company Being Acquired
15. Information With Respect to S-3 Companies *
16. Information With Respect to S-2 or S-3
Companies *
17. Information With Respect to Companies
Other Than S-2 or S-3 Companies *
</TABLE>
i
<PAGE>
<TABLE>
Item Number and Caption Location in Prospectus
- ----------------------- ----------------------
<S> <C>
D. Voting and Management Information
18. Information if Proxies, Consents or *
Authorization Are To Be Solicited
19. Information if Proxies, Consents or *
Authorizations Are Not To Be Solicited in or
in an Exchange Offer
</TABLE>
_____________
* Not applicable.
ii
<PAGE>
PROSPECTUS
5,000,000 SHARES
UNISOURCE WORLDWIDE, INC.
[LOGO]
COMMON STOCK
This Prospectus relates to the offer and sale from time to time by
Unisource Worldwide, Inc., a Delaware corporation ("Unisource" or the
"Company"), or its subsidiaries of 5,000,000 shares of Unisource's common
stock, par value $0.001 per share (the "Common Stock"), to be issued
directly or indirectly in exchange for shares of capital stock of other
companies, or in exchange for assets used in or related to the business of
such companies. See "Securities Covered by This Prospectus." Common Stock
offered hereby may generally be resold by the persons acquiring such shares
without further registration under the Securities Act of 1933, as amended
(the"Act"). For further information on resales, see "RESALES" in this
Prospectus.
The Common Stock is listed and traded on the New York, Philadelphia
and Chicago Stock Exchanges under the symbol "UWW."
_______________
THE COMMON STOCK OFFERED HEREBY INVOLVES CERTAIN RISKS. SEE "RISK
FACTORS" COMMENCING ON PAGE 4.
______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATIONS TO THE CONTRARY IS A CRIMINAL OFFENSE.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY UNISOURCE. NEITHER THE PROSPECTUS
NOR ANY PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN
THE FACTS SET FORTH OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT OR IN THE AFFAIRS OF UNISOURCE SINCE SUCH DATE.
The date of this Prospectus is April 25, 1997.
1
<PAGE>
THE COMPANY
Unisource is the largest marketer and distributor of quality paper
products in North America. Unisource also is a leading North American
distributor of paper and plastic shipping and food service supplies,
sanitary maintenance supplies and equipment and packaging supplies and
equipment. Unisource has extensive distribution facilities located
throughout the United States, Canada and Mexico.
Unisource serves a broad customer base by marketing and distributing
products and equipment that are manufactured by third parties. The Company
distributes these products through its two principal businesses: a
business which markets and distributes quality papers to printers,
publishers and corporate imaging customers ("Printing and Imaging"); and a
business which distributes a wide range of paper and plastic shipping and
food service supplies, sanitary maintenance supplies and equipment and
packaging equipment and supplies, principally to manufacturers, food
processors and grocery stores (collectively, "Supply Systems").
For the fiscal year ended September 30, 1996 ("fiscal 1996"),
Unisource generated approximately $7 billion in revenues and $184 million
in operating income, excluding a $50 million restructuring charge. In
fiscal 1996, the Company's Printing and Imaging business accounted for
approximately 68% of total Company revenues and the Supply Systems business
accounted for approximately 32% of total Company revenues.
The address of Unisource's principal executive offices is 825
Duportail Road, Wayne, Pennsylvania 19087-5589.
AVAILABLE INFORMATION
Unisource is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "1934 Act") and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by Unisource with the Commission can
be inspected and copied at the offices of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20547 and at the
following Regional Offices of the Commission: Northeast Regional Office, 7
World Trade Center, New York, New York 10048; and Midwest Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60621. Copies of such material can also be obtained from the Public
Reference Section of the Commission at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Such
material can also be inspected at the New York, Philadelphia, and Chicago
Stock Exchanges on which Unisource's Common Stock is listed. THIS
PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST
FROM MARTHA BUCKLEY, UNISOURCE INVESTOR RELATIONS DEPARTMENT, 825 DUPORTAIL
ROAD, WAYNE, PENNSYLVANIA 19087-5589, (610) 993-3609.
2
<PAGE>
Unisource has filed with the Commission a Registration Statement on
Form S-4 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Act with respect to the securities to
which this Prospectus relates. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission.
For further information with respect to Unisource and such securities,
reference is made to the Registration Statement, which may be examined or
copied at the offices of the Commission. Statements contained in this
Prospectus as to the contents of any contract or any other document filed,
or incorporated by reference, as an exhibit to the Registration Statement,
are qualified in all respects by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents are incorporated by reference herein:
1) Unisource's registration statement on Form 10 dated November 26,
1996 under the 1934 Act (the "1934 Act Registration Statement");
2) Unisource's Current Report on Form 8-K, dated March 19, 1997;
3) Unisource's Current Report on Form 8-K, dated April 15, 1997;
4) Unisource's Quarterly Report on Form 10-Q for the period ended
December 31, 1996; and
5) Unisource's registration statement on Form 8-A, relating to
Unisource's preferred share purchase rights.
All documents filed by Unisource pursuant to Sections 13(a), 13(c),
14, or 15(d) of the 1934 Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Common Stock shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. This Prospectus does not
contain all information set forth in the Registration Statement and
exhibits thereto which Unisource has filed with the Commission and to which
reference is made hereby.
Unisource will provide without charge to each person, including any
beneficial owner to whom a copy of this Prospectus is delivered, on the
written or oral request of any such person, a copy of any or all of the
documents referred to above which have been incorporated in this Prospectus
by reference, other than exhibits to such documents (unless such exhibits
are specifically incorporated by reference in such documents). Requests
for such copies should be directed to: Martha Buckley, Unisource Investor
Relations Department, 825 Duportail Road, Wayne, Pennsylvania 19087-5589,
(610) 993-3609.
3
<PAGE>
SECURITIES COVERED BY THIS PROSPECTUS
The shares of Common Stock covered by this Prospectus are available
for use in future acquisitions of other businesses or properties, which may
be similar or dissimilar to Unisource's present activities. The
consideration offered by Unisource in such acquisitions, in addition to the
shares of Common Stock offered hereby, may include cash, debt or other
securities (which may be convertible into shares of Common Stock covered by
this Prospectus), or assumption by Unisource of liabilities of the business
being acquired, or a combination thereof. It is contemplated that the
terms of acquisitions will be determined by negotiations between Unisource
and the owners and/or management of the business or properties to be
acquired, with Unisource taking into account the quality of management, the
past and potential earnings power and growth of the business or properties
to be acquired, and other relevant facts, and it is anticipated that shares
of Common Stock issued in acquisitions will be valued at a price reasonably
related to the market value of the Common Stock either at the time the
terms of the acquisition are tentatively agreed upon or at or about the
time or times of delivery of the shares.
RISK FACTORS
Prior to making an investment decision, prospective purchasers should
consider carefully, in addition to other information contained in the
Prospectus, the following risk factors.
COMPETITION
The Company's Printing and Imaging and Supply Systems businesses
operate within highly competitive markets. Unisource's Printing and
Imaging competitors consist of the distribution units of large paper
manufacturers (e.g., International Paper's ResourceNet, Mead Corporation's
Zellerbach and Champion International's Nationwide Paper) and independent
distributors. While Unisource is the largest distributor in this market,
certain Printing and Imaging competitors, principally the distribution
units of large paper manufacturers, may have greater total financial,
purchasing and/or sourcing power than Unisource. In the more fragmented
Supply Systems business, Unisource competes with a large number of local
and regional distributors, as well as larger companies, including
ResourceNet and Zellerbach. The Company believes that the principal
competitive factors in these markets include responsiveness to customer
needs, price, quality of customer service and the range of products
maintained in inventory. The Company is responding to such competitive
conditions by bundling products and services in order to meet all
customers' Printing and Imaging and Supply Systems needs and by using its
extensive distribution capabilities to attract national accounts which
provide consistent and profitable revenue streams.
4
<PAGE>
QUARTERLY FLUCTUATIONS IN OPERATING RESULTS; SENSITIVITY TO PAPER PRICES
The Company has experienced fluctuations in revenues and net income
from quarter to quarter due to a combination of factors, including
volatility in pulp and paper prices (which may also affect demand for
Printing and Imaging products), the timing and magnitude of acquisitions
and the implementation of the Company's restructuring program. The
Printing and Imaging business, which accounted for $4.8 billion (68%) and
$666 million (59%) of the Company's revenues and gross profit,
respectively, during fiscal 1996, can be significantly impacted by
volatility in pulp and paper prices. In fiscal 1995, average prices for
Printing and Imaging products sold by the Company increased by more than
24% over average fiscal 1994 levels. By September 30, 1996, prices for
those same products declined by more than 16% compared to prices at fiscal
1995 year-end. For the three-year period ended September 30, 1996, paper
prices for uncoated cut size (copy) and coated papers (the two greatest
volume categories for the Company) ranged from $670 to $1,160 per ton and
$1,175 to $1,500 per ton, respectively. Volatility in pulp and paper prices
may alter purchasing patterns and cause customers to defer paper purchases
and/or deplete inventory levels until long-term price stability occurs. In
general, rising paper prices favorably impact the Company through the
generation of higher gross trading margins. This is particularly true when
market conditions allow the Company to quickly pass along increased
supplier costs to customers and maintain its gross trading margin
percentage. When such percentage is maintained over a higher revenue base
that is brought about by increased prices, results are favorably impacted.
With the exception of increased sales commission expense, which is based
upon gross trading margins, and is the only significant expense item that
varies directly with changing paper prices, increases in paper prices do
not carry a proportionate increase in operating expenses. Declining paper
prices negatively impact the Company even when Unisource maintains its
gross trading margin percentage and volumes because constant volumes and
trading margin percentages in a declining price environment will produce
lower revenues and gross trading margins, in absolute terms, and Unisource
also has certain fixed expenses which impact results regardless of changes
in paper prices. Although the Company does not produce paper products and
is not directly exposed to the production and raw materials risks
associated therewith, industry overcapacity and overproduction by paper
suppliers also could adversely affect the Company's revenues and net income
if such factors produce lower paper prices. In addition, while the Company
has been successful in ultimately passing on the effects of price
increases, there is sometimes a short lag from the time prices are
increased by producers until the Company is able to effectively pass along
such increased costs to its customers.
DELAY IN IMPLEMENTING INFORMATION TECHNOLOGY SYSTEM
The Company began an ambitious restructuring program in late fiscal
1993 and has made significant investments in the design, testing and
implementation of a new information technology system. The implementation
of the system, which was originally scheduled to begin in 1995, has been
delayed to allow for additional enhancements to the system and to better
prepare field operations for installation. Implementation is now expected
to be completed by the end of fiscal 1999. While information technology
systems currently in use are adequate to support the Company's current
operations, such systems will not enable the Company to achieve
5
<PAGE>
its current business strategies to realize cost savings through streamlined
operating and financial functions, increase responsiveness to customers and
enhance distribution efficiency. Any significant further delay in
implementing this program or any significant difficulties in realizing the
anticipated benefits of such program would delay the Company's ability to
successfully implement its business strategies and could adversely impact
the Company's operations and future financial results and condition.
CERTAIN ANTITAKEOVER PROVISIONS
The Company's Certificate of Incorporation, By-laws and Stockholder
Rights Plan and the General Corporation Law of the State of Delaware may
have the effect, either alone or in combination with each other, of making
more difficult or discouraging a tender offer, change in control or
takeover attempt that is opposed by the Company's Board of Directors. See
"Description of Capital Stock - Unisource Common Stock; Delaware
Antitakeover Provisions," "--Preferred Stock," "--Certain Antitakeover
Provisions - Unisource Certificate and By-Laws" and "--Stockholder Rights
Plan." In addition, provisions in the Company's Tax Sharing Agreement with
Alco Standard Corporation could have the effect of discouraging or making
more expensive certain takeover proposals.
FORWARD-LOOKING INFORMATION
This Prospectus contains, and other materials filed or to be filed by
the Company with the Commission which are incorporated by reference herein,
as well as information included in oral statements or other written
statements made or to be made by the Company, contain or will contain or
include, disclosures which are forward-looking statements within the
meaning of Section 27A of the Act and Section 21E of the 1934Act. Such
forward-looking statements address, among other things, strategic
initiatives (including plans for transforming the Company's business
through new information technology systems, sales strategies, market growth
plans and acquisition and margin enhancement initiatives, capital
expenditure requirements and financing sources) and anticipated results of
operations. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations," "Business-Strategy," "--Acquisitions"
and "--Business Transformation and Information Technology System" in the
1934 Act Registration Statement. Such forward-looking information is based
upon management's current plans or expectations and is subject to a number
of uncertainties and risks that could significantly affect current plans,
anticipated actions and the Company's future financial condition and
results. These uncertainties and risks include, but are not limited to,
those relating to conducting operations in a competitive environment;
delays, difficulties and technological changes associated with a large-
scale systems transformation project; acquisition activities (including
uncertainties associated with projecting the use of Common Stock as
acquisition currency when there has been no historic trading market for
such stock and projecting future cash flows to finance cash-based
acquisitions); debt service requirements (including sensitivity to
fluctuation in interest rates); general economic conditions; and changes or
volatility in paper prices. As a consequence, current plans, anticipated
actions
6
<PAGE>
and future financial condition and results may differ from those expressed
in any forward-looking statements made by or on behalf of the Company.
PLAN OF DISTRIBUTION
Shares of Common Stock will be offered in connection with Unisource's
or a subsidiary's acquisition of other businesses or properties from time
to time as described above. A maximum of 5,000,000 shares of Common Stock
may be sold pursuant to this Prospectus. These shares will ordinarily
represent consideration paid directly upon the acquisition of businesses or
properties. The shares may also include shares to be delivered upon the
exercise or satisfaction of conversion or purchase rights which are created
in connection with acquisitions or which were previously created or assumed
by the companies whose businesses or properties were acquired.
RESALES
Common Stock offered hereby may generally be resold by the persons
acquiring such shares without further registration under the Act, unless
such persons are "affiliates" or "underwriters" within the meaning of the
Act.
Any person receiving shares offered hereby who is an "affiliate" of
Unisource may be subject to certain limitations on resale. An "affiliate"
is a person who directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with the Company.
"Control," as used in the preceding sentence, means the direct or indirect
power to direct or cause the direction of the management and policies of
the Company through ownership of voting securities, contract or otherwise.
In the absence of a special relationship between Unisource and a person
who receives shares from Unisource in an acquisition transaction (such as
election of such person to Unisource's board of directors or ownership by
such person of a significant percentage of Unisource's outstanding Common
Stock), such a person generally would not be considered an "affiliate" of
Unisource within the meaning of the Act. Therefore, the limitations on
resale applicable to affiliates would not apply to such person.
Any person receiving shares offered hereby who is an "underwriter" of
Unisource may also be subject to certain limitations upon resale. An
"underwriter" includes a person who purchases Unisource shares with a view
to the distribution of such shares. Although an "underwriter" may
otherwise be subject to certain resale limitations, if such person complies
with the "safe harbor" provisions of rule 145(d), he or she may freely
resell shares so long as certain conditions are met. For example, a person
who receives shares of Common Stock from Unisource in a typical acquisition
transaction is deemed to be an "underwriter" as defined by the Act, but
such person is generally free to sell such shares at any time by complying
with rule 145(d), which requires that the amount of Common Stock which may
be sold by such person in any three-month period may not exceed the greater
of (i) 1% of the Common Stock outstanding as shown by the most recent
report or statement published by Unisource, or (ii) the average weekly
trading volume in Common Stock reported on the NYSE Composite tape during
the four calendar weeks preceding the order to sell. Such sales must also
be made in "brokers'
7
<PAGE>
transactions," which are ordinary sales through a broker acting as agent
without special commission arrangements or selling efforts.
In order for affiliates or underwriters not protected by Rule 145(d)
to resell shares offered hereby, Unisource would have to agree 1) to
provide an opinion to the effect that an exemption applies to such resale,
2) to amend the Registration Statement of which this Prospectus is a part
to permit such resales, or 3) to file a new registration statement which
includes the shares proposed to be resold. Unless a written agreement
obligates Unisource to do so, there is no assurance that Unisource will
agree to provide such opinion, amendment or registration.
USE OF PROCEEDS
The Common Stock offered hereby will be issued directly or indirectly
in exchange for shares of capital stock of other companies, or in exchange
for assets used in or related to the business of such companies. The
proceeds of the sale of Common Stock offered hereby, to the extent such
proceeds consist of the assets of acquired businesses, will be added to the
assets of Unisource or a subsidiary. Cash proceeds, if any, representing
part of the assets of acquired businesses, will be added to the general
funds of Unisource or a subsidiary and may be used for general corporate
purposes, including capital expenditures and working capital requirements.
8
<PAGE>
SELECTED FINANCIAL DATA
The following table summarizes certain selected historical financial
information of Unisource that has been derived from the audited financial
statements of Unisource for each of the five years in the period ended
September 30, 1996. The historical financial information may not be
indicative of Unisource's future performance as a stand-alone company. The
financial data for the three month periods ended December 31, 1995 and 1996
are derived from unaudited financial statements. The unaudited financial
statements include all adjustments, consisting of normal recurring
accruals, which Unisource considers necessary for a fair presentation of
the financial position and the results of operations for these periods.
Operating results for the three months ended December 31, 1996 are not
necessarily indicative of the results that may be expected for the entire
year ending September 30, 1997. The information set forth below should be
read in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and Unisource's Consolidated Financial
Statements and notes thereto included in the 1934 Act Registration
Statement. Per share data has not been presented for any periods other than
December 31, 1996, because Unisource was a wholly-owned subsidiary of Alco
Standard Corporation during the periods presented and was recapitalized
prior to the year ended September 30, 1996.
<TABLE>
<CAPTION>
Three Months Ended
Year Ended September 30, December 31,
- -------------------------------------------------------------------------------------- ------------------
(in millions except for Earnings 1992 1993 1994 1995 1996 1995 1996
per share) -------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues....................... $3,667.9 $4,864.1 $5,756.5 $6,987.3 $7,022.8 $1,716.2 $1,728.5
Costs and expenses:
Cost of goods sold............. 3,079.5 4,077.1 4,825.7 5,925.2 5,896.2 1,446.7 1,428.4
Selling and administrative..... 475.7 661.0 782.3 855.8 942.1 219.3 255.0
Restructuring charge........... -- 175.0 -- -- 50.0 -- --
-------- -------- -------- -------- -------- -------- --------
3,555.2 4,913.1 5,608.0 6,781.0 6,888.3 1,666.0 1,683.4
-------- -------- -------- -------- -------- -------- --------
Income (loss) from operations... 112.7 (49.0) 148.5 206.3 134.5 50.2 45.1
Interest expense................ 20.0 23.8 26.2 33.6 31.5 6.9 10.4
-------- -------- -------- -------- -------- -------- --------
Income (loss) before income
taxes and cumulative effect of
accounting change.............. 92.7 (72.8) 122.3 172.7 103.0 43.3 34.7
Provision (benefit) for income
taxes.......................... 36.7 (7.7) 47.8 67.5 43.0 17.1 14.5
-------- -------- -------- -------- -------- -------- --------
Income (loss) before cumulative
effect of accounting change.... 56.0 (65.1) 74.5 105.2 60.0 26.2 20.2
Cumulative effect of
change in method of
accounting for income taxes.... -- -- 14.0 -- -- -- --
-------- -------- -------- -------- -------- -------- --------
Net income (loss)............... $ 56.0 $ (65.1) $ 88.5 $ 105.2 $ 60.0 $ 26.2 $ 20.2
======== ======== ======== ======== ======== ======== ========
Earnings per share.............. $ .30
========
Capital expenditures............ $ 20.2 $ 21.7 $ 33.9 $ 50.1 $ 35.8 $ 10.6 $ 7.7
Depreciation and
amortization.................. 20.6 28.7 32.5 33.4 40.0 8.8 11.7
Working capital................. 310.4 551.0 549.8 815.1 750.8 888.7 797.7
Total assets.................... 1,284.4 1,633.9 1,720.0 2,019.0 2,191.7 1,935.0 2,191.9
Long-term debt, including
current portion................ 30.5 29.5 26.8 25.5 21.9 50.6 599.6
Total stockholder's equity...... 372.5 280.3 353.5 415.9 935.5 443.0 952.3
</TABLE>
9
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of Unisource consists of 250 million
shares of Unisource Common Stock, par value $0.001 per share, and 10
million shares of Preferred Stock, par value $0.001 per share (the
"Preferred Stock").
UNISOURCE COMMON STOCK; DELAWARE ANTITAKEOVER PROVISIONS
Holders of shares of Unisource Common Stock are entitled to one
vote per share on all matters to be voted upon by the stockholders and are
not entitled to cumulate votes for the election of directors. Subject to
preferences that may be applicable to any outstanding Preferred Stock,
holders of shares of Unisource Common Stock are entitled to receive ratably
such dividends, if any, as may be declared from time to time by the
Unisource Board of Directors out of funds legally available therefor. In
the event of liquidation, dissolution or winding up of Unisource, the
holders of shares of Unisource Common Stock are entitled to share ratably
in all assets remaining after payment of liabilities, subject to prior
distribution rights of Preferred Stock, if any, then outstanding. Holders
of Unisource Common Stock have no preemptive, conversion or other
subscription rights and there are no redemption or sinking fund provisions
applicable to the Unisource Common Stock.
Unisource is subject to the provisions of Section 203 of the
Delaware General Corporation Law ("DGCL"). Subject to certain exceptions,
Section 203 of the DGCL prohibits a publicly-held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder. Subject to certain exceptions, an
"interested stockholder" is a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the
corporation's voting stock. A "business combination" includes a merger,
consolidation, sale or other disposition of assets having an aggregate
value in excess of 10% of either the aggregate market value of the
consolidated assets of the corporation or the aggregate market value of all
the outstanding stock of the corporation, and certain transactions that
would increase the interested stockholder's proportionate share ownership
in the corporation or which provide the interested stockholder with a
financial benefit. These restrictions do not apply where (i) the business
combination or the transaction in which the stockholder becomes interested
is approved by the corporation's board of directors prior to the date the
interested stockholder acquired its shares, (ii) the interested stockholder
acquired at least 85% of the outstanding voting stock of the corporation in
the transaction in which the stockholder became an interested stockholder
excluding, for determining the number of shares outstanding, shares owned
by persons who are directors as well as officers and by employee stock
plans in which participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in
a tender or exchange offer, or (iii) the business combination is approved
by the board of directors and the affirmative vote of two-thirds of the
outstanding voting stock not owned by the interested stockholder at an
annual or special meeting. The business combinations provisions of Section
203 of the DGCL may have the effect of deterring merger proposals, tender
offers or other attempts to effect changes in control of the Company that
are not negotiated with and approved by the Board of Directors.
PREFERRED STOCK
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The Amended and Restated Certificate of Incorporation of
Unisource (the "Unisource Certificate") provides that Unisource may issue
up to 10 million shares of Preferred Stock. The Unisource Board of
Directors has the authority to issue Preferred Stock in one or more series
and to fix the rights, preferences, privileges and restrictions, including
the dividend, conversion, voting, redemption (including sinking fund
provisions), and other rights, liquidation preferences, and the number of
shares constituting any series and the designations of such series, without
any further vote or action by the stockholders of Unisource. Because the
terms of the Preferred Stock may be fixed by the Unisource Board without
stockholder action, the Preferred Stock could be issued quickly with terms
calculated to defeat a proposed takeover of Unisource or to make the
removal of management of Unisource more difficult. Under certain
circumstances this could have the effect of decreasing the market price of
the Unisource Common Stock. The Company has authorized a class of series
Preferred Stock in connection with the authorization of its Stockholder
Rights Plan. See "-Stockholder Rights Plan."
CERTAIN ANTITAKEOVER PROVISIONS - UNISOURCE CERTIFICATE AND BY-LAWS
Certain provisions of the Unisource Certificate and By-laws may
have the effect, either alone or in combination with each other, of making
more difficult or discouraging a tender offer, takeover attempt or change
in control that is opposed by Unisource's Board of Directors but that a
stockholder might consider to be in its best interest. The Company
believes that such provisions are necessary to enable the Company to
develop its business in a manner that will foster its long-term growth
without disruption caused by the threat of a takeover not deemed by the
Board of Directors to be in the best interests of the Company and its
stockholders. These provisions are summarized in the following paragraphs.
Classified Board of Directors. The Unisource Certificate and By-
laws provide for the division of the Board into three classes of
directors, with the classes to be as nearly equal in number as possible.
The Certificate and By-laws provide that of the initial directors of the
Company, one-third will continue to serve until the Annual Meeting of
Stockholders next held after September 30, 1997, one-third will continue to
serve until the Annual Meeting of Stockholders next held after September
30, 1998, and one-third will continue to serve until the Annual Meeting of
Stockholders next held after September 30, 1999.
The classification of directors will have the effect of making it
more difficult for stockholders to change the composition of the Board of
Directors. At least two annual meetings of stockholders, instead of one,
will generally be required to effect a change in a majority of the Board of
Directors. Such a delay may help ensure that the Company's directors, if
confronted by a holder attempting to force a proxy contest, a tender or
exchange offer, or an extraordinary corporate transaction, would have
sufficient time to review the proposal as well as any available
alternatives to the proposal and to act in what they believe to be the best
interest of the stockholders. The classification provisions will apply to
every election of directors, however, regardless of whether a change in the
composition of the Board would be beneficial to the Company and its
stockholders and whether or not a majority of the Company's stockholders
believe that such a change would be desirable.
The classification provisions could also have the effect of
discouraging a third party from initiating a proxy contest, making a tender
offer or otherwise attempting to obtain control of the Company, even though
such an attempt might be beneficial to the Company and its stockholders.
The classification of
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<PAGE>
the Board could thus increase the likelihood that incumbent directors will
retain their positions. In addition, because the classification provisions
may discourage accumulations of large blocks of the Company's stock by
purchasers whose objective is to take control of the Company and remove a
majority of the Board, the classification of the Board could tend to reduce
the likelihood of fluctuations in the market price of the Company Common
Stock that might result from accumulations of large blocks for such a
purpose. Accordingly, stockholders could be deprived of certain
opportunities to sell their shares of Company Common Stock at a higher
market price than might otherwise be the case.
Number of Directors; Removal of Directors; Vacancies. The By-
laws provide that the number of directors of Unisource shall be a number
between six and seventeen which shall be fixed by resolution adopted by
either (i) a majority of the entire Board of Directors or (ii) the
affirmative vote of the holders of at least 66 2/3% of the voting power of
all of the shares of Unisource entitled to vote generally in the election
of directors voting together as a single class.
The Unisource Certificate and By-laws also provide that, subject
to the rights of holders of any Preferred Stock then outstanding and any
requirements of law, directors may be removed only for cause by the
affirmative vote of the holders of at least 66 2/3% of the outstanding
shares of Unisource then entitled to vote generally in the election of
directors, voting as a single voting group. Subject to the rights of
holders of any outstanding Preferred Stock issued by Unisource, vacancies
on the Board of Directors may be filled only by the Board of Directors, the
stockholders acting at an annual meeting or, if the vacancy is with respect
to a director elected by a voting group, by action of any other directors
elected by such voting group or such voting group.
Business Conducted at Meetings; Director Nominations. The By-
laws provide that in order to bring matters before the annual meetings of
stockholders, stockholders must give notice to the Company containing
certain information within 60 to 90 days prior to the anniversary date of
the previous year's annual meeting or, if the date of the annual meeting is
not within 30 days of the anniversary date of the previous year's annual
meeting, no later than the close of business on the tenth day following the
day on which notice of the date of such meeting was mailed or public
disclosure of the date of the meeting of stockholders was made, whichever
first occurs. In order to nominate candidates for directors of the
Company, stockholders must give notice to the Company containing certain
information within 60 to 90 days prior to the anniversary date of the
previous year's annual meeting or, if the date of an annual meeting is not
within 30 days of the anniversary of the previous year's annual meeting,
not earlier than 90 days prior to the annual meeting and not later than the
close of business on the tenth day following the day on which notice of the
date of such meeting was mailed or public disclosure of the date of the
meeting of stockholders was made, whichever first occurs.
Special Meeting of Stockholders. The DGCL provides that special
meetings of stockholders may be called by the Board of Directors of
Unisource or any person authorized by the Unisource Certificate or By-laws
to call a special meeting. The By-laws provide that special meetings may
be called by the Board of Directors or any person authorized by the Board
of Directors to call a special meeting.
No Stockholder Action by Written Consent; Stockholder Action at
Meetings. The Unisource Certificate and By-Laws provide that stockholder
action can be taken only at an annual or special meeting of stockholders,
and prohibit stockholder action by written consent in lieu of a meeting.
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<PAGE>
Supermajority Voting. The Unisource Certificate requires the
approval of the holders of at least 66% of the voting power of all of the
shares entitled to vote to alter, amend, repeal or adopt any provision
inconsistent with or limiting the effect of provisions of certain
enumerated antitakeover provisions in the Unisource Certificate and By-
laws, including the anti-takeover provisions listed above. The Board of
Directors may amend, supplement or repeal the By-laws at any time, except
as limited by law.
STOCKHOLDER RIGHTS PLAN
The Company's Board of Directors has adopted a Stockholder Rights
Plan (the "Stockholder Rights Plan"). Initially, ownership of the rights
under the Stockholder Rights Plan (the "Rights") will be evidenced by
Common Stock certificates representing shares then outstanding and, except
as described below, no separate Rights certificates will be distributed and
Rights will attach to and trade with Unisource Common Stock.
Rights Distribution Date. The Rights will separate from the
Unisource Common Stock and a distribution date ("Rights Distribution Date")
will occur upon the earlier of (i) ten business days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 20% or more of the outstanding Unisource Common
Stock (the "Stock Acquisition Date"), or (ii) within ten business days (or
such later date as may be determined by the Board of Directors prior to
such time as any person or group of affiliated or associated persons
becomes an Acquiring Person) following the commencement of a tender offer
or exchange offer that would result in a person or group beneficially
owning 20% or more of the outstanding Common Stock (excluding Unisource and
its subsidiaries and benefit plans).
Exercise of Rights; Term of Plan. The Rights are not exercisable
until the Rights Distribution Date and will expire at the close of business
on November 8, 2006, unless earlier redeemed by the Company as described
below or unless certain transactions set forth in the Stockholder Rights
Plan have occurred.
Except in the circumstances described below, after the Rights
Distribution Date, each Right will be exercisable into one one-hundredth of
a Series A Preferred Share (a "Series A Preferred Share Fraction"). The
voting and dividend rights of the Series A Preferred Shares are subject to
adjustment in the event of dividends, subdivisions and combinations with
respect to the Unisource Common Stock. In lieu of issuing certificates for
Series A Preferred Share Fractions which are less than an integral multiple
of one Series A Preferred Share (i.e., 100 Series A Preferred Share
Fractions), the Company may pay cash representing the current market value
of the Series A Preferred Share Fractions.
Flip-In Rights. In the event that (i) at any time following the
Stock Acquisition Date, the Company is the surviving corporation in a
merger with an Acquiring Person and its Common Stock remains outstanding,
(ii) a person, including affiliates and associates, becomes the beneficial
owner of more than 20% of the then outstanding Unisource Common Stock
(unless such acquisition is made pursuant to a tender or exchange offer for
all outstanding Common Stock of the Company, upon terms and conditions
determined by a majority of the Continuing Directors (as defined below) to
be in the best interest of the
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Company and its stockholders (a "Qualifying Offer")), (iii) an Acquiring
Person, at any time following a Stock Acquisition Date, engages in one or
more "self-dealing" transactions as set forth in the Stockholder Rights
Plan, or (iv) during such time as there is an Acquiring Person an event
occurs that results in such Acquiring Person's ownership interest being
increased by more than one percent (e.g., a reverse stock split), each
holder of a Right will thereafter have the right to receive, upon exercise,
Unisource Common Stock (or, in certain circumstances, cash, property or
other securities of the Company) having a value equal to approximately two
times the exercise price of the Right. In lieu of requiring payment of the
purchase price upon exercise of the Rights following any such event, the
Company, by action of a majority of the Continuing Directors in office at
the time, may permit the holders simply to surrender the Rights, in which
event they would be entitled to receive Unisource Common Stock (and other
property, as the case may be) with a value of 50% of what could otherwise
be purchased by payment of the full Purchase Price. Notwithstanding any of
the foregoing, following the occurrence of any of the events set forth in
clauses (i), (ii), (iii) or (iv) of this paragraph, all Rights that are, or
(under certain circumstances specified in the Stockholder Rights Plan)
were, beneficially owned by any Acquiring Person who was involved in the
transaction giving rise to any such event will be null and void. However,
Rights are not exercisable following the occurrence of any of the events
set forth above until such time as the Rights are no longer redeemable by
the Company as set forth below.
Flip-Over Rights. In the event that, at any time following the
Stock Acquisition Date, (i) the Company is acquired in a merger or other
business combination transaction in which the Company is not the surviving
corporation (other than a merger that follows a Qualifying Offer), or (ii)
50% or more of the Company's assets or earning power is sold or
transferred, each holder of a Right (except Rights that previously have
been voided as set forth above) shall thereafter have the right to receive,
upon exercise, common shares of the acquiring company having a value equal
to approximately two times the exercise price of the Rights. Again,
provision is made to permit, at the option of the Company, surrender of the
Rights in exchange for one-half of the value otherwise purchasable. The
events set forth in this paragraph and in the preceding paragraph are
referred to as the "Triggering Events."
Antidilution Adjustments. The Purchase Price payable and/or the
number of units of Series A Preferred Shares or other securities or
property issuable upon exercise of the Rights are subject to adjustment
from time to time to prevent dilution (i) in the event of a stock dividend
on, or a subdivision, combination or reclassification of, the Series A
Preferred Shares, (ii) if holders of the Series A Preferred Shares are
granted certain rights or warrants to subscribe for Series A Preferred
Shares or convertible securities at less than the current market price of
the Series A Preferred Shares, or (iii) upon the distribution to holders of
the Series A Preferred Shares of evidences of indebtedness or assets
(excluding regular quarterly dividends) or of subscription rights or
warrants (other than those referred to above). Similar dilution protection
exists with respect to transactions affecting Common Stock similar to those
described in clauses (i)-(iii) above.
Redemption. At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in whole, but not in
part, at a price of $.01 per Right. That ten day redemption period may be
extended by the Board of Directors so long as the Rights are still
redeemable. Under certain circumstances set forth in the Stockholder
Rights Plan, the decision to redeem will require the concurrence of the
Continuing Directors (as defined below). Immediately upon the action of
the Board of Directors ordering redemption of the Rights, with, where
required, the concurrence of the Continuing
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<PAGE>
Directors, the Rights will terminate and the only rights of the holders of
Rights will be to the right to receive the $.01 per Right redemption price.
The term "Continuing Directors" means any member of the Board of
Directors of the Company who was a member of the Board prior to the date of
the Stockholder Rights Plan, and any person who is subsequently elected to
the Board if such person's nomination for election to the Board is
recommended or approved by a majority of the Continuing Directors, but
shall not include an Acquiring Person, or an affiliate or associate of an
Acquiring Person, or any representative of the foregoing entities.
No Stockholder Rights Associated with Rights Before Exercise; Tax
Consequences. Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to stockholders or to the
Company, stockholders may, depending upon the circumstances, recognize
taxable income in the event that the Rights become exercisable for Series A
Preferred Shares (or other consideration) of the Company or for common
shares of the acquiring company as set forth above. See "-Flip-Over
Rights."
Amendment. Other than those provisions relating to the principal
economic terms of the Rights, any of the provisions of the Stockholder
Rights Plan may be amended by the Board of Directors of the Company prior
to the Rights Distribution Date. After the Rights Distribution Date, the
provisions of the Stockholder Rights Plan may be amended by the Board (in
certain circumstances, with the concurrence of a majority of the Continuing
Directors) in order to cure any ambiguity, to make changes that do not
adversely affect the interests of the holders of Rights (excluding the
interests of any Acquiring Person), or to shorten or lengthen any time
period under the Stockholder Rights Plan; provided, however, that no
amendment to adjust the time period governing redemption shall be made at
such time as the Rights are not redeemable.
Effect of Stockholders Rights Plan. The Rights have certain
defensive effects. The Rights will cause substantial dilution to a person
or group that attempts to acquire the Company without conditioning the
offer on a substantial number of Rights being acquired or redeemed. The
Rights should not interfere with any merger or other business combination
approved by the Board of Directors of the Company because (i) the Board of
Directors (under certain circumstances, with the concurrence of the
Continuing Directors) may, at its option, at any time prior to the close of
business on the earlier of (a) the tenth day following the Stock
Acquisition Date or (b) November 8, 2006, redeem all of the then
outstanding Rights at $.01 per Right, and (ii) in any event, the
Stockholder Rights Plan does not apply to a tender or exchange offer for
all outstanding shares of the Company which is determined by a majority of
the Continuing Directors to be a Qualifying Offer. The Board of Directors
may, as discussed above, extend the ten day redemption period so long as
the Rights are still redeemable. See "--Redemption."
LEGAL OPINIONS
The validity of the issuance of the shares of Common Stock
offered hereby is being passed upon for Unisource by Morgan, Lewis &
Bockius LLP, Philadelphia, Pennsylvania.
EXPERTS
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The consolidated financial statements of Unisource Worldwide,
Inc., as of September 30, 1995 and 1996 and for the years ended September
30, 1994, 1995 and 1996, and the related financial statement schedule,
which are incorporated by reference herein from the 1934 Act Registration
Statement, have been audited by Ernst & Young LLP, independent auditors, as
set forth in their reports thereon included therein and incorporated herein
by reference. Such consolidated financial statements and schedule are
incorporated herein by reference in reliance upon such reports given upon
the authority of such firm as experts in accounting and auditing.
16
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the DGCL ("Section 145") permits indemnification
of directors, officers, agents and controlling persons of a corporation
under certain conditions and subject to certain limitations. Section 145
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director,
officer or agent of the corporation or another enterprise if serving at the
request of the corporation. Depending on the character of the proceeding,
a corporation may indemnify against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person
indemnified 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 action or proceeding, had no reasonable
cause to believe such person's conduct was unlawful. In the case of an
action by or in the right of the Company, no indemnification may be made
with 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 Delaware Court of Chancery or the court in which such
action or suit was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper. Section 145 further
provides that to the extent a director or officer of the Company has been
successful in the defense of any action, suit or proceeding referred to
above or in the defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection therewith.
Unisource's By-laws contain provisions for indemnification of
directors, officers, employees and agents to the fullest extent permitted
by Section 145 and Delaware law which, in general, presently requires that
the individual act in good faith and in a manner he or she reasonably
believed to be in or not opposed to the Company's best interests and, in
the case of any criminal proceedings, that the individual has no reason to
believe his or her conduct was unlawful. Unisource's By-laws also permit
Unisource to purchase insurance and Unisource has purchased and maintains
insurance on behalf of Unisource directors, officers, employees and agents
against any liability asserted against such person and incurred by such
person in any such capacity, or arising out of such person's status as
such, whether or not Unisource would have the power to indemnify such
person against such liability under the foregoing provision of the By-laws.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<C> <S>
2.1* Distribution Agreement between Alco Standard Corporation and Unisource and certain of its
subsidiaries
3.1** Restated Certificate of Incorporation of Unisource.
3.2** Amended and Restated By-laws of Unisource.
4.1*** Rights Agreement dated as of December 30, 1996 between Unisource and National City
Bank, as Rights Agent.
5.1** Opinion of Morgan, Lewis & Bockius LLP regarding validity of Common Stock.
10.1* Tax Sharing Agreement between Alco Standard Corporation and Unisource and certain of its
subsidiaries
10.2 [Left intentionally blank]
10.3 [Left intentionally blank]
10.4* Information Technology Services Agreement between Unisource and Integrated Systems
Solutions Corporation, (Incorporated by reference to Alco Standard Corporation Form 10-K
for fiscal year ended 1995, Exhibit 10.19 (File No.
1-05964)).
10.5 [Left intentionally blank]
10.6 [Left intentionally blank]
10.7 [Left intentionally blank]
10.8 [Left intentionally blank]
10.9 [Left intentionally blank]
10.10 [Left intentionally blank]
10.11 [Left intentionally blank]
10.12* Credit Agreement among Unisource, Unisource Capital Corporation, Unisource Canada, Inc.,
The Chase Manhattan Bank, as administrative agent, and the Lenders Party thereto.
23.1** Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1)
23.2** Consent of Ernst & Young LLP
24.1** Form of power of attorney executed by certain members of the Board of Directors
</TABLE>
* Incorporated by reference to Form 10 Registration Statement dated November
26, 1996 (File No. 1-14482).
** Filed herewith.
*** Incorporated by reference to Registration Statement on Form 8-A concerning
Preferred Stock Purchase Rights (File No. 1-14482).
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ITEM 22. UNDERTAKINGS
ITEM 22. UNDERTAKINGS
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 provisions described in Item 20, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the 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 Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which any offers or sales are
being made, a post-effective amendment to the 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 the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any other material change to such information in the Registration
Statement.
(2) That for the purpose of determining any liability under the
Act each such post-effective amendment may be deemed to be a new
registration statement relating to the
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securities being offered therein and the offering of such securities at the
time may be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities which are being registered which remain
unsold at the termination of the offering.
(4) 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 that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) To deliver or cause to be delivered with the Prospectus, to
each person to whom the Prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in the
Prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the Prospectus, to deliver, or caused
to be delivered to each person to whom the Prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference in
the Prospectus to provide such interim financial information.
(6) As follows: that prior to any public reoffering of the
securities registered hereunder through use of a prospectus which is a part
of this Registration Statement, by any person or party who is deemed to be
an underwriter within the meaning of Rule 145(c), the issuer undertakes
that such reoffering prospectus will contain the information called for by
the applicable registration form with respect to reoffering by persons who
may be deemed underwriters, in addition to the information called for by
the other items of the applicable form.
(7) That every prospectus (i) that is filed pursuant to paragraph
(1) immediately preceding or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as part of an amendment to
the Registration Statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(8) To respond to requests for information that is incorporated
by reference into the Prospectus pursuant to Items 4, 10(b), 11, or 13 of
this Form, within one (1) business day of receipt of such request, and to
send the incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed subsequent to
the effective date of the Registration Statement through the date of
responding to the request.
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<PAGE>
(9) To supply by means of a post-effective amendment, Rule 424(c)
supplement or information incorporated by reference, all information
concerning a material transaction, and the company being acquired involved
there, that was not the subject of and included in the Registration
Statement when it became effective.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant has duly caused this Registration Statement on Form
S-4 to be signed on its behalf by the undersigned, thereunto duly
authorized, in Wayne, Pennsylvania, on the dates set forth below.
UNISOURCE WORLDWIDE, INC.
Date: April 25, 1997 By: /s/ Ray B. Mundt
-------------------------------------
(Ray B. Mundt)
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on April 25, 1997 by the
following persons on behalf of the registrant and in the capacities
indicated.
Each person whose signature appears below appoints Hugh G.
Moulton and Thomas A. Decker, as his true and lawful attorneys-in-fact and
agents, with full power and substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and all other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and anything appropriate or
necessary to be done, as fully and for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
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<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Ray B. Mundt Chairman and Chief Executive April 25, 1997
- --------------------------- Officer (Principal Executive
(Ray B. Mundt) Officer)
* Director April 25, 1997
- ---------------------------
(Paul J. Darling, II)
* Director April 25, 1997
- ---------------------------
(James J. Forese)
* Director April 25, 1997
- ---------------------------
(Dana G. Mead)
* Director April 25, 1997
- ---------------------------
(Rogelio G. Sada)
* Director April 25, 1997
- ---------------------------
(James W. Stratton)
/s/ Jack H. Keeney Vice President - Finance April 25, 1997
- --------------------------- (Principal Accounting and
(Jack H. Keeney) Financial Officer)
*By: /s/ Thomas A. Decker April 25, 1997
-----------------------
Thomas A. Decker
Attorney-in-fact
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<C> <S>
2.1* Distribution Agreement between Alco Standard Corporation and Unisource and certain of its
subsidiaries
3.1** Restated Certificate of Incorporation of Unisource.
3.2** Amended and Restated By-laws of Unisource.
4.1*** Rights Agreement dated as of December 30, 1996 between Unisource and National City
Bank, as Rights Agent.
5.1** Opinion of Morgan, Lewis & Bockius LLP regarding validity of Common Stock.
10.1* Tax Sharing Agreement between Alco Standard Corporation and Unisource and certain of its
subsidiaries
10.2 [Left intentionally blank]
10.3 [Left intentionally blank]
10.4* Information Technology Services Agreement between Unisource and Integrated Systems
Solutions Corporation, (Incorporated by reference to Alco Standard Corporation Form 10-K
for fiscal year ended 1995, Exhibit 10.19 (File No.
1-05964)).
10.5 [Left intentionally blank]
10.6 [Left intentionally blank]
10.7 [Left intentionally blank]
10.8 [Left intentionally blank]
10.9 [Left intentionally blank]
10.10 [Left intentionally blank]
10.11 [Left intentionally blank]
10.12* Credit Agreement among Unisource, Unisource Capital Corporation, Unisource Canada, Inc.,
The Chase Manhattan Bank, as administrative agent, and the Lenders Party thereto.
23.1** Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1)
23.2** Consent of Ernst & Young LLP
24.1** Form of power of attorney executed by certain members of the Board of Directors
</TABLE>
* Incorporated by reference to Form 10 Registration Statement dated November
26, 1996 (File No. 1-14482).
** Filed herewith.
*** Incorporated by reference to Registration Statement on Form 8-A concerning
Preferred Stock Purchase Rights (File No. 1-14482).
<PAGE>
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
UNISOURCE WORLDWIDE, INC.
FIRST: The name of the corporation is Unisource Worldwide, Inc.
(hereinafter referred to as the "Corporation").
SECOND: The registered office of the Corporation is to be located at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, in the
County of New Castle, in the State of Delaware. The name of its registered
agent at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation 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 ("GCL").
FOURTH:
A. Authorized Stock.
----------------
The total number of shares of stock which the Corporation shall have
authority to issue is two hundred and sixty million (260,000,000) shares,
consisting of two hundred and fifty million (250,000,000) shares of common
stock, each with a par value of $0.001 per share (hereinafter referred to
as the "Common Stock"), and ten million (10,000,000) shares of preferred
stock, each with a par value of $0.001 per share (hereinafter referred to
as the "Preferred Stock"). The powers, designations, preferences and
relative, participating, optional or other special rights (and the
qualifications, limitations or restrictions thereof) of the Common Stock
and the Preferred Stock are as follows:
B. Preferred Stock.
---------------
(i) The Board of Directors is hereby expressly authorized at any time,
and from time to time, to create and provide for the issuance of shares of
Preferred Stock in one or more series (the "Series Preferred Stock") and,
by filing a certificate pursuant to the GCL (hereinafter referred to as a
"Preferred Stock Designation"), to establish the number of shares to be
included in each such series, and to fix the designations, preferences and
relative, participating, optional or other special rights of the shares of
each such series and the qualifications, limitations or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
providing for the issue thereof adopted by the Board of Directors,
including, but not limited to, the following:
-1-
<PAGE>
(1) the designation of and the number of shares constituting such
series, which number the Board of Director may thereafter (except as
otherwise provided in the Preferred Stock Designation) increase or decrease
(but not below the number of shares of such series then outstanding);
(2) the dividend rate for the payment of dividends on such series, if
any, the conditions and dates upon which such dividends shall be payable,
the preference or relation which such dividends, if any, shall bear to the
dividends payable on any other class or classes of or any other series of
capital stock, the conditions and dates upon which such dividends, if any,
shall be payable, and whether such dividends, if any, shall be cumulative
or non-cumulative;
(3) whether the shares of such series shall be subject to redemption by
the Corporation, and, if made subject to such redemption, the times, prices
and other terms and conditions of such redemption;
(4) the terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(5) whether or not the shares of such series shall be convertible into
or exchangeable for shares of any other class or classes of, any other
series of any class or classes of capital stock of, or any other security
of, the Corporation or any other corporation, and, if provision be made for
any such conversion or exchange, the times, prices, rates, adjustments and
any other terms and conditions of such conversion or exchange;
(6) the extent, if any, to which the holders of the shares of such
series shall be entitled to vote as a class or otherwise with respect to
the election of directors or otherwise;
(7) the restrictions, if any, on the issue or reissue of shares
of the same series or of any other class or series;
(8) the amounts payable on and the preferences, if any, of the
shares of such series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; and
(9) any other relative rights, preferences and limitations
-2-
<PAGE>
of that series.
(ii) The first series of the Series Preferred Stock, par value $0.001 per
share, shall consist of 1,500,000 shares and shall be designated as Series A
Junior Participating Preferred Shares (the "Series A Preferred Shares"). The
voting rights, designations, preferences, qualifications, privileges,
limitations, restrictions, options, conversion rights and other special or
relative rights of the Series A Preferred Shares are as follows:
(1) Dividends and Distributions.
---------------------------
(a) The rate of dividends payable per share of Series A Preferred
Shares on the first day of January, April, July and October in each year
or such other quarterly payment date as shall be specified by the Board
of Directors (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share
of the Series A Preferred Shares, shall be (rounded to the nearest cent)
equal to the greater of (i) $4.00 or (ii) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate per share
amount (payable in cash, based upon the fair market value at the time
the non-cash dividend or other distribution is declared or paid as
determined in good faith by the Board of Directors) of all non-cash
dividends or other distributions other than a dividend payable in shares
of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock,
par value $0.001 per share, of the Corporation since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of the Series A Preferred Shares. Dividends on
the Series A Preferred Shares shall be paid out of funds legally
available for such purpose. In the event the Corporation shall at any
time after December 11, 1996 (the "Rights Declaration Date") (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares, then
in each such case the amounts to which holders of Series A Preferred
Shares were entitled immediately prior to such event under clause (ii)
of the preceding sentence shall be adjusted by multiplying each such
amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Dividends shall begin to accrue and be cumulative on
-3-
<PAGE>
outstanding Series A Preferred Shares from the Quarterly Dividend
Payment Date next preceding the date of issue of such Series A Preferred
Shares, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of holders
of Series A Preferred Shares entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the Series A Preferred Shares in an
amount less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-by-
share basis among all such shares at the time outstanding.
(2) Voting Rights. In addition to any other voting rights required by
-------------
law, the holders of Series A Preferred Shares shall have the following
voting rights:
(a) Subject to the provision for adjustment hereinafter set forth,
each Series A Preferred Share shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding shares of
Common Stock, or (iii) combine the outstanding shares of Common Stock
into a smaller number of shares, then in each such case the number of
votes per share to which holders of Series A Preferred Shares were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(b) In the event that dividends upon the Series A Preferred Shares
shall be in arrears to an amount equal to six full quarterly dividends
thereon, the holders of such Series A Preferred Shares shall become
entitled to the extent hereinafter provided to vote noncumulatively at
all elections of directors of the Corporation, and to receive notice of
all stockholders' meetings to be held for such purpose. At such
meetings, to the extent that directors are being elected, the holders of
such Series A Preferred Shares voting as a class shall be entitled
solely to elect two
-4-
<PAGE>
members of the Board of Directors of the Corporation; and all other
directors of the Corporation shall be elected by the other stockholders
of the Corporation entitled to vote in the election of directors. Such
voting rights of the holders of such Series A Preferred Shares shall
continue until all accumulated and unpaid dividends thereon shall have
been paid or funds sufficient therefor set aside, whereupon all such
voting rights of the holders of shares of such series shall cease,
subject to being again revived from time to time upon the reoccurrence
of the conditions above described as giving rise thereto.
At any time when such right to elect directors separately as a class
shall have so vested, the Corporation may, and upon the written request
of the holders of record of not less than 20% of the then outstanding
total number of shares of all the Series A Preferred Shares having the
right to elect directors in such circumstances shall, call a special
meeting of holders of such Series A Preferred Shares for the election of
directors. In the case of such a written request, such special meeting
shall be held within 90 days after the delivery of such request, and, in
either case, at the place and upon the notice provided by law and in the
By-laws of the Corporation; provided, that the Corporation shall not be
required to call such a special meeting if such request is received less
than 120 days before the date fixed for the next ensuing annual or
special meeting of stockholders of the Corporation. Upon the mailing of
the notice of such special meeting to the holders of such Series A
Preferred Shares, or, if no such meeting be held, then upon the mailing
of the notice of the next annual or special meeting of stockholders for
the election of directors, the number of directors of the Corporation
shall, ipso facto, be increased to the extent, but only to the extent,
necessary to provide sufficient vacancies to enable the holders of such
Series A Preferred Shares to elect the two directors hereinabove
provided for, and all such vacancies shall be filled only by vote of the
holders of such Series A Preferred Shares as hereinabove provided.
Whenever the number of directors of the Corporation shall have been
increased, the number as so increased may thereafter be further
increased or decreased in such manner as may be permitted by the By-laws
and without the vote of the holders of Series A Preferred Shares,
provided that no such action shall impair the right of the holders of
Series A Preferred Shares to elect and to be represented by two
directors as herein provided.
So long as the holders of Series A Preferred Shares are entitled
hereunder to voting rights, any vacancy in the Board of Directors caused
by the death or resignation of any director elected by the holders of
Series A Preferred Shares, shall, until the next meeting of stockholders
for the election of directors, in each case be filled by the remaining
director elected by the
-5-
<PAGE>
holders of Series A Preferred Shares having the
right to elect directors in such circumstances.
Upon termination of the voting rights of the holders of any series of
Series A Preferred Shares the terms of office of all persons who shall
have been elected directors of the Corporation by vote of the holders of
Series A Preferred Shares or by a director elected by such holders shall
forthwith terminate.
(c) Except as otherwise provided herein, in this Certificate of
Incorporation of the Corporation or by law, the holders of Series A
Preferred Shares and the holders of Common Stock (and the holders of
shares of any other series or class entitled to vote thereon) shall vote
together as one class on all matters submitted to a vote of stockholders
of the Corporation.
(3) Reacquired Shares. Any Series A Preferred Shares purchased or
-----------------
otherwise acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued
Series Preferred Stock and may be reissued as part of a new series of
Series Preferred Stock to be created by resolution or resolutions of the
Board of Directors.
(4) Liquidation, Dissolution or Winding Up.
--------------------------------------
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of Series A Preferred Shares
shall be entitled to receive the greater of (a) $100 per share, plus
accrued dividends to the date of distribution, whether or not earned or
declared, or (b) an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of Common Stock. In the
event the Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock, or
(iii) combine the outstanding shares of Common Stock into a smaller
number of shares, then in each such case the amount to which holders of
Series A Preferred Shares were entitled immediately prior to such event
pursuant to clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(5) Consolidation, Merger, etc. In case the Corporation shall enter
--------------------------
into
-6-
<PAGE>
any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such
case the Series A Preferred Shares shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the outstanding
shares of Common Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Shares shall be
adjusted by multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(6) No Redemption. The Series A Preferred Shares shall not be
-------------
redeemable.
(7) Ranking. The Series A Preferred Shares shall rank junior to all
-------
other series of the Corporation's Series Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.
(8) Fractional Shares. Series A Preferred Shares may be issued in
-----------------
fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Preferred Shares.
-7-
<PAGE>
C. Common Stock.
------------
Each holder of Common Stock shall have one vote in respect of each
share of Common Stock held by such holder of record on the books of the
Corporation for the election of directors and on all other matters on which
stockholders of the Corporation are entitled to vote. Subject to any
rights that may be conferred upon any holders of Preferred Stock or any
other series or class of stock as set forth in this Certificate of
Incorporation (excluding Common Stock), upon dissolution, the holders of
Common Stock then outstanding shall be entitled to receive the net assets
of the Corporation. Such net assets shall be divided among and paid to the
holders of Common Stock, on a pro-rata basis, according to the number of
shares of Common Stock held by them. Subject to any rights that may be
conferred upon any holders of Preferred Stock or any other series or class
of stock as set forth in this Certificate of Incorporation (excluding
Common Stock), the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets
of the Corporation which are by law available therefor, dividends payable
either in cash, in stock or otherwise.
FIFTH: The Corporation is to have perpetual existence.
SIXTH:
A. Subject to the rights of the holders of any series of Preferred
Stock or any other series or class of stock as set forth in this
Certificate of Incorporation (excluding Common Stock) to elect additional
directors under specified circumstances, the number of directors of the
Corporation shall be fixed, and may be increased or decreased from time to
time, in such a manner as may be prescribed by the By-laws of the
Corporation.
B. Unless and except to the extent that the By-laws of the
Corporation shall so require, the election of directors of the Corporation
need not be by written ballot.
C. The directors, other than those who may be elected by the holders
of any series of Preferred Stock or any other series or class of stock
(excluding Common Stock) as set forth in this Certificate of Incorporation,
shall be divided into three classes as nearly equal in size as possible and
designated as Class I, Class II and Class III. Class I directors shall be
initially elected for a term expiring at the annual meeting of stockholders
next held after September 30, 1997, Class II directors shall be initially
elected for a term expiring at the annual meeting of stockholders next held
after September 30, 1998, and Class III directors shall be initially
elected for a term expiring at the annual meeting of stockholders next held
after September 30, 1999. Members of each class shall
-8-
<PAGE>
hold office until their successors are elected and qualified. At each
annual meeting of the stockholders of the Corporation, the successors of
the class of directors whose term expires at that meeting shall be elected
to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election, and until
their successors are elected and qualified.
D. Advance notice of stockholder nominations for the election of
directors and advance notice of other stockholder action proposed to be
taken at a stockholder's meeting shall be given in the manner provided in
the By-laws of the Corporation.
E. Subject to the rights of the holders of any series of Preferred
Stock or any other series or class of stock (excluding Common Stock) as set
forth in the Certificate of Incorporation to elect directors under
specified circumstances and applicable law, any director may be removed
from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 66 2/3% of the voting power of all the
shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class. Vacancies in the Board of
Directors shall be filled in the manner provided in the By-laws of the
Corporation.
F. Subject to the rights of the holders of any Preferred Stock or any
other series or class of stock (excluding Common Stock) set forth in the
Certificate of Incorporation, a special meeting of the stockholders shall
be called only by the secretary of the Corporation at the request of (i) a
majority of the total number of directors which the Corporation at the time
would have if there were no vacancies or (ii) by any person authorized by
the Board of Directors (through a vote of a majority of the total number of
directors which the Corporation at the time would have if there were no
vacancies) to call a special meeting.
G. Subject to the rights of the holders of any series of Preferred
Stock or any other series or class of stock (excluding Common Stock) set
forth in the Certificate of Incorporation to elect additional directors
under specified circumstances or to consent to specific actions taken by
the Corporation, any action required or permitted to be taken by the
stockholders of the Corporation must be taken at an annual or special
meeting of the stockholders and may not be taken by any consent in writing
by such stockholders.
H. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of
shares representing at least 66-2/3% of the voting power of the then
outstanding voting stock of the Corporation entitled to vote in elections
of directors generally, voting together as a single class, shall be
required to amend, repeal or adopt any provisions inconsistent with this
Article SIXTH.
-9-
<PAGE>
SEVENTH: The Board of Directors shall have the power, in addition to the
stockholders, to make, alter, or repeal the By-laws of the Corporation.
EIGHTH: A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Neither the amendment nor repeal of this Article EIGHTH, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article
EIGHTH, shall eliminate or reduce the effect of this Article EIGHTH in respect
of any matter occurring, or any cause of action, suit or claim that, but for
this Article EIGHTH, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders are granted subject to this reservation.
-10-
<PAGE>
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
UNISOURCE WORLDWIDE, INC.
(a Delaware Corporation)
ARTICLE I
OFFICES AND FISCAL YEAR
-----------------------
SECTION 1.01. Registered Office. The registered office of the Corporation
-----------------
shall be in the City of Wilmington, County of New Castle, State of Delaware and
the name and address of its registered agent is The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware.
SECTION 1.02. Other Offices. The Corporation may also have offices at
-------------
such other places within or without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
requires.
SECTION 1.03. Fiscal Year. The fiscal year of the Corporation shall end
-----------
on the 30th of September in each year unless the Board of Directors determines
otherwise.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
SECTION 2.01. Place of Meeting. All meetings of the stockholders of the
----------------
Corporation shall be held at the registered office of the Corporation, or at
such other place within or without the State of Delaware as shall be designated
by the Board of Directors in the notice of such meeting.
SECTION 2.02. Annual Meeting. The Board of Directors shall fix the date
--------------
and time of the annual meeting of the stockholders, and at said meeting the
stockholders then entitled to vote shall elect directors and shall transact such
other business as may properly be brought before the meeting.
SECTION 2.03. Special Meetings. Subject to the rights of the holders of
----------------
any series of stock having a preference over the Common Stock of the Corporation
as to dividends or
<PAGE>
upon liquidation ("Preferred Stock") with respect to such series of Preferred
Stock or any other series or class of stock (excluding Common Stock) set forth
in the Certificate of Incorporation, a special meeting of the stockholders shall
be called only by the secretary of the Corporation at the request of (i) a
majority of the total number of directors which the Corporation at the time
would have if there were no vacancies or (ii) by any person authorized by the
Board of Directors (through a vote of a majority of the total number of
directors which the Corporation at the time would have if there were no
vacancies) to call a special meeting.
SECTION 2.04. Notice of Meetings. 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 ten nor more than sixty days before the date of the meeting. Every notice
of a special meeting shall state the purpose or purposes thereof.
SECTION 2.05. Quorum, Manner of Acting and Adjournment. The holders of a
----------------------------------------
majority of the 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 By-laws. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the Board of
Directors or the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At 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 thirty 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 by stockholders present or represented by proxy
entitled to cast a majority of the votes which all stockholders present are
entitled to cast thereon shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the applicable
statute, the Certificate of Incorporation or these By-laws, 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.
SECTION 2.06. Organization. At every meeting of the stockholders, the
------------
chairman of the board, if there be one, shall act as chairman or in the case of
a vacancy in the office or absence of the chairman of the board, one of the
following persons present in the following order stated shall act as chairman:
the vice chairman, if one has been appointed, the
-2-
<PAGE>
president, a chairman designated by the Board of Directors, the vice presidents
in their order or rank, or a chairman chosen by the stockholders entitled to
cast a majority of the votes which all stockholders present in person or by
proxy are entitled to cast, shall act as chairman, and the secretary, or, in his
or her absence, an assistant secretary, or in the absence of the secretary and
the assistant secretaries, a person appointed by the chairman, shall act as
secretary.
SECTION 2.07. Voting. Unless otherwise provided in the Certificate of
------
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of capital stock
having voting power held by such stockholder. No proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer
period. Every proxy shall be executed in writing by the stockholder or by such
stockholder's duly authorized attorney-in-fact and filed with the secretary of
the Corporation; provided, however, the foregoing clause shall not preclude the
giving of proxies by electronic, telephonic or other means so long as such
procedure is expressly approved by the Corporation's Board of Directors and is
permitted by law. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. A proxy shall not be revoked by the
death or incapacity of the maker unless, before the vote is counted or the
authority is exercised, written notice of such death or incapacity is given to
the secretary of the Corporation.
SECTION 2.08. Notice of Stockholder Business and Nominations.
----------------------------------------------
(A) Annual Meeting of Stockholders.
------------------------------
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a) by or at the
direction of the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors which the Corporation at the time
would have if there were no vacancies or (b) by any stockholder of the
Corporation who is entitled to vote at the meeting with respect to the election
of directors or the business to be proposed by such stockholder, as the case may
be, who complies with the notice procedures set forth in clauses (2) and (3) of
paragraph (A) of this Section 2.08 and who is a stockholder of record at the
time such notice is delivered to the secretary of the Corporation as provided
below.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (b) of paragraph (A) (1) of
this Section 2.08, the stockholder must have given timely notice thereof in
writing to the secretary of the Corporation and such business must be a proper
subject for stockholder action under the Delaware General Corporation Law (the
"DGCL"). To be timely, a stockholder's notice shall be delivered to the
secretary of the Corporation at the principal executive office of the
Corporation not less than sixty days nor more than ninety days prior to the
first anniversary of the preceding
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year's annual meeting (or action taken by consent in lieu of annual meeting);
provided, however, that in the event that the date of the annual meeting is
- -------- -------
advanced by more than 30 days, or delayed by more than 30 days, from such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the ninetieth day prior to such annual meeting and not later
than either the close of business on (a) the tenth day following the day on
which notice of the date of such meeting was mailed or (b) the tenth day
following the day on which public announcement of the date of such meeting is
first made, whichever first occurs in (a) or (b). Such stockholder's notice
shall set forth (x) as to each person whom the stockholder proposes to nominate
for election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including such person's written consent to being named in the proxy statement as
a nominee and to serving as a director if elected; (y) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (z) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and number of shares of
the Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)
(2) of this Section 2.08 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is no
public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least eighty
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by paragraph (A) (2) of this Section 2.08 shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the secretary of
the Corporation at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
(B) Special Meeting of Stockholders. Only such business shall be conducted
-------------------------------
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting and in accordance with
these By-laws. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board of Directors or (b) provided that the Board of Directors
has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this Section 2.08, who shall
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be entitled to vote at the meeting and who complies with the notice procedures
set forth in this Section 2.08. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the
Board of Directors, any such stockholder may nominate a person or persons (as
the case may be), for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by
paragraph (A)(2) of this Section 2.08 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 90th day prior to such special meeting and not later than the
close of business on the later of the 60th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholders notice as described above.
(C) General.
-------
(1) Only persons who are nominated in accordance with the procedures
set forth in this Section 2.08 shall be eligible to serve as directors and only
such business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section 2.08.
(2) Except as otherwise provided by law, the Certificate of
Incorporation or this Section 2.08, the chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this Section 2.08 and, if any proposed nomination or business is not in
compliance with his Section 2.08, to declare that such defective nomination or
proposal shall be disregarded.
(3) For purposes of this Section 2.08, "public announcement" shall mean
disclosure on a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 2.08, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.08. Nothing in this Section 2.08 shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy materials with respect to a meeting of stockholders pursuant
to Rule 14a-8 under Exchange Act or (ii) of the holders of any series of
Preferred Stock or any other series or class of stock (excluding Common Stock)
as set forth in the Certificate of Incorporation to elect directors under
specified circumstances or to consent to specific actions taken by the
Corporation.
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SECTION 2.09. Procedure for Election of Directors; Required Vote. Subject
--------------------------------------------------
to the rights of the holders of any series of Preferred Stock or any other
series or class of stock as set forth in the Certificate of Incorporation to
elect directors under specified circumstances, election of directors at all
meetings of the stockholders at which directors are to be elected shall be by a
plurality of the votes cast. Except as otherwise provided by law, the
Certificate of Incorporation, or these By-Laws, in all matters other than the
election of directors, the affirmative vote of a majority of the stock present
in person or represented by proxy at the meeting and entitled to vote on the
matter shall be the act of the stockholders.
SECTION 2.10. No Stockholder Action by Written Consent. Subject to the
----------------------------------------
rights of the holders of any series of Preferred Stock or any other series or
class of stock (excluding Common Stock) set forth in the Certificate of
Incorporation to elect additional directors under specified circumstances or to
consent to specific actions taken by the Corporation, any action required or
permitted to be taken by the stockholders of the Corporation must be taken at an
annual or special meeting of the stockholders and may not be taken by any
consent in writing by such stockholders.
SECTION 2.11. Voting Lists. The officer who has charge of the stock
------------
ledger of the Corporation shall prepare and make, at least ten 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 ten 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.
SECTION 2.12. Inspectors of Election. All elections of directors shall be
----------------------
by written ballot, unless otherwise provided in the Certificate of
Incorporation; the vote upon any other matter need not be by ballot. In advance
of any meeting of stockholders the Board of Directors may appoint inspectors of
election, who need not be stockholders, to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, the
chairman of any such meeting shall, appoint inspectors of election. The number
of inspectors shall be either one or three, as determined by the chairman of the
meeting or the Board of Directors, as the case may be. No person who is a
candidate for office shall act as an inspector. In case any person appointed as
an inspector fails to appear or fails or refuses to act, the vacancy may be
filled by appointment made by the Board of Directors in advance of the convening
of the meeting, or at the meeting by the chairman of the meeting.
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If inspectors of election are appointed as aforesaid, they shall determine
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the authenticity,
validity and effect of proxies and ballots, receive votes or ballots, hear and
determine all challenges and questions in any way arising in connection with the
right to vote, count and tabulate all votes, determine the result, and do such
acts as may be proper to conduct the election or vote with fairness to all
stockholders. If there be three inspectors of election, the decision, act or
certificate of a majority shall be effective in all respects as the decision,
act or certificate of all.
On request of the chairman of the meeting or of any stockholder or such
stockholder's proxy, the inspectors shall make a report in writing of any
challenge or question or matter determined by them, and execute a certificate of
any fact found by them.
ARTICLE III
BOARD OF DIRECTORS
------------------
SECTION 3.01. Powers. The business and affairs of the Corporation shall
------
be managed by or under the direction of the Board of Directors. In addition to
the express powers conferred upon the Board of Directors by these By-laws, the
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by law or the Certificate of
Incorporation or by these By-laws required to be exercised or done by the
stockholders.
SECTION 3.02. Number and Term of Office. The Board of Directors shall
-------------------------
consist of such number of directors, not less than six nor more than seventeen,
as may be determined from time to time by (i) a resolution adopted by a majority
of the total number of directors which the Corporation at the time would have if
there were no vacancies or (ii) the affirmative vote of at least 66 2/3% of the
voting power of all of the shares of the Corporation entitled to vote generally
in the elections of directors, voting together as a single class. The directors,
other than those who may be elected by the holders of any series of Preferred
Stock or any other series or class of stock (excluding Common Stock) as set
forth in the Certificate of Incorporation to elect directors under specified
circumstances, shall be divided into three classes as nearly equal in size as
possible, and designated as Class I, Class II and Class III. Class I directors
shall be initially elected for a term expiring at the annual meeting of
stockholders next held after September 30, 1997, Class II directors shall be
initially elected for a term expiring at the annual meeting of stockholders next
held after September 30, 1998 and Class III directors shall be initially elected
for a term expiring at the annual meeting of stockholders next held after
September 30, 1999. Members of each class shall hold office until their
successors shall have been duly elected and qualified. At each annual meeting
of stockholders of the Corporation, the
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successors of the class of directors whose term expires at that meeting shall be
elected to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election, and until their
successors are elected and qualified. All directors of the Corporation shall be
natural persons, but need not be residents of Delaware or stockholders of the
Corporation.
SECTION 3.03. Vacancies. Subject to applicable law and the rights of the
---------
holders of any series of Preferred Stock or any other series or class of stock
(excluding Common Stock) as set forth in the Certificate of Incorporation to
elect directors under specified circumstances, and unless the Board of Directors
otherwise determines, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, or stockholders
of the Corporation at any annual meeting, and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been elected expires and until
such director's successor shall have been duly elected and qualified. No
decrease in the number of authorized directors shall shorten the term of any
incumbent director.
SECTION 3.04. Resignations. Any director of the corporation may resign at
------------
any time by giving written notice to the president or the secretary of the
Corporation. Such resignation shall take effect at the date of the receipt of
such notice or at any later time specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 3.05 Removal. Subject to the rights of the holders of any series
-------
of Preferred Stock or any other series or class of stock (excluding Common
Stock) as set forth in the Certificate of Incorporation to elect directors under
specified circumstances and applicable law, any director may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least 66 2/3% of the voting power of all the shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
SECTION 3.06. Organization. At every meeting of the Board of Directors,
------------
the chairman of the board, if there be one, or, in the case of a vacancy in the
office or absence of the chairman of the board, one of the following officers
present in the order stated: the vice chairman of the board, if there be one,
the president, the vice presidents in their order of rank and seniority, or a
chairman chosen by a majority of the directors present, shall preside, and the
secretary, or, in his or her absence, an assistant secretary, or in the absence
of the secretary and the assistant secretaries, any person appointed by the
chairman of the meeting, shall act as secretary.
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SECTION 3.07. Place of Meeting. The Board of Directors may hold its
----------------
meetings, both regular and special, at such place or places within or without
the State of Delaware as the Board of Directors may from time to time appoint,
or as may be designated in the notice calling the meeting.
SECTION 3.08. Organization Meeting. Immediately after each annual
--------------------
election of directors, the Board of Directors shall meet for the purpose of
organization, election of officers, and the transaction of other business, at
the place where such election of directors was held or, if notice of such
meeting is given, at the place specified in such notice. Notice of such meeting
need not be given. In the absence of a quorum at said meeting, the same may be
held at any other time and place which shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors, or as shall
be specified in a written waiver signed by the directors, if any, not attending
and participating in the meeting.
SECTION 3.09. Regular Meetings. Regular meetings of the Board of
----------------
Directors may be held without notice at such time and place as shall be
designated from time to time by resolution of the Board of Directors. If the
date fixed for any such regular meeting be a legal holiday under the laws of the
State where such meeting is to be held, then the same shall be held on the next
succeeding business day, not a Saturday, or at such other time as may be
determined by resolution of the Board of Directors. At such meetings, the
directors shall transact such business as may properly be brought before the
meeting.
SECTION 3.10. Special Meetings. Special meetings of the Board of
----------------
Directors shall be held whenever called by the Chairman or by two or more of the
directors. Notice of each such meeting shall be given to each director by
telephone or in writing, including by facsimile message, to such telephone
number or address as a director may designate from time to time at least 24
hours (in the case of notice by telephone or facsimile message) or 48 hours (in
the case of notice by overnight delivery service) or three days (in the case of
notice by mail) before the time at which the meeting is to be held. Each such
notice shall state the time and place of the meeting to be so held. Any notice
by telephone shall be deemed effective if a message regarding the substance of
the notice is given on a director's behalf to the director's secretary or
assistant or to a member of the director's family.
SECTION 3.11. Quorum, Manner of Acting and Adjournment. At all meetings
----------------------------------------
of the Board of Directors a majority of the directors shall constitute a quorum
for the transaction of business and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board
of Directors, except as may be otherwise specifically provided by statute or by
the Certificate of Incorporation. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
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Unless otherwise restricted by the Certificate of Incorporation or these
By-laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board of Directors consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors.
SECTION 3.12. Executive and Other Committees. The Board of Directors may,
------------------------------
by resolution adopted by a majority of the whole board, designate an executive
committee and one or more other committees, each committee to consist of one or
more directors and to have such authority as may be specified by the Board of
Directors, subject to the DGCL. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member, and the alternate or alternates, if any,
designated for such member, of any committee the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of any such absent or disqualified member. Any such
committee shall be governed by the procedural provisions of these By-laws that
govern the operation of the full Board of Directors, including with respect to
notice and quorum, except to the extent specified otherwise by the Board of
Directors.
SECTION 3.13. Compensation of Directors. Unless otherwise restricted by
-------------------------
the Certificate of Incorporation, the Board of Directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 3.14. Conference Telephone Meetings. One or more directors may
-----------------------------
participate in a meeting of the Board of Directors, or of a committee of the
Board of Directors, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
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ARTICLE IV
OFFICERS
--------
SECTION 4.01. Number, Qualifications and Designation. The officers of the
--------------------------------------
Corporation shall be chosen by the Board of Directors and shall be a chairman, a
president, a secretary, a treasurer, and such other officers as may be elected
in accordance with the provisions of Section 4.03 of this Article. Any number
of offices may be held by the same person. Officers may, but need not, be
directors or stockholders of the Corporation. The chairman of the board shall
be the chief executive officer of the Corporation, except as otherwise
determined by the Board of Directors. All officers elected by the Board of
Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article IV. Such
officers shall also have such powers and duties as may from time to time be
conferred by the Board of Directors or by any committee thereof.
SECTION 4.02. Election and Term of Office. The officers of the
---------------------------
Corporation, except those elected by delegated authority pursuant to the last
sentence of Section 4.03 of this Article IV, shall be elected annually by the
Board of Directors, but each such officer shall hold office until a successor is
elected and qualified, or until his or her earlier resignation or removal.
SECTION 4.03. Other Officers, Committees and Agents. The Board of
-------------------------------------
Directors may from time to time elect such other officers and appoint such
committees, employees or other agents as it deems necessary, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as are provided in these By-laws, or as the Board of Directors may from
time to time determine. The Board of Directors may delegate to any officer or
committee the power to elect subordinate officers and to retain or appoint
employees or other agents, or committees thereof, and to prescribe the authority
and duties of such subordinate officers, committees, employees or other agents.
SECTION 4.04. Removal. Any officer elected, or agent appointed, by the
-------
Board of Directors may be removed by the affirmative vote of a majority of the
whole Board of Directors whenever, in their judgment, the best interests of the
Corporation would be served thereby. Any officer or agent appointed by another
officer by delegated authority pursuant to the last sentence of Section 4.03 may
be removed by such other officer whenever, in such officer's judgment, the best
interests of the Corporation would be served thereby. No elected officer shall
have any contractual rights against the Corporation for compensation by virtue
of such election beyond the date of the election of such officer's successor,
such officer's death, such officer's resignation or such officer's removal,
whichever event shall first occur, except as otherwise provided in a written
agreement or benefit plan.
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SECTION 4.05. Vacancies. A newly created elected office and a vacancy in
---------
any elected office because of death, resignation, or removal may be filled by
the Board of Directors for the unexpired portion of the term at any meeting of
the Board of Directors. Any vacancy in an office appointed by another officer
by delegated authority pursuant to Section 4.03 because of death, resignation,
or removal may be filled by such other officer.
SECTION 4.06. Officers' Bonds. No officer of the Corporation need provide
---------------
a bond to guarantee the faithful discharge of the officer's duties unless the
Board of Directors shall by resolution so require a bond in which event such
officer shall give the Corporation a bond (which shall be renewed if and as
required) in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of office.
SECTION 4.07. Salaries. The salaries of the officers of the Corporation
--------
elected by the Board of Directors shall be fixed from time to time by the Board
of Directors, except to the extent the Board of Directors shall have delegated
power to officers of the Corporation to fix, from time to time, the salaries of
such officers' assistant or subordinate officers.
ARTICLE V
NOTICE - WAIVERS
----------------
SECTION 5.01. Notice, What Constitutes. Whenever, under the provisions of
------------------------
the statutes of Delaware or the Certificate of Incorporation or of these By-
laws, notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at such
stockholder's address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors
may also be given in accordance with Section 3.09 of Article III hereof.
SECTION 5.02. Waivers of Notice. Whenever any written notice is required
-----------------
to be given under the provisions of the Certificate of Incorporation, these By-
laws, 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. Except in the
case of a special meeting of stockholders, neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors 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
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lawfully called or convened.
SECTION 5.03. Exception to Requirements of Notice. Whenever notice is
-----------------------------------
required to be given, under any provision of the DGCL or of the Certificate of
Incorporation or these By-laws, to any person with whom communication is
unlawful, the giving of such notice to such person shall not be required and
there shall be no duty to apply to any governmental authority or agency for a
license or permit to give such notice to such person. Any action or meeting
which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the Corporation is
such as to require the filing of a certificate under any section of the DGCL,
the certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
Whenever notice is required to be given, under any provision of the DGCL or
the Certificate of Incorporation or these By-laws, to any stockholder to whom
(i) notice of two consecutive annual meetings, and all notices of meetings or of
the taking of action by written consent without a meeting to such person during
the period between such two consecutive annual meetings, or (ii) all, and at
least two, payments (if sent by first class mail) of dividends or interest on
securities during a 12 month period, have been mailed addressed to such person
at such stockholder's address as shown on the records of the Corporation and
have been returned undeliverable, the giving of such notice to such person shall
not be required. Any action or meeting which shall be taken or held without
notice to such person shall have the same force and effect as if such notice had
been duly given. If any such person shall deliver to the Corporation a written
notice setting forth such stockholder's then current address, the requirement
that notice be given to such person shall be reinstated. In the event that the
action taken by the Corporation is such as to require the filing of a
certificate under any section of the DGCL, the certificate need not state that
notice was not given to persons to whom notice was not required to be given
pursuant to this section.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER, ETC.
-------------------------------------
SECTION 6.01. Issuance. Each stockholder shall be entitled to a
--------
certificate or certificates for shares of stock of the Corporation owned by such
stockholder upon such stockholder's request therefor. The stock certificates of
the Corporation shall be numbered and registered in the stock ledger and
transfer books of the Corporation as they are issued. They shall be signed by
the chairman of the board, the president or a vice president and by the
secretary or an assistant secretary or the treasurer. It shall not be necessary
for any such certificate to bear the
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corporate seal unless required by law. 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 6.02. Transfer. 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 6.03. Stock Certificates. Stock certificates of the Corporation
------------------
shall be in such form as provided by statute and approved by the Board of
Directors or by such committee or officer authorized by the Board of Directors
to approve the form of certificate. The stock record books and the blank stock
certificates books shall be kept by the secretary or by any agency designated by
the Board of Directors for that purpose.
SECTION 6.04. Lost, Stolen, Destroyed or Mutilated Certificates. The
-------------------------------------------------
Board of Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate 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 such stockholder's legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
SECTION 6.05. 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 claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
SECTION 6.06. Determination of Stockholders of Record. In order that the
---------------------------------------
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Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of Directors, 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. 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.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
of the stockholders 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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action.
If no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND
OTHER AUTHORIZED REPRESENTATIVES
----------------------------------------------
SECTION 7.01. Indemnification of Authorized Representatives in Third Party
------------------------------------------------------------
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 third party proceeding, by reason of the
fact that such person was or is an authorized representative of the Corporation,
against expenses, 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 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
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<PAGE>
was unlawful.
SECTION 7.02. 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, 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 of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such 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 7.03. 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
proceeding or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses actually and reasonably incurred by such
person in connection therewith.
SECTION 7.04. Determination of Entitlement to Indemnification. Any
-----------------------------------------------
indemnification under Section 7.01, 7.02 or 7.03 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 7.01 or 7.02 or has been successful on
the merits or otherwise as set forth in Section 7.03 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 proceeding, 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 7.05. Advancing Expenses.
------------------
(1) Expenses actually and reasonably incurred in defending a third party or
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<PAGE>
corporate proceeding shall be paid on behalf of a director or other authorized
representative by the Corporation in advance of the final disposition of such
third party or corporate proceeding upon receipt of an undertaking by or on
behalf of the director or other 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.
(2) The financial ability of any director or other authorized
representative to make a repayment contemplated by this Section 7.05 shall not
be a prerequisite to the making of an advance.
SECTION 7.06. Definitions. For purposes of this Article VII:
-----------
(1) "authorized representative" shall mean 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, joint
venture, trust or other enterprise;
(2) "corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation of merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued;
(3) "corporate proceeding" shall mean 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;
(4) "criminal third party proceeding" shall include any action or
investigation which could or does lead to a criminal third party proceeding;
(5) "expenses" shall include attorneys' fees and disbursements;
(6) "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan;
(7) "not opposed to the best interests of the Corporation" shall include
actions
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<PAGE>
taken in good faith and in a manner the authorized representative reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan;
(8) "other enterprises" shall include employee benefit plans;
(9) "party" shall include the giving of testimony or similar involvement;
(10) "serving at the request of the Corporation" shall include any service
as a director, officer or employee of the Corporation which imposes duties on,
or involves services by, such director, officer or employee with respect to an
employee benefit plan, its participants, or beneficiaries; and
(11) "third party proceeding" shall mean 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.
SECTION 7.07. Insurance. The Corporation may purchase and maintain
---------
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation would have the
power or the obligation to indemnify such person against such liability under
the provisions of this Article.
SECTION 7.08. Scope of Article. The indemnification of authorized
----------------
representatives and advancement of expenses, as authorized by the preceding
provisions of this Article, shall 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 another
capacity. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an
authorized representative and shall inure to the benefit of the heirs, executors
and administrators of such a person.
SECTION 7.09. 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, with the same
effect as if such person and the Corporation entered into a binding contract
under which the Corporation agreed to provide the indemnification provided by
this Article VII.
ARTICLE VIII
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<PAGE>
GENERAL PROVISIONS
------------------
SECTION 8.01. Dividends. Dividends upon the capital stock of the
---------
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock of the Corporation, subject to the provisions of the
Certificate of Incorporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 8.02. Contracts. Except as otherwise provided in these By-laws,
---------
the Board of Directors may authorize any officer or officers including the
chairman and vice chairman of the Board of Directors, or any agent or agents, to
enter into any contract or to execute or deliver any instrument on behalf of the
Corporation and such authority may be general or confined to specific instances.
SECTION 8.03. Checks. All checks, notes, bills of exchange or other
------
orders in writing shall be signed by the president, any vice president, the
treasurer and such other person or persons as the Board of Directors may from
time to time designate.
SECTION 8.04. Corporate Seal. The corporate seal shall have inscribed
--------------
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
SECTION 8.05. Deposits. All funds of the Corporation shall be deposited
--------
from time to time to the credit of the Corporation in such banks, trust
companies, or other depositories as the Board of Directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the Board of Directors shall from time to
time determine.
SECTION 8.06. Corporate Records. Every stockholder shall, upon written
-----------------
demand under oath stating the purpose thereof, have a right to examine, in
person or by agent or attorney, during the usual hours for business, for any
proper purpose, the stock ledger, books or records of account, and records of
the proceedings of the stockholders and directors, and make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or
other agent shall be the
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<PAGE>
person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which authorizes the
attorney or other agent to so act on behalf of the stockholder. The demand under
oath shall be directed to the Corporation at its registered office in Delaware
or at its principal place of business. Where the stockholder seeks to inspect
the books and records of the Corporation, other than its stock ledger or list of
stockholders, the stockholder shall first establish (1) compliance with the
provisions of this section respecting the form and manner of making demand for
inspection of such document; and (2) that the inspection sought is for a proper
purpose. Where the stockholder seeks to inspect the stock ledger or list of
stockholders of the Corporation and has complied with the provisions of this
section respecting the form and manner of making demand for inspection of such
documents, the burden of proof shall be upon the Corporation to establish that
the inspection sought is for an improper purpose.
Any director shall have the right to examine the Corporation's stock
ledger, a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director. The court may
summarily order the Corporation to permit the director to inspect any and all
books and records, the stock ledger and the stock list and to make copies or
extracts therefrom. The court may, in its discretion, prescribe any limitations
or conditions with reference to the inspection, or award such other and further
relief as the court may deem just and proper.
SECTION 8.07. Amendment of By-laws. These By-laws may be amended, added
--------------------
to, rescinded or repealed at any meeting of the Board of Directors or of the
stockholders, provided that notice of the proposed change was given in the
--------
notice of the meeting and, in the case of the Board of Directors, in a notice
given no less than twenty-four hours prior to the meeting; provided, however,
-----------------
that in the case of amendments by stockholders, notwithstanding any other
provisions of these By-laws or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote of the holders
of any series of Preferred Stock or any other series or class of stock set forth
in the Certificate of Incorporation which is required by law, the Certificate of
Incorporation or these By-laws, the affirmative vote of the holders of at least
66 2/3% of the voting power of the then outstanding shares of the Corporation
entitled to vote generally in the election of directors, present or represented
by proxy, voting together as a single class, shall be required to alter, amend
or repeal Sections 2.03, 2.08, 2.10, 3.02, 3.03, 3.05, 8.07 and Article VII of
these By-laws.
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<PAGE>
EXHIBIT 5
April 25, 1997
Unisource Worldwide, Inc.
825 Duportail Road
Wayne, Pennsylvania 19087
Re: Issuance of Shares Pursuant to Registration Statement on Form S-4
-----------------------------------------------------------------
Gentlemen:
We have acted as counsel to Unisource Worldwide, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act"), of a Registration Statement on Form S-4 (the
"Registration Statement") relating to the offering by the Company of an
aggregate of 5,000,000 shares (the "Shares") of the Company's Common Stock,
$.001 par value per share, which may be issued from time to time in
connection with the acquisition by the Company of other businesses, assets
or securities.
In so acting, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, records, certificates
and other instruments of the Company as in our judgment are necessary or
appropriate for purposes of this opinion. We have assumed that (i) the
issuance of such Shares will have been duly authorized, the Shares will
have been reserved for issuance, and certificates evidencing the same will
have been duly executed and delivered, against receipt of the consideration
approved by the Board of Directors of the Company or a committee thereof
which will be not less than the par value thereof, and (ii) the Shares will
be issued in compliance with applicable federal and state securities laws.
Based upon the foregoing, we are of the opinion that the Shares, when and
to the extent issued and sold by the Company, will be duly authorized,
validly issued, fully paid and non-assessable.
<PAGE>
April 25, 1997
Page 2
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement. In giving such consent, we do not
hereby admit that we are acting within the category of persons whose
consent is required under Section 7 of the Act and the rules and
regulations of the Commission thereunder.
Very truly yours,
Morgan, Lewis & Bockius LLP
<PAGE>
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of Unisource
Worldwide, Inc. for the registration of 5,000,000 shares of its common
stock and to the incorporation by reference therein of our report dated
October 16, 1996 (except for Notes 1 and 9, as to which the date is
November 22, 1996), with respect to the consolidated financial statements
of Unisource Worldwide, Inc., and of our report dated October 16, 1996,
with respect to the financial statement schedule of Unisource Worldwide,
Inc., included in its Registration Statement on Form 10 dated November 26,
1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
April 23, 1997
<PAGE>
EXHIBIT 24.1
FORM OF
POWER OF ATTORNEY
The undersigned certifies that he is a Director of Unisource
Worldwide, Inc. ("Unisource").
The undersigned hereby appoints each of Hugh G. Moulton and
Thomas A. Decker as his attorneys-in-fact, each with the power of
substitution, to execute, on his behalf the foregoing registration
statement on Form S-4, for filing with the Securities and Exchange
Commission ("SEC"), and to execute any and all amendments to said
registration statement, and to do all such other acts and execute all such
other documents which said attorney may deem necessary or desirable.
Dated this ___ day of ____________, 1997.
________________________________
Paul J. Darling, II
