As filed with the Securities and Exchange Commission on January __, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
BETZDEARBORN INC.
(Exact name of issuer as specified in its charter)
Pennsylvania 23-1503731
- ---------------------------------- ----------------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
BETZDEARBORN INC.
4636 Somerton Road
Trevose, PA 19053
---------------------------------------------------
(Address of principal executive offices) (Zip code)
-------------------
OFFERING UNDER
BETZDEARBORN INC. STOCK OPTION PLAN OF 1987
-------------------------------------------
(Full Title of the Plan)
Linda R. Hansen
Vice President, Secretary and General Counsel
c/o BetzDearborn Inc.
4636 Somerton Road
Trevose, PA 19053
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (215) 355-3300
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per share** Price Fee
- --------------------------------------------------------------------------------
Common Shares, par value
$.10 per share 2,000,000* $61.53125 $123,063,500 $36,303
- --------------------------------------------------------------------------------
*Pursuant to Rule 416(a), this Registration Statement also registers such
indeterminate number of additional shares as may become issuable under the Plan
in connection with share splits, share dividends or similar transactions.
**Calculated pursuant to Rule 457(h). The price is computed based upon
$61.53125, the average of the high and low prices of BetzDearborn Inc. Common
Stock on January 7, 1998, as reported by the New York Stock Exchange.
In accordance with Rule 429 this Registration Statement also relates to
File Nos. 2-44387, 2-51287, 2-55728, 2-63999, 2-67345, 2-71761, 2-76926,
2-88323, 33-21858, 33-28426, 33-34812, 33-40175 and 333-27195.
Index Exhibit at Page II-1
<PAGE>
Part 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in this Part I will be
sent or given to employees as specified by Rule 428(b)(1) of the Securities Act
of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
BetzDearborn Inc. (the "Company") hereby incorporates into this
Registration Statement by reference the following documents:
1. The Company's Current Report on Form 8-K dated December 11, 1997.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997.
3. The Company's Annual Report on Form 10-K for the year ended December 31,
1996.
4. The Company's Proxy Statement dated March 10, 1997, for the Annual
Meeting of Shareholders held April 10, 1997.
5. The description of the Company's Common Stock set forth in the Company's
Registration Statement on Form 8-A filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on November 23, 1992, Registration No.
1-11558, including any amendment or report filed for the purpose of updating
such description.
All reports subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for the purposes hereof to
the extent that a statement contained herein (or in any subsequently filed
document which also is incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Bylaws provide that the Company will indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative in nature, by reason of the fact that he or she is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, as follows:
(1) if and to the extent the director or officer has been successful on the
merits or otherwise in defense of the action, suit or proceeding, or in defense
of any claim, issue or matter contained therein, he or she shall be indemnified
against all expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith;
1
<PAGE>
(2) if the action, suit or proceeding is by or in the right of the Company,
a director or officer shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or proceeding only if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the Company; and except that no
indemnification shall be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the Company; unless and only
to the extent that the court in which such action or suit was brought shall
determine that, despite the adjudication of liability but in view of all the
circumstances of the case, such a person is fairly and reasonably entitled to
indemnification for such expenses which the court shall deem appropriate;
(3) if the action, suit or proceeding is an action, suit or proceeding
other than one by or in the right of the Company, a director or officer shall be
indemnified against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in, or not opposed to, the
best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in, or not
opposed to, the best interests of the Company and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit 4(a) The Company's Restated Articles of Incorporation (incorporated
by reference to Exhibit 3 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1988,
Commission No. 0-2085)
Exhibit 4(b) The Company's By-laws
Exhibit 4(c) The BetzDearborn Inc. Stock Option Plan of 1987 (as amended)
Exhibit 5(a) Opinion of Linda R. Hansen
Exhibit 23(a) Consent of Ernst & Young LLP
Exhibit 23(b) Consent of Linda R. Hansen (included in her opinion filed as
Exhibit 5(a)
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in 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 end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in value and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" Table in the effective registration statement;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
2
<PAGE>
provided, however, that paragraph (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual reports pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the 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.
3
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, at Trevose, Pennsylvania, on this __________ day of January, 1998.
BETZDEARBORN INC.
By: /s/ William R. Cook
------------------------------------
William R. Cook, Chairman, President
and Chief Executive Officer
Each person whose signature appears below hereby constitutes and appoints
William R. Cook and George L. James, III, as his or her attorneys-in-fact and
agents, with full power of substitution and resubstitution for him or her, in
any and all capacities, to sign any or all amendments or post-effective
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, granting unto each of such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that each of such attorneys-in-fact and
agents or his substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ William R. Cook Chairman, President and January __, 1998
- ----------------------------- Chief Executive Officer
William R. Cook
/s/ George L. James, III Senior Vice President and January __, 1998
- ----------------------------- Chief Financial Officer
George L. James, III (Principal Financial and
Accounting Officer)
/s/ John W. Boyer, Jr. Director January __, 1998
- -----------------------------
John W. Boyer, Jr.
/s/ Patrick F. Brennan Director January __, 1998
- -----------------------------
Patrick F. Brennan
/s/ Carolyn S. Burger Director January __, 1998
- -----------------------------
Carolyn S. Burger
/s/ John G. Drosdick Director January __, 1998
- -----------------------------
John G. Drosdick
/s/ Alan R. Hirsig Director January __, 1998
- -----------------------------
Alan R. Hirsig
/s/ John F. McCaughan Director January __, 1998
- -----------------------------
John F. McCaughan
/s/ John Quarles Director January __, 1998
- -----------------------------
John Quarles
/s/ John A. H. Shober Director January __, 1998
- -----------------------------
John A. H. Shober
/s/ Geoffrey Stengel, Jr. Director January __, 1998
- -----------------------------
Geoffrey Stengel, Jr.
/s/ Robert L. Yohe Director January __, 1998
- -----------------------------
Robert L. Yohe
4
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EXHIBIT INDEX
DESCRIPTION NUMBER
----------- ------
The Company's By-laws 4(b)
The BetzDearborn Inc. Stock Option Plan of 1987, as amended 4(c)
Opinion of Linda R. Hansen 5(a)
Consent of Ernst & Young LLP 23(a)
<PAGE>
EXHIBIT 4(b)
B Y L A W S
OF
BETZDEARBORN INC.
(a Pennsylvania Registered Corporation)
(As adopted on December 11,1997)
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I Offices and Fiscal Year ...................................... 1
Section 1.01. Registered Office ...................................... 1
Section 1.02. Other Offices .......................................... 1
Section 1.03. Fiscal Year............................................. 1
ARTICLE II Notice - Waivers - Meetings Generally ....................... 1
Section 2.01. Manner of Giving Notice................................. 1
(a) General Rule ........................................... 1
(b) Bulk Mail............................................... 2
(c) Adjourned Shareholder Meetings.......................... 2
Section 2.02. Notice of Meetings of Board of Directors................ 2
Section 2.03. Notice of Meetings of Shareholders...................... 2
(a) General Rule .......................................... 2
(b) Notice of Action by Shareholders on Bylaws ............. 2
(c) Notice of Action by Shareholders on Fundamental Change.. 2
(d) Notice of Action by Shareholders Giving Rise to
Dissenters Rights....................................... 3
Section 2.04. Waiver of Notice........................................ 3
(a) Written Waiver.......................................... 3
(b) Waiver by Attendance.................................... 3
Section 2.05. Modification of Proposal Contained in Notice............ 3
Section 2.06. Exception to Requirement of Notice...................... 3
(a) General Rule ........................................... 3
(b) Shareholders Without Forwarding Addresses............... 4
Section 2.07. Use of Conference Telephone and Similar Equipment....... 4
Section 2.08. Notice to Corporation of Shareholder Business
and Nominations......................................... 4
(a) Annual Meeting of Shareholders.......................... 4
(b) Special Meeting of Shareholders ........................ 5
(c) General................................................. 6
ARTICLE III Shareholders................................................ 7
Section 3.01. Place of Meeting........................................ 7
Section 3.02. Annual Meeting.......................................... 7
Section 3.03. Special Meetings........................................ 7
Section 3.04. Quorum and Adjournment.................................. 7
(a) General Rule............................................ 7
(b) Withdrawal of a Quorum.................................. 7
(c) Adjournments Generally.................................. 7
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(d) Electing Directors at Adjourned Meeting................. 8
(e) Other Action in Absence of Quorum....................... 8
Section 3.05. Action by Shareholders ................................. 8
Section 3.06. Organization ........................................... 8
Section 3.07. Voting Rights of Shareholders........................... 8
Section 3.08. Voting and Other Action by Proxy........................ 8
(a) General Rule............................................ 8
(b) Execution and Filing.................................... 9
(c) Revocation.............................................. 9
Section 3.09. Voting by Fiduciaries and Pledgees...................... 9
Section 3.10. Voting by Joint Holders of Shares....................... 10
(a) General Rule............................................ 10
(b) Exception............................................... 10
Section 3.11. Voting by Corporations.................................. 10
(a) Voting by Corporate Shareholders........................ 10
(b) Controlled Shares....................................... 10
Section 3.12. Determination of Shareholders of Record................. 11
(a) Fixing Record Date...................................... 11
(b) Determination When a Record Date is Not Fixed........... 11
(c) Certification by Nominee................................ 11
Section 3.13. Voting Lists............................................ 11
(a) General Rule............................................ 11
(b) Effect of List.......................................... 12
Section 3.14. Judges of Election...................................... 12
(a) Appointment............................................. 12
(b) Vacancies............................................... 12
(c) Duties.................................................. 12
(d) Report.................................................. 12
Section 3.15. Minors as Security Holders.............................. 12
Section 3.16. Consent of Shareholders in Lieu of Meeting.............. 13
ARTICLE IV Board of Directors........................................... 13
Section 4.01. Powers; Liability....................................... 13
(a) General Rule............................................ 13
(b) Liability of Directors.................................. 13
(c) Notation of Dissent..................................... 14
Section 4.02. Qualifications and Selection of Directors............... 14
(a) Qualifications.......................................... 14
(b) Election of Directors................................... 14
Section 4.03. Number, Classification and Term of Office............... 15
Section 4.04. Vacancies............................................... 15
(a) General Rule............................................ 15
(b) Resignation; Action by Resigned Directors............... 15
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Section 4.05. Removal of Directors.................................... 15
(a) Removal by the Shareholders............................. 15
(b) Removal by the Board.................................... 15
Section 4.06. Place of Meetings....................................... 16
Section 4.07. Organization of Meetings................................ 16
Section 4.08. Regular Meetings........................................ 16
Section 4.09. Special Meetings........................................ 16
Section 4.10. Quorum of and Action by Directors....................... 16
(a) General Rule............................................ 16
(b) Action by Written Consent............................... 16
Section 4.11. Committees.............................................. 16
(a) Establishment and Powers................................ 16
(b) Alternate Committee Members............................. 17
(c) Term.................................................... 17
(d) Committee Procedures.................................... 17
Section 4.12. Compensation............................................ 17
ARTICLE V Officers...................................................... 18
Section 5.01. Officers Generally...................................... 18
(a) Number, Qualifications and Designation.................. 18
(b) Bonding................................................. 18
(c) Standard of Care ....................................... 18
Section 5.02. Election, Term of Office and Resignations............... 18
(a) Election and Term of Office............................. 18
(b) Resignations............................................ 18
Section 5.03. Subordinate Officers, Committees and Agents............. 19
Section 5.04. Removal of Officers and Agents.......................... 19
Section 5.05. Vacancies............................................... 19
Section 5.06. Authority............................................... 19
(a) General Rule............................................ 19
(b) Chief Executive Officer................................. 19
Section 5.07. The Chairman of the Board............................... 19
Section 5.08. The President........................................... 19
Section 5.09. Executive Vice President................................ 20
Section 5.10. Senior Vice President................................... 20
Section 5.11. Vice President.......................................... 20
Section 5.12. Assistant Vice Presidents............................... 20
Section 5.13. Secretary............................................... 20
Section 5.14. Assistant Secretaries................................... 20
Section 5.15. Treasurer............................................... 21
Section 5.16. Assistant Treasurers.................................... 21
Section 5.17. Subordinate Officers, Committees and Agents............. 21
Section 5.18. Salaries................................................ 21
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ARTICLE VI Certificates of Stock, Transfer, Etc. ..................... 22
Section 6.01. Share Certificates...................................... 22
(a) Form of Certificates.................................... 22
(b) Share Register.......................................... 22
Section 6.02. Issuance................................................ 22
Section 6.03. Transfer................................................ 22
Section 6.04. Record Holder of Shares................................. 22
Section 6.05. Lost, Destroyed or Mutilated Certificates............... 23
ARTICLE VII Indemnification of Directors, Officers and Other
Authorized Representatives.................................. 23
Section 7.01. Directors and Officers; Third Part Action............... 23
Section 7.02. Directors and Officers; Derivative Actions.............. 23
Section 7.03. Employees and Agents.................................... 24
Section 7.04. Bylaw Provisions Not Exclusive.......................... 24
Section 7.05. Expense of Litigation................................... 24
Section 7.06. indemnification After Leaving Office.................... 24
Section 7.07. Creation of Indemnification Fund........................ 24
ARTICLE VIII Miscellaneous.............................................. 25
Section 8.01. Corporate Seal.......................................... 25
Section 8.02. Checks.................................................. 25
Section 8.03. Contracts............................................... 25
Section 8.04. Interested Directors or Officers; Quorum ............... 25
(a) General Rule............................................ 25
(b) Quorum.................................................. 26
Section 8.05. Deposits................................................ 26
Section 8.06. Corporate Records....................................... 26
(a) Required Records........................................ 26
(b) Right of Inspection..................................... 26
Section 8.07. Amendment of Bylaws..................................... 26
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BYLAWS
OF
BETZDEARBORN INC.
(a Pennsylvania Registered Corporation)
...ooOoo...
ARTICLE I
Offices and Fiscal Year
Section 1.01. Registered Office. The registered of office of the
Corporation in the Commonwealth of Pennsylvania shall be at 4636 Somerton Road,
Trevose, Pennsylvania 19053-6783, until otherwise established by an amendment of
the articles of incorporation (the "articles") or by the Board of Directors and
a record of such change is filed with the Pennsylvania Department of State in
the manner provided by law.
Section 1.02. Other Offices. The Corporation may also have offices at such
other places within or without the Commonwealth of Pennsylvania as the Board of
Directors may from time to time appoint or the business of the Corporation may
require.
Section 1.03. Fiscal Year. The fiscal year of the Corporation shall begin
on the first day of January in each year.
ARTICLE II
Notice - Waivers - Meetings Generally
Section 2.01. Manner of Giving Notice.
(a) General Rule. Whenever written notice is required to be given to any
person under the provisions of the Pennsylvania Business Corporation Law of 1988
(the "Business Corporation Law") or by the articles or these bylaws, it may be
given to the person either personally or by sending a copy thereof by first
class or express mail, postage prepaid, or by courier service, charges prepaid,
or by facsimile transmission to the address (or to the facsimile or telephone
number) of the person appearing on the books of the Corporation or, in the case
of directors, supplied by the director to the Corporation for the purpose of
notice. If the notice is sent by mail or courier service, it shall be deemed to
have been given to the person entitled thereto when deposited in the United
States mail or with a courier service for delivery to that person or, in the
case of facsimile transmission, when received. A notice of meeting shall specify
the place, day and hour of the meeting and any other information required by any
other provision of the Business Corporation Law, the articles or these bylaws.
<PAGE>
(b) Bulk Mail. If the Corporation has more than 30 shareholders, notice of
any regular or special meeting of the shareholders, or any other notice required
by the Business Corporation Law or by the articles or these bylaws to be given
to all shareholders or to all holders of a class or series of shares, may be
given by any class of postpaid mail if the notice is deposited in the United
States mail at least 20 days prior to the day named for the meeting or any
corporate or shareholder action specified in the notice.
(c) Adjourned Shareholder Meetings. When a meeting of shareholders is
adjourned, it shall not be necessary to give any notice of the adjourned meeting
or of the business to be transacted at an adjourned meeting, other than by
announcement at the meeting at which the adjournment is taken, unless the Board
fixes a new record date for the adjourned meeting in which event notice shall be
given in accordance with Section 2.03.
Section 2.02. Notice of Meetings of Board of Directors. Notice of a regular
meeting of the Board of Directors need not be given. Notice of every special
meeting of the Board of Directors shall be given to each director by telephone
or in writing at least one hour (in the case of notice by telephone), 24 hours
(in the case of notice by facsimile transmission) or 48 hours (in the case of
notice by courier service or express mail) or five days (in the case of notice
by first class mail) before the time at which the meeting is to be held. Every
such notice shall state the time and place of the meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
Board need be specified in a notice of the meeting.
Section 2.03. Notice of Meetings of Shareholders.
(a) General Rule. Except as otherwise provided in Section 2.01(b), written
notice of every meeting of the shareholders shall be given by, or at the
direction of, the Secretary or other authorized person to each shareholder of
record entitled to vote at the meeting at least (1) 10 days prior to the day
named for a meeting (and, in case of a meeting called to consider a merger,
consolidation, asset transfer, share exchange or division, to each shareholder
of record not entitled to vote at the meeting) called to consider a fundamental
change under 15 Pa.C.S. Chapter 19 or (2) five days prior to the day named for
the meeting in any other case. If the Secretary neglects or refuses to give
notice of a meeting, the person or persons calling the meeting may do so. In the
case of a special meeting of shareholders, the notice shall specify the general
nature of the business to be transacted.
(b) Notice of Action by Shareholders on Bylaws. In the case of a meeting of
shareholders that has as one of its purposes action on the bylaws, written
notice shall be given to each shareholder that the purpose, or one of the
purposes, of the meeting is to consider the adoption, amendment or repeal of the
bylaws. There shall be included in, or enclosed with, the notice a copy of the
proposed amendment or a summary of the changes to be effected thereby.
(c) Notice of Action by Shareholders on Fundamental Change. In the case of
a meeting of the shareholders that has as one of its purposes action with
respect to any
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<PAGE>
fundamental change under 15 Pa.C.S. Chapter 19, each shareholder shall be given,
together with written notice of the meeting, a copy or summary of the amendment
or plan to be considered at the meeting in compliance with the provisions of
Chapter 19.
(d) Notice of Action by Shareholders Giving Rise to Dissenters Rights. In
the case of a meeting of the shareholders that has as one of its purposes action
that would give rise to dissenters rights under the provisions of 15 Pa.C.S.
Subchapter 15D, each shareholder shall be given, together with written notice of
the meeting:
(1) a statement that the shareholders have a right to dissent and
obtain payment of the fair value of their shares by complying with the
provisions of Subchapter l5D (relating to dissenters rights); and
(2) a copy of Subchapter 15D.
Section 2.04. Waiver of Notice.
(a) Written Waiver. Whenever any written notice is required to be given
under the provisions of the Business Corporation Law, the articles or these
bylaws, a waiver thereof in writing, signed by the person or persons entitled to
the notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of the notice. Neither the business to be transacted
at, nor the purpose of, a meeting need be specified in the waiver of notice of
the meeting.
(b) Waiver by Attendance. Attendance of a person at any meeting shall
constitute a waiver of notice of the meeting except where a person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting was not lawfully called
or convened.
Section 2.05. Modification of Proposal Contained in Notice. Whenever the
language of a proposed resolution is included in a written notice of a meeting
required to be given under the provisions of the Business Corporation Law or the
articles or these bylaws, the meeting considering the resolution may without
further notice adopt it with such clarifying or other amendments as do not
enlarge its original purpose.
Section 2.06. Exception to Requirement of Notice.
(a) General Rule. Whenever any notice or communication is required to be
given to any person under the provisions of the Business Corporation Law or by
the articles or these bylaws or by the terms of any agreement or other
instrument or as a condition precedent to taking any corporate action and
communication with that person is then unlawful, the giving of the notice or
communication to that person shall not be required.
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<PAGE>
(b) Shareholders Without Forwarding Addresses. Notice or other
communications need not be sent to any shareholder with whom the Corporation has
been unable to communicate for more than 24 consecutive months because
communications to the shareholder are returned unclaimed or the shareholder has
otherwise failed to provide the Corporation with a current address. Whenever the
shareholder provides the Corporation with a current address, the Corporation
shall commence sending notices and other communications to the shareholder in
the same manner as to other shareholders.
Section 2.07. Use of Conference Telephone and Similar Equipment. Any
director may participate in any meeting of the Board of Directors, and the Board
of Directors may provide by resolution with respect to a specific meeting or
with respect to a class of meetings that one or more persons may participate in
a meeting of the shareholders of the Corporation, 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 the meeting.
Section 2.08. Notice to Corporation of Shareholder Business and
Nominations.
(a) Annual Meeting of Shareholders.
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (i) by or at
the direction of the Chairman of the Board or the Board of Directors or
(ii) by any shareholder 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 shareholder, 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 shareholder 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 shareholder pursuant to clause (ii) of paragraph (a)(1)
of this Section 2.08, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such business
must be a proper subject for shareholder action under the Business
Corporation Law. To be timely, a shareholder's notice shall be delivered to
or mailed to and received by the Secretary of the Corporation at the office
specified in Section 1.01 hereof not less than 120 days nor more than 150
days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced or delayed by more than 30 days from such
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anniversary date, notice by the shareholder to be timely must be so
delivered or mailed and received not later than the later of 120 days prior
to such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such shareholder's
notice shall set forth (i) as to each person whom the shareholder proposes
to nominate for election or reelection as a director all information
relating to such person that would be required to be disclosed in a proxy
statement filed pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") if proxies were solicited with
respect to such nominee by the Board of Directors and shall include such
person's written consent to serving as a director if elected; (ii) as to
any other business that the shareholder proposes to bring before: the
meeting, a 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 shareholder; and (iii) as to the
shareholder giving the notice (x) the name and address of such shareholder,
as they appear on the Corporation's books, (y) the class and number of
shares of the Corporation which are owned beneficially and of record by
such shareholder and (z) a description of all arrangements or
understandings among such shareholder and any other person or persons,
including any nominee (giving the name and address of such person or
persons), with respect to the matters set forth in such shareholder's
notice.
(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 from the
number of directors then serving in the class to be elected and there is no
public announcement naming all of the nominees for director or specifying
the size of the increased Board of Directors or class made by the
Corporation at least 130 days prior to the first anniversary of the
preceding year's annual meeting, a shareholder'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 Shareholders. At a special meeting of shareholders,
only such business shall be conducted as shall have been set forth in the notice
of meeting. Nominations of persons for election to the Board of Directors may be
made at a special meeting of shareholders at which directors are to be elected
(i) by or at the direction of the Chairman of the Board or the Board of
Directors pursuant to a resolution or (ii) by any shareholder of the
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Corporation who is entitled to vote at the meeting with respect to the election
of directors, who complies with the notice procedures set forth in this
paragraph (b) and who is a shareholder of record at the time such notice is
delivered to the Secretary of the Corporation as provided below. Nominations by
shareholders of persons for election to the Board of Directors may be made at a
special meeting of shareholders if the shareholder's notice as required by
paragraph (a)(2) of this Section 2.08 shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not earlier
than the ninetieth day prior to such special meeting and not later than the
close of business on the later of the sixtieth day prior to such special meeting
or the tenth 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.
(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 shareholders 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 articles 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 this 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 in 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
shareholder 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 enlarge or impair any rights (i) of shareholders to request
inclusion of proposals in the Corporation's proxy materials with respect to
a meeting of shareholders pursuant to and upon meeting the requirements of
Rule 14a-8 under Exchange Act or (ii) of the holders of any class or series
of preferred stock or any other class or series of stock as set forth in
the articles to elect directors under specified circumstances or to consent
to specific actions taken by the Corporation.
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ARTICLE III
Shareholders
Section 3.01. Place of Meeting. Meetings of shareholders of the Corporation
shall be held at such place, within the Commonwealth of Pennsylvania or
elsewhere, as may be fixed by the Board of Directors. If the Board shall not fix
a place for such meetings, they shall be held at the office of the Corporation
set forth in Section 1.01 of these Bylaws.
Section 3.02. Annual Meeting. The Board of Directors may fix and designate
the date and time of the annual meeting of the shareholders, but if no such date
and time is fixed and designated by the Board, the meeting for any calendar year
shall be held on the second Thursday in April in such year, if not a legal
holiday under the laws of Pennsylvania, and, if a legal holiday, then on the
next succeeding business day, not a Saturday, at 11:00 o'clock A.M., and at said
meeting the shareholders then entitled to vote shall elect directors and shall
transact such other business as may properly be brought before the meeting. If
the annual meeting shall not have been called and held within six months after
the designated time, any shareholder may call the meeting at any time
thereafter.
Section 3.03. Special Meetings. Special meetings of the shareholders may be
called at any time by the Chairman of the Board or by resolution of the Board of
Directors, who may fix the date, time and place of the meeting. If the Board
does not fix the date, time or place of the meeting, it shall be the duty of the
Secretary to do so. A date fixed by the Secretary shall not be more than 60 days
after the date of the adoption of the resolution of the Board calling the
special meeting.
Section 3.04. Quorum and Adjournment.
(a) General Rule. A meeting of shareholders of the Corporation duly called
shall not be organized for the transaction of business unless a quorum is
present. The presence of shareholders entitled to cast at least a majority of
the votes that all shareholders are entitled to cast on a particular matter to
be acted upon at the meeting shall constitute a quorum for the purposes of
consideration and action on the matter. Shares of the Corporation owned,
directly or indirectly, by it and controlled, directly or indirectly, by the
Board of Directors of the Corporation, as such, shall not be counted in
determining the total number of outstanding shares for quorum purposes at any
given time.
(b) Withdrawal of a Quorum. The shareholders present at a duly organized
meeting can continue to do business until adjournment notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
(c) Adjournments Generally. Any regular or special meeting of the
shareholders, including one at which directors are to be elected and one which
cannot be
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organized because a quorum has not attended, may be adjourned for such period
and to such place as the shareholders present and entitled to vote shall direct.
(d) Electing Directors at Adjourned Meeting. Those shareholders entitled to
vote who attend a meeting called for the election of directors that has been
previously adjourned for lack of a quorum, although less than a quorum as fixed
in this section, shall nevertheless constitute a quorum for the purpose of
electing directors.
(e) Other Action in Absence of Quorum. Those shareholders entitled to vote
who attend a meeting of shareholders that has been previously adjourned for one
or more periods aggregating at least 15 days because of an absence of a quorum,
although less than a quorum as fixed in this section, shall nevertheless
constitute a quorum for the purpose of acting upon any matter set forth in the
notice of the meeting if the notice states that those shareholders who attend
the adjourned meeting shall nevertheless constitute a quorum for the purpose of
acting upon the matter.
Section 3.05. Action by Shareholders. Except as otherwise provided in the
Business Corporation Law or the articles or these bylaws, whenever any corporate
action is to be taken by vote of the shareholders of the Corporation, it shall
be authorized upon receiving the affirmative vote of a majority of the votes
cast by all shareholders entitled to vote thereon and, if any shareholders are
entitled to vote thereon as a class, upon receiving the affirmative vote of a
majority of the votes cast by the shareholders entitled to vote as a class.
Section 3.06. Organization. At every meeting of the shareholders, the
Chairman of the Board, or, in the case of vacancy in office or absence of the
Chairman of the Board, one of the following persons present in the order stated:
the President, an Executive Vice President, a Senior Vice President or a Vice
President in their order of rank or seniority in office, or a person chosen by
vote of the shareholders present, shall act as chairman of the meeting. The
Secretary or, in the absence of the Secretary, an assistant secretary, or, in
the absence of both the Secretary and assistant secretaries, a person appointed
by the chairman of the meeting, shall act as secretary of the meeting.
Section 3.07. Voting Rights of Shareholders. Unless otherwise provided in
the articles, every shareholder of the Corporation shall be entitled to one vote
for every share standing in the name of the shareholder on the books of the
Corporation.
Section 3.08. Voting and Other Action by Proxy.
(a) General Rule.
(1) Every shareholder entitled to vote at a meeting of shareholders
may authorize another person to act for the shareholder by proxy.
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(2) The presence of, or vote or other action at a meeting of
shareholders by, a proxy of a shareholder shall constitute the presence of,
or vote or action by the shareholder.
(3) Where two or more proxies of a shareholder are present, the
Corporation shall, unless otherwise expressly provided in the proxy, accept
as the vote of all shares represented thereby the vote cast by a majority
of them and, if a majority of the proxies cannot agree whether the shares
represented shall be voted or upon the manner of voting the shares, the
voting of the shares shall be divided equally among those persons.
(b) Execution and Filing. Every proxy shall be executed in writing by the
shareholder or by the duly authorized attorney-in-fact of the shareholder and
filed with the Secretary of the Corporation. A telegram, telex, cablegram,
datagram or similar transmission from a shareholder or attorney-in-fact, or a
photographic, facsimile or similar reproduction of a writing executed by a
shareholder or attorney-in-fact:
(1) may be treated as properly executed for purposes of this
subsection; and
(2) shall be so treated if it sets forth a confidential and unique
identification number or other mark furnished by the Corporation to the
shareholder for the purposes of a particular meeting or transaction.
(c) Revocation. A proxy, unless coupled with an interest, shall be
revocable at will, notwithstanding any other agreement or any provision in the
proxy to the contrary, but the revocation of a proxy shall not be effective
until written notice thereof has been given to the Secretary of the Corporation.
An unrevoked proxy shall not be valid after three years from the date of its
execution unless a longer time is expressly provided therein. 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 the death or incapacity
is given to the Secretary of the Corporation.
(d) Expenses. The Corporation shall pay the reasonable expenses of
solicitation of votes, proxies or consents of shareholders by or on behalf of
the Board of Directors or its nominees for election to the Board, including
solicitation by professional proxy solicitors and otherwise.
Section 3.09. Voting by Fiduciaries and Pledgees. Shares of the Corporation
standing in the name of a trustee or other fiduciary and shares held by an
assignee for the benefit of creditors or by a receiver may be voted by the
trustee, fiduciary, assignee or receiver. A shareholder whose shares are pledged
shall be entitled to vote the shares until the shares have
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been transferred into the name of the pledgee, or a nominee of the pledgee, but
nothing in this section shall affect the validity of a proxy given to a pledgee
or nominee.
Section 3.10. Voting by Joint Holders of Shares.
(a) General Rule. Where shares of the Corporation are held jointly or as
tenants in common by two or more persons, as fiduciaries or otherwise:
(1) if only one or more of such persons is present in person or by
proxy, all of the shares standing in the names of such persons shall be
deemed to be represented for the purpose of determining a quorum and the
Corporation shall accept as the vote of all the shares the vote cast by a
joint owner or a majority of them; and
(2) if the persons are equally divided upon whether the shares held by
them shall be voted or upon the manner of voting the shares, the voting of
the shares shall be divided equally among the persons without prejudice to
the rights of the joint owners or the beneficial owners thereof among
themselves.
(b) Exception. If there has been filed with the Secretary of the
Corporation a copy, certified by an attorney at law to be correct, of the
relevant portions of the agreement under which the shares are held or the
instrument by which the trust or estate was created or the order of court
appointing them or of an order of court directing the voting of the shares, the
persons specified as having such voting power in the document latest in date of
operative effect so filed, and only those persons, shall be entitled to vote the
shares but only in accordance therewith.
Section 3.11. Voting by Corporations.
(a) Voting by Corporate Shareholders. Any Corporation that is a shareholder
of this Corporation may vote at meetings of shareholders of this Corporation by
any of its officers or agents, or by proxy appointed by any officer or agent,
unless some other person, by resolution of the Board of Directors of the other
Corporation or a provision of its articles or bylaws, a copy of which resolution
or provision certified to be correct by one of its officers has been filed with
the Secretary of this Corporation, is appointed its general or special proxy in
which case that person shall be entitled to vote the shares.
(b) Controlled Shares. Shares of this Corporation owned, directly or
indirectly, by it and controlled, directly or indirectly, by the Board of
Directors of this Corporation, as such, shall not be voted at any meeting and
shall not be counted in determining the total number of outstanding shares for
voting purposes at any given time.
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Section 3.12. Determination of Shareholders of Record.
(a) Fixing Record Date. The Board of Directors may fix a time prior to the
date of any meeting of shareholders as a record date for the determination of
the shareholders entitled to notice of, or to vote at, the meeting, which time,
except in the case of an adjourned meeting, shall be not more than 90 days prior
to the date of the meeting of shareholders. Only shareholders of record on the
date fixed shall be so entitled notwithstanding any transfer of shares on the
books of the Corporation after any record date fixed as provided in this
subsection. The Board of Directors may similarly fix a record date for the
determination of shareholders of record for any other purpose. When a
determination of shareholders of record has been made as provided in this
section for purposes of a meeting, the determination shall apply to any
adjournment thereof unless the Board fixes a new record date for the adjourned
meeting.
(b) Determination When a Record Date is Not Fixed. If a record date is not
fixed:
(1) The record date for determining shareholders entitled to notice of
or to vote at a meeting of shareholders shall be at the close of business
on the day next preceding the day on which notice is given.
(2) The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(c) Certification by Nominee. The Board of Directors may adopt a procedure
whereby a shareholder of the Corporation may certify in writing to the
Corporation that all or a portion of the shares registered in the name of the
shareholder are held for the account of a specified person or persons. Upon
receipt by the Corporation of a certification complying with the procedure, the
persons specified in the certification shall be deemed, for the purposes set
forth in the certification, to be the holders of record of the number of shares
specified in place of the shareholder making the certification.
Section 3.13. Voting Lists.
(a) General Rule. The officer or agent having charge of the transfer books
for shares of the Corporation shall make a complete list of the shareholders
entitled to vote at any meeting of shareholders, arranged in alphabetical order,
with the address of and the number of shares held by each. The list shall be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder during the whole time of the meeting for
the purposes thereof except that, if the Corporation has 5,000 or more
shareholders, in lieu of the making of the list, the Corporation may make the
information therein available at the meeting by any other means.
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(b) Effect of List. Failure to comply with the requirements of this section
shall not affect the validity of any action taken at a meeting prior to a demand
at the meeting by any shareholder entitled to vote thereat to examine the list.
The original share register or transfer book, or a duplicate thereof kept in the
Commonwealth of Pennsylvania, shall be prima facie evidence as to who are the
shareholders entitled to examine the list or share register or transfer book or
to vote at any meeting of shareholders.
Section 3.14. Judges of Election.
(a) Appointment. In advance of any meeting of shareholders of the
Corporation, the Board of Directors may appoint judges of election, who need not
be shareholders, to act at the meeting or any adjournment thereof. If judges of
election are not so appointed, the presiding officer of the meeting may, and on
the request of any shareholder shall, appoint judges of election at the meeting.
The number of judges shall be one or three. A person who is a candidate for an
office to be filled at the meeting shall not act as a judge.
(b) Vacancies. In case any person appointed as a judge 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 presiding officer thereof.
(c) Duties. The judges of election 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,
receive votes or ballots, hear and determine all challenges and questions in any
way arising in connection with nominations by shareholders or 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 shareholders. The
judges of election shall perform their duties impartially, in good faith, to the
best of their ability and as expeditiously as is practical. If there are three
judges of election, the decision, act or certificate of a majority shall be
effective in all respects as the decision, act or certificate of all.
(d) Report. On request of the presiding officer of the meeting or of any
shareholder, the judges 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. Any report or certificate made by them shall be prima facie
evidence of the facts stated therein.
Section 3.15. Minors as Security Holders. The Corporation may treat a minor
who holds shares or obligations of the Corporation as having capacity to receive
and to empower others to receive dividends, interest, principal and other
payments or distributions, to vote or express consent or dissent and to make
elections and exercise rights relating to such shares or obligations unless, in
the case of payments or distributions on shares, the corporate officer
responsible for maintaining the list of shareholders or the transfer agent of
the Corporation or, in the case of payments or distributions on obligations, the
Treasurer or paying officer or agent has received written notice that the holder
is a minor.
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Section 3.16. Consent of Shareholders in Lieu of Meeting. Any action which
may be taken at a meeting of the shareholders or of a class of shareholders of
the Corporation may be taken without a meeting only if a consent or consents in
writing, setting forth the action so taken, shall be signed by all the
shareholders who would be entitled to vote at a meeting of the shareholders or
of a class of shareholders called for such purpose and shall be filed with the
Secretary of the Corporation.
ARTICLE IV
Board of Directors
Section 4.01. Powers; Liability.
(a) General Rule. Unless otherwise provided by statute, all powers vested
by law in the Corporation shall be exercised by or under the authority of, and
the business and affairs of the Corporation shall be managed under the direction
of, the Board of Directors.
(b) Liability of Directors.
(1) No director, including a director who is also an officer, of the
Corporation shall be personally liable for monetary damages as such for any
action taken, or any failure to take any action in his capacity as a
director, including his duties as a member of any committee of the Board of
Directors upon which he may serve unless:
(A) The director has breached or failed to perform his duties as
a director in good faith, in a manner he reasonably believed to be in
the best interest of the Corporation and with such care, including
reasonable inquiry, skill and diligence, as a person of ordinary
prudence would use under similar circumstances; and
(B) Such breach or failure to perform his duties constitutes
self dealing, willful misconduct or recklessness.
(2) Absent a breach by a director of his duty as a fiduciary to the
Corporation, lack of good faith, or self dealing, the acts of or failure to
act by a director in his capacity as a director shall be presumed to be in
the best interest of the Corporation.
(3) In performing his duties, a director shall be entitled to rely in
good faith on information, opinions, reports or statements, including
financial statements and other financial data, in each case prepared or
presented by:
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(A) One or more officers or employees of the Corporation whom the
director reasonably believes to be reliable and competent in the
matter presented; or
(B) Counsel, public accountants or other persons as to matters
which the director reasonably believes to be within the professional
or expert competence of such persons; or
(C) A committee of the Board of Directors upon which he does not
serve, duly designated in accordance with law, as to matters within
its designated authority, which committee the director reasonably
believes to merit confidence.
(Section 4.01(b) was approved by the shareholders of the Corporation on
April 9, 1987)
(c) Notation of Dissent. A director of the Corporation who is present at a
meeting of the Board of Directors, or of a committee of the Board, at which
action on any corporate matter is taken on which the director is generally
competent to act, shall be presumed to have assented to the action taken unless
his or her dissent is entered in the minutes of the meeting or unless the
director files his or her written dissent to the action with the secretary of
the meeting before the adjournment thereof or transmits the dissent in writing
to the Secretary of the Corporation immediately after the adjournment of the
meeting. The right to dissent shall not apply to a director who voted in favor
of the action. Nothing in this section shall bar a director from asserting that
minutes of the meeting incorrectly omitted his or her dissent if, promptly upon
receipt of a copy of such minutes, the director notifies the Secretary of the
Corporation, in writing, of the asserted omission or inaccuracy.
Section 4.02. Qualifications and Selection of Directors.
(a) Qualifications. Each director of the Corporation shall be a natural
person of full age who need not be a resident of the Commonwealth of
Pennsylvania or a shareholder of the Corporation.
(b) Election of Directors. In elections for directors, voting need not be
by ballot, unless required by vote of the shareholders before the voting for the
election of directors begins. The candidates receiving the highest number of
votes from each class or group of classes, if any, entitled to elect directors
separately shall be elected. If at any meeting of shareholders, directors of
more than one class are to be elected, each class of directors shall be elected
in a separate election.
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Section 4.03. Number. Classification and Term of Office. The number of
directors of the Corporation shall be not less than five, nor more than
thirteen, as determined from time to time by resolutions of the Board of
Directors. The directors shall be classified with respect to the time for which
they shall severally hold office. The Board of Directors shall divide the number
of directors as evenly as practicable into three classes.
At each annual election, the successors to the class of directors whose
terms shall expire in that year shall be elected to hold office for the term of
three years, so that the term of office of one class of directors shall expire
each year.
Each director shall hold office for the term for which he or she is elected
and until his or her successor shall have been elected and qualified.
(Section 4.03 was adopted by the shareholders of the Corporation on April 13,
1978 and amended by vote of the shareholders of the Corporation on April 9,
1981.)
Section 4.04. Vacancies.
(a) General Rule. Vacancies on the Board of Directors, including vacancies
resulting from an increase in the number of directors, may be filled by a
majority vote of the remaining members of the Board though less than a quorum,
or by a sole remaining director, and each person so selected shall be a director
to serve until the next selection of the class for which such director has been
chosen, and until a successor has been selected and qualified or until his or
her earlier death, resignation or removal.
(b) Resignation; Action by Resigned Directors. Any director may resign at
any time by giving written notice to the Chairman of the Board or the Secretary.
Such resignation shall take effect upon the receipt of such notice or at any
later time specified therein. Unless otherwise specified in the notice,
acceptance of the resignation shall not be necessary to make it effective. When
one or more directors resign from the Board effective at a future date, the
directors then in office, including those who have so resigned, shall have power
by the applicable vote to fill the vacancies, the vote thereon to take effect
when the resignations become effective.
Section 4.05. Removal of Directors.
(a) Removal by the Shareholders. The entire Board of Directors, or any
class of the Board, or any individual director may be removed from office by
vote of the shareholders entitled to vote thereon only for cause. In case the
Board or a class of the Board or any one or more directors are so removed, new
directors may be elected at the same meeting.
(b) Removal by the Board. The Board of Directors may declare vacant the
office of a director who has been judicially declared of unsound mind or who has
been convicted
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of an offense punishable by imprisonment for a term of more than one year or if,
within 60 days after notice of his or her selection, the director does not
accept the office either in writing or by attending a meeting of the Board of
Directors.
Section 4.06. Place of Meetings. Meetings of the Board of Directors may be
held at such place within or without the Commonwealth of Pennsylvania as the
Board of Directors may from time to time appoint or as may be designated in the
notice of the meeting.
Section 4.07. Organization of Meetings. At every meeting of the Board of
Directors, the Chairman of the Board or, in the case of a vacancy in the office
or absence of the Chairman of the Board, one of the following directors present
in the order stated: the Vice Chairman of the Board, if there be one, the
President or a person chosen by a majority of the directors present shall act as
chairman of the meeting. The Secretary or, in the absence of the Secretary, 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 of the meeting.
Section 4.08. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such time and place as shall be designated from time to time by
resolution of the Board of Directors.
Section 4.09. Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by the Chairman of the Board or, in the case of a
vacancy in the office or absence of the Chairman of the Board, the President, or
by two or more of the directors.
Section 4.10. Quorum of and Action by Directors.
(a) General Rule. A majority of the directors in office of the Corporation
shall be necessary to constitute a quorum for the transaction of business and
the acts of a majority of the directors present and voting at a meeting at which
a quorum is present shall be the acts of the Board of Directors.
(b) Action by Written Consent. Any action required or permitted to be taken
at a meeting of the directors may be taken without a meeting if, prior or
subsequent to the action, a consent or consents thereto by all of the directors
in office is filed with the Secretary of the Corporation.
Section 4.11. Committees.
(a) Establishment and Powers. The Board of Directors may, by resolution
adopted by a majority of the directors in office, establish one or more
committees to consist of one or more directors of the Corporation. Any
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all of the powers and authority
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of the Board of Directors except that a committee shall not have any power or
authority as to the following:
(1) The submission to shareholders of any action requiring approval of
shareholders under the Business Corporation Law.
(2) The creation or filling of vacancies in the Board of Directors.
(3) The adoption, amendment or repeal of these bylaws.
(4) The amendment or repeal of any resolution of the Board that by its
terms is amendable or repealable only by the Board.
(5) Action on matters committed by a resolution of the Board of
Directors to another committee of the Board.
(b) Alternate Committee Members. The Board 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 or for the purposes of any
written action by the committee. In the absence or disqualification of a member
and alternate member or members of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another director to act at the
meeting in the place of the absent or disqualified member.
(c) Term. Each committee of the Board shall serve at the pleasure of the
Board.
(d) Committee Procedures. The term "Board of Directors" or "Board," when
used in any provision of these bylaws relating to the organization or procedures
of or the manner of taking action by the Board of Directors, shall be construed
to include and refer to any committee of the Board.
Section 4.12. Compensation. The Board of Directors shall have the authority
to fix the compensation of directors for their services as directors. A director
may be a salaried officer of the Corporation, but a director who is a salaried
officer of the Corporation shall not be entitled to receive any additional
compensation for service as a director.
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ARTICLE V
Officers
Section 5.01. Officers Generally.
(a) Number, Qualifications and Designation. The officers of the Corporation
shall be a Chairman of the Board, a President, a Secretary and a Treasurer. The
Board of Directors may also choose one or more Executive Vice Presidents, one or
more Senior Vice Presidents, one or more Vice Presidents, one or more Assistant
Secretaries and Assistant Treasurers and such other officers as may be elected
in accordance with the provisions of Section 5.03. Except as otherwise provided
by any policy of the Corporation adopted by the Board of Directors, officers may
but need not be directors or shareholders of the Corporation. The Chairman of
the Board, the President and Secretary shall be natural persons of full age. The
Treasurer may be a corporation, but if a natural person shall be of full age.
Any number of offices may be held by the same person.
(b) Bonding. The Corporation may secure the fidelity of any or all of its
officers by bond or otherwise.
(c) Standard of Care. In lieu of the standards of conduct otherwise
provided by law, officers of the Corporation shall be subject to the same
standards of conduct, including standards of care and loyalty and rights of
justifiable reliance, as shall at the time be applicable to directors of the
Corporation. An officer of the Corporation shall not be personally liable, as
such, to the Corporation or its shareholders for monetary damages for any action
taken, or any failure to take any action, unless the officer has breached or
failed to perform the duties of his or her office under the articles, these
bylaws or the applicable provisions of law and the breach or failure to perform
constitutes self-dealing, willful misconduct or recklessness. The provisions of
this subsection shall not apply to the responsibility or liability of an officer
pursuant to any criminal statute or for the payment of taxes pursuant to local,
state or federal law.
Section 5.02. Election. Term of Office and Resignations.
(a) Election and Term of Office. Officers of the Corporation, except those
elected by delegated authority pursuant to Section 5.03, shall be elected
annually by the Board of Directors at the first meeting of the Board of
Directors held after the annual meeting of shareholders and at such other
meetings as the Board of Directors may determine. Each such officer shall hold
office for a term of one year, or until the next annual election, and until a
successor has been selected and qualified or until his or her earlier death,
resignation or removal.
(b) Resignations. Any officer may resign at any time upon written notice to
the Corporation. The resignation shall be effective upon receipt thereof by the
Corporation or at such subsequent time as may be specified in the notice of
resignation. Acceptance of the resignation shall not be necessary to make it
effective, except as may be specified in such notice.
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Section 5.03. Subordinate 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 the business of the Corporation may
require, including one or more Assistant Secretaries, and one or more Assistant
Treasurers, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these bylaws, 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 5.04. Removal of Officers and Agents. Any officer or agent of the
Corporation may be removed by the Board of Directors with or without cause. The
removal shall be without prejudice to the contract rights, if any, of any person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 5.05. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause, may be filled by the
Board of Directors or by the officer or committee to which the power to fill
such office has been delegated pursuant to Section 5.03, as the case may be, and
if the office is one for which these bylaws prescribe a term, shall be filled
for the unexpired portion of the term.
Section 5.06. Authority.
(a) General Rule. All officers of the Corporation, as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided by or pursuant to resolutions
or orders of the Board of Directors or, in the absence of controlling provisions
in the resolutions or orders of the Board of Directors, as may be determined by
or pursuant to these bylaws.
(b) Chief Executive Officer. The Chairman of the Board shall be the chief
executive officer of the Corporation.
Section 5.07. The Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the shareholders and of the Board of Directors and
shall perform such other duties as may from time to time be requested by the
Board of Directors. The Chairman of the Board shall have authority to sign,
execute and acknowledge, in the name of the Corporation, deeds, mortgages,
bonds, contracts and other instruments. The Chairman of the Board shall be
deemed to be and exercise the authority of the office of president as to all
matters as to which the Business Corporation Law, reposes authority in the
president of a corporation, and as to such matters the President shall be deemed
not to act as such.
Section 5.08. The President. The President shall be the chief operating
office of the Corporation and shall have general supervision over the business
and operations of the
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Corporation, subject, however, to the direction and control of the Chairman of
the Board. He or she shall have the authority to sign, execute and acknowledge,
in the name of the Corporation, deed, mortgages, bonds, contracts and other
instruments authorized by the Board, except in cases where the signing and
execution thereof shall be expressly delegated by the Board or the Chairman to
some other officer or agent of the Corporation; and, in general, he or she shall
perform all duties incident to the office of President and such other duties as
from time to time may be assigned by the Chairman.
Section 5.09. Executive Vice President. The Board may establish one or more
Executive Vice Presidents. The Executive Vice President, or if there shall be
more than one, the Executive Vice Presidents, shall direct and coordinate broad
Corporation activities, including departments in his or her charge, in
accordance with policies established by the Chairman and the Board of Directors.
When so directed by the President, an Executive Vice President may perform all
of the duties of the President, and, when so acting, shall have all of the
powers of, and be subject to all of the restrictions upon the President.
Section 5.10. Senior Vice President. The Board may establish one or more
Senior Vice Presidents. The Senior Vice President, or if there shall be more
than one, the Senior Vice Presidents, shall have such responsibilities and shall
perform such duties as may be prescribed by the Chairman and/or the officer to
whom they report.
Section 5.11. Vice President. The Board may establish one or more Vice
Presidents. The Vice President, or if there shall be more than one, the Vice
Presidents, shall have such responsibilities and shall perform such duties as
may be prescribed by the Chairman and/or the office to whom they report.
Section 5.12. Assistant Vice Presidents. The Board may establish one or
more Assistant Vice Presidents. The Assistant Vice President, or if there shall
be more than one, the Assistant Vice Presidents, shall have such
responsibilities and shall perform such duties as may be prescribed by the
Chairman and/or the officer to whom they report.
Section 5.13. Secretary. The Secretary shall record all of the votes of the
shareholders and of the directors and the minutes of the meetings of the
shareholders and of the Board of Directors in a book or books to be kept for
that purpose; he or she shall see that notices of meetings of the Board and
shareholders are given and that all records and reports are properly kept and
filed by the Corporation as required by law; he or she shall be the custodian of
the seal of the Corporation and shall see that it is affixed to all documents to
be executed on behalf of the Corporation under its seal; and, in general, he or
she shall perform all duties incident to the office of Secretary, and such other
duties as may, from time to time, be assigned by the Board or the Chairman.
Section 5.14. Assistant Secretaries. In the absence or disability of the
Secretary or when so directed by the Secretary, any Assistant Secretary elected
by the Board of Directors,
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or temporarily appointed by the Chairman, may perform all the duties of the
Secretary, and, when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary. The Assistant Secretary shall perform
such other duties as from time to time may be assigned respectively by the Board
of Directors, the Chairman or the Secretary.
Section 5.15. Treasurer. The Treasurer shall have charge of all receipts
and disbursements of the Corporation and shall have or provide for the custody
of its funds and securities; he or she shall have full authority to receive and
give receipts for all money due and payable to the Corporation, and to endorse
checks, drafts, and warrants in its name and on its behalf and to give full
discharge for the same; he or she shall deposit all funds of the Corporation
except such as may be required for current use, in such banks or other places of
deposit as the Board of Directors may from time to time designate; and, in
general, he or she shall perform all duties incident to the office of Treasurer
and such other duties as may, from time to time, be assigned by the Board or the
Chairman.
Section 5.16. Assistant Treasurers. In the absence or disability of the
Treasurer or when so directed by the Treasurer, any Assistant Treasurer may
perform all the duties of the Treasurer, and, when so acting, shall have all the
powers of and be subject to all the restrictions upon the Treasurer. The
Assistant Treasurers shall perform all such other duties as, from time to time,
may be assigned respectively, by the Board of Directors, the Chairman or the
Treasurer.
Section 5.17. Subordinate 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 the business of the Corporation may
require, each of which shall hold office for such period, have such authority,
and perform such duties as are provided in these bylaws, 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 5.18. Salaries. The salaries of the officers elected by the Board
of Directors shall be fixed from time to time by the Board of Directors or by
such officer as may be designated by resolution of the Board. The salaries or
other compensation of any other officers, employees and other agents shall be
fixed from time to time by the officer or committee to which the power to elect
such officers or to retain or appoint such employees or other agents has been
delegated pursuant to Section 5.03. No officer shall be prevented from receiving
such salary or other compensation by reason of the fact that the officer is
also a director of the Corporation.
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ARTICLE VI
Certificates of Stock, Transfer, Etc.
Section 6.01. Share Certificates.
(a) Form of Certificates. Certificates for shares of the Corporation shall
be in such form as approved by the Board of Directors, and shall state that the
Corporation is incorporated under the laws of the Commonwealth of Pennsylvania,
the name of the person to whom issued, and the number and class of shares and
the designation of the series (if any) that the certificate represents. If the
Corporation is authorized to issue shares of more than one class or series,
certificates for shares of the Corporation shall set forth upon the face or back
of the certificate (or shall state on the face or back of the certificate that
the Corporation will furnish to any shareholder upon request and without
charge), a full or summary statement of the designations, voting rights,
preferences, limitations and special rights of the shares of each class or
series authorized to be issued so far as they have been fixed and determined and
the authority of the Board of Directors to fix and determine the designations,
voting rights, preferences, limitations and special rights of the classes and
series of shares of the Corporation.
(b) Share Register. The share register or transfer books and blank share
certificates shall be kept by the Secretary or by any transfer agent or
registrar designated by the Board of Directors for that purpose.
Section 6.02. Issuance. The share certificates of the Corporation shall be
numbered and registered in the share register or transfer books of the
Corporation as they are issued. They shall be executed in such manner as the
Board of Directors shall determine. In case any officer, transfer agent or
registrar who has signed or authenticated, or whose facsimile signature or
authentication has been placed upon, any share certificate shall have ceased to
be such officer, transfer agent or registrar because of death, resignation or
otherwise, before the certificate is issued, the certificate may be issued with
the same effect as if the officer, transfer agent or registrar had not ceased to
be such at the date of its issue. The provisions of this Section 6.02 shall be
subject to any inconsistent or contrary agreement in effect at the time between
the Corporation and any transfer agent or registrar.
Section 6.03. Transfer. Transfers of shares shall be made on the share
register or transfer books of the Corporation upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfer shall be made inconsistent with the
provisions of the Uniform Commercial Code, 13 Pa.C.S. ss.ss. 8101 et seq., and
its amendments and supplements.
Section 6.04. Record Holder of Shares. The Corporation shall be entitled to
treat the person in whose name any share or shares of the Corporation stand on
the books of the Corporation as the absolute owner thereof, 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.
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Section 6.05. Lost, Destroyed or Mutilated Certificates. The holder of any
shares of the Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board of
Directors may, in its discretion, cause a new certificate or certificates to be
issued to such holder, in case of mutiIation of the certificate, upon the
surrender of the mutilated certificate or, in case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction and, if the
Board of Directors shall so determine, the deposit of a bond in such form and in
such sum, and with such surety or sureties, as it may direct.
ARTICLE VII
Indemnification of Directors, Officers and
Other Authorized Representatives
Section 7.01. Directors and Officers; Third Party Action. The Corporation
shall indemnify any director or officer of the Corporation who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was an authorized representative of the
Corporation which, for the purposes of this Article, shall mean a director,
officer, employee or agent of the Corporation, or a person who is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a matter
he or she reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
Section 7.02. Directors and Officers; Derivative Actions. The Corporation
shall indemnify any director or officer of the Corporation who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he or she is or was an authorized
representative of the Corporation, against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Corporation and 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 for negligence or misconduct in the performance of his or
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her duty to the Corporation unless and only to the extent that the court of
common pleas of the county in which the registered office of the Corporation is
located or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
such expenses which the court of common pleas or such other court shall deem
proper.
Section 7.03. Employees and Agents. To the extent that an authorized
representative of the Corporation who neither was nor is a director or officer
of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 4.01(b), 7.01 and 7.02 of
this Article or in defense of any claim, issue or matter therein, he or she
shall be indemnified by the Corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
Such an authorized representative may, at the discretion of the Corporation, be
indemnified by the Corporation in any other circumstances to any extent if the
Corporation would be required by Section 7.01 or 7.02 of this Article to
indemnify such person in such circumstances to such extent if he or she were or
had been a director or officer of the Corporation.
Section 7.04. Bylaw Provisions Not Exclusive. The provisions of Section
4.01(b), 7.01, 7.02 and 7.03 of these bylaws shall not be deemed exclusive of
any other rights to which a person seeing indemnification or advancement of
expenses may be entitled under any other provision of these bylaws, or any
agreement, vote of shareholders, vote of directors or otherwise both as to acts
or failure to act of such person in his or her official capacity and as to acts
or failure to act in another capacity while holding office. The Corporation
shall have the fullest authority to indemnify any such director, officer,
employee or agent permitted under the laws of the Commonwealth of Pennsylvania;
provided, however, no indemnification shall be made in any case where the act or
failure to act giving rise to the claim for indemnification is finally
determined by a court to have constituted willful misconduct or recklessness.
Section 7.05. Expense of Litigation. Expense incurred by any such director,
officer, employee or agent in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such person to repay such amount if it shall ultimately be determined such
person is not entitled to be indemnified by the Corporation.
Section 7.06. Indemnification After Leaving Office. The indemnification and
payment of expenses permitted under these bylaws, unless otherwise provided when
authorized or ratified, shall continue as to such person who has ceased to be
such a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such person.
Section 7.07. Creation of Indemnification Fund. The Corporation may create
a fund of any nature which may, but need not, be under the control of a trustee,
or otherwise may
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secure or insure in any manner its indemnification obligations, whether arising
under or pursuant to these bylaws or otherwise.
ARTICLE VIII
Miscellaneous
Section 8.01. Corporate Seal. The Corporation shall have a corporate seal
in the form of a circle containing the name of the Corporation, the year of
incorporation and such other details, if any, as may be approved by the Board of
Directors. The affixation of the corporate seal shall not be necessary to the
valid execution, assignment or endorsement by the Corporation of any instrument
or other document.
Section 8.02. Checks. All checks, notes, bills of exchange or other similar
orders in writing shall be signed by such person or persons as the Board of
Directors may from time to time designate.
Section 8.03. Contracts. Except as otherwise provided in the Business
Corporation Law in the case of transactions that require action by the
shareholders, the Board of Directors may authorize any officer or agent 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 8.04. Interested Directors or Officers; Quorum.
(a) General Rule. A contract or transaction between the Corporation and one
or more of its directors or officers or between the Corporation and another
Corporation, partnership, joint venture, trust or other enterprise in which one
or more of its directors or officers are directors or officers or have a
financial or other interest, shall not be void or voidable solely for that
reason, or solely because the director or officer is present at or participates
in the meeting of the Board of Directors that authorizes the contract or
transaction, or solely because his, her or their votes are counted for that
purpose, if:
(1) the material facts as to the relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors and the Board authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors even though
the disinterested directors are less than a quorum;
(2) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon and the contract or transaction is
specifically approved in good faith by vote of those shareholders; or
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(3) the contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board of Directors
or the shareholders.
(b) Quorum. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board which authorizes a contract
or transaction specified in subsection (a).
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 depositaries 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 persons as the Board of Directors shall from time to time designate.
Section 8.06. Corporate Records.
(a) Required Records. The Corporation shall keep complete and accurate
books and records of account, minutes of the proceedings of the incorporators,
shareholders and directors and a share register giving the names and addresses
of all shareholders and the number and class of shares held by each. The share
register shall be kept at either the registered office of the Corporation in the
Commonwealth of Pennsylvania or at its principal place of business wherever
situated or at the office of its registrar or transfer agent. Any books, minutes
or other records may be in written form or any other form capable of being
converted into written form within a reasonable time.
(b) Right of Inspection. Every shareholder shall, upon written verified
demand 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 share register, books and records of account, and records of the proceedings
of the incorporators, shareholders and directors and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to the
interest of the person as a shareholder. In every instance where an attorney or
other agent is the person who seeks the right of inspection, the demand shall be
accompanied by a verified power of attorney or other writing that authorizes the
attorney or other agent to so act on behalf of the shareholder. The demand shall
be directed to the Corporation at its registered office in the Commonwealth of
Pennsylvania or at its principal place of business wherever situated.
Section 8.07. Amendment of Bylaws. These bylaws may be amended or repealed,
or new bylaws may be adopted, either (i) by vote of the shareholders at any duly
organized annual or special meeting of shareholders, or (ii) with respect to
those matters that are not by statute committed expressly to the shareholders
and regardless of whether the shareholders have previously adopted or approved
the bylaw being amended or repealed, by vote of a majority of the Board of
Directors of the Corporation in office at any regular or special meeting of
directors; provided that any proposal relating to Section 4.03 of these bylaws
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to change the number, classification or term of office of directors must receive
the affirmative vote of at least seventy-five percent of all shares outstanding
as of the record date for any annual or special meeting of shareholders, and any
proposal relating to the seventy-five percent shareholder approval required by
this Section must also receive the affirmative vote of at least seventy-five
percent of all shares outstanding. Any change in these bylaws shall take effect
when adopted unless otherwise provided in the resolution effecting the change.
See Section 2.03(b) (relating to notice of action by shareholders on bylaws).
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EXHIBIT 4(c)
BETZDEARBORN INC.
STOCK OPTION PLAN OF 1987
(as amended effective April 10, 1997)
1. PURPOSE
The BetzDearborn Inc. Stock Option Plan ("Plan") is intended to promote the
interests of BetzDearborn Inc. ("Company") and its shareholders by providing a
method whereby directors, officers and key employees of the Company and any
subsidiary corporation ("Subsidiary Company") may be encouraged to invest in the
Company's Common Stock on reasonable terms, and thereby increase their
proprietary interest in the Company's business, encourage them to remain in the
service and employ of the Company and increase their personal interest in its
continued success and progress.
2. ADMINISTRATION
The Plan shall be administered by the Company's Executive Compensation and
Employee Benefits Committee ("Committee"), which shall consist solely of not
fewer than two non-employee directors of the Company (within the meaning of Rule
16b-3(b)(3) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any successor thereto) who are also outside directors
(within the meaning of Treas. Reg. ss.1.162-27(e)(3), or any successor thereto)
of the Company, and who shall be appointed by, and shall serve at the pleasure
of, the Company's Board of Directors ("Board").
The Committee shall have full and final authority, in its discretion but subject
to the express provisions of the Plan, (a) to determine from time to time the
individuals in the eligible group to whom options shall be granted and the
number of shares to be covered by each option; (b) to determine the purchase
price (but not less than fair market value) of the shares covered by each option
and the time or times at which each option shall be granted; (c) to interpret
the Plan; (d) to make, amend, and rescind rules and regulations relating to the
Plan; (e) to determine the terms and provisions of the instruments by which
options shall be evidenced; and (f) to make all other determinations necessary
or advisable for the administration of the Plan.
No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any option granted
under it.
3. ELIGIBILITY
The individuals who shall be eligible to receive options shall be directors,
officers and key employees of the Company or a Subsidiary Company. An individual
who has been granted an option may, if otherwise eligible, be granted an
additional option or options if the Committee shall so determine.
Page 1 of 6
<PAGE>
4. STOCK
The stock with respect to which options may be granted under the Plan shall be
shares of the authorized but unissued Common Stock, or shares of issued Common
Stock reacquired and held in the Company's treasury, or both. The aggregate
amount of the Common Stock on which options may be granted under the Plan shall
not exceed six million eight hundred thousand (6,800,000) shares; provided,
however, that pursuant to Treas. Reg. ss.1.162.27(e)(4)(i), no individual shall
receive options for more than 100,000 shares of the Company's Common Stock over
any one-year period. The number of shares which the Committee is authorized to
option under this Plan, and the number issuable upon the exercise of outstanding
options granted thereunder (as well as the exercise price of such outstanding
options), shall be adjusted to reflect, as may be deemed appropriate by the
Committee, any stock dividend, stock split, share combination, exchange of
shares, recapitalization, merger, consolidation, separation, reorganization,
liquidation, or the like.
In the event that any outstanding option under the Plan for any reason expires
or is surrendered or terminated, the shares of Common Stock allocable to such
option or to the unexercised portion thereof may again be subjected to an option
under the Plan; provided, however, that if an option expires or is surrendered
or terminated, the shares of Common Stock covered by such option shall be
counted against the maximum number of shares specified above for which options
may be granted to a single individual.
5. GRANTING OF OPTIONS
From time to time until termination of the Plan as provided in Section 8, the
Committee shall select from among those who are then eligible under Section 3
the individual(s) to whom options shall be granted and shall determine the
number of shares to be covered by each option. Each individual thus selected
shall, at such time as the Committee shall determine, be granted an option with
respect to the number of shares of Common Stock thus determined. The
recommendation or selection of an individual as a participant in any grant of an
option under the Plan shall not be deemed to entitle the individual to such
option prior to the time when it shall be granted by the Committee. The granting
of an option under the Plan shall not be deemed either to entitle such
individual to, or to disqualify such individual from, any participation in any
other grant of options under the Plan. In making any determination as to
individuals to whom options shall be granted and as to the number of shares to
be covered by such options, the Committee shall take into account the duties of
the respective individuals, their present and potential contributions to the
success of the Company or a Subsidiary Company, and such other factors as the
Committee shall deem relevant in accomplishing the purposes of the Plan.
6. TERMS AND CONDITIONS OF OPTIONS
The options granted pursuant to the Plan shall include the following terms and
conditions:
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<PAGE>
(a) Price
The option price shall be not less than one hundred percent (100%) of the
fair market value of the option shares on the date the option is granted,
as determined by the Committee.
(b) Term
The term of any option granted under the Plan shall be not longer than ten
(10) years from the date it is granted, subject to earlier termination as
provided in Paragraphs (c) and (d) below.
(c) Termination of Employment
Any option granted under the Plan may, subject to the provisions of
Paragraph (d) below, be exercised by the optionee, to the extent of the
number of shares with respect to which he could have exercised it on the
date of termination of his employment, within three (3) months after his
employment shall have terminated; provided, however, that the Committee
may, in its discretion with cause, cancel as of the time of such
termination of employment all unexercised rights to which the optionee
would be otherwise entitled. Any such cancellation must be effected by a
notice mailed (whether or not received) to the last known address of the
optionee, postage prepaid, by certified or registered mail, within one (1)
month of the date of termination of employment. "Cause" shall include the
following: (i) dishonesty, (ii) gross negligence of duties, (iii)
conviction of a serious crime, and (iv) violation of noncompetition
covenants.
Whether authorized leave of absence or absence on military or governmental
service shall constitute employment for the purposes of the Plan shall be
conclusively determined by the Committee.
(d) Exercise Upon Death of Optionee
If an optionee shall die during his employment or within three (3) months
following termination of employment, and prior to the expiration date
fixed for his option, such option may be exercised, to the extent of the
number of shares with respect to which the optionee could have exercised
it on the date of his death, by the optionee's estate, personal
representative or beneficiary who acquired the right to exercise such
option by bequest or inheritance or by reason of the death of the
optionee, at any time prior to the earlier of (i) the first anniversary of
the optionee's death, or (ii) the expiration date specified in such
option, notwithstanding any grant restrictions as to the year the option
or any portion of the option is exercisable.
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<PAGE>
(e) Exercise Upon Disability of Optionee
If an optionee shall become disabled (within the meaning of Section
105(d)(4) of the Internal Revenue Code) during his employment and, prior
to the expiration date fixed for his option, his employment is terminated
as a consequence of such disability, such option may be exercised by the
optionee at any time prior to the earlier of (i) the first anniversary of
the optionee's termination of employment, or (ii) the expiration date
specified in such option.
(f) Assignability
No option shall be assignable or transferable by the optionee except by
will or by the laws of descent and distribution, and during the lifetime
of the optionee shall be exercisable only by him.
(g) Rights as a Stockholder
An optionee shall have no rights as a stockholder with respect to any
shares covered by his option until the issuance of a stock certificate to
him for such shares.
(h) Exercise Upon Retirement
In the event an employee's employment has been or is terminated as a
result of retirement under the terms of the Employees' Retirement Plan,
any options, including options then subject to restrictions, shall be
exercisable (i) within five (5) years from the effective date of such
retirement, or (ii) the expiration date specified in such options,
whichever occurs earlier.
(i) No Repricing or Canceling/Reissuing
No option granted under the Plan may be repriced and no option may be
canceled and reissued.
7. OPTION INSTRUMENTS - OTHER PROVISIONS
The options granted shall be evidenced by instruments in such form as the
Committee shall from time to time approve, which instruments shall contain such
provisions, not inconsistent with the provisions of the Plan, as the Committee
shall deem advisable.
8. AMENDMENT OR DISCONTINUANCE OF PLAN
The Board or the Committee may from time to time, with respect to any shares of
Common Stock as to which options have not then been granted, suspend or
discontinue the Plan or amend it in any respect whatsoever, except that, without
the approval of a majority of the votes cast in
Page 4 of 6
<PAGE>
a separate vote at a duly held Stockholders' meeting, no amendment requiring
shareholder approval pursuant to Treas. Reg. ss.1.162-27(e)(4)(vi) or any
successor thereto may be made. Pursuant to Pennsylvania law, abstentions, broker
non-votes and specific directions not to cast any vote on a specific matter
will not be counted as voting for purposes of such amendment.
9. EXERCISE OF OPTIONS
Options may be exercised by any individuals entitled to do so either in whole or
in part by presenting to the Company appropriate written notice together with
(i) funds in the form of cash or personal check, in an amount sufficient to pay
for the shares plus any taxes or other transfer costs applicable to the
transaction or (ii) with the approval of the Committee, by tendering to the
Company shares of the Common Stock of the Company, owned by him/her, and having
a fair market value equal to the exercise price applicable to his/her option, or
(iii) at the discretion of sthe Committee by a combination of (i) and (ii)
above.The fair market value of Stock so delivered shall be the closing price of
publicly-traded shares of Stock on the date prior to the date of exercise, as
reported in The Wall Street Journal. The partial exercise of the option shall
have no effect on the unexercised portion of the option.
10. RIGHT TO RECEIVE OPTIONS
Neither the adoption of the Plan nor any action of the Board or the Committee
shall be deemed to give any individual any right to be granted an option, or any
other right hereunder, unless and until the Committee shall have granted such
individual an option, and then his rights shall be only such as are provided by
the instrument evidencing such option.
11. INDEMNIFICATION OF BOARD AND COMMITTEE
In addition to such other rights of indemnification as they may have as members
of the Board, the members of the Board and the members of the Committee shall be
indemnified by the Company against all costs and expenses reasonably incurred by
them in connection with any action, suit, or proceeding to which they or any of
them may be a party by reason of any action taken or failure to act under or in
connection with the Plan, or any option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is approved
by legal counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit, or proceeding, except a judgment based upon a
finding of bad faith. Upon the institution of any such action, suit, or
proceeding, the Board or Committee member shall notify the Company in writing,
giving the Company an opportunity, at its own expense, to handle and defend the
same before such Board or Committee member undertakes to handle it on his own
behalf.
12. APPLICATION OF FUNDS
Such proceeds as shall be received by the Company from the sale of Common Stock
pursuant to options granted under the Plan will be used for general corporate
purposes.
Page 5 of 6
<PAGE>
13. SHAREHOLDER APPROVAL
This amended and restated Plan was approved by the Stockholders in the manner
described in Section 8 at a meeting of the shareholders of the Company on April
10, 1997, or at any adjournment thereof.
14. TERMINATION OF PLAN
This Plan and all authority granted hereunder shall terminate absolutely at
12:00 midnight on April 10, 2007, and no options hereunder shall be granted
thereafter. Nothing contained herein, however, shall terminate or affect the
continued existence of rights created under options issued hereunder, including
options conditional upon approval of this Plan, and outstanding on April 10,
1997, which by their terms extend beyond such date.
Page 6 of 6
<PAGE>
[BETZDEARBORN LETTERHEAD]
[LOGO]
January 8, 1998
The Board of Directors EXHIBIT 5(a)
BetzDearborn Inc.
4636 Somerton Road
Trevose, PA 19053
RE: BetzDearborn Inc.
Stock Option Plan of 1987, as Amended
-------------------------------------
Ladies and Gentlemen:
This opinion is rendered in connection with the registration of 2,000,000 shares
of Common Stock (par value $0.10 per share) of BetzDearborn Inc. ("Company")
with the Securities and Exchange Commission on Form S-8 for issuance under the
above referenced Company Plan.
As General Counsel to the Company, I am familiar with its legal affairs and the
legal affairs of its wholly owned subsidiaries which participate, or whose
employees are eligible to participate, in the aforementioned plan. Additionally,
I have examined such corporate records, certificates, documents and other
instruments, and such factual information otherwise supplied to me as I have
deemed necessary or appropriate to enable me to render the opinions hereinafter
expressed below.
Based upon such examination, I am of the opinion that the issuance of the shares
of Common Stock under the aforementioned plan has been duly authorized by the
necessary corporate action of the Company and that such shares, if issued in
accordance with the terms of such Plan, will be validly issued, fully paid and
non-assessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement, and the reference to me under the caption "Exhibit Index" in such
Registration Statement on Form S-8.
Very truly yours,
BETZDEARBORN INC.
/S/ Linda R. Hansen
- -------------------------
Linda R. Hansen
Vice President, Secretary
and General Counsel
LRH/ko
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-_____) pertaining to the BetzDearborn Inc. Stock Option Plan of
1987, of our reports (a) dated February 11, 1997, with respect to the
consolidated financial statements incorporated by reference in its Annual Report
(Form 10K) for the year ended December 31, 1996 and (b) dated March 24, 1997,
with respect to the financial statement schedule included in its Annual Report
(Form 10K) for the year ended December 31, 1996, both filed with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Philadelphia, Pennsylvania
January 7, 1998
