SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 10, 1997
M.A. Hanna Company
(Exact name of registrant as specified in its charter)
Delaware 1-5222 34-023435
(State Or Other (Commission (I.R.S. Employer
Jurisdiction Of File Number) Identification Number)
Incorporation)
Suite 36-5000, 200 Public Square, Cleveland, Ohio 44114-2304
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (216) 589-4000
Item 7. Exhibits.
The Company is filing herewith the following exhibit to
its Quarterly Report on Form 10-Q for the Quarter ended September
30, 1997:
(3)(ii) By-Laws adopted on November 5, 1997.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
M.A. HANNA COMPANY
By: /s/ John S. Pyke Jr.
Date: November 10, 1997 Name: John S. Pyke, Jr.
Title: Vice President, General Counsel
and Secretary
M.A. HANNA COMPANY
BY-LAWS
(Adopted by the Board of Directors on November 5, 1997)
STOCKHOLDERS' MEETINGS
1. Time and Place of Meetings. All meetings of the
stockholders for the election of Directors or for any other
purpose will be held at such time and place, within or
without the State of Delaware, as may be designated by the
Board or, in the absence of such designation, by the
Chairman, the President, or the Secretary, and stated in the
notice of the meeting. The Board may postpone and
reschedule any previously scheduled annual or special
meeting of the stockholders.
2. Annual Meeting. An annual meeting of the
stockholders will be held at such date and time as may be
designated from time to time by the Board, at which the
stockholders will elect by a plurality vote the Directors to
succeed those whose terms expire at such meeting and will
transact such other business as may properly be brought
before the meeting in accordance with By-Law 8.
3. Special Meetings. Special meetings of the
stockholders may be called only by (i) the Chairman or (ii)
the Secretary within 10 calendar days after receipt of the
written request of a majority of the total number of
Directors that the Corporation would have if there were no
vacancies (the "Whole Board"). Any such request by a
majority of the Whole Board must be sent to the Chairman and
the Secretary and must state the purpose or purposes of the
proposed meeting. Special meetings of holders of the
outstanding Preferred Stock, if any, may be called in the
manner and for the purposes provided in the resolution or
resolutions providing for the issuance of such Preferred
Stock (collectively, a "Preferred Stock Designation").
4. Notice of Meetings. Written notice of every meeting
of stockholders, stating the place, date and hour of the
meeting, and in the case of a special meeting, the purpose
or purposes for which the meeting is called, will be given
not less than 10 nor more than 60 calendar days before the
date of the meeting to each stockholder of record entitled
to vote at such meeting, except as otherwise provided herein
or by law. When a meeting is adjourned to another place,
date or time, written notice need not be given of the
adjourned meeting if the place, date and time thereof are
announced at the meeting at which the adjournment is taken;
provided, however, that if the adjournment is for more than
30 calendar days, or if after the adjournment a new record
date is fixed for the adjourned meeting, written notice of
the place, date and time of the adjourned meeting must be
given in conformity herewith. At any adjourned meeting, any
business may be transacted which properly could have been
transacted at the original meeting.
5. Inspectors. The Board shall appoint one or more
inspectors of election to act at the meeting and make a
written report thereof. The Board may designate one or more
persons as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is able to act
at a meeting of stockholders, the presiding officer of the
meeting shall appoint one or more substitute inspectors.
6. Quorum. Except as otherwise provided by law or in a
Preferred Stock Designation, the holders of a majority of
the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, will
constitute a quorum at all meetings of the stockholders for
the transaction of business thereat. If, however, such
quorum is not present or represented at any meeting of
stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, will have the
power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a
quorum is present or represented.
7. Voting. Except as otherwise provided by law, by the
Certificate of Incorporation or in a Preferred Stock
Designation, each stockholder will be entitled at every
meeting of the stockholders to one vote for each share of
stock having voting power standing in the name of such
stockholder on the books of the Corporation on the record
date for the meeting and such votes may be cast either in
person or by proxy. A stockholder may revoke any proxy that
is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date
with the Secretary. The vote upon any question brought
before the meeting of stockholders may be by voice vote,
unless otherwise required by the Certificate of
Incorporation or the By-Laws or unless the Chairman or the
holders of majority of the outstanding shares of all classes
of stock entitled to vote thereon present in person or by
proxy at such meeting otherwise determine. Every vote taken
by written ballot will be counted by the inspectors of
election. When a quorum is present at any meeting, the
affirmative vote of the holders of a majority of the stock
present in person or represented by proxy at the meeting and
entitled to vote on the subject matter, and which has
actually been voted, will be the act of the stockholders,
except in the election of Directors or as otherwise provided
in these By-Laws, the Certificate of Incorporation, a
Preferred Stock Designation or by law.
8. Order of Business. (a) The Chairman, or such other
officer of the Corporation designated by a majority of the
Whole Board, will call meetings of the stockholders to order
and will act as the presiding officer thereof. Unless
otherwise determined by the Board prior to the meeting, the
presiding officer of the meeting of the stockholders will
also determine the order of business and have the authority
in his or her sole discretion to regulate the conduct of any
such meeting, including without limitation by imposing
restrictions on the persons (other than stockholders of the
Corporation or their duly appointed proxies) who may attend
any such stockholders' meeting, by ascertaining whether any
stockholder or his or her proxy may be excluded from any
meeting of the stockholders based upon any determination by
the presiding officer, in his or her sole discretion, that
any such person has unduly disrupted or is likely to disrupt
the proceedings thereat, and by determining the
circumstances in which any person may make a statement or
ask questions at any meeting of the stockholders.
(b) At an annual meeting of the stockholders, only
such business will be conducted or considered as is properly
brought before the meeting. To be properly brought before
an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at
the direction of the Board in accordance with By-Law 4, (ii)
otherwise properly brought before the meeting by the
presiding officer or by or at the direction of a majority of
the Whole Board or (iii) otherwise properly requested to be
brought before the meeting by a stockholder of the
Corporation in accordance with By-Law 8(c).
(c) For business to be properly requested by a
stockholder to be brought before an annual meeting, the
stockholder must (i) be a stockholder of the Corporation of
record at the time of the giving of the notice for such
annual meeting provided for in these By-Laws, (ii) be
entitled to vote at such meeting and (iii) have given timely
notice thereof in writing to the Secretary. To be timely, a
stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the
Corporation not less than 60 calendar days prior to the
annual meeting; provided, however, that in the event public
announcement of the date of the annual meeting is not made
at least 75 calendar days prior to the date of the annual
meeting, notice by the stockholder to be timely must be so
received not later than the close of business on the 10th
calendar day following the day on which public announcement
is first made of the date of the annual meeting. A
stockholder's notice to the Secretary must set forth as to
each matter the stockholder proposes to bring before the
annual meeting (A) a description in reasonable detail of the
business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual
meeting, (B) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such
business and the beneficial owner, if any, on whose behalf
the proposal is made, (C) the class and number of shares of
the Corporation that are owned beneficially and of record by
the stockholders proposing such business and by the
beneficial owner, if any, on whose behalf the proposal is
made and (D) any material interest of such stockholder
proposing such business and the beneficial owner, if any, on
whose behalf the proposal is made in such business.
Notwithstanding the foregoing provisions of this By-Law
8(c), a stockholder must also comply with all applicable
requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with
respect to the matters set forth in this By-Law 8(c). For
purposes of this By-Law 8(c) and By-Law 12, "public
announcement" means disclosure in a press release reported
by the Dow Jones News Service or comparable national news
service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to
sections 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended, or furnished to stockholders. Nothing in
this By-Law 8(c) will be deemed to affect any rights of
stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under
the Securities Exchange Act of 1934, as amended.
(d) At a special meeting of stockholders, only such
business may be conducted or considered as is properly
brought before the meeting. To be properly brought before a
special meeting, business must be (i) specified in the
notice of the meeting (or any supplement thereto) given by
or at the direction of the Chairman or a majority of the
Whole Board in accordance with By-Law 4 or (ii) otherwise
properly brought before the meeting by the presiding officer
or by or at the direction of a majority of the Whole Board.
(e) The determination of whether any business sought
to be brought before any annual or special meeting of the
stockholders is properly brought before such meeting in
accordance with this By-Law 8 will be made by the presiding
officer of such meeting. If the presiding officer
determines that any business is not properly brought before
such meeting, he or she will so declare to the meeting and
any such business will not be conducted or considered.
DIRECTORS
9. Function. The business and affairs of the
Corporation will be managed under the direction of its
Board.
10. Number, Election and Terms. Subject to the
rights, if any, of any series of Preferred Stock to elect
additional Directors under circumstances specified in a
Preferred Stock Designation and to the minimum and maximum
number of authorized Directors that may be provided in the
Certificate of Incorporation, the authorized number of
Directors may be determined from time to time only (i) by
the vote of a majority of the Whole Board or (ii) by the
affirmative vote of the holders of at least 80% of the
voting stock of the Corporation, voting together as a single
class.
11. Newly Created Directorships and Vacancies.
Subject to the rights, if any, of the holders of any series
of Preferred Stock to elect additional Directors under
circumstances specified in a Preferred Stock Designation,
newly created directorships resulting from any increase in
the number of Directors and any vacancies on the Board
resulting from death, resignation, disqualification, removal
or other cause will be filled solely by the affirmative vote
of a majority of the remaining Directors then in office,
even though less than a quorum of the Board, or by a sole
remaining Director. Any Director elected in accordance with
the preceding sentence will hold office for the remainder of
the full term of the class of Directors in which the new
directorship is created or the vacancy occurred and until
such Director's successor is elected and qualified. No
decrease in the number of Directors constituting the Board
will shorten the term of an incumbent Director.
12. Nominations of Directors; Election. (a) Subject
to the rights, if any, of the holders of any series of
Preferred Stock to elect additional Directors under
circumstances specified in a Preferred Stock Designation,
only persons who are nominated in accordance with the
following procedures will be eligible for election at a
meeting of stockholders as Directors of the Corporation.
(b) Nominations of persons for election as Directors
of the Corporation may be made only at an annual meeting of
stockholders (i) by or at the direction of the Board or (ii)
by any stockholder who is a stockholder of record at the
time of giving of notice provided for in this By-Law 12, who
is entitled to vote for the election of Directors at such
meeting and who complies with the procedures set forth in
this By-Law 12. All nominations by stockholders must be
made pursuant to timely notice in proper written form to the
Secretary.
(c) To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal
executive offices of the Corporation not less than 60
calendar days prior to the annual meeting of stockholders;
provided, however, that in the event that public
announcement of the date of the annual meeting is not made
at least 75 calendar days prior to the date of the annual
meeting, notice by the stockholder to be timely must be so
received not later than the close of business on the 10th
calendar day following the day on which public announcement
is first made of the date of the annual meeting. To be in
proper written form, such stockholder's notice must set
forth or include (i) the name and address, as they appear on
the Corporation's books, of the stockholder giving the
notice and of the beneficial owner, if any, on whose behalf
the nomination is made; (ii) a representation that the
stockholder giving the notice is a holder of record of stock
of the Corporation entitled to vote at such annual meeting
and intends to appear in person or by proxy at the annual
meeting to nominate the person or persons specified in the
notice; (iii) the class and number of shares of stock of the
Corporation owned beneficially and of record by the
stockholder giving the notice and by the beneficial owner,
if any, on whose behalf the nomination is made; (iv) a
description of all arrangements or understandings between or
among any of (A) the stockholder giving the notice, (B) the
beneficial owner on whose behalf the notice is given, (C)
each nominee and (D) any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder giving the
notice; (v) such other information regarding each nominee
proposed by the stockholder giving the notice as would be
required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission
had the nominee been nominated, or intended to be nominated,
by the Board; and (vi) the signed consent of each nominee to
serve as a director of the Corporation if so elected. At
the request of the Board, any person nominated by the Board
for election as a Director must furnish to the Secretary
that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. The
presiding officer of any annual meeting will, if the facts
warrant, determine that a nomination was not made, in
accordance with the procedures prescribed by this By-Law 12,
and if he or she should so determine, he or she will so
declare to the meeting and the defective nomination will be
disregarded. Notwithstanding the foregoing provisions of
this By-Law 12, a stockholder must also comply with all
applicable requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder
with respect to the matters set forth in this By-Law 12.
13. Resignation. Any Director may resign at any time
by giving written notice of his or her resignation to the
Chairman or the Secretary. Any resignation will be
effective upon actual receipt by any such person or, if
later, as of the date and time specified in such written
notice.
14. Regular Meetings. Regular meetings of the Board
may be held immediately after the annual meeting of the
stockholders and at such other time and place either within
or without the State of Delaware as may from time to time be
determined by the Board. Notice of regular meetings of the
Board need not be given.
15. Special Meetings. Special meetings of the Board
may be called by the Chairman or the President on one day's
notice to each Director by whom such notice is not waived,
given either personally or by mail, telephone, telecopier or
similar medium of communication, and will be called by the
Chairman or the President in like manner and on like notice
on the written request of five or more Directors. Special
meetings of the Board may be held at such time and place
either within or without the State of Delaware as is
determined by the Board or specified in the notice of any
such meeting.
16. Quorum. At all meetings of the Board, a majority
of the total number of Directors then in office will
constitute a quorum for the transaction of business. Except
for the designation of committees as provided in these By-
Laws and except for actions required by these By-Laws or the
Certificate of Incorporation to be taken by a majority of
the Whole Board, the act of a majority of the Directors
present at any meeting at which there is a quorum will be
the act of the Board. If a quorum is not present at any
meeting of the Board, the Directors present thereat may
adjourn the meeting from time to time to another place, time
or date, without notice other than announcement at the
meeting, until a quorum is present.
17. Participation in Meetings by Telephone Conference.
Members of the Board or any committee designated by the
Board may participate in a meeting of the Board or any such
committee, as the case may be, by means of telephone or
video conference or similar means by which all persons
participating in the meeting can hear each other, and such
participation in a meeting will constitute presence in
person at the meeting.
18. Committees. The Board may designate one or more
committees, each committee to consist of one or more
Directors. 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. In the absence or disqualification of a member
of a committee, the member or members present at any meeting
and not disqualified from voting, whether or not such member
or members constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the
Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and
affairs of the Corporation, and may authorize the seal of
the Corporation to be affixed to all documents which may
require it; but no such committee shall have the power or
authority in reference to the following matters: (i)
approving or adopting, or recommending to the stockholders,
any action or matter expressly required by the General
Corporation Law of the State of Delaware to be submitted to
stockholders for approval or (ii) adopting, amending or
repealing any By-Law of the Corporation.
19. Compensation. The Board may establish the
compensation for, and reimbursement of expenses of,
Directors for membership on the Board and on committees of
the Board, attendance at meetings of the Board and
committees of the Board, and for other services by Directors
to the Corporation or any of its majority-owned
subsidiaries.
20. Rules. The Board may adopt rules and regulations
for the conduct of meetings and the oversight of the
management of the business and affairs of the Corporation.
NOTICES
21. Generally. Except as otherwise provided by law,
these By-Laws or the Certificate of Incorporation, whenever
by law under the provisions of these By-Laws or the
Certificate of Incorporation notice is required to be given
to any Director or stockholder, it will not be construed to
require personal notice, but such notice may be given in
writing, by mail, addressed to such Director or stockholder,
at the address of such Director or stockholder as it appears
on the records of the Corporation, with postage thereon
prepaid, and such notice will be deemed to be given at the
time when the same is deposited in the United States mail.
Notices to Directors may also be given by overnight courier
service, telephone, telecopier or similar medium of
communication or as otherwise may be permitted by these By-
Laws.
22. Waivers. Whenever any notice is required to be
given by law or under the provisions of these By-Laws or the
Certificate of Incorporation, a waiver thereof in writing,
signed by the person or persons entitled to such notice,
whether before or after the time of the event for which
notice is to be given, will be deemed equivalent to such
notice. Attendance of a person at a meeting will constitute
a waiver of notice of such meeting, except when the 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 is not lawfully called or
convened.
OFFICERS
23. Generally. The officers of the Corporation will
be elected by the Board and will consist of a Chairman (who,
unless the Board specifies otherwise, will also be the Chief
Executive Officer), a President, a Secretary and a
Treasurer. The Board of Directors may elect one or more
Vice Chairmen, one or more Vice Presidents (who may be given
particular designations with respect to authority, function
or seniority), and such other officers as the Board may from
time to time determine. Notwithstanding the foregoing, by
specific action the Board may authorize the Chairman to
appoint any person to any office other than Chairman,
President, Secretary or Treasurer. Any number of offices
may be held by the same person. Any of the offices may be
left vacant from time to time as the Board may determine.
In the case of the absence or disability of any officer of
the Corporation or for any other reason deemed sufficient by
a majority of the Board, the Board may delegate the absent
or disabled officer's powers or duties to any other officer
or to any Director.
24. Compensation. The compensation of the Chairman,
the Chief Executive Officer, President and agents of the
Corporation who are also Directors of the Corporation will
be fixed by the Board or a committee of the Board delegated
that responsibility by the Board. The Board may fix, or
delegate the power to fix, the compensation of other
officers to a committee of the Board or an officer of the
Corporation.
25. Succession. The officers of the Corporation will
hold office until their successors are elected and
qualified. Any officer may be removed at any time by the
affirmative vote of a majority of the Whole Board. Any
vacancy occurring in any office of the Corporation may be
filled by the Board or by the Chairman as provided in By-Law
23.
26. Authority and Duties. Each of the officers of the
Corporation will have such authority and will perform such
duties as are customarily incident to their respective
offices or as may be specified from time to time by the
Board.
STOCK
27. Certificates. The shares of stock of the
Corporation will be represented by certificates, provided
that the Board may provide by resolution or resolutions that
some or all of any or all classes or series of its stock
shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the
Board, every holder of stock represented by certificates and
upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of,
the Corporation by the Chairman or Vice Chairman of the
Board, or the President or a Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, representing the
number of shares registered in certificate form. Any or all
of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed on a
certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he
or it were such officer, transfer agent or registrar at the
date of issue.
28. Classes of Stock. The designations, preferences
and relative participating, optional or other special rights
of the various classes of stock or series thereof, and the
qualifications, limitations or restrictions thereof, will be
set forth in full or summarized on the face or back of the
certificates which the Corporation issues to represent its
stock or, in lieu thereof, such certificates will set forth
the office of the Corporation from which the holders of
certificates may obtain a copy of such information.
29. Lost, Stolen or Destroyed Certificates. The
Secretary may direct a new certificate or certificates to be
issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed, upon making of an affidavit of
that fact, satisfactory to the Secretary, by the person
claiming the certificate of stock to be lost, stolen or
destroyed. As a condition precedent to the issuance of a
new certificate or certificates, the Secretary may require
the owners of such lost, stolen or destroyed certificate or
certificates to give the Corporation a bond in such sum and
with such surety or sureties as the Secretary may direct as
indemnity against any claims that may be made against the
Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed or the issuance of the new
certificates.
30. Record Dates. (a) In order that the Corporation
may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment
thereof, the Board may fix a record date, which will not be
more than 60 nor less than 10 calendar days before the date
of such meeting. If no record date is fixed by the Board,
the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders will be at
the close of business on the calendar day next preceding the
day on which notice is given, or, if notice is waived, at
the close of business on the calendar day next preceding the
day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a
meeting of the stockholders will apply to any adjournment of
the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a
record date, which record date will not be more than 60
calendar days prior to such action. If no record date is
fixed, the record date for determining stockholders for any
such purpose will be at the close of business on the
calendar day on which the Board adopts the resolution
relating thereto.
(c) The Corporation will be entitled to treat the
person in whose name any share of stock is registered as the
owner thereof for all purposes, and will not be bound to
recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not
the Corporation has notice thereof, except as expressly
provided by applicable law.
GENERAL
31. Fiscal Year. The fiscal year of the Corporation
will be the calendar year or such other fiscal year as may
be fixed from time to time by the Board.
32. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation and the words "Corporate
Seal, Delaware". The corporate seal of the Corporation may
be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
33. Reliance Upon Books, Reports and Records. Each
Director, each member of a committee designated by the Board
and each officer of the Corporation will, in the performance
of his or her duties, be fully protected in relying in good
faith upon the records of the Corporation and upon such
information, opinions, reports or statements presented to
the Corporation by any of the Corporation's officers or
employees, or committees of the Board, or by any other
person or entity as to matters the Director, committee
member or officer believes are within such other person's
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
34. Amendments. Except as otherwise provided by law
or by the Certificate of Incorporation or these By-Laws,
these By-Laws or any of them may be amended in any respect
or repealed at any time either (i) at any regular or special
meeting of the stockholders at which a quorum is present or
represented, provided notice of the proposed amendment or
repeal be contained in the notice of the meeting, by the
affirmative vote of two-thirds of the stock entitled to vote
at such meeting and present or represented thereat or (ii)
by the affirmative vote of a majority of the Board at any
regular or special meeting of the Board if notice of the
proposed amendment or repeal be contained in the notice of
the meeting.
