As filed with the Securities and Exchange Commission on August 15, 1995
Registration No. _________
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
ALAMCO, INC.
(Exact name of registrant as specified in its charter)
Delaware 55-0615701
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
200 West Main Street
Clarksburg, West Virginia 26301
(Address of Principal Executive Offices) (Zip Code)
AMENDMENT TO THE ALAMCO, INC. 1992 EMPLOYEES
STOCK OPTION PLAN
(Full title of the plan)
John L. Schwager, President
Alamco, Inc.
200 West Main Street
Clarksburg, West Virginia 26301
(Name and address of agent for service)
(304) 623-6671
(Telephone number, including area code, of agent for service)
<TABLE>
<S><C>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum Amount of
securities to be Amount to be offering price aggregate registration
registered registered per share * offering price fee * *
Common Stock, par
value 150,000 $8.0625
$.10 per share shares (at filing) $1,209,375 $417.02
</End Table>
* Estimated solely for the purpose of calculating the registration fee and is
based on the average of the high and the low prices of the Registrant's common
stock reported on the American Stock Exchange on August 11, 1995.
* * The fee is calculated pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act") on the basis of the average of the high
and low prices of the Registrant's Common Stock reported on the American Stock
Exchange on August 11, 1995.
Exhibit Index begins on page 4.
PART II
Incorporation of Documents by Reference
The Company's Registration Statement on Form S-8 filed on May 22,
1992, at Registration No. 33-47193 and pertaining to the Alamco, Inc. 1992
Employees Stock Option Plan is incorporated by reference into this Registration
Statement. This incorporation is done pursuant to General Instruction E of
Form S-8 regarding the registration of additional securities.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated by
reference as part of this Registration Statement:
Exhibit No. and Description
4.1 Articles of Incorporation of Alamco, Inc., as amended.
4.2 Bylaws of Alamco, Inc., as amended.
4.3 Alamco, Inc. 1992 Employees Stock Option Plan, as amended.
5.1 Opinion of counsel to Alamco, Inc. as to the legality of the securities
being registered.
23.1 Consent of Coopers & Lybrand L.L.P., independent accountants.
23.2 Consent of counsel (included in opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page).
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 autho-
rized, in the City of Clarksburg, the State of West Virginia, on this 15th day
of August 1995.
ALAMCO, INC.
By /s/ John L. Schwager
-------------------------------
John L. Schwager
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John L. Schwager his true and
lawful attorney-in-fact and agent, with full power of substitution and revoca-
tion, for him and in his name, place and stead, in any and all capacities, to
sign any and all amendment (including post-effective amendments) to this
registration statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement and the foregoing Power of Attorney have been signed by
the following persons in the capacities and on the date(s) indicated:
</TABLE>
<TABLE>
<S><C>
Signature Title Date
/s/ John L. Schwager
------------------- President and Chief 08/11/95
John L. Schwager Executive Officer and
Director
(Principal Executive
and Financial Officer)
/s/ Steven E. May
------------------- Vice President and 08/11/95
Steven E. May Controller
(Principal Accounting
Officer)
/s/ Richard R. Hoffman
------------------- Executive Vice 08/11/95
Richard R. Hoffman President and Chief
Operating Officer and
Director
/s/ Stephen L. Barr Director 08/11/95
-------------------
Stephen L. Barr
/s/ James B. Gehr Director 08/11/95
-------------------
James B. Gehr
/s/ Thomas M. Levine Director 08/11/95
-------------------
Thomas M. Levine
/s/ Robert S. Maust Director 08/11/95
-------------------
Robert S. Maust
/s/ James H. Weber Director 08/11/95
-------------------
James H. Weber
</End Table>
EXHIBIT INDEX
Exhibit No. and Description
4.1 Articles of Incorporation of Alamco, Inc., as amended
(incorporated by reference to Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the
Quarter Ended June 30, 1995).
4.2 Bylaws of Alamco, Inc., as amended.
4.3 Alamco, Inc. 1992 Employees Stock Option Plan, as amended.
5.1 Opinion of Counsel to Alamco, Inc. as to the legality
of the securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P., independent
accountants.
23.2 Consent of Counsel (included in opinion filed
as Exhibit 5.1).
24.1 Power of Attorney (included on signature page
of this registration statement).
SEC\2-Form-S-8.95 5
</TABLE>
Exhibit 4.2
BY-LAWS
OF
ALAMCO, INC.
EFFECTIVE MARCH 23, 1995
ARTICLE I
Offices
The Corporation shall maintain a registered office in the State of Delaware as
required by law. The Corporation may also have offices at other places within
or without the State of Delaware, as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
Stockholders
Section 1. Place of Meetings. Meetings of the stockholders shall be held at
such place, within or without the State of Delaware, as shall be designated from
time to time by the Board of Directors.
Section 2. Annual Meetings. The annual meeting of the stockholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held on the second Friday of each May or at
such other date after the close of the Corporation's fiscal year on such date
and at such time as shall be designated by the Board of Directors.
Section 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, shall be called by the president at the request in writing
of a majority of the Board of Directors, or at the request in writing of the
holders of two-thirds of the issued and outstanding capital stock of the
Corporation entitled to vote at such a meeting. Such request shall state the
purpose or purposes of the proposed meeting.
Section 4. Notice of Meetings. Written notice of each meeting of the stock-
holders, stating the place, date and hour of the meeting, shall be given to each
stockholder entitled to vote at the meeting at least ten, but not more than
sixty days prior to the meeting. Notice of any meeting shall state in general
terms the purpose or purposes for which the meeting is called.
Section 5. Quorum; Adjournments of Meetings.The holders of a majority of the
issued and outstanding shares of the capital stock of the Corporation entitled
to vote at a meeting, present in person or represented by proxy, shall consti-
tute a quorum for the transaction of business at such meeting; but, if there be
less than a quorum, the holders of a majority of such shares whose holders are
so present or so represented may from time to time adjourn the meeting to
another time or place until a quorum shall be present, whereupon the meeting may
be held, as adjourned, without further notice, except as required by law, and
any business may be transacted there at which might have been transacted at the
meeting as originally called.
Section 6. Voting. When a quorum is present at any meeting, the vote of the
holders of a majority of the shares of the capital stock entitled to vote whose
holders are present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of statute or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
entitled to vote held by such stockholder, but no proxy shall be voted on or
after three years from its date, unless the proxy specifically provides for a
longer period.
Section 7. Inspectors of Election. The Board of Directors, or, if the Board
shall not have made the appointment, the chairman presiding at any meeting of
stockholders, shall have power to appoint one or more persons to act as inspec-
tors of election at the
the meeting or any adjournment thereof, to receive, canvass, and report the
votes cast by the stockholders at such meeting, but no candidate for the office
of director shall be appointed as an inspector at any meeting for the election
of directors.
Section 8. Chairman of Meetings. The president of the Corporation shall
preside at all meetings of the stockholders. In the absence of the president, a
majority of the members of the Board of Directors present at such meeting may
appoint any other director or officer to act as chairman of the meeting.
Section 9. Secretary of the Meetings. The secretary of the Corporation shall
act as secretary of all meetings of the stockholders. In the absence of the
secretary, the chairman of the meeting shall appoint any other person to act as
secretary of the meeting.
Section 10. Stockholder Actions. Any action upon which a vote of stockholders
of the Corporation is required or permitted may be taken only at a meeting of
stockholders, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Section 11. Nomination of Directors. In addition to the right of the Board of
Directors of the Corporation to make nominations for the election of directors,
nominations for the election of directors may be made by any stockholder
entitled to vote for the election of directors. Advance written notice of such
proposed nomination shall be received by the Secretary of the Corporation by
certified mail no later than (i) 90 days prior to the anniversary of the
previous year's annual meeting of stockholders, or (ii) with respect to an
election to be held at a special meeting of stockholders or at an annual meeting
that is held more than 70 days prior to the anniversary of the previous year's
annual meeting, the close of business on the tenth day following the date on
which notice of such meeting is first given to the stockholders. Each such
notice shall set forth (i) the name, age, business address and, if known,
residence address of each nominee proposed in such notice, (ii) the principal
occupation of employment of each such nominee, and (iii) the number of shares of
stock of the Corporation which are beneficially owned by each such nominee. In
addition, the stockholder making such nomination shall promptly provide any
other information reasonably requested by the Corporation.
ARTICLE III
Board of Directors
Section 1. Powers. The business of the Corporation shall be managed by its
Board of Directors which shall exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-laws directed or required to be exercised or
done by the stockholders.
Section 2. Number of Directors. The number of directors which shall constitute
the whole Board shall be not less than three nor more than seven. The directors
shall be elected at the annual meeting of stockholders or at a special meeting
of stockholders called for that purpose, and each director elected shall hold
office until his/her successor is elected and qualified. Directors need not be
stockholders. This Section may be amended to increase or decrease the number of
directors constituting the Board of Directors by one (1) within any twelve month
period by the affirmative vote of a majority of the whole Board of Directors or
by more than one (1) by the affirmative vote of at least two-thirds of the whole
Board of Directors.
Section 3. Place of Meetings. Any meeting of the Board of Directors may be
held either within or without the State of Delaware.
Section 4. First Meeting. The first meeting of the Board of Directors after
the election of directors, of which no notice shall be necessary, shall be held
immediately following the annual meeting of the stockholders or any adjournment
thereof at the place where the annual meeting of the stockholders was held at
which such directors were elected, or at such other place as a majority of the
directors who are then present shall determine, for the election or appointment
of officers and the transaction of such other business as may be brought before
such meeting.
Section 5. Regular Meetings. Regular meetings of the Board of Directors, other
than the first meeting, may be held without notice of such times and places as
the Board of Directors may from time to time determine.
Section 6. Special Meetings. Special meetings of the Board of Directors may be
called by the president and shall be called on the written request of any
director. Not less than one day's notice of a special meeting shall be given by
the secretary to each director in person, by telephone, by mail, or by tele-
graph.
Section 7. Organization. Every meeting of the Board of Directors shall be
presided over by the president of the Corporation. In the absence of the
president, or if the president is not a director, a presiding officer shall be
chosen by a majority of the directors present. The secretary of the Corporation
shall act as secretary of the meeting. In his/her absence, the presiding
officer shall appoint another person to act as secretary of the meeting.
Section 8. Quorum. A majority of the whole Board shall constitute a quorum for
the transaction of business, but less than a quorum may from time to time
adjourn any meeting to another time or place until a quorum shall be present,
whereupon the meeting may be held, as adjourned, without further notice.
Section 9. Vote. The act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Certificate of
Incorporation.
Section 10. Action in Lieu of a Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the Board or committee.
Section 11. Conference Call Meeting. Members of the Board of Directors or
of any committee designated by the Board of Directors may participate in a
meeting of the Board of Directors or committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at the meeting.
Section 12. Removal of Directors. Any director may be removed by the stock-
holders only as provided under the Certificate of Incorporation, as amended, and
the Delaware Corporation law.
Section 13. Indemnification of Officers and Directors.
(a) The Corporation shall indemnify each director and officer of the
Corporation who was or is a party or a witness or is threatened to be made a
party or a witness to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was an officer or director of the Corporation, or is
or was serving at the request of the Corporation as a fiduciary, trustee,
custodian, administrator or committeeman of an employee benefit plan established
and maintained by the Corporation, or is or was serving at the request of the
Corporation as an officer, director, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise to the fullest extent now
or hereafter permitted by law against all expenses (including attorneys' fees
and disbursements), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding.
(b) The Corporation shall pay expenses, including attorneys' fees and
disbursements, incurred by an officer or director in defending a civil or
criminal action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such officer or director to repay such amount if it shall ultimately be deter-
mined that such officer or director is not entitled to be indemnified by the
Corporation as authorized by applicable law.
(c) The Corporation may, as determined by the Board of Directors,
indemnify each employee and agent who was or is a party or a witness or is
threatened to be made a party of a witness to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was an employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, fiduciary, employee or agent of another corporation, partner-
ship, joint venture, trust or other enterprise to the fullest extent now or
hereafter permitted by law against all expenses (including attorneys' fees and
disbursements, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding).
The Corporation may, as determined by the Board of Directors, pay expenses
incurred by employees and agents by reason of their participation in an action,
suit or proceeding referred to in this Section 14 (c) in advance of the final
disposition of such action, suit or proceeding without receipt of an undertaking
to repay the amount so advanced.
(d) Each director and officer shall be deemed to act in such capacity in
reliance upon such rights of indemnification and advancement of expenses as are
provided in this Article. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other right to
which any person seeking indemnification or advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested directors,
statute or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office or position, and
shall continue as to a person who has ceased to be a director, officer, fiducia-
ry, employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
(e) Any indemnification under this Article shall be made by the Corpora-
tion only as authorized in the specific case upon a determination that indemni-
fication of the director, officer, employee, fiduciary or agent is proper in the
circumstances because such person has acted in good faith and in a manner he
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/her conduct was unlawful. Such determination
shall be made (i) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to such action, suit or proceeding,
or (ii) if such quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. The termination of any action, suit or
proceeding by judgement, 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 such person reason-
ably 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 such person's conduct was unlawful.
(f) The Corporation may purchase and maintain insurance on behalf of
each director and officer against any liability asserted against and incurred by
such director or officer in any capacity, or arising out of such director's or
officer's status as such, whether or not the Corporation would have the power to
indemnify such director or officer against such liability under the provisions
of this Article.
(g) The Board of Directors, without approval of the stockholders, shall
have the power to borrow money on behalf of the Corporation, including the power
to pledge the assets of the Corporation, from time to time to discharge the
Corporation's obligations with respect to indemnification, the advancement and
reimbursement of expenses, and the purchase and maintenance of insurance
referred to in this Article III.
(h) For purposes of this Article, references to the "Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, fiduciaries, employees or
agents, so that any person who is or was a director, officer, fiduciary,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, fiduciary,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under this Article with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
Section 14. Age Limit of Directors. No person shall be eligible to be elected
to a term as a Director of the Corporation if at the commencement of the term
the person's age at his or her last birthday was 65 years or over.
ARTICLE IV
Committees
Section 1. Executive Committee. The president shall, by resolution passed by a
majority of the entire board, designate an executive committee consisting of two
or more directors. The committee shall have and may exercise all the powers and
authority of the board in the management of the business and affairs of the
Corporation during the intervals between the meetings of the board and may
authorize the seal of the corporation to be affixed to all papers which may
require it; but the committee shall not have the power of authority in reference
to amending the certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease, or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-laws of the Corporation; and, unless the
resolution expressly so provides, the committee shall not have the power or
authority to declare a dividend or to authorize the issuance of stock.
The president of the Company shall serve as chairman of the executive
committee. It shall be his/her duty to preside at meetings of the committee, if
present. In the event that the committee shall fail to agree unanimously upon
any matter or question, the chairman shall have the power, in his/her discre-
tion, to declare that such matter or question shall be decided by the board, and
such matter or question shall thereupon be held in abeyance until acted on by
the board.
Section 2. Other Committees. The president may, by resolution passed by a
majority of the entire board, designate one or more other committees or direc-
tors which to the extent provided in the resolution shall have and may exercise
powers and authority of the board in the management of the business and affairs
of the Corporation.
Section 3. Minutes of Meetings. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
Article V
Officers
Section 1. General. The Board of Directors shall elect the officers of the
Corporation which may include a president, a chief executive officer, a chief or
principal financial officer, such number of vice presidents as the Board may
determine, a secretary, an assistant secretary and such other officers as in its
option are desirable for the conduct of the business of the Corporation. One
person may hold more than one office in the Corporation.
Section 2. Powers and Duties. Each of the officers of the Corporation shall,
unless otherwise ordered by the Board of Directors, have such powers and duties
as generally pertain to his/her respective office as well as such powers and
duties as from time to time may be conferred upon him by the Board of
Directors. In the absence of the secretary, or in the event of his/her
inability or refusal to act, the assistant secretary may exercise, in
addition to his/her other duties, the duties of secretary.
Section 3. Term of Office; Removal and Vacancy. Each officer shall hold
his/her office until his/her successor is elected and qualified or until his/her
earlier resignation or removal. Officers shall be subject to removal with cause
at any time by the affirmative vote of a majority of the whole Board and shall
be subject to removal without cause by the affirmative vote of at least two-
thirds of the whole Board. Any vacancy occurring in any office of the corpora-
tion shall be filled by the Board of Directors.
Section 4. Power to Vote Stock. Unless otherwise ordered by the Board of
Directors, the president of the Corporation shall have the full power and
authority on behalf of the Corporation to attend and to vote at any meeting of
stockholders of the corporation in which the Corporation may hold stock, and may
exercise on behalf of the Corporation any and all of the rights and powers
incident to the ownership and authority to execute and deliver proxies, waivers,
and consents on behalf of the Corporation in connection with the exercise by the
Corporation of the rights and powers incident to the ownership of such stock.
The Board of Directors, from time to time, may confer like powers upon any other
person or persons.
ARTICLE VI
Capital Stock
Section 1. Certificates of Stock. Certificates for stock of the Corporation
shall be in such form and signed by such officers that the Board of Directors
may from time to time prescribe. Any of or all of the signatures on a stock
certificate, including, without limitation, that or those of any transfer agent
or registrar, may be a facsimile or facsimiles. In the event any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent,
or registrar before such certificate is issued, such certificate may be issued
by the Corporation with the same effect as if such officer, transfer agent or
registrar were the officer, transfer agent or registrar at the date of issue.
Section 2. Transfer of Stock. Shares of stock of the Corporation shall be
transferable on the books of the Corporation only by the holder of record
thereof, in person or by duly authorized attorney, upon surrender and cancel-
lation of certificates for a like number of shares, with an assignment or power
of transfer endorsed thereon or delivered therewith, duly executed, and with
such proof of the authenticity of the signature and of authority to transfer,
and of payment of transfer taxes, as the Corporation or its agents may require.
Section 3. Ownership of Stock. The Corporation shall be entitled to treat the
holder of record of any share or shares of stock as the owner thereof in fact
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise expressly provided by
law.
Section 4. Lost, Stolen or Destroyed Certificates. In case any certificate for
stock of the Corporation shall be lost, stolen or destroyed, the Corporation may
require such proof of the fact and such indemnity to be given to it and/or to
its transfer agent and/or registrar, if any, as shall be deemed necessary or
advisable by it.
ARTICLE VII
Miscellaneous
Section 1. Corporate Seal. The seal of the Corporation shall be as determined
by the Board of Directors.
Section 2. Fiscal Year. The Board of Directors shall have power to fix, and
from time to time to change the fiscal year of the Corporation.
ARTICLE VIII
Notices
Section 1. Notice. Whenever, under the provisions of statute or of the
Certificate of Incorporation or of these By-laws, notice is required to be given
to any director or stockholder, such notice may be given in person, by tele-
phone; by telegraph; by telecopy; or in writing, by mail, addressed to such
director or stockholder, at his/her address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Section 2. Waiver. Whenever any notice is required to be given under the
provisions of statute or of the Certificate of Incorporation or of these By-
laws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE IX
Amendment
Section 1. General. Except as provided in Section 2 below, these By-laws may
be amended or repealed, or new By-laws may be adopted by the stockholders, at
any meeting of the stockholders or by the Board of Directors at any meeting of
the Board or pursuant to Sections 10 and 11 of Article III of these By-laws.
Section 2. Amendments to Certain Sections.The affirmative vote of two-thirds of
the whole Board shall be required to amend or repeal Article II, Section 3;
Article II, Section 10; Article II, Section 11; Article III, Section 2; Article
V, Section III; and this Section 2, Article IX, of these By-laws.
March 23, 1995
All amendments from 1981 to this date have been incorporated herein.
Exhibit 4.3
ALAMCO, INC.
1992 EMPLOYEES STOCK OPTION PLAN, AS AMENDED
1. Purpose of the Plan. The Alamco, Inc. 1992 Employees Stock Option Plan
(the "Plan") is intended to provide incentives to certain officers and key
management employees of Alamco, Inc. (the "Company") and any of its subsidiaries
through the grant to such officers and key employees of options ("Options") to
purchase shares of the Company's Common Stock, par value $.10 per share ("Common
Stock"), and by enabling such officers and employees to participate in the long-
term growth and financial success of the Company. It is believed that the grant
of such options will motivate such officers and employees, by means of perfor-
mance-related incentives, to achieve long-range performance goals.
2. Stock Subject to the Plan. The maximum number of shares of Common Stock to
be issued pursuant to all grants made under the Plan shall be 250,000, unless
such aggregate number of shares shall be adjusted as provided in Section 9
hereof. If, for any reason, an Option lapses, expires or terminates prior to
its exercise, the unpurchased shares of Common Stock covered by such Option
shall again be available for the granting of new Options under the Plan. Shares
of Common Stock to be issued pursuant to the Plan may be authorized and unissued
shares of Common Stock, treasury shares or a combination thereof.
3. Incentive and Nonqualified Stock Options. Options granted pursuant to the
Plan may be either incentive stock Options ("Incentive Stock Options") which
qualify under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), or Options which do not qualify under that Section ("Nonqualified Stock
Options").
4. Administration. The Plan shall be administered by the Compensation
Committee (the "Committee") of the Company's Board of Directors (the "Board"),
which Committee shall consist of not less than two members of the Board who are
"disinterested persons" within the meaning of Rule 16b-3 (c) (2) (i) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Committee
shall, within the limits of the Plan, select eligible persons for participation
and determine the number of shares subject to each Option and whether Options
with respect thereto shall be Incentive Stock Options, Nonqualified Stock
Options or a combination thereof, the time and conditions of exercise of each
Option, the amounts, if any, of any additional compensation which may be
provided pursuant to Section 8 hereof and all other terms and conditions of each
Option not specified in the Plan. The interpretation, construction and applica-
tion by the Committee of any of the provisions of the Plan or any Option granted
under the Plan shall be final and binding on the Company and its subsidiaries,
all optionees, their legal representatives and any person who may acquire the
Option directly from the optionee by bequest or inheritance. No member of 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.
5. Participants. Pursuant to the Plan, the Committee may grant Options to
officers and other key management employees of the Company (including members of
the Board who are employees of the Company) or its subsidiaries on terms and
conditions not inconsistent with the Plan.
6. Terms of Options. Each Option granted under the Plan shall be evidenced by
a written agreement (the "Option Agreement") between the Company and the
optionee containing the following terms and conditions and such other terms and
conditions, not inconsistent with the Plan, as the Committee shall determine:
(a) Number of Shares. Each Option Agreement shall state the number
of shares to which the Option relates.
(b) Exercise Price. Each Option Agreement shall state the exercise
price per share of the Option, which shall be equal to 100% of the fair market
value per share of the Common Stock on the date of the granting of the Option,
except for certain Incentive Stock Options described in Section 6(g) hereof.
The fair market value shall be deemed to be the closing price of the Common
Stock on the American Stock Exchange on the relevant date, or if no sale of the
Common Stock shall have been made on the relevant date, on the next preceding
day on which there was a sale of the Common Stock. The date on which the
Committee approves the granting of an Option shall, unless the Committee
determines otherwise, be considered the date on which such Option is granted.
(c) Medium and Time of Payment. The Option exercise price shall be
payable in full in United States dollars upon the exercise of the Option and may
be paid in cash or by cashier's or certified check. Notwithstanding the
preceding sentence, unless otherwise provided in the Option Agreement, an
optionee may use shares of Common Stock which were acquired by the optionee more
than six months prior to the Option exercise date to pay the exercise price. If
this alternative medium of payment is chosen, the Common Stock surrendered by
the optionee in payment of the exercise price shall be deemed to be the equiva-
lent of cash in the amount of that Common Stock's fair market value (determined
in accordance with Section 6(b)) as of the date of the exercise of the Options.
(d) Duration of Options. Each Option Agreement shall state the
expiration date of the Option to which it relates, which expiration date shall
be determined by the Committee, but shall not be later than midnight of the day
preceding the tenth anniversary of the date the Option is granted except for
certain Incentive Stock Options described in Section 6(g) hereof.
(e) Limitations on Exercise. Subject to such limitations on
exercise as shall be considered appropriate by the Committee and set forth in
Option Agreements, Options granted pursuant to the Plan may be exercised in
whole or in part at any time (or from time to time) after the expiration of six
months from the date of grant of such Options and prior to their expiration
date; provided, however, that, Options may not be exercised prior to the
approval of the Plan by the stockholders of the Company; and provided, further,
that, except as provided in Subsection (f) of this Section 6 and Section 9
hereof, Options shall expire at the earlier of (i) 30 days after the optionee
ceases to be an employee of the Company or one of its subsidiaries and (ii) the
generally applicable expiration date of such Options. Nothing contained in this
Subsection (e) shall permit Options which were not exercisable at the time an
optionee ceases to be an employee of the Company or one of its subsidiaries to
be exercised after such cessation.
(f) Exercise after Death or Disability. If the optionee dies
without having exercised an Option for the full number of shares with respect to
which it was exercisable at the time of his death, such Option shall remain
exercisable with respect to such number of shares until the earlier of (i) one
year from the date of death and (ii) the generally applicable expiration date of
such Option. In such event, such Option may be exercised by the person or
persons to whom the optionee's rights under such Option shall pass by will or by
applicable law of descent and distribution, or if no such person has such
rights, by his executor or administrator. If the optionee becomes totally and
permanently disabled (within the meaning of Section 22(c) (3) of the Code)
without having exercised an Option for the full number of shares with respect to
which it was exercisable at the time of such disability, such Option shall
remain exercisable by the optionee with respect to such number of shares until
the earlier of (i) one year from the date of disability and (ii) the generally
applicable expiration date of such Option. Nothing contained in this Subsec-
tion (f) shall permit Options which were not exercisable at the time of the
optionee's death or disability to be exercised after such death or disability.
(g) Incentive Stock Option Terms. Any Option intended to be an
Incentive Stock Option shall be designated as such in the applicable Option
Agreement. No Incentive Stock Option shall be granted to any person who, at the
time the Option is granted, owns more than 10% of the total combined voting
power of all classes of stock of the Company and any of its subsidiaries unless
the exercise price of such Incentive Stock Option is at least 110% of the fair
market value of the Common Stock subject to such Option (determined in accor-
dance with Section 6(b)) on the date of grant and the Option by its terms is not
exercisable after the expiration of five years from the date the Option is
granted. In addition, the aggregate fair market value (determined as of the
date of grant, in accordance with Section 6(b)) of the Common Stock (together
with all other stock of the Company and all stock of any of its subsidiaries)
with respect to which Incentive Stock Options granted to an optionee under all
plans of the Company and any of its subsidiaries first became exercisable during
any calendar year shall not exceed $100,000.
(h) Non-Transferability of Options. Each Option Agreement shall
state that the Option is not transferable or assignable by the optionee other-
wise than by will or the laws of descent and distribution, and that it is
exercisable, during the optionee's lifetime, only by him.
(i) No Rights as a Stockholder. An optionee or a transferee of an
Option shall have no rights as a stockholder of the Company with respect to any
shares covered by an Option until the date of the issuance of a stock certifi-
cate to him for such shares. No adjustment shall be made for dividends (ordi-
nary or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such stock certificate is issued, except as provided in Section 9 hereof.
(j) No Employment Commitment. Neither the grant of an Option
hereunder nor the execution of an Option Agreement by the Company evidencing the
grant of such Option shall be interpreted or construed as imposing upon the
Company or any of its subsidiaries an obligation to retain the services of an
optionee for any stated period of time, which employment shall continue to be at
the pleasure of the Company, or the subsidiary of the Company by whom the
optionee is employed, at such compensation as it shall determine.
7. Tax Withholding. The Company shall notify the optionee of the amount of
withholding tax, if any, in connection with any Option which must be paid under
federal, state and local law. The Company shall, in the discretion of the
Company, but with the consent of the Committee, arrange for payment for such
withholding taxes in any one or combination of the following ways: (i) accept-
ance of an amount in cash paid by the optionee, (ii) deduction of amounts for
withholding taxes from optionee's regular salary payments, (iii) deduction of
amounts for withholding taxes from amounts of cash payable to the optionee upon
exercise of the Option and/or (iv) reduction in the number of shares to be
issued pursuant to such exercise by that number of shares having a fair market
value (determined in accordance with Section 6(b)) equal to the amount of such
withholding tax. If the full amount of the withholding tax is not recovered in
the above manner, the optionee shall, forthwith upon receipt of notice, remit
the deficiency to the Company. No certificates for shares acquired pursuant to
exercise of an Option shall be issued or delivered to an optionee until all
applicable taxes shall have been satisfied in full.
8. Additional Compensation. Unless the applicable Option Agreement provides
otherwise, if an optionee (or any person exercising the Option after the
optionee's death in accordance with the provisions of Section 6 hereof) exercis-
es an Option, in whole or in part, and as a direct result thereof he is deemed
under the applicable federal or state income tax law to have realized taxable
ordinary compensation income, the Company or the Company's subsidiary by which
such optionee is or was employed shall pay in cash to such optionee or such
other person, as additional compensation for the optionee's services, an amount
equal to the lesser of (a) the sum of (i) the amount by which the state and
federal income tax liability of the Company or such subsidiary shall be reduced
in any taxable year as a direct result of the allowance of a deduction on
account of the exercise of the Option in whole or in part and (ii) the amount by
which the federal and state income tax liability of the Company or such subsid-
iary shall be reduced in any taxable year on account of the making of such cash
payment to such optionee or to such person and (b) an amount which, after the
application of federal and state income taxes to such cash payment, equals the
additional federal and state income tax payable by such optionee or such person
on account of his exercise of the Option.
9. Adjustments for Changes in Capitalization or Corporate Reorganizations. If
the Company shall at any time increase or decrease the number of its outstanding
shares of Common Stock or change in any way the rights and privileges of such
shares by means of the payment of a stock dividend or any other distribution
upon such shares payable in Common Stock, or through a stock split, subdivision,
consolidation, combination, reclassification or recapitalization involving the
Common Stock, then in relation to the Common Stock that is affected by one or
more of the above events, the numbers, rights and privileges of the following
shall be increased, decreased or changed in like manner as if they had been
issued and outstanding, fully paid and nonassessable at the time of such
occurrence: (i) the maximum number of shares of Common Stock to the Plan; and
(ii) the number of shares of Common Stock subject to Option.
If the Company shall effect a merger, consolidation, or other reorganiza-
tion pursuant to which the outstanding shares of Common Stock shall be exchanged
for cash or other property (including other shares or securities of the Company
or of another corporation which is a party (or an affiliate of such property) to
such merger, consolidation, or other reorganization), the Company shall use its
best efforts to provide in any agreement or plan which it enters into or adopts
to effect any such merger, consolidation or other reorganization that any
optionee under the Plan shall have the right to purchase, at the aggregate
exercise price provided for in the Option Agreement and on the same terms and
conditions, the kind and number of shares or other securities of the Company or
such other corporation (or right to receive cash) which would have been issuable
to him in respect of the number of shares of Common Stock which were subject to
such Option immediately prior to the effective date of such merger, consolida-
tion or other reorganization if such shares had been then owned by him (includ-
ing shares which relate to an Option not yet exercisable), provided, however,
that in the event such agreement or plan does not grant the optionee such right
within 10 days preceding the effective date of such merger, consolidation, or
other reorganization, all Options then exercisable will continue to be exercis-
able at the exercise prices set forth in the Option Agreement and all Options
not yet exercisable shall become immediately exercisable at the exercise prices
set forth in the Option Agreement.
10. Indemnification of Directors. In addition to such other rights of indemni-
fication as they may have as directors, the members of the Board (including
without limitation members of the Committee) shall be indemnified by the Company
against the reasonable expenses, including attorneys' fees actually and neces-
sarily incurred in connection with the defense of any action, suit or proceed-
ing, or in connection with any appeal therein, to which they or any of them may
be a party by reason of any action taken or failure to act under or in connec-
tion with the Plan or any option granted thereunder, and against all amounts
paid by them in settlement thereof (provided such settlement is approved by
independent legal counsel selected by the Company) or paid by them in satisfac-
tion of a judgment in any such action, suit or proceeding, except in relation to
matters as to which it shall be adjudged in such action, suit or proceeding,
that such member is liable for negligence or misconduct in the performance of
his duties; provided that within 60 days after institution of any such action,
suit or proceeding a member shall in writing offer the Company the opportunity,
at its own expense, to handle and defend the same.
11. Effective Date and Term of Plan. The Plan shall be submitted to the
stockholders of the Company for approval at the 1992 Annual Meeting of Stock-
holders and any adjournment thereof, and, if approved by the holders of a
majority of the shares of Common Stock within twelve months after March 20,
1992, the date the Plan was adopted by the Board, shall become effective as of
March 20, 1992. The Plan shall terminate March 20, 2002, unless terminated
prior thereto by action of the Board. No further grants shall be made under the
Plan after termination, but termination shall not affect the right of any
participant under any grants made prior to termination (including rights with
respect to Options not yet exercisable).
Notwithstanding anything to the contrary, this Plan and all Options granted
hereunder prior to approval by the holders of a majority of the shares of Common
Stock present in person or by proxy at the 1992 Annual Meeting of Stockholders
or any adjournment thereof shall become null and void if not approved by such
stockholders within one year after approval of this Plan by the Board.
12. Amendments. The Plan may be amended by the Board in any respect except
that no amendment may be made without stockholder approval if such amendment
would increase the maximum number of shares available for issuance under the
Plan, change the designation of persons eligible to receive Options under the
Plan, or change the exercise price at which shares may be sold pursuant to
Options under the Plan.
13. Rule 16b-3 Compliance. It is intended that this Plan comply with Rule
16b-3 under the Exchange Act and all interpretations of the Plan shall be
consistent with such Rule and the Exchange Act. In order to maintain compliance
with such Rule and the Exchange Act, the Committee may make such rules and
impose such limitations as it deems advisable.
14. Governing Law. The Plan shall be governed by and all rights and designa-
tions under the Plan shall be construed in accordance with the laws of the State
of Delaware.
Date approved by Board of Directors: March 20, 1992
Amendment approved: March 24, 1995
Date approved by Stockholders: May 8, 1992
Amendment approved: May 12, 1995
Exhibit 5.1
August 15, 1995
U.S. Securities and Exchange Commission
450 - 5th Street, NW
Washington, DC 20549
RE: Registration Statement on Form S-8 for Alamco, Inc.
Dear Sir or Madam:
I am acting as counsel to Alamco, Inc., a Delaware corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, covering
150,000 shares (the "Shares") of the Company's Common Stock, par value $.10 per
share, which may be issued to certain officers and/or key management employees
of the Company upon exercise of stock options granted under the Alamco, Inc.
1992 Employees Stock Option Plan (the "Plan").
I am familiar with the Registration Statement and the 1992 Plan. I have
reviewed a certified copy of the Company's Certificate of Incorporation, as
amended, certificates of public officials, corporate proceedings of the Company,
and other documents as needed to express the opinions contained herein.
On the basis of the foregoing, I am of the opinion that:
(1) The Company is duly incorporated and legally existing under the laws
of the State of Delaware and has an authorized capital consisting of 16,000,000
shares of Common Stock, par value $.10 per share, of which 15,000,000 shares
have been designated as Common Stock, and 1,000,000 shares designated as
Preferred Stock, par value $1.00 per share, and;
(2) The Shares have been duly authorized and reserved for issuance
pursuant to the Plan, and when issued in accordance with the provisions of the
Plan, the shares will be validly issued, fully paid and non-assessable.
I consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement.
Very truly yours,
/s/ Bridget D. Furbee
----------------------------------
Bridget D. Furbee, Esq.
Vice President,
Administration and
Legal Affairs
Alamco, Inc.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Alamco, Inc. on Form S-8 of our report, which includes an explanatory paragraph
for the change in the method of computing depreciation, depletion and amortiza-
tion in 1992, dated March 3, 1995, on our audits of the consolidated financial
statements of Alamco, Inc. and subsidiaries as of December 31, 1994 and 1993,
and for the years ended December 1994, 1993 and 1992, which report is included
in the Annual Report on Form 10-K for the year ended December 31, 1994.
/s/ Coopers & Lybrand L.L.P.
---------------------------------
COOPERS & LYBRAND L.L.P.
600 Grant Street
Pittsburgh, Pennsylvania
August 15, 1995
