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REGISTRATION NO. 333-91171
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENTEK INC. DELAWARE 3714
General Chemical Corporation Delaware 3714
Toledo Technologies Inc. Delaware 3714
Printing Developments Inc. Delaware 3555
Balcrank Products Inc. Delaware 3586
HMC Patents Holding Company Inc. Delaware 5169
Waterside Urban Renewal Corporation New Jersey 6552
Reheis Inc. Delaware 2819
Defiance, Inc. Delaware 3714
Binderline Draftline, Inc. Michigan 8711
Defiance Precision Products, Inc. Ohio 3451
Hy-Form Products, Inc. Michigan 3714
Defiance Testing and Engineering Services, Inc. Michigan 8711
Noma Corporation Delaware 5063
PCT Mexico Corporation Delaware 5063
Noma O.P. Inc. Delaware 5063
Electronic Interconnect Systems Inc. Massachusetts 5063
Defiance Kinematics Inc. Delaware 8711
HN Investment Holdings Inc. Delaware 6799
PPI Holdings, Inc. California 2819
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS (STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL
CHARTER) OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER)
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GENTEK INC. 02-0505547
General Chemical Corporation 22-2689817
Toledo Technologies Inc. 38-2197045
Printing Developments Inc. 22-2689839
Balcrank Products Inc. 38-2897194
HMC Patents Holding Company Inc. 02-0416899
Waterside Urban Renewal Corporation 22-2366872
Reheis Inc. 22-2640008
Defiance, Inc. 34-1526359
Binderline Draftline, Inc. 38-1810522
Defiance Precision Products, Inc. 34-1414422
Hy-Form Products, Inc. 38-2184722
Defiance Testing and Engineering Services, Inc. 38-2252141
Noma Corporation 06-0879221
PCT Mexico Corporation 25-1559158
Noma O.P. Inc. 51-0365495
Electronic Interconnect Systems Inc. 04-2828810
Defiance Kinematics Inc. 22-3665196
HN Investment Holdings Inc. 22-3645354
PPI Holdings, Inc. 77-0520612
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS (I.R.S. EMPLOYER
CHARTER) IDENTIFICATION NO.)
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LIBERTY LANE
HAMPTON, NEW HAMPSHIRE 03842
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
TODD M. DUCHENE
GENTEK INC.
LIBERTY LANE
HAMPTON, NEW HAMPSHIRE 03842
(603) 929-2606
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPY TO:
GEORGE E.B. MAGUIRE
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 909-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities of an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration number of the earlier effective registration
statement for the same offering. [ ]
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
________________________________________________________________________________
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PROSPECTUS Strictly Confidential
GENTEK INC. [LOGO]
OFFER TO EXCHANGE
$200,000,000 11% SENIOR SUBORDINATED NOTES DUE 2009
FOR REGISTERED
$200,000,000 11% SENIOR SUBORDINATED NOTES DUE 2009
THE NEW NOTES:
We issued our 11% Senior Subordinated Notes due 2009 on August 9, 1999. The
terms of the new notes we will issue in the exchange offer are identical to the
terms of the old notes except that the new notes:
are registered under the Securities Act of 1933 and therefore will not
contain restrictions on transfer; and
will not contain provisions relating to additional interest.
YOU SHOULD CAREFULLY REVIEW THE RISK FACTORS BEGINNING ON PAGE 10 OF THIS
PROSPECTUS.
THE EXCHANGE OFFER:
Our offer to exchange old notes for new notes will be open until
5:00 p.m., New York City time, on January 12, 2000, unless we extend the
offer.
You should also carefully review the procedures for tendering the old
notes beginning on page 20 of this prospectus.
If you fail to tender your old notes, you will continue to hold
unregistered securities and your ability to transfer them could be
adversely affected.
The exchange offer is subject to customary conditions.
No public market currently exists for the notes.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE NOTES OR DETERMINED THAT THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is December 3, 1999.
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TABLE OF CONTENTS
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Prospectus Summary..................... 1
Risk Factors........................... 10
The Exchange Offer..................... 18
Use of Proceeds........................ 26
Capitalization......................... 26
Unaudited Pro Forma Financial
Statements........................... 27
Selected Financial Data................ 30
Management's Discussion and Analysis of
Financial Condition and Results of
Operations........................... 32
Business............................... 39
Management............................. 52
Beneficial Ownership of Common Stock... 62
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Affiliate Relationships and
Transactions......................... 64
Our Arrangements with General Chemical
Group Relating to the Spinoff........ 66
Description of Credit Facility......... 71
Description of Notes................... 73
Material United States Federal Income
Tax Considerations................... 118
Plan of Distribution................... 122
Legal Matters.......................... 122
Experts................................ 122
Financial Statements of Noma and
Krone................................ 123
Where You Can Find More Information.... 123
Index to Consolidated Financial
Statements........................... F-1
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IMPORTANT INFORMATION ABOUT THIS PROSPECTUS
THIS PROSPECTUS INCORPORATES IMPORTANT BUSINESS AND FINANCIAL
INFORMATION ABOUT US THAT IS NOT INCLUDED OR DELIVERED WITH THIS PROSPECTUS,
INCLUDING EXHIBITS TO THE REGISTRATION STATEMENT OF WHICH THIS PROSPECTUS IS A
PART. WE WILL PROVIDE THESE EXHIBITS WITHOUT CHARGE TO HOLDERS OF THE OLD NOTES,
UPON REQUEST TO GENTEK. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO THE
SECRETARY, GENTEK INC., LIBERTY LANE, HAMPTON, NEW HAMPSHIRE, 03842 (TELEPHONE
NUMBER 603-929-2606). YOU SHOULD REQUEST ANY SUCH INFORMATION AT LEAST FIVE DAYS
IN ADVANCE OF THE DATE ON WHICH YOU EXPECT TO MAKE YOUR DECISION WITH RESPECT TO
THIS OFFER. IN ANY EVENT, YOU MUST REQUEST SUCH INFORMATION PRIOR TO JANUARY 8,
2000.
WE ARE NOT MAKING THE EXCHANGE OFFER, NOR WILL WE ACCEPT SURRENDERS FOR
EXCHANGE FROM ANY HOLDER OF OLD NOTES, IN ANY JURISDICTION IN WHICH THE EXCHANGE
OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE SECURITIES
OR 'BLUE SKY' LAWS OF SUCH JURISDICTION.
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[THIS PAGE INTENTIONALLY LEFT BLANK]
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PROSPECTUS SUMMARY
This summary highlights selected information from this prospectus, but
does not contain all the details of the Notes and information about us,
including information that may be important to you. Therefore, we urge you to
read this entire document carefully.
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
We completed on August 9, 1999 the private offering of $200,000,000
aggregate principal amount of 11% Senior Subordinated Notes due 2009. We are now
offering to exchange those notes for new registered notes.
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The exchange offer........................ In this exchange offer you are entitled to exchange old
notes for new registered 11% Senior Subordinated Notes due
2009.
Resale of new notes....................... We believe most investors can resell the new notes issued in
this exchange offer without compliance with the registration
and prospectus delivery provisions of the Securities Act.
However, you may need to comply with these requirements of
the Securities Act when you resell your new notes if you:
acquire new notes outside the ordinary course of business;
plan to participate in a distribution of the new notes; or
are an affiliate of GenTek.
To find out whether any special exceptions may apply to you
and restrict your resale of new notes, you should read the
discussion under the heading 'The Exchange Offer -- Resales
of New Notes Issued in the Exchange Offer.'
Registration rights agreement............. We entered into an exchange and registration rights
agreement with the initial purchasers of the old notes which
requires us to use our best efforts to make this exchange
offer.
Consequence of failure to exchange old
notes................................... You will continue to hold old notes which will remain
subject to their existing transfer restrictions if:
you do not tender your old notes; or
you tender your old notes and they are not accepted for
exchange.
We will have no obligation to register the old notes after
we consummate the exchange offer. See 'The Exchange
Offer -- Our Obligations under the Registration Rights
Agreement.'
Expiration date........................... The exchange offer will expire at 5:00 p.m., New York City
time, on January 12, 2000, unless we extend it.
Interest on the new notes................. Interest on the new notes will accrue at a rate of 11% per
annum from the most recent date to which interest has been
paid or provided for on the old notes or, if no interest has
been paid on the old notes, from August 9, 1999, the date we
issued the old notes. No additional interest will be paid on
old notes tendered and accepted for exchange.
Liquidated damages........................ If we do not comply with our obligations to consummate this
exchange offer by 210 days after the original offering of
the old notes, we may be required to pay liquidated damages
to holders
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of old notes until we consummate the exchange offer. We will
have no obligation to pay liquidated damages to holders of
old notes who are not able to make the representations or
provide the information described on page 19. See 'The
Exchange Offer -- Our Obligations Under the Registration
Rights Agreement' for more information on when we may have
to pay liquidated damages.
Conditions to the exchange offer.......... We can terminate or amend the exchange offer if at any time
prior to 5:00 p.m., New York City time, on the expiration
date, we determine that the exchange offer violates any
applicable law or governmental order. In addition, we will
not accept for exchange any old notes or issue any new notes
if any stop order is threatened or in effect on the
qualification of the indenture under the Trust Indenture Act
of 1939 or on the registration statement of which this
prospectus is a part. We are required to use reasonable
efforts to obtain the withdrawal of any stop order.
Procedures for tendering old
notes................................... If you wish to accept the exchange offer and tender your old
notes, you must:
deliver a signed letter of transmittal to the exchange
agent; and
surrender the old notes by:
sending in certificates of old notes to the exchange agent;
or
confirming a book-entry transfer to the exchange agent's
account at The Depository Trust Company.
Different procedures may apply for book-entry transfers. For
more information, see 'The Exchange Offer.'
Guaranteed delivery procedures............ If you wish to tender your old notes, but cannot properly do
so prior to the expiration date, eligible institutions such
as registered brokers, trust companies or banks may tender
old notes according to the guaranteed delivery procedures by
delivering to the exchange agent a letter of transmittal and
a guarantee of physical delivery or book-entry transfer of
the old notes within three New York Stock Exchange trading
days. See 'The Exchange Offer -- Guaranteed Delivery
Procedures.'
Withdrawal rights......................... You may withdraw your tender of old notes at any time prior
to 5:00 p.m., New York City time, on the expiration date.
For the withdrawal of a tender of old notes, the exchange
agent must receive a written or facsimile transmission
notice of withdrawal at its address set forth herein under
'The Exchange Offer -- Exchange Agent' prior to 5:00 p.m.
New York City time, on the expiration date.
Acceptance of old notes and
delivery of new notes................... We will accept for exchange any and all old notes that are
validly tendered in the exchange offer prior to 5:00 p.m.,
New York City time, on the expiration date. We will deliver
the new notes issued in the exchange offer as soon as
practicable following the expiration date. See 'The Exchange
Offer -- Acceptance of Old Notes for Exchange; Delivery of
New Notes.'
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Material U.S. Federal income
tax considerations...................... We believe that the exchange of old notes for new notes will
not constitute a taxable exchange for U.S. federal income
tax purposes. See 'Material United States Federal Income Tax
Considerations.'
Exchange agent............................ U.S. Bank Trust National Association is serving as the
exchange agent.
Use of proceeds........................... We will not receive any proceeds from the exchange offer.
See 'Use of Proceeds' for a description of the use of
proceeds from the issuance of the old notes.
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THE EXCHANGE NOTES
The terms of the new notes are identical in all material respects to the
terms of the old notes except that the new notes:
are registered under the Securities Act, and therefore will not contain
restrictions on transfer; and
will not contain provisions relating to additional interest.
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Maturity.................................. August 1, 2009.
Interest Payment Dates.................... February 1 and August 1 of each year, commencing
February 1, 2000.
Sinking Fund.............................. None.
Optional Redemption....................... We may redeem the notes, in whole or in part, on or after
August 1, 2004, at the redemption prices described in
'Description of the Notes -- Optional Redemption,' plus
accrued and unpaid interest, if any, to the date of
redemption. In addition, any time prior to August 1, 2002,
we may redeem up to 35% of the notes at 111.0% of the
principal amount, plus accrued and unpaid interest, with the
net proceeds of our equity issuances; provided at least 65%
of the original aggregate principal amount of the notes
remains outstanding immediately after such redemption.
Change of Control......................... Upon a change of control, we will be required to make an
offer to repurchase each holder's notes at a price equal to
101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of repurchase. The
definition of 'change of control' appears under 'Description
of the Notes.'
Ranking................................... The notes are unsecured senior subordinated obligations and
rank:
subordinate to all of our senior indebtedness;
equally with all of our other unsecured senior subordinated
indebtedness;
senior to all of our subordinated indebtedness; and
effectively junior to all liabilities of our subsidiaries.
As of September 30, 1999, we had outstanding approximately
$755.4 million of indebtedness of which $555.4 million was
senior indebtedness (excluding undrawn commitments under our
Credit Facility) both structurally and contractually senior
to the notes. All
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of the remaining $200 million of indebtedness consisted of
the old notes. 'See Description of the Notes -- Ranking' and
'Description of Credit Facility.'
Guarantees................................ The notes are guaranteed on an unsecured senior subordinated
basis by certain of our existing and future domestic
restricted subsidiaries. The notes are not guaranteed by our
foreign subsidiaries or our subsidiaries that are not
guarantors of our Credit Facility. At September 30, 1999
those of our subsidiaries that have not guaranteed the notes
had total indebtedness (excluding indebtedness owed to the
Company) of $231 million.
Restrictive Covenants..................... The terms of the notes include restrictions on our ability
to:
incur additional indebtedness;
make restricted payments;
enter into transactions with affiliates;
create liens;
cause dividends and other payments by subsidiaries; and
effect consolidations, mergers and the sale of assets.
These limitations are subject to a number of important
exceptions. See 'Description of the Notes -- Covenants.'
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ABOUT OUR COMPANY
We are a manufacturer of telecommunications equipment, industrial
components and performance chemicals sold into numerous markets for a wide
variety of end uses. We operate through three business segments: manufacturing,
performance products and telecommunications equipment. Our manufacturing segment
serves the automotive, appliance and electronic, and industrial markets. Our
performance products segment serves customers in many industries, including the
pharmaceutical and personal care, environmental services, technology and
chemical processing markets. Our telecommunications equipment segment serves the
public network and premises (or non-public) network markets. In many of our
markets, we are an industry leader. Our products are frequently highly
engineered and are important components of, or provide critical attributes to,
our customers' end-products or operations. We operate over 80 manufacturing and
production facilities located in the U.S., Canada, Australia, China, Germany,
Great Britain, India, Indonesia, Ireland and Mexico. Our common stock is traded
on the New York Stock Exchange under the symbol 'GK.'
MANUFACTURING. The manufacturing segment accounted for 44% of our pro
forma sales for the nine months ended September 30, 1999. The manufacturing
segment provides a broad range of engineered components and services to three
principal markets:
Automotive: precision-engineered components for valve-train systems;
computer-aided and mechanical vehicle testing services; custom-designed
wire and cable assemblies for a variety of automotive electronic
applications; tooling and prototype design and engineering services;
and fluid-handling equipment for automotive service applications.
Appliance and Electronic: custom-designed power cord systems and wire
and cable assemblies for a broad range of appliances and electronic
products, such as refrigerators, freezers, dishwashers, washing
machines, ovens, ranges, vacuum cleaners, electronic office equipment,
medical equipment, ATM machines and gaming machines.
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Industrial: power cord systems and cable and wire assemblies for power
tools, motors, pumps and other industrial products; and wire and cable
for industrial markets, the commercial and residential construction
industries and a wide variety of end market uses by original equipment
manufacturers ('OEMs').
Our customers in this segment include Bombardier, Bosch,
DaimlerChrysler, Delphi, Eaton, Ford, Frigidaire, General Electric, General
Motors, ITT, Johnson Controls, Lear, Whirlpool, and Xerox.
PERFORMANCE PRODUCTS. The performance products segment accounted for 28%
of our pro forma sales for the nine months ended September 30, 1999. The
performance products segment provides a broad range of value-added products and
services to four principal markets:
Pharmaceutical and Personal Care: aluminum-zirconium compounds used as
the active ingredients in antiperspirants; aluminum-magnesium compounds
used as the active ingredients in over-the-counter antacids; potassium
chloride used in electrolyte replacement and intravenous solutions; and
other food and pharmaceutical intermediates.
Environmental Services: water treatment products and services; sulfuric
acid regeneration and sulfur recovery services for pollution abatement
and production of cleaner burning gasoline blending components; and
Al+Clear'r', our specialty agrochemical for improvement of poultry
house sanitation and productivity and the reduction of pollution from
agricultural phosphorous runoff.
Technology: computer-to-plate ('CTP') technology and bimetal
lithographic printing plates for high quality printing applications and
ultra-high-purity electronic chemicals for semiconductor chip and disk
drive production.
Chemical Processing: a broad range of sulfur, sodium and fluorine-based
chemical intermediates used in the production of a wide variety of
products such as paper, gasoline, fertilizers, tires, paints, dyes and
carpeting.
Our customers in this segment include AlliedSignal, BASF,
Colgate-Palmolive, Chevron, Georgia Pacific, Hewlett-Packard, IBM, International
Paper, Micron Technologies, National Semiconductor, PPG Industries, Procter &
Gamble, Sunoco, Unilever, Westvaco, World Color Press and numerous cities and
municipalities.
TELECOMMUNICATIONS EQUIPMENT. Our telecommunications equipment segment
consists of Krone AG, a leading global supplier of telecommunications connector
technology, which we acquired on August 20, 1999. The telecommunications
equipment segment accounted for 28% of our pro forma sales for the nine months
ended September 30, 1999. The telecommunications equipment segment provides
connection and distribution technology to two principal markets:
Public networks: connection and distribution technology and solutions
for fixed telecommunication access networks and related customer
services for both public network providers and telecommunications
systems manufacturers and suppliers.
Premises networks: connection and distribution technology and
solutions for private voice and data networks within private
building complexes.
Our customers in this segment include Alcatel, Anixter, Bell Atlantic, British
Telekom, Deutsche Telekom, Isolectra, Siemens and Wadsworth Electronics.
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RECENT TRANSACTIONS
RECENT ACQUISITIONS. We have completed five acquisitions this year.
In September 1999, we acquired the business of Pacific Pac
International, Inc. Pacific Pac is a provider of ultrahigh purity
solvents to the electronics industry.
In August 1999, we acquired Krone AG, a German company, for total
consideration of approximately $222 million (including approximately
$63 million of assumed debt). Krone is a leading global supplier of
connector technology for telecommunications and data networks. The
Krone acquisition expanded our offerings of products and services into
our new telecommunications equipment segment.
In July 1999, we acquired the Structural Kinematics business of EG&G,
Inc., a leading provider of testing and engineering services to the
automotive, truck and agricultural equipment industries.
In April 1999, we acquired Noma Industries Limited, a Canadian company,
for total consideration of approximately $240 million. Noma is a
leading North American producer of insulated wire and wire-related
products. The Noma acquisition expanded our product offerings to the
automotive industry and provided access to Noma's blue-chip customer
base in the growing appliance and electronic market.
In February 1999, we acquired Defiance, Inc. for total consideration of
approximately $70 million. Defiance is a manufacturer of specialty
antifriction bearings and a provider of vehicle testing services,
tooling design and preproduction dies and components primarily for the
automotive industry. The Defiance acquisition increased the range of
products and services provided by the manufacturing segment and allows
for a more complete product offering of valve-train-related engine
components to the automotive industry.
We identified the opportunity to acquire Krone through Prestolite Wire
Corporation, Krone's marketing partner. Prestolite, a leading North American
manufacturer of copper and fiber optic wire and cable products for
telecommunications, automotive and industrial markets with annual sales of
approximately $250 million, is controlled by Mr. Paul Montrone, our controlling
shareholder and the Chairman of our Board.
Based on our knowledge of Prestolite, we believe that a combination of
Prestolite's telecommunications businesses with Krone may create additional
value for our company. The integration of Krone's and Prestolite's
telecommunications and data businesses would allow us to provide customers
around the globe with total connectivity and wiring solutions that maximize
bandwidth and network speed. This combination would position us as a global
provider of integrated wire and connector solutions for data and
telecommunications markets. We intend to discuss and pursue with Prestolite a
possible transaction to combine certain of our businesses through the formation
of one or more joint ventures or partnerships, acquisitions or other similar
arrangements.
THE SPINOFF. Our manufacturing and performance products segments were
formerly part of the businesses of The General Chemical Group Inc., our former
parent company. General Chemical Group separated us from its soda ash and
calcium chloride business through a spinoff by distributing our common stock to
General Chemical Group's shareholders. The spinoff was completed on April 30,
1999. Since the spinoff, we have been a separate, stand-alone company. We
believe that the spinoff has enabled us to focus our attention and resources on
our core businesses and more effectively pursue our business strategy.
In connection with the spinoff, we entered into a $550 million credit
facility, which includes a $300 million revolving credit facility and $250
million aggregate term loan facilities. See 'Description of Credit Facility.' On
the spinoff date, we borrowed $500 million under the credit facility, of which
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approximately $487 million was used to repay a portion of General Chemical
Group's third party indebtedness, including borrowings to finance our
acquisitions of Noma and Defiance earlier this year.
STATE AND DATE OF INCORPORATION AND ADDRESS
We were incorporated in Delaware on January 27, 1999. Our principal
executive offices are at Liberty Lane, Hampton, New Hampshire 03842. Our
telephone number is 603-929-2606.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements. All statements
other than statements of historical facts included in this prospectus, including
certain statements under 'Summary,' 'Management's Discussion and Analysis of
Financial Condition and Results of Operations' and 'Business,' may constitute
forward-looking statements. We have based these forward-looking statements on
our current expectations and projections about future events. Although we
believe that our assumptions made in connection with the forward-looking
statements are reasonable, we cannot assure you that our assumptions and
expectations will prove to have been correct. Important factors that could cause
our actual results to differ from our expectations are disclosed in this
prospectus, including factors disclosed under 'Risk Factors.' These
forward-looking statements are subject to various risks, uncertainties and
assumptions about us, including, among other things:
our outstanding indebtedness and our leverage, and the restrictions
imposed by our indebtedness;
the cyclical nature of certain of our businesses, and domestic and
international economic conditions;
the high degree of competition in certain of our businesses, and the
potential for new competitors to enter into those businesses;
the integration of recent and future acquired businesses with our
existing operations in a timely and efficient manner;
the extent to which we undertake new acquisitions or enter into
strategic joint ventures or partnerships;
future modifications to existing laws and regulations affecting the
environment, health and safety;
discovery of unknown contingent liabilities, including environmental
contamination at our facilities;
Year 2000 concerns;
fluctuations in interest rates and in foreign currency exchange rates;
increases in the cost of raw materials and other inputs used to make
our products; and
certain potential adverse tax consequences of a change of control.
We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed in this prospectus might not occur.
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SUMMARY HISTORICAL FINANCIAL DATA
The summary historical financial data set forth below for each of the
three years ended December 31, 1998 are derived from, and should be read in
conjunction with, our audited Consolidated Financial Statements and notes
included in this prospectus. The summary financial data for the nine months
ended September 30, 1999 and 1998 are derived from our unaudited Consolidated
Financial Statements and notes included in this prospectus and, in the opinion
of our management, include all adjustments considered necessary for a fair
presentation of our financial position and results of operations for the periods
covered thereby.
We were spun off from The General Chemical Group Inc., and our
manufacturing and performance products segments were separated from its
industrial chemicals business, on April 30, 1999. Because we did not operate as
a separate, stand-alone entity prior to the spinoff, we might have recorded
different results had we operated independently of the industrial chemicals
business of General Chemical Group. See 'Management's Discussion and Analysis of
the Financial Condition and Results of Operation.' For a description of the
basis of presentation of the historical financial data, see note 1 to the
Consolidated Financial Statements.
The spinoff has been treated as a reverse spinoff for financial
statement purposes because we hold the greater proportion of the assets and
operations that were held by General Chemical Group prior to the spinoff.
Therefore, the spinoff is reflected, for financial statement presentation, as if
we had formed a new company consisting of the industrial chemicals business and
distributed the stock of that company as a dividend to our stockholders, with
our assets, operations and businesses remaining with us after the spinoff.
Accordingly, our financial statements reflect the financial position and results
of operations of our businesses as continuing operations and the financial
position and results of operations of the industrial chemicals business as
discontinued operations.
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SUMMARY FINANCIAL DATA
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NINE MONTHS ENDED
SEPTEMBER 30,
YEAR ENDED DECEMBER 31, (UNAUDITED)
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1996 1997 1998 1998 1999
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(DOLLARS IN THOUSANDS, EXCEPT RATIOS)
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STATEMENT OF OPERATIONS DATA:
Net revenues...................................... $330,120 $368,516 $443,919 $331,453 $609,324
Gross profit...................................... 100,883 116,604 117,293(1) 96,518 155,386
Operating profit.................................. 48,723(2) 67,526 51,721(3) 56,171 75,383(4)
Interest expense.................................. 10,747 8,855 14,624 10,626 25,378
Income from continuing operations before income
taxes and extraordinary item.................... 39,200 59,535 37,313 45,814 51,657
Income from continuing operations before
extraordinary item.............................. 20,775 33,274 41,069(5) 26,973 27,767
Income from discontinued operations............... 25,833 23,041 10,299 9,339 1,006
Net income.......................................... $ 46,608 $ 56,315 $ 47,707(6) 32,651(6) 23,834(7)
OTHER FINANCIAL DATA:
Capital expenditures.............................. $ 19,231 $ 26,203 $ 33,737 $ 22,185 $ 22,258
Depreciation and amortization..................... 14,099 16,296 23,065 $ 17,539 $ 31,156
Ratio of earnings to fixed charges(8)............. 4.2x 6.7x 3.3x 4.8x 2.9x
</TABLE>
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30, 1999
------------------------
(UNAUDITED)
-----------
(IN THOUSANDS)
<S> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................. $ 34,549
Total assets.............................................. 1,195,484
Long-term debt (including current portion)................ 755,440
Total equity.............................................. 12,485
</TABLE>
- ------------
(1) Includes a one time charge of $12.1 million ($7.3 million after tax)
primarily due to an asset impairment writedown for two of our manufacturing
facilities.
(2) Includes a one-time charge of $6.8 million ($4.1 million after tax)
primarily related to awards made under a restricted unit plan, reflecting
the portion earned under prior equity programs.
(3) Includes incremental accruals of $9.8 million ($5.9 million after tax)
principally related to litigation and environmental spending.
(4) Includes a one-time charge of $6.2 million primarily related to the spinoff.
(5) Includes a nonrecurring gain of $19.5 million related to an income tax
settlement.
(6) Includes an extraordinary loss of $3.7 million, related to the early
retirement of certain indebtedness.
(7) Includes an extraordinary loss of $4.9 million, related to the early
retirement of certain indebtedness.
(8) For purposes of computing ratio of earnings to fixed charges, earnings
consist of income from continuing operations before income taxes and
extraordinary items plus fixed charges. Fixed charges consist of interest
expense, including the amortization of deferred financing costs and that
portion of rental expense management believes to be representative of
interest.
9
<PAGE>
RISK FACTORS
In addition to the other information in this prospectus, you should
carefully consider the following factors in evaluating us and making an
investment decision.
IF YOU DO NOT PROPERLY TENDER YOUR OLD NOTES, YOU WILL CONTINUE TO HOLD
UNREGISTERED OLD NOTES; THE OLD NOTES ARE SUBJECT TO TRANSFER RESTRICTIONS, AND
YOUR ABILITY TO TRANSFER OLD NOTES WILL BE ADVERSELY AFFECTED.
As old notes are tendered and accepted in the exchange offer, the
trading market for the remaining untendered or tendered but not accepted old
notes will be adversely affected. We anticipate that most holders of the old
notes will elect to exchange the old notes for new notes due to the absence of
restrictions on the resale of new notes under the Securities Act. Therefore, we
anticipate that the liquidity of the market for any old notes remaining after
the consummation of the exchange offer may be substantially limited.
We will only issue new notes in exchange for old notes that you timely
and properly tender. Therefore, you should allow sufficient time to ensure
timely delivery of the old notes and you should carefully follow the
instructions on how to tender your old notes. Neither we nor the exchange agent
are required to tell you of any defects or irregularities with respect to your
tender of the old notes. If you do not tender your old notes for new notes in
the exchange offer, the old notes you hold will continue to be subject to the
existing transfer restrictions. In general, you may not offer or sell the old
notes unless registered under the Securities Act, or exempt from registration
under the Securities Act and applicable state securities laws. If you do not
tender your old notes or they are not accepted for exchange, you will have no
further rights under the registration rights agreement. See 'The Exchange
Offer -- Our Obligations under the Registration Rights Agreement.' We do not
anticipate that we will register old notes under the Securities Act.
OUR SUBSTANTIAL INDEBTEDNESS COULD ADVERSELY AFFECT OUR FINANCIAL CONDITION AND
PREVENT US FROM FULFILLING OUR OBLIGATIONS UNDER THE NOTES.
We will continue to have substantial indebtedness after the completion
of the exchange offer and we may be able to increase our indebtedness in the
future. Our level of indebtedness could have important consequences to holders
of the notes. For example, it could:
make it more difficult to satisfy our obligations with respect to these
notes because a substantial portion of our cash flow from operations
must be dedicated to the payment of interest on our indebtedness;
make us more vulnerable to economic downturns;
potentially limit our ability to withstand competitive pressures;
impair our ability to obtain additional financing in the future for
working capital, capital expenditures, acquisitions or general
corporate purposes; and
make us more susceptible to the above risks because borrowings under
the Credit Facility will bear interest at fluctuating rates.
If we are unable to generate sufficient cash flow from operations in the
future, we may be unable to repay or refinance all or a portion of our then
existing debt or to obtain additional financing. There can be no assurance that
any such refinancing would be possible or that any additional financing could be
obtained on terms that are acceptable to us.
The following are important statistics about us, presented after giving
effect to all the transactions we have completed this year (see 'Recent
Transactions' in the 'Summary' section).
at September 30, 1999, we had total long-term debt of $755.4 million,
representing 98.4% of our total capitalization;
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<PAGE>
for the nine-month period ended September 30, 1999, our pro forma ratio
of earnings to fixed charges would have been 1.9 to 1.0; and
we have the ability to borrow an additional $85.0 million under our
Credit Facility (excluding approximately $13 million for letters of
credit issued under the Credit Facility).
In addition, we could in the future enter into transactions, including
acquisitions or alliances or refinancings, recapitalizations or highly leveraged
transactions that would not be a change of control under the indenture requiring
us to offer to repurchase the notes, but that could increase the amount of
indebtedness outstanding at such time or otherwise affect our capital structure,
credit rating or the holders of the notes. The definition of 'change of control'
appears in the 'Description of Notes' section.
OUR INDENTURE FOR THE NOTES AND OUR CREDIT FACILITY IMPOSE SIGNIFICANT OPERATING
AND FINANCIAL RESTRICTIONS, WHICH MAY PREVENT US FROM CAPITALIZING ON BUSINESS
OPPORTUNITIES.
Our indenture for the notes and our credit facility impose significant
operating and financial restrictions on us. These restrictions affect, and in
certain cases limit, among other things, our ability to:
incur additional indebtedness and liens;
make capital expenditures;
make investments and acquisitions and sell assets; or
consolidate, merge or sell all or substantially all of our assets.
There can be no assurance that these restrictions will not adversely
affect our ability to finance our future operations or capital needs or to
engage in other business activities that may be in the interest of noteholders.
See 'Description of Notes' and 'Description of Credit Facility.'
In addition, future debt instruments, particularly at our foreign
subsidiaries and joint ventures, may restrict their ability to distribute or
otherwise make available to us funds which we might require in order to service
our obligations, including those under the notes.
THE NOTES ARE CONTRACTUALLY SUBORDINATED IN RIGHT OF PAYMENT TO OUR SENIOR DEBT.
The notes and the guarantees of the notes by our subsidiaries will be
subordinated in right of payment to all of our senior debt, including the
principal of and interest on our credit facility and the senior debt of those
subsidiaries that guarantee the notes. At September 30, 1999 we had a total of
$555.4 million of senior debt outstanding and the ability to borrow an
additional $85.0 million of senior debt under our credit facility. In the event
of our insolvency, liquidation, reorganization, dissolution or other winding-up
or upon a default in payment with respect to, or the acceleration of, any senior
debt, the holders of our senior debt must be paid in full before the holders of
the notes may be paid. If we incur any additional senior subordinated debt, the
holders of that debt would be entitled to share ratably with the holders of the
notes in any proceeds distributed in connection with any insolvency,
liquidation, reorganization, dissolution or other winding-up. This right may
have the effect of reducing the amount of proceeds paid to holders of the notes.
In addition, no payments may be made with respect to the principal of or
premium, if any, or interest on the notes if a payment default exists with
respect to our senior debt and, under certain circumstances, no payments may be
made with respect to the principal of, or interest on the notes for a certain
period if a non-payment default exists with respect to senior debt. In addition,
the Indenture permits us to incur additional debt, including senior debt, if
certain conditions are met. See 'Description of Notes -- Subordination.'
11
<PAGE>
THE NOTES ARE EFFECTIVELY SUBORDINATED IN RIGHT OF PAYMENT TO OUR SECURED DEBT.
IF ANY SECURED LENDERS SHOULD ATTEMPT TO FORECLOSE ON THEIR COLLATERAL, THE
VALUE OF THE NOTES COULD BE MATERIALLY ADVERSELY AFFECTED.
The notes and the guarantees of the notes by certain of our subsidiaries
will not be secured by any of our assets or any of the assets of those
subsidiaries that guarantee the notes, and therefore will be effectively
subordinated to all of our existing and future secured debt and all of the
existing and future secured debt of those subsidiaries that guarantee the notes.
Our credit facility is secured by guarantees from those subsidiaries that
guarantee the notes, as well as guarantees by, and a pledge of the capital stock
of, certain of our other subsidiaries. In addition, our Indenture and our credit
agreement permit us to incur additional secured debt, if certain conditions are
met. In the event of a default on secured indebtedness (whether as a result of
the failure to comply with a payment or other covenant, a cross-default, or
otherwise), the lenders under our credit facility will have a prior secured
claim on such assets. If any secured lenders should attempt to foreclose on
their collateral, the value of the notes could be materially adversely affected.
THE NOTES ARE EFFECTIVELY SUBORDINATED TO THE INDEBTEDNESS OF OUR SUBSIDIARIES
THAT ARE NOT SUBSIDIARY GUARANTORS. AT SEPTEMBER 30, 1999, THE INDEBTEDNESS OF
OUR NON-GUARANTOR SUBSIDIARIES INCLUDED APPROXIMATELY $231 MILLION OF
OBLIGATIONS THAT COULD BE REQUIRED TO BE PAID BEFORE ANY OF THEIR ASSETS COULD
BE MADE AVAILABLE TO NOTEHOLDERS.
Some but not all of our subsidiaries guarantee the notes. In the event
of a bankruptcy, liquidation or reorganization of any of the subsidiaries that
do not guarantee the notes, holders of their indebtedness and their trade
creditors will generally be entitled to payment of their claims from the assets
of those subsidiaries before any assets are made available for distribution to
us or those subsidiaries that guarantee the notes. As of the date of this
prospectus, all of our wholly-owned domestic subsidiaries are guarantors of the
notes (except for subsidiaries that are held through foreign subsidiaries or
whose only assets are the capital stock of foreign subsidiaries).
THE INDUSTRIES IN WHICH WE OPERATE ARE HIGHLY COMPETITIVE. THIS COMPETITION MAY
PREVENT US FROM RAISING PRICES AT THE SAME PACE AS OUR COSTS INCREASE.
In each of our business segments, we operate in competitive markets. Our
manufacturing segment competes with numerous international and North American
companies, including various captive operations of OEMs and Tier 1 suppliers to
automotive manufacturers. Approximately 38% of pro forma 1998 sales were to the
automotive market. Competition in the manufacturing segment's markets is based
on a number of factors, including design and engineering capabilities, quality,
price and the ability to meet customer delivery requirements.
Most of the markets in which our performance products segment does
business are highly competitive. The major competitors of our performance
products segment are typically segregated by end market and include
international, regional and, in some cases, small independent producers.
Competition in the performance products segment's markets is based on a number
of factors, including price, freight economics, product quality and technical
support. Due to the level of competition faced by our performance products
segment, raising prices has been difficult over the past several years and will
likely continue to be so in the near future.
Our telecommunications equipment segment also operates in highly
competitive markets, with many of our competitors being large, international and
technologically sophisticated companies. Competition in our telecommunications
equipment segment is based on a number of factors, including technological
advancements, product line breadth, price, technical support and service, and
product quality. The ability to achieve and maintain successful performance
in this segment is also dependent on our ability to develop products which
meet the ever-changing requirements of data and voice communications technology.
12
<PAGE>
WE WILL CONTINUE TO PURSUE NEW ACQUISITIONS AND JOINT VENTURES, AND ANY OF THESE
TRANSACTIONS COULD ADVERSELY AFFECT OUR OPERATING RESULTS OR RESULT IN INCREASED
COSTS OR OTHER PROBLEMS.
We intend to continue to pursue new acquisitions and joint ventures, a
pursuit which will consume substantial time and resources. Identifying
appropriate acquisition candidates and negotiating and consummating acquisitions
can be a lengthy and costly process. In addition, we have acquired five
businesses this year (including Noma, Defiance and Krone); as with all
acquisitions, we face challenges in implementing our operating strategy at these
businesses and improving their results to our targeted objectives. The
successful implementation of our operating strategy at these and future
acquisitions and joint ventures may require substantial attention from our
management team, which could divert management attention from our existing
businesses. The businesses we acquire, or the joint ventures we enter into, may
not generate the cash flow and earnings, or yield the other benefits, we
anticipate at the time of their acquisition or formation. Furthermore, we may
also encounter substantial unanticipated costs or other problems associated with
the acquired businesses. The risks inherent in our strategy could have an
adverse impact on our results of operation or financial condition.
WE HAVE LIMITED EXPERIENCE IN THE TELECOMMUNICATIONS INDUSTRY AND IN THE
GEOGRAPHIC MARKETS SERVICED BY KRONE, WHICH WE RECENTLY ACQUIRED. IF WE
ENCOUNTER UNEXPECTED COSTS OR OTHER PROBLEMS, THIS ACQUISITION COULD ADVERSELY
AFFECT OUR RESULTS OF OPERATIONS.
We consummated our acquisition of Krone on August 20, 1999. The
acquisition of Krone presents us with significant challenges. Among other
things, the acquisition of Krone reflects a major commitment to the
telecommunications industry and geographic markets outside North America where
we have had relatively little experience. Therefore, there can be no assurance
that difficulties in integrating the operations of Krone will not arise or that
the strategic and commercial benefits expected from the acquisition of Krone
will be realized. Also, while we conducted acquisition-related due diligence
prior to consummating the agreement to acquire Krone, we are continuing our
review of its operations and are assessing the costs to be incurred in
integrating its operations. We may encounter substantial unanticipated
liabilities at Krone and substantial unanticipated costs or problems in
integrating its operations. If we encounter such costs, liabilities or problems,
the acquisition of Krone could have an adverse effect on our results of
operations or financial condition.
OUR OPERATIONS ARE SUBJECT TO ENVIRONMENTAL LAWS AND REGULATIONS, WHOSE
REQUIREMENTS COULD ADVERSELY AFFECT OUR OPERATIONS AND PROFITABILITY.
Our various manufacturing operations, which have been conducted at a
number of facilities for many years, are subject to numerous laws and
regulations relating to the protection of human health and the environment in
the U.S., Canada, Australia, China, Germany, Great Britain, India, Indonesia,
Ireland and Mexico. Due to the nature of our operations, we are also involved
from time to time in administrative and judicial proceedings and inquiries
relating to environmental matters. Modifications or changes in enforcement of
existing laws and regulations, the adoption of new laws and regulations in the
future, particularly with respect to environmental and safety standards, or
unfavorable outcomes to any present or future proceedings or inquiries could
require expenditures which might be material to our results of operations or
financial condition.
Additionally, the Comprehensive Environmental Response Compensation and
Liability Act of 1980 and similar state statutes have been construed as imposing
joint and several liability, under certain circumstances, on present and former
owners and operators of contaminated sites and transporters and generators of
hazardous substances for remediation of contaminated properties regardless of
fault. Our facilities have been operated for many years by us or their prior
owners and operators, and adverse environmental conditions may exist of which we
are not aware. The discovery of additional or unknown environmental
contamination at any of our current or former facilities could have a material
adverse effect on our results of operations or financial condition. In addition,
we have received written notice from the United States Environmental Protection
Agency that we have been identified as a potentially responsible party under the
Comprehensive Environmental Response Compensation and Liability Act of 1980 at
three
13
<PAGE>
third-party sites. See 'Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Environmental Matters' and
'Business -- Environmental Matters.'
OUR REVENUES ARE DEPENDENT ON THE CONTINUED OPERATION OF OUR MANUFACTURING
FACILITIES, AND BREAKDOWNS OR OTHER PROBLEMS IN THEIR OPERATION COULD ADVERSELY
AFFECT OUR RESULTS OF OPERATIONS. THE PRODUCTION OF CHEMICALS IS ASSOCIATED WITH
A VARIETY OF HAZARDS WHICH COULD CREATE SIGNIFICANT LIABILITIES OR CAUSE OUR
FACILITIES TO SUSPEND THEIR OPERATIONS.
Our revenues are dependent on the continued operation of our various
manufacturing facilities. In particular, the operation of chemical manufacturing
plants involves many risks, including the breakdown, failure or substandard
performance of equipment, natural disasters, the need to comply with directives
of government agencies and dependence on the ability of railroads and other
shippers to transport raw materials and finished products in a timely manner.
The occurrence of material operational problems, including but not limited to
these events, at one or more of our facilities could have a material adverse
effect on our results of operations or financial condition.
In particular, our operations are also subject to various hazards
incident to the production of chemicals, including the use, handling,
processing, storage and transportation of certain hazardous materials. These
hazards, which include the risk of explosions, fires and chemical spills or
releases, can cause personal injury and loss of life, severe damage to and
destruction of property and equipment, environmental damage, suspension of
operations and potentially subject us to lawsuits relating to personal injury
and property damages. Any such event or circumstance could have a material
adverse effect on our results of operations or financial condition.
WE RELY ON UNIONIZED EMPLOYEES AND WILL NEED TO RENEGOTIATE LABOR CONTRACTS IN
THE FUTURE. THESE NEGOTIATIONS COULD DISRUPT OUR BUSINESS OR HAVE AN ADVERSE
EFFECT ON OUR RESULTS OF OPERATIONS.
We have been involved in work stoppages, strikes or other labor
disruptions. Since 1986, we have been involved in numerous labor negotiations,
only three of which have resulted in work disruptions. We will be involved in
other labor negotiations from time to time. There can be no assurance that these
negotiation processes will not involve material disruptions to our businesses.
WE ARE CONTROLLED BY OUR PRINCIPAL STOCKHOLDER, WHOSE INTERESTS MAY NOT BE
ALIGNED WITH THE HOLDERS OF THE NOTES.
Paul M. Montrone, Chairman of our Board of Directors, beneficially owns
or controls 80.6% of the voting power of our outstanding shares. Therefore, Mr.
Montrone alone has sufficient voting power to elect our entire Board of
Directors and, in general, to determine the outcome of any corporate
transactions or other matters submitted to our stockholders for approval,
including mergers and sales of assets, and to prevent, or cause, a change of
control of our company.
WE MAY NOT BE ABLE TO FINANCE THE CHANGE OF CONTROL OFFER REQUIRED BY THE
INDENTURE.
Upon the occurrence of a change of control, we will be required to make
an offer to purchase the Notes at a price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the date of repurchase. Certain events involving a change of control may result
in an event of default under our credit facility and our other indebtedness that
may be incurred in the future. An event of default under our credit facility or
other future indebtedness could result in an acceleration of such indebtedness,
in which case the subordination provisions of the notes would require payment in
full (or provision for payment) of all senior debt before we can repurchase or
make other payments in respect of the notes. See 'Description of
Notes -- Repurchase at the Option of Holders -- Change of Control,' 'Description
of Notes -- Subordination' and 'Description of Credit Facility.' There can be no
assurance that we would have sufficient resources to repurchase the notes or pay
our obligations if the indebtedness under the credit facility or other future
senior debt were accelerated upon the
14
<PAGE>
occurrence of a change of control. There can be no assurance that we will be
able to obtain the consent of the lenders under the credit facility to enable us
to repurchase the Notes.
The indenture defines a change of control to include, among other
things, a disposition of all or substantially all of our assets. There is no
definitive legal standard to determine what constitutes substantially all the
assets of an enterprise. As a result the holders of the notes may not be easily
able to establish that a change of control based on a sale of substantially all
of our assets has occurred.
IF THE INTERNAL REVENUE SERVICE DETERMINES THAT THE SPINOFF WILL RESULT IN A
GAIN UNDER THE INTERNAL REVENUE CODE, THE IMPACT OF SUCH ADVERSE TAX CONSEQUENCE
MAY HAVE A MATERIALLY ADVERSE AFFECT ON OUR BUSINESSES.
As a result of the possible adverse tax consequences described below, we
may be restricted in our ability to effect certain acquisitions, stock issuances
and other transactions that would result in a change of control of our company.
If the Internal Revenue Service were to determine that the spinoff was part of a
plan or a series of related transactions under which one or more persons
acquire, directly or indirectly, a 50% or greater interest, by vote or value, in
either General Chemical Group or our company, General Chemical Group and,
possibly, our company would recognize gain under section 355(e) of the Internal
Revenue Code of 1986. The amount of such gain would be substantial and could
result in significant liabilities to General Chemical Group and/or our company,
which could have a material adverse effect on our businesses. Under a tax
sharing agreement, we and General Chemical Group will each be responsible for,
and will indemnify one another for, 50% of any taxes resulting from the
application of section 355(e) of the Code, except that, if such taxes are
attributable to our act or an act of General Chemical Group (or any of our
respective subsidiaries), such party will be responsible for, and will indemnify
the other for 100% of such taxes.
IF WE, OR THIRD PARTIES WE RELY ON, FAIL TO BE YEAR 2000 COMPLIANT, OUR BUSINESS
COULD EXPERIENCE MATERIALLY ADVERSE INTERRUPTIONS, SLOWDOWNS OR INCREASED COSTS.
In the event that our information and non-information technology
hardware, software, facilities and equipment or other material systems are not
Year 2000 compliant, we may experience reductions or interruptions in operations
which could have a material adverse effect on our results of operations. A Year
2000 problem can occur where date-sensitive software uses two digit year date
fields, sorting the Year 2000 ('00') before the Year 1999 ('99'). The Year 2000
problem can arise in hardware, software, or other equipment or process that uses
embedded software or other technology. The failure of such systems to properly
recognize dates after December 31, 1999 could result in data corruption and
processing errors.
In addition, we can make no warranty or guarantee as to the future Year
2000 compliance status of material parties we rely on. The process of evaluating
compliance of material third parties is continually ongoing. Our evaluation of
such third parties to date has covered all of our critical vendors, suppliers
and service providers, including the railroad and trucking companies we use to
ship our goods. We have not completed a similar evaluation for Krone, which we
acquired recently. We are likely to experience interruptions, slowdowns or
increased costs in our business if our suppliers fail to be Year 2000 compliant.
We have developed contingency plans to address foreseeable Year 2000
scenarios we have identified with respect to our business. There can be no
assurance, however, that we will be able to successfully carry out our
contingency plans, that our contingency plans will adequately address the worst
case Year 2000 scenarios we have identified or that these contingency plans will
address every Year 2000 problem resulting from the failure of our suppliers to
be Year 2000 compliant. See 'Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Year 2000.'
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<PAGE>
FEDERAL AND STATE FRAUDULENT TRANSFER STATUTES ALLOW COURTS, UNDER SPECIFIC
CIRCUMSTANCES, TO VOID OR SUBORDINATE INDEBTEDNESS SUCH AS THE NOTES IN FAVOR OF
OTHER CREDITORS OF OUR BUSINESS.
Federal and state laws allow courts, under specific circumstances, to
void debts and require creditors to return payments received from debtors.
Under the federal bankruptcy law and comparable provisions of state
fraudulent transfer laws, a court could void the guarantees of the notes by
certain of our subsidiaries, or could subordinate claims in respect of those
guarantees to all of our other debts or the debts of any of those subsidiaries
that guarantee the notes if, among other things, that court found that any of
those subsidiaries, at the time we issued the notes and it gave its guarantee:
(1) intended to hinder, delay or defraud current or future creditors; or
(2) received less than reasonably equivalent value or fair consideration for
incurring such indebtedness and such subsidiary:
(A) was insolvent or was rendered insolvent by its guarantee of the
notes;
(B) was engaged or about to engage in a business or transaction for which
its assets remaining constituted unreasonably small capital to carry
on its business; or
(C) intended to incur, or believed that it would incur, debts beyond its
ability to pay such debts as they matured.
If a court found that these conditions were met, it could, in addition,
void any payment by that subsidiary under the notes or its guarantee and require
the recipients of those payments to return them to that subsidiary or to a fund
for the benefit of creditors of that subsidiary.
While the various state and federal laws that might be applied by the
courts do not use identical tests, in general a subsidiary would be considered
insolvent if:
the sum of its debts, including contingent liabilities, were greater
than the fair saleable value of all of its assets; or
the present fair saleable value of its assets were less than the amount
that it would need to pay its probable liability on existing debts,
including contingent liabilities, as they become absolute and mature.
There can be no assurance as to what standard a court would apply in
making such determinations or that a court would conclude that our subsidiaries
were solvent at the time of the offering.
To the extent these guarantees were voided as a fraudulent conveyance or
held unenforceable for any other reason, holders of notes would cease to have
any claim in respect of the these subsidiaries and would be creditors solely of
GenTek. In such event, the claims of holders of notes against these subsidiaries
would be subject to the prior payment of all liabilities and preferred stock
claims of these subsidiaries. There can be no assurance that, after providing
for all prior claims and preferred stock interests, if any, there would be
sufficient assets to satisfy the claims of holders of notes relating to any
voided portions of the guarantees of the notes by these subsidiaries.
THERE CURRENTLY IS NO PUBLIC TRADING MARKET FOR THE NEW NOTES. NO ASSURANCE CAN
BE GIVEN AS TO THE DEVELOPMENT OF LIQUIDITY OF ANY TRADING MARKET FOR THE NEW
NOTES OR THAT ANY MARKET FOR THE NEW NOTES WILL NOT BE SUBJECT TO DISRUPTIONS.
No assurance can be given as to the development or liquidity of any
trading market for the new notes. Likewise, no assurance can be given regarding
the ability of holders of new notes to sell their new notes or the prices at
which such holders may be able to sell their new notes. The new notes are a new
issue of securities for which there is currently no active trading market. If
the new notes are traded
16
<PAGE>
after their initial issuance, they may trade at a discount from their initial
offering price, depending upon prevailing interest rates, the market for similar
securities, our financial condition and other factors beyond our control,
including general economic conditions. We do not intend to apply for a listing
or quotation of the new notes.
Historically, the market for noninvestment grade debt has been subject
to disruptions that have caused substantial volatility in the prices of such
securities. There can be no assurance that the market for the new notes will not
be subject to similar disruptions. Any such disruptions may have an adverse
effect on holders of the new notes.
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THE EXCHANGE OFFER
The following contains a summary of the material provisions of the
registration rights agreement. It does not contain all of the information that
an investor may wish to consider before participating in the exchange offer.
Reference is made to the provisions of the registration rights agreement, which
has been filed as an exhibit to the registration statement.
OUR OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT
In connection with the issuance of the old notes, the initial purchasers
of the old notes and their respective assignees became entitled to the benefits
of the registration rights agreement.
Under the registration rights agreement, GenTek has agreed:
(1) to use its best efforts to cause to be filed with the Commission, on or
prior to 100 days after the date of the original offering, the registration
statement of which this prospectus is a part with respect to a registered
offer to exchange the old notes for the new notes; and
(2) to use its reasonable best efforts to cause the registration statement to
be declared effective under the Securities Act within 180 days after the
original offering of the old notes.
GenTek will keep the exchange offer open for at least 20 days from the
date notice of the exchange offer is mailed to holders of the old notes. The
exchange offer being made hereby, if consummated within 210 days after the
original offering, will satisfy those requirements under the registration rights
agreement.
GenTek will file with the Commission a shelf registration statement to
cover resales of old notes if:
(1) any holder of old notes who validly tenders the old notes in the exchange
offer does not receive new notes within 210 days after the original
offering;
(2) changes in applicable securities laws or interpretations do not permit any
holder to participate in the exchange offer, other than due to the holder's
inability to make the representations set forth in 'Representations Holders
Will Make When They Tender' below; or
(3) any holder of notes that participates in the exchange offer does not
receive freely transferable new notes.
To participate in the shelf registration, holders must satisfy conditions
relating to the provision of information in connection with the shelf
registration statement.
LIQUIDATED DAMAGES
GenTek will pay liquidated damages in an amount equal to $0.192 per week
per $1,000 principal amount of the old notes if:
(1) GenTek does not consummate the exchange offer within 210 days after the
original offering;
(2) if required, a shelf registration is not declared effective within 180 days
after the initial issuance of the old notes (or, in the case of a shelf
registration required to be filed in response to a change in law or the
applicable interpretations of the Commission staff, 45 days after any
publication of any change in law or intrepretations); or
(3) if required, the shelf registration ceases to be effective at any time that
GenTek is obligated to maintain its effectiveness without being succeeded
within 45 days by an additional effective registration statement.
18
<PAGE>
GenTek's obligations to pay liquidated damages will cease when the
exchange offer is consummated or the shelf registration statement is declared
effective or again becomes effective, as the case may be.
The following holders will not be qualified to receive liquidated
damages:
(1) holders of notes who fail to comply with the obligation to make the
representations listed below in 'Representations Holders Will Make
When They Tender'; and
(2) holde[rs of notes who fail to provide information required to be
included in a shelf registration statement.
RESALES OF NEW NOTES ISSUED IN THE EXCHANGE OFFER
Based on interpretations by the staff of the Commission as set forth in
no-action letters issued to third parties (including Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley & Co. Incorporated
(available June 5, 1991), K-III Communications Corporation (available May 14,
1993) and Shearman & Sterling (available July 2, 1993)), GenTek believes that
the new notes issued pursuant to the exchange offer may be offered for resale,
resold and otherwise transferred by any holder thereof (other than any such
holder that is a broker-dealer or an 'affiliate' of GenTek within the meaning of
Rule 405 under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that:
such new notes are acquired in the ordinary course of business;
at the time of the commencement of the exchange offer such holder has
no arrangement or understanding with any person to participate in a
distribution of such new notes; and
such holder is not engaged in, and does not intend to engage in, a
distribution of such new notes.
GenTek has not sought, and does not intend to seek, a no-action letter from the
Commission with respect to the effects of the exchange offer, and there can be
no assurance that the staff would make a similar determination with respect to
the new notes as it has in such no-action letters.
REPRESENTATIONS HOLDERS WILL MAKE WHEN THEY TENDER
By tendering old notes in exchange for new notes and executing the
letter of transmittal, each holder will represent to GenTek that:
any new notes to be received by it will be acquired in the ordinary
course of business;
it has no arrangements or understandings with any person to participate
in the distribution of the old notes or new notes within the meaning of
the Securities Act; and
it is not an 'affiliate,' as defined in Rule 405 under the Securities
Act, of GenTek.
Each broker-dealer that receives new notes for its own account in
exchange for old notes, where such old notes were acquired by such broker-dealer
as a result of market-making or other trading activities, must acknowledge that
it will deliver a prospectus in connection with any resale of such new notes.
See 'Plan of Distribution.' Each holder, whether or not it is a broker-dealer,
shall also represent that it is not acting on behalf of any person that could
not truthfully make any of the foregoing representations contained in this
paragraph. Any holder of old notes who is unable to make the foregoing
representations and any broker-dealer who acquired the old notes directly from
GenTek may not rely on the applicable interpretations of the staff of the
Commission and must comply with the registration and prospectus delivery
requirements of the Securities Act, including being named as selling security
holders, in order to resell the notes.
19
<PAGE>
PERIOD OF EXCHANGE OFFER
The expiration date is January 12, 2000, unless GenTek, in its sole
discretion, extends the exchange offer.
To extend the expiration date, GenTek will notify the exchange agent of
any extension by oral or written notice and will notify the holders of the old
notes by means of a press release or other public announcement prior to 9:00
A.M., New York City time, on the next business day after the previously
scheduled expiration date. Such announcement may state that GenTek is extending
the exchange offer for a specified period of time.
GenTek may:
(1) delay acceptance of any old notes, extend the exchange offer or terminate
the exchange offer and not permit acceptance of old notes not previously
accepted if any of the conditions set forth herein under ' -- Conditions'
shall have occurred prior to the expiration date, by giving oral or written
notice of such delay, extension or termination to the exchange agent, or
(2) amend the terms of the exchange offer in any manner deemed by it to be
advantageous to the holders of the old notes. GenTek will provide notice of
any delay in acceptance, extension, termination or amendment of the
exchange offer to the exchange agent.
If GenTek materially amends the exchange offer, GenTek will promptly
disclose such amendment in a manner reasonably calculated to inform the holders
of the old notes of such amendment and in compliance with applicable securities
laws.
Without limiting the manner in which GenTek may choose to make public
announcement of any delay, extension, amendment or termination of the exchange
offer, GenTek shall have no obligations to publish, advertise, or otherwise
communicate any such public announcement, other than by making a timely release
to an appropriate news agency.
INTEREST ON THE NEW NOTES
If an old note is surrendered for exchange on or after a record date for
an interest payment date that will occur on or after the date of such exchange
and as to which interest will be paid, interest on the new note received in
exchange therefor will accrue from the date of such interest payment date.
Interest on the new notes is payable on February 1 and August 1 of each year,
commencing February 1, 2000. No additional interest will be paid on old notes
tendered and accepted for exchange.
PROCEDURES FOR TENDERING
To tender in the exchange offer, a holder must complete, sign and date
the applicable letter of transmittal, or a facsimile thereof, have the
signatures thereon guaranteed if required by the letter of transmittal, and mail
or otherwise deliver such letter of transmittal or such facsimile, together with
any other required documents, to the exchange agent prior to 5:00 p.m., New York
City time, on the expiration date. A holder may tender old notes only in
integral multiples of $1,000 in exchange for an equal principal amount of new
notes. In addition, either:
certificates of such old notes must be received by the exchange agent
along with the applicable letter of transmittal; or
a timely confirmation of a book-entry transfer of such old notes, if
such procedure is available, into the exchange agent's account at The
Depository Trust Company under the procedure for book-entry transfer
described below, must be received by the exchange agent prior to the
expiration date with the applicable letter of transmittal; or
the holder must comply with the guaranteed delivery procedures
described below.
20
<PAGE>
The method of delivery of old notes, letter of transmittal and all other
required documents is at the election and risk of the holders. If such delivery
is by mail, it is recommended that registered mail, properly insured, with
return receipt requested, be used. In all cases, sufficient time should be
allowed to assure timely delivery. No old notes, letters of transmittal or other
required documents should be sent to GenTek. Delivery of all old notes, if
applicable, letters of transmittal and other documents must be made to the
exchange agent at its address set forth below. Holders may also request their
respective brokers, dealers, commercial banks, trust companies or nominees to
effect such tender for such holders.
The tender by a holder of old notes will constitute an agreement between
such holder and GenTek in accordance with the terms and subject to the
conditions set forth herein and in the letter of transmittal. Any beneficial
owner whose old notes are registered in the name of a broker, dealer, commercial
bank, trust company or other nominee and who wishes to tender should contact
such registered holder promptly and instruct such registered holder to tender on
his behalf.
Signatures on a letter of transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by any member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
a commercial bank or trust company having an office or correspondent in the
United States or an 'eligible guarantor' institution within the meaning of
Rule 17Ad-15 under the Exchange Act unless the old notes tendered are tendered:
(1) by a registered holder of old notes who has not completed the box entitled
'Special Issuance Instructions' or 'Special Delivery Instructions' on the
applicable letter of transmittal; or
(2) for the account of an eligible guarantor institution.
If the letter of transmittal is signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such person should so indicate
when signing, and unless waived by GenTek, evidence satisfactory to GenTek of
their authority to so act must be submitted with the letter of transmittal.
All questions as to the validity, form, eligibility, time of receipt and
withdrawal of the tendered old notes will be determined by GenTek in its sole
discretion, which determination will be final and binding. GenTek reserves the
absolute right to reject any and all old notes not properly tendered or any old
notes which, if accepted, would, in the opinion of counsel for GenTek, be
unlawful. GenTek also reserves the absolute right to waive any irregularities or
conditions of tender as to particular old notes. GenTek's interpretation of the
terms and conditions of the exchange offer, including the instructions in the
letters of transmittal, will be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of old notes must be
cured within such time as GenTek shall determine. Neither GenTek, the exchange
agent nor any other person shall be under any duty to give notification of
defects or irregularities with respect to tenders of old notes, nor shall any of
them incur any liability for failure to give such notification. Tenders of old
notes will not be deemed to have been made until such irregularities have been
cured or waived. Any old notes received by the exchange agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned without cost to such holder by the exchange
agent, unless otherwise provided in the letter of transmittal, as soon as
practicable following the expiration date.
In addition, GenTek reserves the right in its sole discretion, subject
to the provisions of the indenture:
to purchase or make offers for any old notes that remain outstanding
subsequent to the expiration date or, as set forth under
' -- Conditions;'
to terminate the exchange offer;
to redeem old notes as a whole or in part at any time and from time to
time, as set forth under 'Description of the Notes -- Optional
Redemption;' and
21
<PAGE>
to the extent permitted under applicable law, to purchase old notes in
the open market, in privately negotiated transactions or otherwise.
The terms of any such purchases or offers could differ from the terms of the
exchange offer.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
Upon satisfaction or waiver of all of the conditions to the exchange
offer, all old notes validly tendered and not withdrawn prior to 5:00 pm, New
York City time, on the expiration date will be accepted promptly after the
expiration date, and the new notes will be issued promptly after acceptance of
the old notes. See ' -- Conditions.' For purposes of the exchange offer, old
notes shall be deemed to have been accepted as validly tendered for exchange
when, as and if GenTek has given oral or written notice thereof to the exchange
agent. For each old note accepted for exchange, the holder of such old note will
receive a new note having a principal amount equal to that of the surrendered
old note. In all cases, issuance of new notes for old notes that are accepted
for exchange in the exchange offer will be made only after timely receipt by the
exchange agent of the required documents.
If any tendered old notes are not accepted for any reason, such
unaccepted or such nonexchanged old notes will be returned without expense to
the tendering holder (if in certificated form) or credited to an account
maintained with The Depositary Trust Company as promptly as practicable after
nonacceptance or withdrawal of tender or the expiration or termination of the
exchange offer, as the case may be.
BOOK-ENTRY TRANSFER
The exchange agent will make a request to establish an account with
respect to the old notes at The Depositary Trust Company for purposes of the
exchange offer within two business days after the date of this prospectus. The
exchange agent and The Depositary Trust Company have confirmed that any
financial institution that is a participant in The Depositary Trust Company may
utilize The Depositary Trust Company Automated Tender Offer Program procedures
to tender old notes.
Any participant in The Depositary Trust Company may make book-entry
delivery of old notes by causing The Depositary Trust Company to transfer such
old notes into the exchange agent's account in accordance with The Depositary
Trust Company's Automated Tender Offer Program procedures for transfer. However,
the exchange for the old notes so tendered will only be made after a book-entry
confirmation of such book-entry transfer of old notes into the exchange agent's
account, and timely receipt by the exchange agent of an agent's message and any
other documents required by the letter of transmittal. The term 'agent's
message' means a message, transmitted by The Depositary Trust Company and
received by the exchange agent and forming part of a book-entry confirmation,
which states that The Depositary Trust Company has received an express
acknowledgment from a participant tendering old notes that are the subject of
such book-entry confirmation that such participant has received and agrees to be
bound by the terms of the letter of transmittal, and that GenTek may enforce
such agreement against such participant.
GUARANTEED DELIVERY PROCEDURES
If the procedures for book-entry transfer cannot be completed on a
timely basis, a tender may be effected if:
the tender is made through an eligible institution;
prior to the expiration date, the exchange agent receives by facsimile
transmission, mail or hand delivery from such eligible institution a
properly completed and duly executed letter of transmittal and notice
of guaranteed delivery, substantially in the form provided by GenTek,
which:
22
<PAGE>
(1) sets forth the name and address of the holder of old notes and
the amount of old notes tendered;
(2) states that the tender is being made thereby; and
(3) guarantees that within three New York Stock Exchange trading days
after the date of execution of the notice of guaranteed delivery,
the certificates for all physically tendered old notes, in proper
form for transfer, or a book-entry confirmation, as the case may
be, and any other documents required by the letter of transmittal
will be deposited by the eligible institution with the exchange
agent; and
the certificates for all physically tendered old notes, in proper form
for transfer, or a book-entry confirmation, as the case may be, and all
other documents required by the letter of transmittal are received by
the exchange agent within three New York Stock Exchange trading days
after the date of execution of the notice of guaranteed delivery.
WITHDRAWAL OF TENDERS
Tenders of old notes may be withdrawn at any time prior to 5:00 p.m.,
New York City time, on the expiration date.
For a withdrawal to be effective, a written notice of withdrawal must be
received by the exchange agent prior to 5:00 p.m., New York City time on the
expiration date at one of the addresses set forth below under ' -- Exchange
Agent.' Any such notice of withdrawal must:
specify the name of the person having tendered the old notes to be
withdrawn;
identify the old notes to be withdrawn, including the principal amount
of such old notes;
in the case of old notes tendered by book-entry transfer, specify the
number of the account at The Depositary Trust Company from which the
old notes were tendered and specify the name and number of the account
at The Depositary Trust Company to be credited with the withdrawn old
notes and otherwise comply with the procedures of such facility;
contain a statement that such holder is withdrawing its election to
have such old notes exchanged;
be signed by the holder in the same manner as the original signature on
the letter of transmittal by which such old notes were tendered,
including any required signature guarantees, or be accompanied by
documents of transfer to have the trustee with respect to the old notes
register the transfer of such old notes in the name of the person
withdrawing the tender; and
specify the name in which such old notes are registered, if different
from the person who tendered such old notes.
All questions as to the validity, form, eligibility and time of receipt of such
notice will be determined by GenTek, whose determination shall be final and
binding on all parties. Any old notes so withdrawn will be deemed not to have
been validly tendered for exchange for purposes of the exchange offer. Properly
withdrawn old notes may be retendered by following one of the procedures
described under ' -- Procedures for Tendering' and ' -- Book-Entry Transfer'
above at any time on or prior to 5:00 p.m., New York City time, on the
expiration date.
CONDITIONS
The exchange offer is not conditioned upon any minimum principal amount
of old notes being tendered for exchange. Notwithstanding any other provision of
the exchange offer, GenTek shall not be required to accept for exchange, or to
issue new notes in exchange for, any old notes and may terminate
23
<PAGE>
or amend the exchange offer if at any time prior to 5:00 p.m., New York City
time, on the expiration date, GenTek determines that the exchange offer violates
applicable law, any applicable interpretation of the staff of the Commission or
any order of any governmental agency or court of competent jurisdiction.
In addition, GenTek will not accept for exchange any old notes tendered,
and no new notes will be issued in exchange for any such old notes, if at such
time any stop order shall be threatened or in effect with respect to the
registration statement of which this prospectus constitutes a part or the
qualification of the indenture under the Trust Indenture Act of 1939. GenTek is
required to use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the registration statement at the earliest
possible moment.
EXCHANGE AGENT
U.S. Bank Trust National Association has been appointed as exchange
agent for the exchange offer. Questions and requests for assistance and requests
for additional copies of this prospectus or of the letters of transmittal should
be directed to the exchange agent addressed as follows:
<TABLE>
<S> <C>
BY MAIL, HAND DELIVERY OR FOR INFORMATION CALL:
OVERNIGHT COURIER: (800) 934-6802
U.S. Bank Trust National Association
180 East 5th Street
St. Paul, Minnesota 55101 FACSIMILE TRANSMISSION NUMBER
ATTENTION: Specialized Finance (612) 244-1537
</TABLE>
FEES AND EXPENSES
The expenses of soliciting tenders in the exchange offer will be borne
by GenTek. The principal solicitation for tenders in the exchange offer is being
made by mail; however, additional solicitations may be made by telegraph,
telephone, telecopy or in person by officers and regular employees of GenTek.
GenTek will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. GenTek, however, will pay the
exchange agent reasonable and customary fees for its services and will reimburse
the exchange agent for its reasonable out-of-pocket expenses in connection with
the exchange offer. GenTek may also pay brokerage houses and other custodians,
nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them
in forwarding copies of the prospectus and related documents to the beneficial
owners of the old notes, and in handling or forwarding tenders for exchange.
The expenses to be incurred by GenTek in connection with the exchange
offer will be paid by GenTek, including fees and expenses of the exchange agent
and trustee and accounting, legal, printing and related fees and expenses.
GenTek will pay all transfer taxes, if any, applicable to the exchange
of old notes in the exchange offer. If, however, new notes or old notes for
principal amounts not tendered or accepted for exchange are to be registered or
issued in the name of any person other than the registered holder of the old
notes tendered, or if tendered old notes are registered in the name of any
person other than the person signing the letter of transmittal, or if a transfer
tax is imposed for any reason other than the exchange of old notes in the
exchange offer, then the amount of any such transfer taxes imposed on the
registered holder or any other persons will be payable by the tendering holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the letter of transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
24
<PAGE>
CONSEQUENCES OF FAILURE TO EXCHANGE
Holders of old notes who do not exchange their old notes for new notes
in the exchange offer will continue to be subject to the restrictions on
transfer of such old notes as set forth in the legend on the old notes as a
consequence of the issuance of the old notes pursuant to exemptions from, or in
transactions not subject to, the registration requirements of the Securities Act
and applicable state securities laws. In general, the old notes may not be
offered or sold, unless registered under the Securities Act, except in an
exemption from, or in a transaction not subject to, the Securities Act and
applicable state securities laws. GenTek does not currently anticipate that it
will register the old notes under the Securities Act. To the extent that old
notes are tendered and accepted in the exchange offer, the trading market for
untendered and tendered but unaccepted old notes will be adversely affected.
25
<PAGE>
USE OF PROCEEDS
THERE WILL BE NO PROCEEDS TO US FROM THE ISSUANCE OF NEW NOTES IN THE EXCHANGE
OFFER.
The net proceeds from the original offering were approximately $193
million. We used these proceeds to repay a portion of our outstanding
indebtedness under our credit facility. We paid the cash portion of the purchase
price for our acquisition of Krone by reborrowing under the revolving portion
of our credit facility. As of September 30, 1999, we had $465 million in
borrowings outstanding under our credit facility and the ability to borrow an
additional $85 million under our credit facility (excluding approximately $13
million for letters of credit issued under the credit facility). At
September 30, 1999, our total outstanding indebtedness was $755.4 million
(including $200 million under the notes).
CAPITALIZATION
The following table sets forth our capitalization as of September 30,
1999. This table should be read in conjunction with the Consolidated Financial
Statements and the notes thereto included in this prospectus.
<TABLE>
<CAPTION>
ACTUAL AT
SEPTEMBER 30, 1999
------------------
(IN THOUSANDS)
<S> <C>
Cash and cash equivalents................................... $ 34,459
--------
--------
Long-term debt, including current portion:
Bank Borrowings:
Revolving credit facility......................... 215,000(1)
Term loans........................................ 249,625
Notes.................................................. 200,000
Other debt............................................. 90,815
--------
Total debt................................... 755,440
Stockholders' equity........................................ 12,485
--------
Total capitalization......................... $767,925
--------
--------
</TABLE>
- ------------
(1) The Credit Facility provides for borrowings of up to $300 million under a
revolving credit facility (excluding approximately $13 million for letters
of credit issued under the Credit Facility). See 'Description of Credit
Facility.'
26
<PAGE>
UNAUDITED PRO FORMA FINANCIAL STATEMENTS
The following unaudited statements of operations have been derived from
our historical financial statements included in this prospectus. These
statements should be read in conjunction with 'Management's Discussion and
Analysis of Financial Condition and Results of Operations' and the Consolidated
Financial Statements included in this prospectus.
The pro forma statements of operations for the year ended December 31,
1998 and the nine months ended September 30, 1999 have been prepared on the
basis that the transactions we have completed this year (the acquisitions of
Defiance, Noma and Krone, the spinoff and the related financing transactions,
and the issuance of the notes) had occurred as of the first day of the period
presented. See also 'Summary -- Recent Transactions' and 'Use of Proceeds.'
The pro forma adjustments, as described in the notes to the statements
of operations, are based on currently available information and certain
adjustments that management believes are reasonable. This pro forma financial
information is presented for informational purposes only and does not
necessarily represent what our financial position or results of operations would
have been if these transactions had in fact occurred on such date, or as of the
beginning of such periods, and is not necessarily indicative of our financial
position or results of operations for any future date or period.
27
<PAGE>
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1998
----------------------------------------------------------
GENTEK ACQUIRED PRO FORMA
HISTORICAL COMPANIES(A) ADJUSTMENTS(B) PRO FORMA
---------- ------------ -------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Net revenues.............................................. $443,919 $691,716 $ -- $1,135,635
Cost of sales............................................. 326,626 494,491 9,287 (c) 830,404
Selling, general and administrative expense............... 65,572 135,496 2,000 (d) 203,068
Provision for restructuring............................... -- 12,144 -- 12,144
-------- -------- --------- ----------
Operating profit.......................................... 51,721 49,585 (11,287) 90,019
Interest expense.......................................... 14,624 8,274 42,246 (e) 65,144
Interest income........................................... 1,165 -- -- 1,165
Other (income) expense, net............................... 949 (53) -- 896
-------- -------- --------- ----------
Income from continuing operations before income taxes and
extraordinary item...................................... 37,313 41,364 (53,533) 25,144
Income tax provision...................................... (3,756) 18,756 (16,499) (1,499)
Minority interest in income............................... -- 90 -- 90
-------- -------- --------- ----------
Income from continuing operations before extraordinary
item.................................................... $ 41,069 $ 22,518 $ (37,034) $ 26,553
-------- -------- --------- ----------
-------- -------- --------- ----------
</TABLE>
- ------------
(a) Includes the results of Noma, Defiance and Krone for 1998. Noma's statement
of operations data have been converted from C$ into US$ at the rate of
C$1.50 = US$1.00 representing the 1998 average monthly C$/US$ exchange
rate. Krone's statement of operations data have been converted from DM to
US$ at the rate of DM1.7591 = US$1.00 representing the 1998 average DM/US$
exchange rate for 1998.
(b) Adjustments for the acquisitions of Defiance, Noma and Krone, the spinoff
and related financing transactions, and the issuance of the notes.
(c) To record incremental goodwill amortization.
(d) To record estimated incremental general and administrative expenses
expected to be incurred as a result of GenTek operating as a stand-alone
entity.
(e) To record an increase in interest expense from the amounts included in the
historical financial statements to reflect the incurrence of additional
debt to finance the acquisitions and to reflect the amortization of
deferred financing costs associated with new borrowings.
28
<PAGE>
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30, 1999
----------------------------------------------------------
GENTEK ACQUIRED PRO FORMA
HISTORICAL COMPANIES(a) ADJUSTMENTS(b) PRO FORMA
---------- ------------ -------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Net revenues.............................................. $609,324 $287,593 $-- $896,917
Cost of sales............................................. 453,938 188,122 3,781 (c) 645,841
Selling, general and administrative expense............... 80,003 76,125 650 (d) 156,778
-------- -------- -------- --------
Operating profit.......................................... 75,383 23,346 (4,431) 94,298
Interest expense.......................................... 25,378 5,548 17,932 (e) 48,858
Interest income........................................... 739 148 -- 887
Other (income) expense, net............................... (913) (37) -- (950)
-------- -------- -------- --------
Income from continuing operations before income taxes and
extraordinary item...................................... 51,657 17,983 (22,363) 47,277
Income tax provision...................................... 23,890 3,229 (6,599) 20,520
Minority interest in income............................... -- 366 -- 366
-------- -------- -------- --------
Income from continuing operations before extraordinary
item.................................................... $ 27,767 $ 14,388 $(15,764) $ 26,391
-------- -------- -------- --------
-------- -------- -------- --------
</TABLE>
- ------------
(a) Includes the results of Noma, Defiance and Krone for the periods prior to
their acquisition. Noma's statement of operations data have been converted
from C$ into US$ at the rate of C$1.51 = US$1.00 representing the average
monthly C$/US$ exchange rate for the three month period ended March 31,
1999. Krone's statement of operations data have been converted from DM to
US$ at the rate of DM1.8154 = US$1.00, representing the average daily
DM/US$ exchange rate for the eight month period ended August 31, 1999.
(b) Adjustments for the acquisitions of Defiance, Noma and Krone, the spinoff
and related financing transactions, and the issuance of the notes.
(c) To record incremental goodwill amortization.
(d) To record estimated incremental general and administrative expenses
expected to be incurred as a result of GenTek operating as a stand-alone
entity.
(e) To record an increase in interest expense from the amounts included in the
historical financial statements to reflect the incurrence of additional
debt to finance the acquisitions and to reflect the amortization of
deferred financing costs associated with new borrowings.
29
<PAGE>
SELECTED FINANCIAL DATA
The following selected financial data have been derived from and should
be read in conjunction with our Consolidated Financial Statements and notes for
our company included in this prospectus and 'Management's Discussion and
Analysis of Financial Condition and Results of Operations'.
The statement of operations data set forth below for the nine months
ended September 30, 1998 and 1999 and the balance sheet data as of
September 30, 1999 are derived from the unaudited Consolidated Financial
Statements and notes included in this prospectus and, in the opinion of our
management, include all adjustments (consisting of only normal recurring
adjustments) considered necessary for a fair presentation. The statement of
operations data set forth below for each of the years in the three-year period
ended December 31, 1998 and the balance sheet data at December 31, 1997 and 1998
are derived from the audited Consolidated Financial Statements and notes
included in this prospectus. The statement of operations data for the years
ended December 31, 1994 and 1995 and the balance sheet data at December 31,
1994, 1995 and 1996 are derived from financial statements of the Company not
included in this prospectus. The Consolidated Financial Statements as of
December 31, 1997 and 1998 and for the three years ended December 31, 1998 have
been audited by Deloitte & Touche LLP, independent auditors.
Because we did not operate as a separate, stand-alone entity through
April 30, 1999 (the date of the spinoff), we might have recorded different
results had we operated independently of the industrial chemicals business.
Therefore, the financial information presented below is not necessarily
indicative of the results of operations or financial position that would have
resulted if we had been a separate, stand-alone entity during the periods shown,
or of our future performance as a separate, stand-alone entity. For a
description of the basis of presentation of the historical financial data, see
note 1 to such Consolidated Financial Statements.
The spinoff has been treated as a reverse spinoff for financial
statement purposes because we hold the greater proportion of the assets and
operations that were held by General Chemical Group prior to the spinoff.
Therefore, the spinoff is reflected, for financial statement presentation, as if
we had formed a new company consisting of the industrial chemicals business and
distributed the stock of that company as a dividend to our stockholders, with
our assets, operations and businesses remaining with us after the spinoff.
Accordingly, our financial statements reflect the financial position and results
of operations of our businesses as continuing operations and the financial
position and results of operations of the industrial chemicals business as
discontinued operations.
30
<PAGE>
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
YEARS ENDED DECEMBER 31, (UNAUDITED)
---------------------------------------------------- ---------------------
1994 1995 1996 1997 1998 1998 1999
-------- -------- -------- -------- -------- -------- ----------
(DOLLARS IN THOUSANDS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net revenues...................... $275,767 $290,185 $330,120 $368,516 $443,919 $331,453 $ 609,324
Gross profit...................... 89,116 84,822 100,883 116,604 117,293(1) 96,518 155,386
Operating profit.................. 34,997(2) 43,564 48,723(3) 67,526 51,721(4) 56,171 75,383(5)
Interest expense.................. 20,813 12,927 10,747 8,855 14,624 10,626 25,378
Income from continuing operations
before income taxes and
extraordinary item.............. 13,165 32,835 39,200 59,535 37,313 45,814 51,657
Income (loss) from continuing
operations before extraordinary
items........................... 7,155 (551)(6) 20,775 33,274 41,069(7) 26,973 27,767
Income from discontinued
operations...................... 21,150 21,644 25,833 23,041 10,299 9,339 1,006
Income before extraordinary
item............................ 28,305 21,093 46,608 56,315 51,368 36,312 28,773
Net income (8).................... $ 20,102 $ 21,093 $ 46,608 $ 56,315 $ 47,707 $ 32,651 $ 23,834
OTHER DATA:
Capital expenditures.............. $ 21,538 $ 24,842 $ 19,231 $ 26,203 $ 33,737 $ 22,185 $ 22,258
Depreciation and amortization..... 13,011 13,125 14,099 16,296 23,065 17,539 31,156
Ratio of earnings to fixed
charges (9)..................... 1.6x 3.3x 4.2x 6.7x 3.3x 4.8x 2.9x
</TABLE>
<TABLE>
<CAPTION>
AS OF
AS OF DECEMBER 31, SEPTEMBER 30,
---------------------------------------------------- -------------
1994 1995 1996 1997 1998 1999
-------- -------- -------- -------- -------- -------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (AT END OF
PERIOD):
Cash and cash equivalents............ $ 28,143 $ 18,097 $ 50,091 $ 20,401 $ 61,310 $ 34,459
Total assets......................... 252,037 259,773 274,298 389,818 536,818 1,195,484
Long-term debt (including current
portion)........................... 304,750 291,495 234,609 258,004 357,531 755,440
Total equity (deficit)............... (216,831) (215,336) (119,753) (94,239) (54,696) 12,485
</TABLE>
- ------------
(1) Includes a one-time charge of $12.1 million ($7.3 million after tax)
primarily due to an asset impairment writedown for two of our manufacturing
facilities.
(2) Includes a one-time charge of $9.0 million ($5.4 million after tax) due to
litigation related to an incident at one of our manufacturing facilities.
(3) Includes a one-time charge of $6.8 million ($4.1 million after tax)
primarily related to awards made under a restricted unit plan, which
replaced certain prior equity programs.
(4) Includes incremental accruals of $9.8 million ($5.9 million after tax)
principally related to litigation and environmental spending.
(5) Includes a one-time charge of $6.2 million primarily related to the spinoff.
(6) Includes a nonrecurring charge to income tax expense of $17.1 million.
(7) Includes a nonrecurring gain of $19.5 million related to an income tax
settlement.
(8) For 1994, 1998, the nine months ended September 30, 1998 and the nine months
ended September 30, 1999, includes extraordinary losses of $8.2 million,
$3.7 million, $3.7 million and $4.9 million, respectively, related to the
early retirement of certain indebtedness.
(9) For purposes of computing ratio of earnings to fixed charges, earnings
consist of income from continuing operations before income taxes and
extraordinary items plus fixed charges. Fixed charges consist of interest
expense, including the amortization of deferred financing costs and that
portion of rental expense management believes to be representative of
interest.
31
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
We are a manufacturer of telecommunications equipment, industrial
components and performance chemicals sold into numerous markets for a wide
variety of end uses. We operate through three primary business segments,
manufacturing, performance products and telecommunications equipment. Our
manufacturing segment serves the automotive, appliance and electronic, and
industrial markets. Our performance products segment serves customers in many
industries including the pharmaceutical and personal care, environmental
services, technology and chemical processing markets. Our telecommunications
equipment segment serves public network and premises (or non-public) network
markets.
The percentage of our revenues generated by our three segments has
changed significantly this year. Our manufacturing segment has expanded
significantly this year, primarily due to the acquisitions of Noma in April 1999
and Defiance in February 1999. In addition, our telecommunications equipment
segment consists of Krone, which we acquired on August 20, 1999. Set forth below
are revenues for our three business segments on a consolidated basis:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------------
1996 1997 1998 1998 1999
---- ---- ---- ---- ----
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
REVENUES:
Performance Products.................................. $240.9 $260.3 $315.8 $238.3 $254.6
Manufacturing......................................... 89.2 108.2 128.1 93.2 315.1
Telecommunications Equipment.......................... -- -- -- -- 39.6
------ ------ ------ ------ ------
Total............................................ $330.1 $368.5 $443.9 $331.5 $609.3
------ ------ ------ ------ ------
------ ------ ------ ------ ------
</TABLE>
RECENT ACQUISITIONS
We have grown through acquisitions, and we will continue to pursue
acquisition and investment opportunities that will create value and enhance cash
flow and earnings. Generally, the businesses we have acquired have had lower
margins than our existing operations. One of our goals for the acquired
businesses is to increase earnings by implementing cost reduction programs and
achieving operating efficiencies. However, until we can achieve these
improvements, our segment operating margins may be negatively impacted.
Since 1997, we have made the following strategic acquisitions:
In September 1999, we acquired the business of Pacific Pac
International, Inc., a provider of ultrahigh purity solvents to the
electronics industry.
In August 1999, we acquired Krone, a leading global supplier of
connector technology for telecommunications and data networks, from
Jenoptik AG for total consideration of approximately $222 million
(including $63 million of assumed debt). Krone had pro forma sales of
DM 580.6 million (approximately $330.0 million) in the year ended
December 31, 1998.
In July 1999, we acquired the Structural Kinematics business of EG&G,
Inc., a leading provider of testing and engineering services to the
automotive, truck and agricultural equipment industries.
In April 1999, we acquired Noma for total consideration of
approximately $240 million. Noma is a leading North American producer
of insulated wire and wire-related products for the
32
<PAGE>
automotive, appliance and electronic and industrial markets. Noma had
sales of approximately $269 million for the year ended December 31,
1998.
In February 1999, we acquired Defiance for total consideration of
approximately $70 million. Defiance is a leading North American
manufacturer of specialty antifriction bearings for the transportation
industry and a provider of vehicle testing services, tooling design and
preproduction dies and components primarily for the automotive
industry. Defiance had sales of approximately $93 million for the
twelve months ended December 31,1998.
In April 1998, we acquired Reheis Inc., a worldwide leader in the
manufacture of the active chemical ingredients in antiperspirants and
over-the-counter antacids.
In February 1998, we acquired Sandco Automotive Ltd., a Canadian
manufacturer of stamped automobile engine components, principally
rocker arms and roller followers.
In July 1997, we acquired Peridot Holdings Inc., a leading manufacturer
and supplier of sulfuric acid and water treatment chemicals for the
pharmaceutical, water treatment, pulp and paper, electronics and
industrial markets.
We have financed our acquisitions to date through existing cash, bank
borrowings and the issuance of the notes.
33
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth our statement of operations data for the
three years ended December 31, 1998 and for the nine months ended September 30,
1998 and 1999, and the percentage of our net revenues for the relevant period
presented.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------------ ------------------------------
1996 1997 1998 1998 1999
------------ ------------ ------------ ------------ ---------------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Net revenues...................... $330.1 100% $368.5 100% $443.9 100% $331.4 100% $609.3 100%
Cost of sales..................... 229.2 69 251.9 68 326.6(1) 74 234.9 71 453.9 75
------ --- ------ --- ------ --- ------ --- ------ ---
Gross profit...................... 100.9 31 116.6 32 117.3 26 96.5 29 155.4 25
Selling, general and
administrative expense.......... 52.2(2) 16 49.1 13 65.6(3) 14 40.3 12 80.0(4) 13
------ --- ------ --- ------ --- ------ --- ------ ---
Operating profit.................. 48.7 15 67.5 19 51.7 12 56.2 17 75.4 12
Interest expense.................. 10.7 3 8.9 2 14.6 3 10.6 3 25.4 4
Interest income................... 1.4 -- 1.5 -- 1.2 -- 0.7 -- 0.7 --
Other (income) expense, net....... 0.2 -- 0.7 -- 0.9 -- 0.5 -- (1.0) --
------ --- ------ --- ------ --- ------ --- ------ ---
Income from continuing operations
before income taxes and
extraordinary item.............. 39.2 12 59.5 16 37.3 9 45.8 14 51.7 8
Income tax provision.............. 18.4 6 26.2 7 (3.7)(5) -- 18.8 6 23.9 4
------ --- ------ --- ------ --- ------ --- ------ ---
Income from continuing operations
before extraordinary item....... 20.8 6 33.3 9 41.1 9 27.0 8 27.8 5
Income from discontinued
operations...................... 25.8 8 23.0 6 10.3 2 9.3 3 1.0 --
------ --- ------ --- ------ --- ------ --- ------ ---
Income before extraordinary
operations...................... 46.6 14 56.3 15 51.4 11 36.3 11 28.8 5
Extraordinary item-loss from
extinguishment of debt (net of
tax)............................ -- -- -- -- 3.7 -- 3.7 1 4.9 1
------ --- ------ --- ------ --- ------ --- ------ ---
Net income........................ $ 46.6 14% $ 56.3 15% $ 47.7 11% $ 32.6 10% 23.8 4%
------ --- ------ --- ------ --- ------ --- ------ ---
------ --- ------ --- ------ --- ------ --- ------ ---
</TABLE>
- ------------
Note: Amounts may not total due to rounding.
(1) Includes a one-time charge of $12.1 million ($7.3 million after tax)
primarily due to an asset impairment writedown for two of our manufacturing
facilities.
(2) Includes a one-time charge of $6.8 million ($4.1 million after-tax) due
primarily to awards made under a restricted unit plan, which replaced
certain prior equity programs.
(3) Includes incremental accruals of $9.8 million ($5.9 million after tax)
principally related to litigation and environmental spending.
(4) Includes a one-time charge of $6.2 million, primarily related to the
spinoff.
(5) Includes a nonrecurring gain of $19.5 million related to an income tax
settlement.
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED WITH NINE MONTHS ENDED
SEPTEMBER 30, 1998
Net revenues for the three and nine month periods ended September 30,
1999 increased 134% and 84% to $263.8 million and $609.3 million, respectively,
from $112.6 million and $331.5 million, for the comparable periods in 1998.
These increases were primarily due to the acquisitions made in 1999.
Gross profit for the three and nine month periods ended September 30,
1999 increased $36.2 million and $58.9 million, respectively, over the
comparable periods in 1998. These increases were principally related to the
acquisitions made in 1999 in the manufacturing segment. Gross profit as a
percentage of net revenues for the first nine months of 1999 was 26% compared to
29% for the prior year. This decrease is principally due to lower margins in the
acquired businesses and pricing pressures in certain of our performance products
markets.
34
<PAGE>
Selling, general and administrative expense increased $20.2 million and
$39.7 million for the three and nine month periods ended September 30, 1999 as
compared to the 1998 year levels, principally due to the acquisitions made in
1999 and a $6.2 million one-time charge recorded in the second quarter of 1999
primarily related to the spinoff. Selling, general and administrative expense as
a percentage of net revenues for the first nine months of 1999 was 13% as
compared to 12% for the comparable period in 1998, principally due to the
abovementioned one-time charge of $6.2 million.
Interest expense was $13.1 million and $25.4 million for the three and
nine month periods ended September 30, 1999 as compared with $4.1 million and
$10.6 million for the comparable periods of 1998 principally due to higher
outstanding debt balances following the 1998 and 1999 acquisitions.
1998 COMPARED WITH 1997
Net revenues were $443.9 million for 1998 compared with $368.5 million
for 1997. This increase was due to higher sales in both the manufacturing and
the performance products segments. The increase in sales of the manufacturing
segment reflects higher unit volumes. The increase in sales of the performance
products segment was due to the acquisitions of Reheis and Peridot.
Gross profit of $117.3 million was $0.7 million above the prior year's
level. This increase was principally due to increases in sales resulting from
acquired businesses in the performance products segment and higher volumes in
the manufacturing segment, partially offset by a one-time charge of $12.1
million recorded in 1998, principally related to an asset impairment writedown
for two of our manufacturing facilities. Excluding the effect of one-time
charges, gross profit as a percentage of sales was 29% for 1998 versus 32% for
1997, primarily due to the lower margins of the acquired businesses.
Selling, general and administrative expense as a percentage of net
revenues was 14% in 1998 versus 13% for 1997. This increase was principally due
to incremental accruals of $9.8 million in 1998 principally related to
litigation and environmental spending.
Interest expense increased by $5.7 million in 1998 from 1997 due to
higher outstanding debt balances as a result of acquisitions.
Income from the industrial chemicals business, recorded as discontinued
operations, was $10.3 million for 1998 versus $23.0 million for 1997. This
decrease was due to weaker pricing and lower export soda ash volumes to Asia.
Net income was $47.7 million for 1998 versus $56.3 million for 1997.
This decrease was due to the foregoing reasons and a $3.7 million extraordinary
item related to the early extinguishment of debt, substantially offset by a
nonrecurring gain of $19.5 million related to an income tax settlement.
1997 COMPARED WITH 1996
Net revenues were $368.5 million for 1997 compared with $330.1 million
for 1996, representing an increase of 12%. Approximately half of this increase
was due to higher sales of the performance products segment as the result of the
acquisition of Peridot on July 1, 1997. The other half of the increase was due
to higher Manufacturing segment sales as a result of increased volumes and
product mix improvements toward higher-value-added automotive engine components.
Gross profit of $116.6 million for 1997 was $15.7 million, or 16%,
higher than the prior year level, principally due to the above-mentioned higher
sales levels. Gross profit as a percentage of sales was 32%, essentially at the
prior year level.
Selling, general and administrative expense as a percentage of net
revenues decreased from 16% in 1996 to 13% in 1997. This decrease was
principally due to the recording of a one-time charge in 1996 of $6.8 million
related primarily to a new General Chemical Group restricted unit plan which
replaced certain prior equity programs.
35
<PAGE>
The $1.8 million decrease in interest expense for 1997 compared with
1996 was primarily due to lower outstanding debt balances during the first six
months of 1997.
Income from the industrial chemicals business, recorded as discontinued
operations, was $23.0 million for 1997 versus $25.8 million for 1996. This
decrease was principally due to lower pricing for soda ash and calcium chloride.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents were $34.5 million at September 30, 1999
compared with $61.3 million at year-end 1998. During the first nine months of
1999, we generated cash flow from continuing operations of $47.0 million, had
net proceeds from debt of $846.8 million and cash flow from discontinued
operations of $122.7 million. Our cash flow was used to fund acquisitions of
$445.0 million to repay debt of $573.4 million and make capital expenditures of
$22.3 million.
We had working capital of $122.2 million at September 30, 1999 as
compared with $17.3 million at December 31, 1998. This increase in working
capital principally reflects the working capital of the newly acquired companies
partially offset by lower cash balances.
The increases in property, plant and equipment, goodwill and long-term
debt reflect the assets and debt related to the various acquisitions completed
during 1999.
In connection with the spinoff, we entered into a $550 million credit
facility with a syndicate of banks and other financial institutions, consisting
of a $300 million revolving credit facility and $250 million aggregate term loan
facilities. Our initial borrowing incurred at the time of the spinoff was $500
million (consisting of $250 million of term loans and $250 million of loans
under our revolving credit facility), of which we used approximately $487
million to repay a portion of General Chemical Group's third party indebtedness,
including borrowings to finance the acquisitions of Noma and Defiance. The
agreement for our credit facility contains restrictive covenants which impose
operating and financial restrictions on us, including the requirement that we
maintain maximum leverage and minimum interest coverage ratios. See 'Description
of Credit Facility.'
On August 9, 1999, we completed the original offering and received
proceeds of $193.0 million from the offering. We used these proceeds to repay a
portion of our outstanding indebtedness under our credit facility. We paid the
cash portion of the purchase price for our acquisition of Krone by reborrowing
under the revolving portion of our credit facility.
As of September 30, 1999, we had $465 million in borrowings
outstanding under our credit facility and the ability to borrow an additional
$85 million under our credit facility (excluding approximately $13 million for
letters of credit issued under the credit facility). At September 30, 1999, our
total outstanding indebtedness was $755.4 million (including $200 million under
the notes).
We paid the cash consideration for Krone, Noma, Defiance, Structural
Kinematics and Pacific Pac through cash on hand and borrowings under our and
General Chemical Group's credit facilities.
Management believes that our cash flows will be sufficient to cover our
future interest expense, capital expenditures and working capital requirements.
We will use proceeds of borrowings under the revolving portion of our credit
facility to finance future acquisitions and investments. In the event we
identify additional acquisition candidates, however, our current sources of
liquidity may not be adequate. Accordingly, we may issue equity securities or
incur additional debt, subject to market conditions. We may also use our stock
as acquisition currency.
YEAR 2000 ISSUE
A Year 2000 problem can occur where date-sensitive software uses two
digit year date fields, sorting the Year 2000 ('00') before Year 1999 ('99').
The Year 2000 problem can arise in hardware, software, or any other equipment or
process that uses embedded software or other technology. The
36
<PAGE>
failure of such systems to properly recognize dates after December 31, 1999
could result in data corruption and processing errors.
We have implemented a program to assess, mitigate and remediate the
potential impact of the Year 2000 problem. We completed our assessment of our
Year 2000 compliance status in early 1997 and began work on our remediation
program immediately thereafter. Our remediation program has been structured to
address our information and non-information technology hardware, software,
facilities and equipment systems. We have spent approximately $1.8 million to
replace or reprogram existing systems for the Year 2000 compliance program. All
material systems were Year 2000 compliant by March 31, 1999 and substantially
all systems will be Year 2000 compliant by December 31, 1999. In the event that
our material systems are not Year 2000 compliant, we may experience reductions
or interruptions in operations which could have a material adverse effect on our
results of operations.
In addition, we have implemented a program to determine the Year 2000
compliance status of our material vendors, suppliers, service providers and
customers, including the railroad and trucking companies used to ship our
products or to transport raw materials to our manufacturing facilities. We have
not completed such an evaluation for Krone, which we acquired recently. Based on
currently available information, we do not anticipate any material impact to us
based on the failure of such third parties to be Year 2000 compliant. However,
the process of evaluating the Year 2000 compliance status of material third
parties is continually ongoing and, therefore, no guaranty or warranty can be
made as to such third parties' future compliance status or its potential effect
on us. We believe there exists a sufficient number of suppliers of raw materials
for us so that if any supplier is unable to deliver raw materials due to Year
2000 problems, alternate sources will be available and that any supply
interruption will not be material to us. There can be no assurances, however,
that we would be able to obtain all of our supply requirements from such
alternate sources in a timely manner or on terms comparable with those of our
current suppliers. If the railroad or trucking companies that ship our products
or raw materials fail to be Year 2000 compliant, we may not be able to arrange
alternative and timely means to ship our goods or raw materials, which could
lead to interruptions or slowdowns in our business. Possible worst case
scenarios include interruptions in the manufacturing process, the inability to
ship orders and invoice and collect amounts due to us. We are preparing for the
possible use of alternative suppliers and means of transportation, possible
adjustment of raw materials and product inventory levels and contingencies with
respect to potential energy source interruptions, all in an effort to minimize
the effects, if any, of Year 2000 related interruptions or slowdowns caused by
suppliers and transporters.
Before proceeding with the recent acquisitions of Structural Kinematics,
Krone and Pacific Pac and as part of our acquisition-related due diligence, we
reviewed Year 2000-related concerns for each and received assurances from their
respective managements that their businesses are, or prior to year-end 1999 will
be, materially Year 2000 compliant. As part of our pre-acquisition due
diligence, we reviewed various information, including assessments and reports
prepared by its outside consultants, the periodic internal reports prepared by
MIS personnel for senior management and other information relating to these
businesses and their respective Year 2000 procedures. We have completed our own
assessment for the systems of Structural Kinematics, Krone and Pacific Pac, and
we expect that their material systems will be Year 2000 compliant by
December 31, 1999. In the event that the material systems for Krone are not
Year 2000 compliant, we may may experience reductions or interruptions in our
operations which could have a material adverse effect on our results of
operations or financial condition.
QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
Our cash flows and earnings are subject to fluctuations resulting from
changes in interest rates and changes in foreign currency exchange rates and we
selectively use financial instruments to manage these risks. Our objective in
managing our exposure to changes in foreign currency exchange rates and interest
rates is to reduce volatility on earnings and cash flow associated with such
changes. We have not entered, and do not intend to enter, into financial
instruments for speculation or trading purposes. Additional information
regarding our financial instruments is contained in Note 14 to the Consolidated
Financial Statements.
37
<PAGE>
We measure the market risk related to our holding of financial
instruments based on changes in interest rates and foreign currency rates using
a sensitivity analysis. The sensitivity analysis measures the potential loss in
fair values, cash flows and earnings based on a hypothetical 10% change in
interest and currency exchange rates. We used current market rates on our debt
and derivative portfolio to perform the sensitivity analysis. Such analysis
indicates that a hypothetical 10% change in interest rates or foreign currency
exchange rates would not have a material impact on our fair values, cash flows
or earnings.
ENVIRONMENTAL MATTERS
Our various manufacturing operations, which have been conducted at a
number of facilities for many years, are subject to numerous laws and
regulations relating to the protection of human health and the environment in
the U.S., Canada, Australia, China, Germany, Great Britain, India, Indonesia,
Ireland and Mexico. We believe that we are in substantial compliance with such
laws and regulations. However, as a result of our operations, we are involved
from time to time in administrative and judicial proceedings and inquiries
relating to environmental matters. Based on information available at this time
with respect to potential liability involving these proceedings and inquiries,
we believe that any such liability would not have a material adverse effect on
our financial position or results of operations. However, modifications or
changes in enforcement of existing laws and regulations or the adoption of new
laws and regulations in the future, particularly with respect to environmental
and safety standards could require expenditures which might be material to our
financial position or results of operations. See also 'Business -- Environmental
Matters.'
Our accruals for environmental liabilities are recorded based on current
interpretation of environmental laws and regulations when it is probable that a
liability has been incurred and the amount of such liability can be reasonably
estimated. At December 31, 1998 and September 30, 1999, accruals for
environmental matters were $25.0 million and $26.6 million, respectively. We
maintain a comprehensive insurance program, including customary comprehensive
general liability insurance for bodily injury and property damage caused by
various activities and occurrences and significant excess coverage to insure
against catastrophic occurrences. However, we do not maintain any insurance
other than as described above for potential liabilities related specifically to
remediation of existing environmental contamination or future environmental
contamination, if any.
We have an established program to ensure that our facilities comply with
environmental laws and regulations. Expenditures for 1998 approximated $11.7
million (of which approximately $1.0 million represented capital expenditures
and approximately $10.7 million related to ongoing operations and the management
and remediation of potential environmental contamination from prior operations).
Expenditures for 1997 approximated $7.1 million (of which approximately $1.6
million represented capital expenditures and approximately $5.5 million related
to ongoing operations and the management and remediation of potential
environmental contamination from prior operations) Management expects similar
expenditures in 1999 to be in the range of $9.0 million to $11.0 million,
including the facilities of Noma, Defiance and Krone. In addition, if
environmental laws and regulations affecting our operations become more
stringent, our costs for environmental compliance may increase above such range.
See 'Risk Factors -- We Are Subject to Environmental Laws and Regulations' and
'Business -- Environmental Matters.'
OTHER MATTERS
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 133 'Accounting for Derivative Instruments
and Hedging Activities' ('FAS 133'). FAS 133 requires that all derivative
instruments be measured at fair value and recognized in the balance sheet as
either assets or liabilities. We are required to adopt FAS 133 for our fiscal
year beginning after June 15, 2000. We do not expect that the adoption of FAS
133 will have a material effect on our results of operations or financial
condition.
38
<PAGE>
BUSINESS
GENERAL
We are a manufacturer of telecommunications equipment, industrial
components and performance chemicals sold into numerous markets for a wide
variety of end uses. We operate through three primary business segments,
manufacturing, performance products and telecommunications equipment. Our
manufacturing segment serves the automotive, appliance and electronic, and
industrial markets. Our performance products segment serves customers in many
industries including the pharmaceutical and personal care, environmental
services, technology and chemical processing markets. Our telecommunications
equipment segment serves the public network and premises (or non-public) network
markets. Our products are frequently highly engineered and are important
components of, or provide critical attributes to, our customers' end products or
operations. We operate over 80 manufacturing and production facilities located
in the U.S., Canada, Australia, China, Germany, Great Britain, India, Indonesia,
Ireland and Mexico.
BUSINESS STRATEGY
Our goal is to build on our leading market positions by continuing to
improve our existing operations and to pursue value-enhancing acquisitions.
For our current operations, we intend to:
utilize our leadership positions to capitalize on the favorable growth
trends in selected end-markets;
improve our operating efficiency through productivity gains and other
cost reduction initiatives. For example, we believe that our recent
acquisitions of Noma, Defiance and Krone provide us with significant
cost saving opportunities;
grow our customer base by expanding into new geographic markets and
developing new products and end-markets, as well as new applications
for our existing products; and
leverage our strong customer relationships and recently expanded
product offerings through increased cross-selling to existing
customers.
In addition, we have grown through acquisitions and we will continue to
pursue acquisitions and investment opportunities that will create value and
enhance cash flow. We target acquisition and investment opportunities that
provide us:
Cost saving opportunities;
Enhanced positioning in existing markets;
Entry into new end-use and geographic markets; and
Turnaround opportunities for under-performing businesses.
COMPETITIVE STRENGTHS
WE HAVE SIGNIFICANT MARKET POSITIONS IN OUR BUSINESSES. We have leading
market shares in our primary markets. For example, we believe that we have
leading positions in North America in each of the following products and
services:
Stamped valve-train components for the automotive industry;
Wire and cable assemblies for manufacturers of major appliances;
Sulfuric acid regeneration services;
39
<PAGE>
Aluminum-based chemicals used in water treatment services and pulp and
paper production;
Active ingredients for antiperspirants; and
Active ingredients for over-the-counter antacids.
Our Krone subsidiary is a leading worldwide supplier of connection and
distribution technology for voice and data networks.
WE PROVIDE SPECIALIZED PRODUCTS AND SERVICES REQUIRING OPERATIONAL AND
TECHNICAL INTEGRATION WITH OUR CUSTOMERS. Our products and services are
frequently highly engineered and important components of, or provide critical
attributes to, our customers' end-products or operations. We generally work
closely with our customers in the design, engineering and production of these
products and we often provide ongoing technical service and support. As a
result, we enjoy strong customer relationships which allow us to achieve
attractive operating margins and maintain or enhance our market shares.
WE ARE HIGHLY DIVERSIFIED. We have highly diversified sources of revenue
and cash flow. We provide a wide range of products for a broad customer base
serving numerous end-uses and end-markets. For example, in 1998, no single
customer accounted for more than 10% of our pro forma sales. We believe that
this diversification provides us with a broad base from which to expand customer
relationships and increase revenues.
WE HAVE AN EXPERIENCED MANAGEMENT TEAM. Our management team has
significant experience managing and operating a variety of industrial
businesses. With an average of over 20 years of industry experience, we have
significant experience in improving productivity, reducing costs, and enhancing
customer relationships in competitive markets. In addition, our management team
has been successful in identifying, completing and integrating acquisitions,
which have enhanced our revenues and cash flow and expanded our customer base
and product offerings.
PRODUCTS AND SERVICES
MANUFACTURING
Our manufacturing segment provides a broad range of engineered
components and services to three principal markets: automotive, appliance and
electronic, and industrial. Our products for these markets are described below:
Automotive. For the automotive market, we provide:
precision-engineered components for valve-train systems, including
stamped and machined rocker and roller-rocker arms, cam follower
rollers, cam follower roller axles, antifriction bearings and other
hardened/machined components;
electronic wire and cable assemblies, such as wire harnesses, ignition
cables, molded parts, electro-mechanical assemblies, engine block
heaters, battery blankets and various electrical switches, used in the
manufacture of automobiles and personal recreation vehicles such as
snowmobiles and jet-skis;
computer-aided and mechanical vehicle testing services for the
automotive industry;
pre-production dies and tooling, and prototype design and production
which are used by our customers for prototype and short production runs
of automotive components or systems;
fluid transport and handling equipment for automotive service
applications.
Our precision-engineered stamped and machined engine components for
valve-train systems improve engine efficiency by reducing engine friction and
component mass. These components are used both in traditional overhead valve and
in the increasingly popular single and double overhead cam (OHC)
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engines which power cars, light trucks and sport utility vehicles (such as Ford
Expedition and F-150, Lincoln Navigator and DaimlerChrysler Minivan). The
increased use of these OHC engines has resulted in significant volume growth
through market share gains, as vehicle manufacturers are able to obtain better
fuel economy and higher horsepower using OHC engines. We believe that this OHC
trend will continue. Additionally, we have participated in the automakers'
conversion of traditional overhead valve engines to reduced-friction valve-train
components (using bearings) to obtain some of the efficiency of OHC engines. Our
products compare favorably with other technologies by providing comparable
performance characteristics at a lower delivered cost. This reduced cost is a
function of lower raw material cost as well as lower machining cost. In
addition, these products have received increased acceptance as automakers strive
to reduce vehicle weight and improve performance at a reasonable cost.
Our wire and cable assembly products include a variety of automotive
electronic components for use in OEM production and the aftermarket. As a
leading Tier-2 supplier of products such as wire harnesses, ignition cables,
engine block heaters, battery blankets and various electrical and electro-
mechanical switches and assemblies, we provide our customers with a range of
technical services, including product design using Computer-Aided Design (CAD)
systems. As OEMs and Tier-1 suppliers strive to reduce costs and outsource
engineering, design, prototyping and testing services, our strong technical
capabilities position us as a strategic supplier to the automotive industry. In
addition, our vertical integration in wire and cable manufacture gives us a
competitive advantage over those of our competitors who purchase all of their
wire and cable requirements.
Through our computer-aided and mechanical vehicle testing offerings, we
provide computer-aided design, engineering and simulation services for
automotive structural and mechanical systems to OEMs and Tier 1 suppliers. We
provide a wide range of testing services for automotive components and systems
from single sub-systems, such as chassis, suspensions, seats and seating
assemblies, to entire vehicles. Our engineering and simulation services provide
customers with finite element modeling, kinematics, crash and variation
simulation analyses, experimental dynamics and vehicle development programs, and
allow our customers to test their automotive products for durability, stress,
noise, vibration and environmental considerations.
Our primary customers in the automotive industry include
DaimlerChrysler, Ford, General Motors, Honda, Nissan, Toyota, Volkswagen and
Volvo. Other customers include OEMs and Tier-1 suppliers such as Bombardier,
Bosch, Delphi, ITT, John Deere, Johnson Controls and Lear. Our fluid transport
and handling equipment is used in the automotive service industry by customers
such as Sunoco-Kendall and Jiffy Lube and in automotive service bays in tire
stores and auto dealerships.
Automotive manufacturers generally award business to their suppliers by
individual engine line or model, often for multiple-model years. The loss of any
individual engine line or model contract would not be material to us. However,
an economic downturn in the automotive industry as a whole or other events
(e.g., labor disruptions) resulting in significantly reduced operations of any
of Daimler-Chrysler, Ford or General Motors could have a material adverse impact
on the results of our manufacturing segment. None of these customers accounted
for 10% or more of our revenues in 1998.
Appliance and Electronic. We produce custom-designed power cord systems
and wire and cable assemblies for a broad range of appliances and electronic
products including:
household appliances, such as refrigerators, freezers, dishwashers,
washing machines, ovens, ranges, and vacuum cleaners;
electronic office equipment, including copiers and printers; and
various electronic products, such as medical equipment, ATM machines
and gaming machines.
Our specialized wiring expertise and high quality wire and cable
assemblies are generally provided to larger OEM customers. A highly competitive
environment has required our customers to improve their productivity by
outsourcing to lower cost producers. Our manufacturing facilities are
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strategically located in both Canada and Mexico, permitting us to share with
customers efficiencies gained through our operating scale and lower costs.
A team of experienced engineers, skilled technicians and manufacturing
personnel works closely with our customers, from design and development through
to testing and verification. Our CAD system enables us to supply custom
requirements with faster development times and increased design flexibility.
Our customers in the appliance and electronic markets include Celestica,
Fantom, Friedrich, Frigidaire, NCR, Whirlpool and Xerox.
Industrial. For the industrial market, we manufacture:
custom-designed wire harness and power cord systems for power tools,
motors, pumps and other industrial products; and
wire and cable for industrial markets, the commercial and residential
construction industries and for a wide variety of end market uses by
OEMs.
We produce a broad product line of single- and multi-conductor wire and
cable, wire harnesses and power cord systems. Our wire jacketing expertise
includes the use of polyvinyl chloride (PVC), rubber, thermoplastic elastomer
(TPE) and cross-link compounds. Working closely on design and engineering issues
with our customers, our highly flexible manufacturing environment permits a
close match of productive capacity to any order volume, as well as custom color
matching and construction of specialized formulations. Our Canadian wire and
cable facility located at Stouffville, Ontario, features one of only three
continuous cast oxygen-free copper rod lines in North America. Copper rod
production is coupled with multi-wire drawing technology to produce high quality
copper strand as part of the wire and cable manufacturing process.
Our customers in the industrial market include Alcoa, Bridgeport,
Cincinnati Milicron, Lyall, Makino, Mori Seiki and Woods.
PERFORMANCE PRODUCTS
Our performance products segment provides a broad range of value-added
products and services to four principal markets: pharmaceutical and personal
care, environmental services, technology and chemical processing. Our products
and services for these markets are described below.
Pharmaceutical and Personal Care. We are a leading supplier of the
active chemical ingredients used in the manufacture of over-the-counter ('OTC')
antiperspirants and antacids, and also supply active ingredients used in
prescription pharmaceuticals, nutritional supplements, nutraceuticals,
veterinary health products and personal care products. Our product line
includes:
aluminum and zirconium compounds for use in antiperspirants;
aluminum hydroxide and magnesium hydroxide blends used in OTC antacids
for acid-neutralization;
high-purity aluminum hydroxide for use as veterinary and human vaccine
adjuvants;
potassium chloride used in electrolyte replacement medications and
intravenous solutions;
pharmaceutical-grade aluminum chloride;
sodium nitrite used as a reactant in the production of artificial
sweeteners; and
pharmaceutical-grade sulfuric acid used in the production of vitamin C
tablets.
We maintain leadership positions in many of our pharmaceutical and
personal care products. In antiperspirant actives, for example, we have
introduced more than 25 new products or product categories
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over the last six years. Recent new product introductions have included
nonresidue-forming antiperspirant actives designed for the growing clear
stick/gel antiperspirant market and a line of antiperspirant active ingredients
designed to appeal to European consumer preferences. Based on the capabilities
of our research and development team and the numerous U.S. and foreign patents
awarded to us, we believe that we are the technical leader in the antiperspirant
actives industry.
Some of our major customers in the pharmaceutical and personal care
market include Bristol-Myers Squibb, Carter-Wallace, Church & Dwight,
Colgate-Palmolive, Hoechst Marion Roussel, Hoffmann-LaRoche, Pfizer, Schering
Plough and Unilever.
Environmental Services. Our water treatment products and services are
designed to address the important environmental issues confronting our
customers. These value-added products and services provide cleaner drinking
water, restore algae-infested lakes, reduce damaging phosphorus runoff from
agricultural operations, and significantly reduce pollution from industrial
waste water. With a network of 34 plants strategically located throughout the
United States and Canada, we are the largest North American producer of aluminum
sulfate, or 'alum,' which is used as a coagulant in potable water and waste
water treatment applications, and a leading supplier of flocculents (a
polymer-based material used for settling and/or separating solids from liquids).
We are also a leading provider of 'closed loop' sulfuric acid regeneration
services, which significantly reduce the waste streams generated by certain
refineries and chemical plants.
Our water treatment products consist primarily of:
aluminum sulfate ('alum'),
polymer-based enhanced coagulants and flocculents, and
sodium and ammonia salts and sulfites.
With the assistance of the company's Technical Center in Syracuse, New
York, we have introduced Al+Clear'r', an agrochemical product for the poultry
market. When applied to the litter in poultry houses, Al+Clear'r' not only
improves sanitation and productivity, but also benefits the environment by
aiding in the control of phosphorous runoff. Phosphorous runoff from
agricultural activities has been linked to contamination in lakes, rivers,
streams and other water bodies.
Our major customers for water treatment products include various water
treatment service providers and distributors such as Hercules/Betz and various
cities and municipalities (including the cities of Detroit, Denver and San
Francisco, and the Province of Ontario).
In the environmental market, we also provide sulfuric acid regeneration
services to the refining and chemical industries, and market pollution abatement
and sulfur recovery services to selected refinery customers. Refineries use
sulfuric acid as a catalyst in the production of alkylate, a gasoline blending
component with favorable performance and environmental properties. The
alkylation process contaminates and dilutes the sulfuric acid, thereby creating
the need to dispose of or regenerate the contaminated acid. We transport the
contaminated acid back to the company's facilities for recycling and redeliver
the fresh, recycled acid back to customers. This 'closed loop' process offers
customers significant savings versus alternative disposal methods and also
benefits the environment by significantly reducing refineries' waste streams.
Similar regeneration services are provided to manufacturers of ion exchange
resins and silicone polymers. We are expanding our pollution abatement services
of treating and removing other waste streams generated by refineries, including
hydrogen sulfide and sulfur dioxide. Some of our major customers for our
sulfuric acid regeneration services include Chevron, Coastal, DuPont, Equilon
(formerly a Shell company), General Electric, Hess, Rohm & Haas, Sunoco, Tesoro
(formerly a Texaco company) and Tosco.
Technology. In the technology market, we provide CTP technology and
bi-metal lithographic printing plates for high-quality commercial printing
applications, as well as ultra-high-purity electronic chemicals for the
semiconductor and disk drive industries.
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We have recently introduced our Prisma'TM' CTP technology which allows
printers to transfer computer images directly to digitally imageable printing
plates, thereby eliminating intermediate film processing and reducing labor and
material costs. Our proprietary bi-metal plating system provides sharper color
reproduction, greater durability and superior on-press economics relative to the
polymer plates offered by other industry participants. Our major customers for
our products used in printing applications include Treasure Chest, Quebecor
World and Crown Cork & Seal.
Our electronic chemicals include ultra-high-purity acids, caustics and
etchants for use in the manufacture of semiconductor processing chips and
computer disk drives. Within the past two years, we have completed construction
of a new plant that produces ultra-high-purity sulfuric acid with impurities
measured in the parts-per-trillion range. In addition, we are the exclusive
U.S. licensee for the manufacture and sale of Spinetch'TM' etchants, a
proprietary product line developed by Merck KGaA of Germany. Sales of the
Spinetch'TM' etchants are not material for us at this time. Customers for our
electronic chemicals include Hewlett Packard, IBM, Micron Technologies,
National Semiconductor and SEH America.
Chemical Processing. We manufacture a broad range of products that serve
as chemical intermediates in the production of such everyday products as
newspapers, tires, paints, dyes and carpets. We are a leading producer of:
alum and polymer-based enhanced coagulants used in paper manufacturing
to impart water resistance,
sodium and ammonia sulfites used to produce fixing and developing
solutions for conventional film and x-ray processing,
sodium nitrite, of which we are one of only two North American
producers, primarily used as a reactant in the manufacture of dyes,
pigments and rubber processing chemicals,
potassium fluoride and fluoborate derivatives sold into the metal
treatment, agrochemical, surfactant and analytical reagent markets, and
sulfuric acid, which is used in the manufacture of titanium pigments,
fertilizers, synthetic fibers, steel, petroleum and paper, as well as
many other products.
Major customers of our products in this market include 3M, AlliedSignal, Dow
Chemical, DSM, Eastman Chemical, Georgia Pacific, International Paper, Konishi
International, PPG Industries, Olin, Westvaco and W.R. Grace.
TELECOMMUNICATIONS EQUIPMENT
Our telecommunications equipment segment was created through our
acquisition of Krone AG, a leading global supplier of connector technology for
telecommunications and data networks, from Jenoptik AG, a major German
technology group. Our telecommunications equipment segment is principally
operated through Krone and its subsidiaries, as wholly-owned subsidiaries of our
company.
Our telecommunications equipment segment provides connection and
distribution technology to two principal markets:
Public telecommunications networks; and
Premises (non-public) voice and data networks.
Krone has positioned itself as a global supplier, with more than 80% of
its 1998 sales generated outside Germany. Approximately 55% of Krone's sales are
in Europe, 18% in North and South America, and 27% in Asia and Australia. Krone
has subsidiaries in 25 countries, some of which operate as integrated production
and sales companies and others as sales companies only.
The product range of our telecommunications equipment segment includes
all connection and distribution systems, both for telecommunications access
networks and premises data networks using
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either copper or fiber optics, together with comprehensive design, maintenance
and testing services. The systems solutions offered are based on Krone's
LSA-Plus'TM' rapid connection system which permits wire/cable connection without
solder, screws, and wire stripping of wire/cable lines in all types of
communications networks. The LSA-Plus'TM' system allows easy and rapid
'stapling' of wires into connector plugs, without the need for soldering or
time-consuming screwing or twisting required by many competitors' products. In
addition, this stapling action automatically punctures the wire insulation,
thereby avoiding any need for manual removal of the wire insulation.
LSA-Plus'TM' systems are offered in various product lines and modules
that meet differing customer requirements. For example, Krone offers special
series for interior and exterior installations, special surge protector
components for optimal protection in communication networks, products for flush
mount assembly in small rooms and special modules for heavier gauge conductor
wire.
Krone also provides services related to its technology, including the
design, planning and construction of fixed networks, and the installation and
maintenance of communication systems.
Public Networks. In public networks, our telecommunications equipment
segment manufactures connectors and distributors for fixed telecommunication
access networks, and provides related services to customers. The connectors
are mainly used in the access portion of telecommunication networks to connect
copper or fiber optic wires at the main distribution frame, at the local
exchange, at other cable connector points and, finally, at the premises of
the subscriber. Key customers in this market include public network providers
such as Deutsche Telekom, British Telecom, Bell Atlantic, and telecommunications
systems manufacturers and suppliers such as Siemens and Alcatel.
The state of the public network market varies by region. In highly
developed markets such as Europe and the U.S. where growth in new installations
is relatively flat, revenue is derived primarily from network renovation and
rationalization. In markets such as Eastern Europe, Asia, and Latin America
where telecommunications infrastructure is less developed, there is significant
growth in the installation and expansion of access networks.
Premises Networks. Our main products in premises networks are connection
and distribution components for voice, data and video communication
infrastructure within private and industrial building complexes that use both
copper and fiber optic cabling. The product range of our premises networks
business includes components needed for the connection of wires/cables in the
following areas:
Internal telephone systems: telephone cabling in building complexes,
and the increasing replacement of telephone cabling through structured
cabling; and
Structured cabling: complete solutions for wiring phones, workstations,
PCs and other communication devices throughout a building. Krone
provides connectors for structured cabling for data, voice and video
transmission networks for system solutions and higher capacity rates.
Key customers for our premises network market include distributors and
cable systems integrators who offer complete communications network solutions,
including Anixter, Greybar, Kent and Wadsworth Electronics.
The premises network market is in a state of change, with increasing
demand for private telecommunications networks. Growth in premises networks is
currently driven by increasing networking requirements for building technology,
the need for more efficient connectors and increasing demand as a result of the
growing home use of faxes and Internet.
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Prior to our acquisition of Krone, Krone spun off its wireless local
loop business, which manufactures and sells radio telephone systems, and we
therefore did not acquire that business.
For further information on segment data, see 'Note 15 -- Geographic and
Industry Segment Information' in the Notes to the Consolidated Financial
Statements.
COMPETITION
In each of our business segments, we operate in competitive markets.
Competition in our manufacturing segment's markets is based upon a number of
factors including design and engineering capabilities, quality, price and the
ability to meet customer delivery requirements. In the automotive market, we
compete with, among others, Eaton, Hitchiner, INA, Ingersoll-Rand, Sumitomo,
Yazaki and captive OEMs. In the appliance and electronic and industrial markets,
we compete with International Wire, General Cable, Alcatel, Belden, EDS Mexico
and Choctaw, among others.
Although our performance products segment generally has significant
market share positions in the product areas in which it competes, most of its
end markets are extremely competitive. Our major competitors are typically
segregated by end markets and include international, regional and, in some
cases, small independent producers. Our ability to compete effectively depends
on our ability to maintain competitive prices and to provide reliable and
responsible service to our customers. We believe that, with certain products
which have relatively higher freight costs, the proximity of our production
facility to the end market user is a key factor in being price competitive. In
general, raising prices has been difficult over the past several years and will
likely continue to be so in the near future.
In the pharmaceuticals and personal care market, our major competitors
include Barcroft, Giulini, Summit and Westwood. Our competitors in our
environmental market include the refineries that perform their own sulfuric acid
regeneration, as well as DuPont, Marsulex, Arch Chemical, PVS and Rhodia, which
also have sulfuric acid regeneration facilities that are generally located near
their major customers. In addition, we compete with Geo Specialty Chemicals,
U.S. Aluminates and other regional players in the water treatment market.
Competitors in the technology market include Kodak-Polychrome and Fuji, which
also provide printing-related products. With regard to electronic chemicals, our
principal competitors are Ashland and Arch Chemical. Competitors in the chemical
processing market include BASF, Calabrian, U.S. Salt, Kerley, Rhodia and Solvay
S.A.
Our telecommunications equipment segment also operates in highly
competitive markets, with many of our competitors being large, international and
technologically sophisticated companies. Competition in our telecommunications
equipment segment is based on a number of factors, including technological
advancements, product line breadth, price, technical support and service, and
product quality. The ability to achieve and maintain successful performance
in this segment is also dependent on our ability to develop products which meet
the ever- changing requirements of data and voice communications technology.
In the public network market, our principal competitor is Lucent Technologies.
Other significant competitors include Siemens, Quante/Pouyet, and Raychem. Our
principal competitors in the premises network market are Lucent Technologies,
AMP and Quante/Pouyet. This market is highly fragmented with many regional
suppliers.
SUPPLIERS; AVAILABILITY OF RESOURCES
We purchase a variety of raw materials for our businesses. Our primary
raw materials in our manufacturing segment are copper and steel. The primary
raw materials used by our telecommunications equipment segment are plastic
and metal alloy. Our performance products segment's competitive cost position
and high-quality products are in part attributable to its control of certain raw
materials that serve as the feedstocks for many of its products. For our
sulfuric acid regeneration business, we have the ability to manufacture sulfur
dioxide and sulfuric acid relatively inexpensively. Sulfur dioxide is a major
raw material in the manufacture of many of our sodium salts and sulfites, and
sulfuric acid is an important raw material in the manufacture of aluminum
sulfate as well as
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in the manufacture of ultra-high-purity electronic chemicals. Consequently,
major raw material purchases are limited primarily to sulfuric acid where it is
uneconomical for us to supply ourselves due to distribution costs, soda ash (for
the manufacture of sodium salts, sulfites and nitrites), bauxite and hydrate
(for the manufacture of alum), sulfur (for the manufacture of sulfuric acid),
and aluminum (for the manufacture of printing plates).
We purchase our raw materials from a number of suppliers and, in
addition, believe that alternative sources are available to fulfill our needs.
In our opinion, the raw materials we need for our businesses will be available
in sufficient supply on a competitive basis for the foreseeable future.
SALES AND DISTRIBUTION
Our manufacturing segment has approximately 70 sales, marketing and
customer service personnel. Generally, we market our products directly to our
customers, but in certain industrial markets a distribution network is used. Our
technical and engineering staff is an integral part of our manufacturing
segment's sales and distribution effort. Since many of our products are
precision-engineered and custom-designed to customer specifications, our sales
force and engineers work closely with our customers in designing, producing,
testing and improving our products. In designing and developing new products,
our engineering staff often assists in the sales and marketing effort through
joint design and applications-engineering efforts with major customers.
In our performance products segment, we employ over 100 experienced
sales, marketing, distribution and customer service personnel. The sales force
is divided into both a general group and several specialized groups which focus
on specific products, end-users and geographic regions. This targeted approach
provides us with insight into emerging industry trends and creates opportunities
for product development.
Our performance products sales force markets products and services both
directly to end-users and indirectly through independent distributors.
Generally, sulfuric acid regeneration services are sold directly to end-users,
often pursuant to long-term contracts. In addition, we have an extensive network
of independent distributors both in the United States and internationally.
Distributors typically promote a full-line or focused range of products to a
larger market or to a market focused on specific end-users or regions. Our sales
contracts with our end-users and distributors are usually for one to three year
periods.
SEASONALITY; BACKLOGS
The businesses of our manufacturing, performance products and
telecommunications equipment segments are generally not seasonal. Due to the
nature of our businesses, there are no significant backlogs.
ENVIRONMENTAL MATTERS
Our various manufacturing operations, which have been conducted at a
number of facilities for many years, are subject to numerous laws and
regulations relating to the protection of human health and the environment in
the U.S., Canada, Australia, China, Germany, Great Britain, India, Indonesia,
Ireland and Mexico. We believe that we are in substantial compliance with such
laws and regulations. However, as a result of our operations, we are involved
from time to time in administrative and judicial proceedings and inquiries
relating to environmental matters. These include several currently pending
administrative proceedings concerning alleged environmental violations at our
facilities. Based on information available at this time with respect to
potential liability involving these facilities, we believe that any such
liability will not have a material adverse effect on our financial condition or
results of operations. However, modifications of existing laws and regulations
or the adoption of new laws and regulations in the future, particularly with
respect to environmental and safety standards, could require capital
expenditures which may be material or otherwise adversely impact our operations.
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The Comprehensive Environmental Response Compensation and Liability Act
of 1980 (which we abbrevate to 'CERCLA' below) and similar state statutes have
been construed as imposing joint and several liability, under certain
circumstances, on present and former owners and operators of contaminated sites
and transporters and generators of hazardous substances regardless of fault. Our
facilities have operated for many years by us or their prior owners and
operators, and adverse environmental conditions may exist of which we are not
aware. The discovery of additional or unknown environmental contamination at any
of our current or former facilities could have a material adverse effect on our
financial condition or results of operation. In addition, we have received
written notice from the Environmental Protection Administration that we have
been identified as a 'potentially responsible party' under CERCLA at three
third-party sites. We do not believe that our liability, if any, for these sites
will be material to our results of operations or financial condition. In
addition, Congress continues to consider the reauthorization of and
modifications to CERCLA. Because Congress has not yet acted with respect to
CERCLA, we do not have sufficient information to ascertain the impact that any
change might have on our potential liabilities, if any.
At any time, we may be involved in proceedings with various regulatory
authorities which could require us to pay various fines and penalties due to
violations of environmental laws and regulations at our sites, remediate
contamination at some of these sites, comply with applicable standards or other
requirements, or incur capital expenditures to modify certain pollution control
equipment or processes at our sites. Again, although the amount of any liability
that could arise with respect to these matters cannot be accurately predicted,
we believe that the ultimate resolution of these matters will have no material
adverse effect on our results of operations or financial condition. See also
' -- Legal Proceedings' below.
Avtex Site at Front Royal, Virginia. On March 22, 1990, the
Environmental Protection Administration issued to us a Notice of Potential
Liability pursuant to Section 107(a) of CERCLA with respect to a site located in
Front Royal, Virginia, owned at the time by Avtex Fibers Front Royal, Inc.,
which has filed for bankruptcy. A sulfuric acid plant adjacent to the main Avtex
site was previously owned and operated by us. On September 30, 1998, the
Environmental Protection Administration issued an administrative order under
Section 106 of CERCLA, which requires General Chemical Group (whose obligations
we assumed in connection with the Spinoff), AlliedSignal, Inc. and Avtex to
undertake certain removal actions at the acid plant. On October 19, 1998, we
delivered to the Environmental Protection Administration written notice of our
intention to comply with that order, subject to numerous defenses. The
requirements of the order include preparation of a study to determine the extent
of any contamination at the acid plant site. We have provided for the estimated
costs of $1.6 million for these activities in our accrual for environmental
liabilities relating to the order. We are working cooperatively with the
Environmental Protection Administration with respect to compliance with the
order and believe that such compliance will not have a material effect on our
results of operations or financial condition. See 'Risk Factors -- We Are
Subject to Environmental Laws and Regulations' and 'Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Environmental
Matters.'
EMPLOYEES/LABOR RELATIONS
At September 30, 1999, we had approximately 9,700 employees, of whom
approximately 2,950 were full-time salaried employees, approximately 1,350
were full-time hourly employees (represented by ten different unions) and
approximately 5,400 were hourly employees working in nonunion facilities.
Approximately 1,300 of our employees are based in Germany. German-based
employees are members of unions and are subject to industry-wide and other
collective bargaining agreements.
Our union contracts have durations which vary from two to four years.
Since 1986, we have been involved in numerous labor negotiations, only three of
which have resulted in work disruptions. During these disruptions, management
operated the plants and supplied customers without interruption until the labor
disruptions were settled and new contracts were agreed upon.
PROPERTIES
We operate over 80 manufacturing and production facilities located in
the United States, Canada, Australia, China, Germany, Great Britain, India,
Indonesia, Ireland and Mexico. Our headquarters are located in Hampton, New
Hampshire.
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Set forth below are the locations and uses of our major properties:
<TABLE>
<CAPTION>
LOCATION USE
- -------------------------------------------- --------------------------------------------
<S> <C>
Manufacturing
Livonia, Michigan(1)........................ Production Facility
Troy, Michigan(1)........................... Production Facility and Offices
Westland, Michigan(1)....................... Production Facility
Upper Sandusky, Ohio(1)..................... Production Facility
Toledo, Ohio................................ Production Facility
Defiance, Ohio.............................. Production Facility
Perrysburg, Ohio(1)......................... Production Facility and Offices
Mineral Wells, Texas........................ Production Facility
Imuris, Mexico.............................. Production Facility
Juarez, Mexico(1)........................... Production Facility
Nogales, Mexico(1).......................... Production Facility
Concord, Ontario............................ Production Facility
Guelph, Ontario(1).......................... Production Facility
Stouffville, Ontario........................ Production Facility
Tillsonburg, Ontario(1)..................... Production Facility
Toronto, Ontario............................ Production Facility
Waterdown, Ontario.......................... Production Facility
Performance Products
Hollister, California....................... Production Facility and Offices
Pittsburg, California....................... Production Facility
Richmond, California........................ Production Facility
North Claymont, Delaware.................... Production Facility, Offices and Warehouse
Augusta, Georgia............................ Production Facility
East St. Louis, Illinois.................... Production Facility
Berkeley Heights, New Jersey................ Production Facility, Offices and Warehouse
Newark, New Jersey.......................... Production Facility
Solvay, New York............................ Production Facility
Marcus Hook, Pennsylvania................... Production Facility, Offices and Warehouse
Midlothian, Texas........................... Production Facility
Anacortes, Washington....................... Production Facility
Racine, Wisconsin........................... Production Facility and Offices
Dublin, Ireland............................. Production Facility, Offices and Warehouse
Thorold, Ontario............................ Production Facility
Valleyfield, Quebec......................... Production Facility
Telecommunications Equipment
Englewood, Colorado......................... Production Facility and Offices
Sydney, Australia........................... Production Facility and Offices
Cheltenham, England......................... Production Facility and Offices
Berlin, Germany(1).......................... Production Facility and Offices
Mexico City, Mexico......................... Production Facility
Shanghai, People's Republic of China........ Production Facility
Bangalore, India............................ Production Facility
Jakarta, Indonesia.......................... Production Facility
Offices
Hampton, New Hampshire(1)................... Headquarters
Parsippany, New Jersey(1)................... Offices
</TABLE>
- ------------
(1) Leased.
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LEGAL PROCEEDINGS
General. We are involved in claims, litigation administrative
proceedings and investigations of various types, including the Milwaukee and
Delaware Valley litigation discussed below and certain environmental proceedings
previously discussed. Although the amount of any liability that could arise with
respect to these actions cannot be accurately predicted, the opinion of
management based upon currently-available information is that any such liability
not covered by insurance will have no material adverse effect on our results of
operations or financial condition.
Milwaukee Litigation. In March 1993, an outbreak of cryptosporidia
occurred in the public water supply of the City of Milwaukee. As a result of
that incident, several lawsuits have been filed with the Milwaukee County
Circuit Court against one or more of the City of Milwaukee, its Department of
Public Works, Sara Lee Corporation, E.D. Wesley Co., Peck Foods Corporation,
certain hotels, numerous insurance companies, several municipalities and General
Chemical Group (whose obligations we assumed). The principal allegations against
us are that a water treatment chemical sold by us to the City of Milwaukee
should have removed certain bacteria contained in the water supply and failed to
do so and that General Chemical Group consulted with the City concerning the
water purification.
One of the suits (Markwiese, et al. v. Peck Foods Corporation, et al.
filed in 1993) had been certified, prior to the service of a complaint against
General Chemical Group (whose obligations we assumed), as a class action in
favor of all persons who sustained damage as a result of the wrongful acts of
the various defendants. An appeal of this class certification was filed by
General Chemical Group and the City of Milwaukee, and in a March 13, 1998
hearing, a new trial judge ruled that this matter shall not proceed as a class
action. If this matter proceeds to trial, it is possible that lawyers for the
plaintiffs could appeal this ruling after conclusion of the trial. In addition
to the Markwiese action, several other lawsuits have since been filed by the
same lead attorneys in the Circuit Court of Milwaukee County against the same
basic group of defendants. In total, we believe the total number of individual
plaintiffs in all suits filed to date is approximately 700. The unspecified
damages sought by these various complaints is alleged to be 'far in excess of
$1.0 million dollars' for personal injury, economic loss, emotional distress,
pain and suffering, medical expenses and punitive damages.
On September 17, 1998, the court preliminarily approved a class action
settlement with Sara Lee, whereby Sara Lee would pay to the plaintiffs $250,000
to cover certain expenses related to the litigation. Final approval of the
settlement was granted by the court on December 17, 1998. The remaining parties
in the litigation, including GenTek, continued in the discovery phase of the
litigation.
On August 20, 1999, the Company and its insurer, National Fire Union
Insurance Company of Pittsburgh, Pennsylvania ('National Union') entered into a
settlement with plaintiffs to resolve the case. The settlement agreement
provides that National Union shall pay the total amount of $1,500,000, which
shall be allocated to provide approximately $1,150,000 to compensate claimants
and $350,000 for plaintiffs' attorneys' fees and settlement administration
costs. The settlement is structured as a class action settlement pursuant to
which all claims will be barred upon final court approval of the settlement. The
Company reserves the right to terminate the settlement in the event that any
claimants opt out of the settlement, the settlement is appealed or the terms of
the settlement are modified or vacated. The trial court granted preliminary
approval of the settlement on October 19, 1999. The deadline for claimants to
opt out of the settlement is December 6, 2000. Objections to the settlement must
be filed by February 7, 2000. The final approval hearing has been scheduled for
March 2, 2000.
Delaware Valley Litigation. In April 1998, approximately 40 employees
(and their respective spouses) of the Sun Company, Inc. refinery in Marcus Hook,
Pennsylvania, filed lawsuits in the Court of Common Pleas, Delaware County,
Pennsylvania, against General Chemical Group (whose obligations we have
assumed), alleging that sulfur dioxide and sulfur trioxide releases from our
Delaware Valley facility caused various respiratory and pulmonary injuries.
Unspecified damages in excess of $50,000 for each plaintiff are sought. The
litigation has entered the discovery phase. We have denied all material
allegations of the complaints and will continue to defend ourselves vigorously
in this matter. We further believe that our current accruals and available
insurance should provide adequate coverage in the event
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of an adverse result in this matter and that, based on currently available
information, this matter will not have a material adverse effect on our results
of operations or financial condition.
In addition, on September 24, 1999, the same attorneys that filed the
April, 1998 actions against the Company also filed a purported class action
complaint against the Company, titled Whisnant vs. General Chemical Corporation,
(in the court of Common Pleas, Delaware County, Pennsylvania, on behalf of 550
current and former employees of the Sunoco (formerly Sun Company, Inc.) Marcus
Hook, Pennsylvania refinery located immediately adjacent to the Company's
Delaware Valley facility. The complaint alleges that unspecified releases of
sulfur dioxide and sulfur trioxide over unspecified timeframes caused injuries
to the plaintiffs, and seeks, among other things, to establish a 'trust fund'
for medical monitoring for the plaintiffs. The Company believes this claim is
without merit and will vigorously defend itself in this matter. Management
further believes that the Company's current accruals and available insurance
should provide adequate coverage in the event of an adverse result in this
matter, and that, based on currently available information, this matter will not
have a material adverse effect on the Company's results of operations or
financial condition.
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MANAGEMENT
MANAGEMENT
The following table sets forth our directors and executive officers.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Paul M. Montrone............................ 58 Director; Chairman of the Board
Paul M. Meister............................. 47 Director; Vice Chairman of the Board
Richard R. Russell.......................... 57 Director; President and Chief Executive Officer
Michael R. Herman........................... 37 Vice President and General Counsel
William C. Keightley........................ 46 Vice President and Chief Financial Officer
Kevin J. O'Connor........................... 48 Controller
John W. Gildea.............................. 55 Director
Bruce Koepfgen.............................. 47 Director
Scott M. Sperling........................... 41 Director
Ira Stepanian............................... 62 Director
</TABLE>
Paul Montrone is a Director and the Chairman of our Board. He is the
Chairman of the Board of General Chemical Group, a position he has held since
1995, and a Director of General Chemical Group, a position he has held since
1988. Mr. Montrone was President of General Chemical Group from 1987 to 1994.
Mr. Montrone is the Chairman of the Board and the Chief Executive Officer of
Fisher Scientific International Inc., a distributor of laboratory and scientific
products, and a director of Waste Management, Inc. and the New York Metropolitan
Opera.
Paul Meister is a Director and the Vice Chairman of our Board. He is the
Vice Chairman of the Board of General Chemical Group, a position he has held
since 1998, and a Director of General Chemical Group, a position he has held
since 1994. Mr. Meister has been the Vice Chairman of the Board and the
Executive Vice President and Chief Financial Officer of Fisher Scientific
International since March 1998, since prior to 1994, he has been Chief Financial
Officer of Fisher Scientific International, and from 1994 to March 1998, he was
Senior Vice President of Fisher Scientific International. Mr. Meister is also a
Director of Minerals Technologies Inc. and M&F Worldwide Corp.
Richard Russell is our President and Chief Executive Officer and a
Director. From 1994 until the spinoff date, he served as the President and Chief
Executive Officer and a Director of General Chemical Group. Mr. Russell has also
been the President and Chief Executive Officer of General Chemical Corporation
since 1986.
Michael Herman is a Vice President and our General Counsel. From 1997
until the spinoff date, he served as the Vice President and General Counsel of
General Chemical Corporation. Mr. Herman had served as Deputy General Counsel of
General Chemical Corporation from 1995 until 1997, and as Associate General
Counsel of General Chemical Corporation from 1992 to 1995.
William Keightley is our Vice President, Finance and Chief Financial
Officer. From March 1999 until the spinoff date, he served as the Vice President
and Chief Financial Officer of General Chemical Group. Mr. Keightley served as
Vice President, Finance of Waste Management, Inc. from June 1997 to December
1998 and was Vice President, Finance of Wheelabrator Technologies Inc. from May
1996 to June 1997. From 1992 until May 1996, Mr. Keightley served as Chief
Financial Officer of a subsidiary of Waste Management, Inc.
Kevin O'Connor is our Controller. From March 1996 until the spinoff
date, he served as the Controller of General Chemical Group. Mr. O'Connor served
as Controller of General Chemical Corporation from 1986 to March 1996.
John Gildea is a Director. From 1997 until the spinoff date, he served
as a Director of General Chemical Group. Mr. Gildea has been Managing Director
of Gildea Management Company (investment
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management firm) since prior to 1994. He is also a Director of American Service
Group, Inc., Barry's Jewelers, Inc. and Konover Property Trust.
Bruce Koepfgen was elected as a Director on September 30, 1999. Mr.
Koepfgen is a private investor who spent 23 years with Salomon Brothers Inc., 15
of which he was a managing director. Most recently, he led Salomon's efforts in
Fixed Income Sales and managed its Chicago office and Midwest Sales Territory,
Salomon's largest regional office. He also was chairman of Salomon Analytics, a
company established to develop sophisticated fixed income analytic tools for
institutional investors.
Scott Sperling is a Director. From 1996 until the spinoff date, he
served as a Director of General Chemical Group. Mr. Sperling is the President of
TH Lee, Putnam Capital and has been a Managing Director of Thomas H. Lee Company
(private equity investment firm) since July 1994. Mr. Sperling is Trustee of
THL Equity Trust III, the General Partner of Equity Advisors III Limited
Partnership, which is the General Partner of THL Equity Fund III and Managing
Director of THL Equity Advisors IV, LLC, the general partner of THL Equity Fund
IV, L.P. Mr. Sperling was Managing Partner of The Aeneas Group Inc., a private
capital affiliate of Harvard Management Company, from prior to 1993 to
September 1994. He is also a Director of Fisher, The Learning Company, Inc.,
Livent, Inc., Safelite Glass Corp., Wyndham International and several private
corporations.
Ira Stepanian is a Director. From 1996 until the Spinoff Date, he served
as a Director of General Chemical Group. He was Chairman and Chief Executive
Officer of Bank of Boston Corporation and its principal subsidiary, The First
National Bank of Boston, from prior to 1994 until 1995.
COMMITTEES OF THE BOARD OF GENTEK
The Board of Directors of GenTek has four standing committees:
(1) an Audit Committee;
(2) a Compensation Committee;
(3) an Executive Committee; and
(4) a Nominating Committee.
The Audit Committee consists of Messrs. Gildea, Sperling and Stepanian,
with Mr. Stepanian serving as Chairman. It is responsible for, among other
things:
recommending the firm to be appointed as independent accountants to
audit GenTek's financial statements and to perform services related to
the audit;
approving in advance the general nature of each professional service
performed by the independent public accountants;
reviewing the scope and results of the audit with the independent
accountants; reviewing with the management and the independent
accountants GenTek's year-end operating results;
considering the adequacy of the internal accounting and control
procedures of GenTek; reviewing the non-audit services to be performed
by the independent accountants, if any;
considering the effect of such performance on the accountants'
independence; directing and supervising, when appropriate, special
investigations into matters within the scope of the independent public
accountants' duties; and
performing such other tasks related to and in furtherance of the
foregoing as it may consider necessary or appropriate or as may be
assigned to it by the Board from time to time.
The Compensation Committee consists of Messrs. Meister and Sperling,
with Mr. Sperling serving as Chairman. It is responsible for, among other
things:
reviewing and recommending compensation arrangements for Directors and
officers;
53
<PAGE>
approving such arrangements for other senior level employees;
administering certain benefit and compensation plans of GenTek and its
subsidiaries;
monitoring the activities of an internal committee of members of
management established to carry out policies and guidelines with
respect to such plans; and
performing such other tasks related to and in furtherance of the
foregoing as it may consider necessary or appropriate or as may be
assigned to it by the Board from time to time.
A subcommittee of the Compensation Committee, comprised solely of
'outside directors' (as such term is used in Section 162(m) of the Internal
Revenue Code) who are also 'non-employee directors' (as such term is defined in
Rule 16b-3 of the Securities Exchange Act), has exclusive authority:
(1) to approve any awards of stock or options to directors of GenTek (other
than non-employee directors) or other individuals who are 'officers' of
GenTek for purposes of Section 16 of the Exchange Act under GenTek's
long-term incentive plan (described below); and
(2) to administer elements of the GenTek performance plan (also described
below) covered by Section 162(m) of the Code. The subcommittee will also be
responsible for determining whether the performance goals under the GenTek
Inc. performance plan have been met.
In the remainder of this prospectus, references to the Compensation Committee
shall be deemed to be references to the subcommittee in all cases where Section
162(m) of the Code or Section 16 of the Exchange Act would require that action
be taken by the subcommittee rather than the full Compensation Committee.
An 'outside director' means an individual who:
(1) is not an employee of GenTek;
(2) does not receive compensation from GenTek for prior services as an
employee;
(3) has never been an officer of GenTek; and
(4) only receives remuneration as a director from GenTek and not in any other
capacity.
The term 'non-employee director' means an individual who:
(1) only receives remuneration as a director from GenTek and not in any other
capacity;
(2) is not currently an officer of GenTek; and
(3) has no interest in any transactions or business relationships with GenTek.
The Executive Committee consists of Messrs. Montrone, Russell and
Stepanian, with Mr. Montrone serving as Chairman. The Executive Committee
possesses, and may exercise during the interval between meetings of the Board,
all the powers of the Board. The Committee is responsible for overseeing the
management and direction of all business and affairs of GenTek, in such manner
as the Executive Committee deems in the best interests of GenTek. Meetings maybe
called by the Chief Executive Officer of GenTek or the Chairman of the
Committee.
The Nominating Committee consists of all members of the Board, with Mr.
Montrone serving as Chairman. The Nominating Committee is responsible for
nominating persons for election to the Board. The Nominating Committee will
consider nominees properly recommended by stockholders.
COMPENSATION OF DIRECTORS
The employee directors of GenTek do not receive any compensation for
services performed as a director or for meeting attendance. The non-employee
directors of GenTek are entitled to receive cash compensation and compensation
under the plans described below.
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<PAGE>
CASH COMPENSATION. Our non-employee directors receive compensation of
$40,000 per year, with no additional fees for attendance at the company's Board
or committee meetings. Employee directors are not paid any fees or additional
compensation for service as members of our Board or any of its committees. All
directors are reimbursed for expenses incurred in connection with attending our
Board and committee meetings.
RETIREMENT PLAN FOR NON-EMPLOYEE DIRECTORS. Under GenTek's retirement
plan for non-employee directors, any non-employee director who retires from our
Board with at least five years of service as a director (other than Messrs.
Montrone and Meister) will be eligible for an annual retirement benefit for the
remainder of his or her lifetime. The annual retirement benefit is equal to 50%
of the director fee in effect at the date of such director's retirement for a
director who retires with five years of eligible service and is increased by 10%
of the director fee in effect at the date of such director's retirement for each
additional year of service, up to 100% of such fee for ten or more years of
service as a director or for directors who retire after age 70. Payment of the
retirement benefits to any director will commence upon the later of the
director's retirement from our Board or the attainment of age 60. We may suspend
or terminate retirement benefits if the retired director refuses to render
consultative services and advice to us or engages in any activity which competes
with our business.
RESTRICTED UNIT PLAN FOR NON-EMPLOYEE DIRECTORS. We adopted, effective
as of the spinoff, a restricted unit plan for non-employee directors, under
which each of our non-employee directors (other than Messrs. Montrone and
Meister), upon becoming a director, will receive a one-time grant of 5,000
restricted units evidencing a right to receive shares of common stock, subject
to certain restrictions. We will maintain a memorandum account for each director
who received the grant of restricted units and credit to such account the amount
of any cash dividends and shares of stock of any subsidiary distributed on the
shares of common stock underlying such director's restricted units from the date
of grant until the payment date described below. No shares of common stock will
be issued at the time restricted units are granted, and we will not be required
to set aside a fund for any such grant or for amounts credited to the memorandum
account. Under the terms of the plan, neither the restricted units nor the
memorandum account may be sold, assigned, pledged or otherwise disposed of
twenty-five percent of the restricted units and the related cash and stock
dividends will vest for each year of service as a director. Vested restricted
units and the related cash and stock dividends will not be payable until the
director ceases to be a member of our Board. At that time, the director will
receive one share of common stock for each vested restricted unit, provided that
a director may elect, prior to the date on which restricted units vest, to have
payment deferred to a later date. Any restricted units and related cash and
stock dividends that have not vested at the time the director ceases to be a
director will be canceled unless service has terminated because of death or
disability, in which event all such restricted units and related cash and stock
dividends will vest immediately. When payment of restricted units is made, non-
employee directors (other than Messrs. Montrone and Meister) will also receive
cash and securities equal to the related cash and stock dividends, together with
interest on the cash based upon the average quoted rate for ten-year U.S.
Treasury Notes. In the event of a stock dividend, stock split, recapitalization,
merger, liquidation or similar event, the Board, in its sole discretion, may
make equitable adjustments in outstanding awards and the number of shares of
common stock reserved for issuance under the plan.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee determines the compensation of executive
officers of GenTek. None of the members of the Compensation Committee is or was
an officer or employee of GenTek. Mr. Meister, a member of the Compensation
Committee, is a Managing Director of Latona Associates, a management company
which performs a range of advisory services for GenTek. See the description of
'Agreements with Latona Associates' under 'Affiliate Relationships and
Transactions.'
EXECUTIVE COMPENSATION
In general, compensation for our executive officers and other key
employees consists of base salary, annual bonus awards (a portion of which may
be payable in restricted stock) and long-term
55
<PAGE>
incentive awards of options or restricted stock that may be made from time to
time under GenTek's long-term incentive plan (described below).
PERFORMANCE PLAN
Prior to the consummation of the spinoff, our Board adopted, and General
Chemical Group, as sole shareholder of GenTek approved, effective upon the
consummation of the spinoff, a performance plan under which executive officers
and key employees of GenTek and its subsidiaries are eligible to receive annual
or other periodic bonuses. The performance plan is administered by the
Compensation Committee of our Board of Directors. Non-employee directors will
not be eligible for awards under the performance plan.
Each year, we will establish target incentive bonuses for participants
in the performance plan. Bonuses will be payable under the performance plan for
a year if we meet the performance objectives for such year selected for a
participant or group of participants by the Compensation Committee. The
performance objectives may be based upon either company-wide or operating unit
performance in the following areas: earnings per share, revenues, operating cash
flow, operating earnings, working capital to sales ratio and return on capital.
In addition, notwithstanding the foregoing, the Compensation Committee
has the right, in its discretion, to pay to any participant an annual bonus
based on individual performance or any other criteria that the Committee deems
appropriate and, in connection with the hiring of any person or otherwise, the
Compensation Committee may provide for a minimum bonus amount in any calendar
year, regardless of whether performance objectives are attained.
The performance plan vests broad powers in the Compensation Committee to
administer and interpret the plan. The Compensation Committee's powers include
authority, within the limitations set forth in the performance plan, to select
the persons to be granted awards, to determine the time when awards will be
granted, to determine and certify whether objectives and conditions for earning
awards have been met, to determine whether payment of an award will be made at
the end of an award period or deferred, and to determine whether an award or
payment of an award should be reduced or eliminated. The performance plan also
generally vests broad powers in the Compensation Committee to amend and
terminate the performance plan.
LONG-TERM INCENTIVE PLAN
Prior to the consummation of the spinoff, our Board of Directors adopted
and General Chemical Group, as sole stockholder of GenTek approved, effective
upon the consummation of the spinoff, a long-term incentive plan. The long-term
incentive plan provides for the grant of any or all of the following types of
awards:
(1) stock options, including incentive stock options;
(2) stock appreciation rights;
(3) restricted stock and restricted units;
(4) incentive stock and incentive units; and
(5) deferred stock units.
The long-term incentive plan also provides for the grant of a split of
General Chemical Group equity-related incentive awards held by all employees in
connection with the Spinoff. See ' -- General Chemical Group Stock Option and
Restricted Unit Conversion' below.
Awards under the long-term incentive plan may be granted to key
employees, including our executive officers and executive officers of our
subsidiaries and affiliates, but may not be granted to any
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non-employee director. The number of employees participating in the long-term
incentive plan will vary from year to year. Initially, 1,600,000 shares of
common stock have been authorized for issuance under the long-term incentive
plan, which number of shares includes the shares issued as a result of the split
of General Chemical Group equity-related incentive awards, as described under
' -- General Chemical Group Stock Option and Restricted Unit Conversion' below.
If shares subject to an option under the long-term incentive plan cease
to be subject to that option, if shares awarded under the long-term incentive
plan are forfeited or if an award otherwise terminates without a payment being
made to the participant in the form of common stock, those shares will again be
available for future award under the long-term incentive plan. In the event of
certain changes in our capital structure affecting GenTek common stock, the
Compensation Committee may make appropriate adjustments in the number of shares
that may be awarded and in the number of shares covered by options and other
awards then outstanding under the long-term incentive plan, and, where
applicable, the exercise price of outstanding awards under the long-term
incentive plan. The long-term incentive plan will be administered by the
Compensation Committee.
Stock Options
The Compensation Committee may grant options to purchase shares of
GenTek common stock that are either 'qualified,' which includes those awards
that satisfy the requirements of Section 422 of the Internal Revenue Code for
incentive stock options, or 'nonqualified,' which includes those awards that are
not intended to satisfy the requirements of Section 422 of the Internal Revenue
Code. Under the terms of the long-term incentive plan, the exercise price of the
options will, unless the Compensation Committee determines otherwise, not be
less than fair market value of GenTek's common stock at the time of grant. The
exercise price of the option is payable in cash or its equivalent or, as
permitted by the Compensation Committee, by exchanging shares of common stock
owned by the participant, or by a combination of the foregoing.
The options will generally have a term of ten years, unless the
Compensation Committee specifies a shorter term, and, unless the Compensation
Committee otherwise determines, will become exercisable in four equal annual
installments commencing on the first anniversary of the date of grant. If an
option holder ceases employment with us as a result of the holder's
(1) death,
(2) disability,
(3) early retirement with the consent of the Compensation Committee or
(4) normal retirement,
the holder (or his or her beneficiary or legal representative) may exercise any
option, regardless of whether then exercisable, for a period of one year (or
such greater or lesser period as determined by the Compensation Committee at or
after grant), but in no event after the date the option otherwise expires. If an
option holder's employment is terminated for any other reason, all of his or her
options will immediately terminate, regardless of whether then exercisable
(unless determined otherwise by the Compensation Committee). The Compensation
Committee may provide that a participant who delivers shares of common stock to
exercise an option when the market value of the GenTek common stock exceeds the
exercise price of the option will be automatically granted new options for the
number of shares delivered to exercise the option. Such new options will be
subject to the same terms and conditions as the exercised option except that the
exercise price will be the fair market value on the date the new option is
granted and such options will not be exercisable for six months.
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Stock Appreciation Rights
The long-term incentive plan authorizes the Compensation Committee to
grant stock appreciation rights in tandem with a stock option, in addition to a
stock option, or freestanding and unrelated to a stock option. Stock
appreciation rights entitle the participant to receive the excess of the fair
market value of a stated number of shares of GenTek common stock on the date of
exercise over the base price of the stock appreciation right. The base price may
not be less than 100% of the fair market value of the GenTek common stock on the
date the stock appreciation right is granted. The Committee shall determine when
an stock appreciation right is exercisable, the method of exercise, and whether
settlement of the stock appreciation right is to be made in cash, shares of
common stock or a combination of the foregoing.
Restricted Stock and Restricted Units
The long-term incentive plan authorizes the Compensation Committee to
grant awards in the form of restricted stock and restricted units. For purposes
of the long-term incentive plan, restricted stock is an award of common stock
and a restricted unit is a contractual right to receive GenTek common stock (or
cash based on fair market value of common stock). Such awards will be subject to
such terms and conditions, if any, as the Compensation Committee deems
appropriate. Unless otherwise determined by the Compensation Committee,
participants will be entitled to receive either currently or at a future date,
dividends or other distributions paid with respect to restricted stock and, if
and to the extent determined by the Compensation Committee, either will be
credited with or receive, currently an amount equal to dividends paid with
respect to the corresponding number of shares covered by restricted units.
Restricted stock and restricted units become vested and nonforfeitable and the
restricted period will lapse pro rata on each of the first four anniversaries of
the date of grant unless the Compensation Committee determines otherwise. If a
participant's employment terminates because of death, disability, early
retirement (with the Compensation Committee's consent) or normal retirement,
during the period in which the transfer of shares is restricted, the restricted
stock or restricted units will become vested and nonforfeitable as to that
percentage of the shares based upon the days worked as a percentage of total
days in the restricted period (or such greater percentage as the Compensation
Committee may determine). Unless nonforfeitable on the date of termination or
otherwise determined by the Compensation Committee, a restricted stock or
restricted unit award will be forfeited on termination of employment.
Incentive Stock and Incentive Units
The long-term incentive plan allows for the grant of awards in the form
of incentive stock and incentive units. For purposes of the long-term incentive
plan, incentive stock is an award of common stock and an incentive unit is a
contractual right to receive GenTek common stock (or cash based on fair market
value of GenTek common stock). Such awards will be contingent upon the
attainment, in whole or in part, of certain performance objectives over a period
to be determined by the Compensation Committee. With regard to a particular
performance period, the Compensation Committee will have the discretion, subject
to the long-term incentive plan's terms, to determine the terms and conditions
of such awards, including the performance objectives to be achieved during such
period and the determination of whether and to what degree such objectives have
been attained. Unless otherwise determined by the Compensation Committee,
participants will be entitled to receive, either currently or at a future date,
all dividends and other distributions paid with respect to the incentive stock
and, if and to the extent determined by the Compensation Committee, either to be
credited with or receive currently an amount equal to dividends paid with
respect to the corresponding number of shares covered by the incentive units. If
a participant's employment terminates because of death, disability, early
retirement (with the Compensation Committee's consent) or normal retirement
during the measurement period, an award of incentive stock or incentive units
will become vested and nonforfeitable as to that percentage of the award that
would have been earned based on the attainment of performance objectives for the
days worked as a percentage of total days in the performance period (or such
greater percentage as the Compensation
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Committee may determine). Unless the Compensation Committee determines
otherwise, any incentive stock or incentive unit award will be forfeited on
termination of employment.
Deferred Stock
An award of deferred stock confers upon a participant the right to
receive shares of common stock at the end of a specified deferral period. On
such date or dates established by the Compensation Committee and subject to such
terms and conditions as determined by the Compensation Committee, a participant
may be permitted to defer receipt of all or a portion of his or her annual
salary and/or annual incentive bonus and receive the equivalent amount in
elective units based on the fair market value of common stock on the date of
grant. To the extent determined by the Compensation Committee, a participant may
also receive supplemental stock units for a percentage of the amount deferred by
the participant. Deferred stock units carry no voting rights until the shares
have been issued. The Compensation Committee will determine whether any cash and
stock dividends attributable to deferred units are to be paid currently or
credited to the participant's account and deemed reinvested in deferred stock
units. Deferred stock units and cash and stock dividends with respect thereto
are fully vested at all times. Unless the Compensation Committee provides
otherwise, supplemental stock units and cash and stock dividends with respect
thereto will become fully vested on the fourth anniversary of the date the
corresponding deferred amount would have been paid and free standing stock units
and cash and stock dividends with respect thereto will become fully vested on
the third anniversary of the corresponding award.
If there is a change in control, all awards that are not then vested
will become vested and any restrictions or limitations will lapse. A change of
control is defined in the long-term incentive plan and includes:
(1) a change in the composition of a majority of the Board of Directors of
GenTek unless the selection or nomination of each of the new members was
approved by a majority of incumbent members of the Board of Directors of
GenTek;
(2) the acquisition by any person or group, with certain exceptions, of the
beneficial ownership of securities representing more than 20 percent of the
voting power of GenTek's then outstanding voting securities having the
right to elect directors;
(3) the consummation, after approval by GenTek's stockholders, of a merger or
other business combination with an entity other than a majority-owned
subsidiary of GenTek, or the sale of all or substantially all of GenTek's
assets; or
(4) the purchase by any person or group, with certain exceptions, of 20% or
more of the outstanding shares of GenTek's common stock pursuant to a
tender or exchange offer.
These provisions of the long-term incentive plan may have an anti-takeover
effect.
Notwithstanding the foregoing, a change in control will not be deemed to
occur in the event we file for bankruptcy, liquidation or reorganization under
the United States Bankruptcy Code.
The Board or the Compensation Committee may amend, suspend or terminate
the long-term incentive plan.
OTHER BENEFIT PLANS AND ARRANGEMENTS
Our salaried employees continue to participate in the General Chemical
Corporation pension plan -- of which we continued to be the sponsor following
the spinoff -- on the same terms and conditions as before the spinoff, as well
as in the other benefit plans and arrangements that we established or continued
to sponsor pursuant to the employee benefits agreement. In addition to the
pension plan, we will continue to be the sponsor of existing employee benefit
plans that cover our employees. In connection with the spinoff, GenTek caused a
transfer of plan assets and liabilities, where applicable, to a
59
<PAGE>
corresponding 'mirror' employee benefit plan established by General Chemical
Group for the benefit of employees of the industrial chemicals business who were
participants in the plan sponsored by us immediately prior to the spinoff. For
further information on the employee benefit agreement we entered into in
connection with the spinoff, see the section 'Arrangements Between GenTek and
General Chemical Group Relating to the Spinoff -- Employee Benefits Agreement.'
A participating employee's annual retirement benefit is determined by
the employee's credited service under the salaried employees' pension plan and
average annual earnings during the five years of the final ten years of service
credited under the salaried employees' pension plan for which such employees'
earnings were highest. Annual earnings include principally salary, overtime and
short-term incentive compensation. The salaried employees' pension plan provides
that a participating employee's right to receive benefits under the salaried
employees' pension plan becomes fully vested after five years of service. Under
the salaried employees' pension plan, benefits are adjusted by a portion of the
social security benefits received by participants.
In addition, our key executives participate in an unfunded nonqualified
excess benefit plan which pays benefits which would otherwise accrue in
accordance with the provisions of the salaried employees' pension plan, but
which are not payable under the salaried employees' pension plan by reason of
certain benefit limitations imposed by the Internal Revenue Code.
The table below indicates the estimated maximum annual retirement
benefit a hypothetical participant would be entitled to receive under the
salaried employees' pension plan and the excess benefit plan. The amounts shown
are without regard to benefit limitations imposed by the Internal Revenue Code,
before any deduction for social security benefits if the retirement occurred
December 31, 1998, at the age of 65, after the indicated number of years of
credited service and if average annual earnings equaled the amounts indicated.
Compensation qualifying as annual earnings under the salaried employees' pension
plan approximates the amounts set forth as the salary and bonus of the executive
officers in the 'Summary Compensation Table' included in the next section of
this prospectus. The number of years of credited service under the salaried
employees' pension plan for Messrs. Russell, Passino, Tanis, Wilkinson and Klink
is approximately 22, 19, 11, 14 and 24, respectively.
<TABLE>
<CAPTION>
YEARS OF CREDITED SERVICE
----------------------------------------------------
AVERAGE 15 20 25 30 35
ANNUAL EARNINGS YEARS YEARS YEARS YEARS YEARS
- --------------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
$ 200,000 ........................... $ 60,000 $ 80,000 $100,000 $100,000 $105,000
250,000 ........................... 75,000 100,000 125,000 125,000 131,250
300,000 ........................... 90,000 120,000 150,000 150,000 157,500
400,000 ........................... 120,000 160,000 200,000 200,000 210,000
500,000 ........................... 150,000 200,000 250,000 250,000 262,500
600,000 ........................... 180,000 240,000 300,000 300,000 315,000
700,000 ........................... 210,000 280,000 350,000 350,000 367,500
800,000 ........................... 240,000 320,000 400,000 400,000 420,000
900,000 ........................... 270,000 360,000 450,000 450,000 472,500
1,000,000 ........................... 300,000 400,000 500,000 500,000 525,000
</TABLE>
COMPENSATION OF EXECUTIVE OFFICERS
SUMMARY COMPENSATION TABLE
The following table summarizes compensation awarded or paid by General
Chemical Group and its subsidiaries during the periods indicated below to our
Chief Executive Officer and the four most highly compensated other executive
officers of General Chemical Group at year-end 1998 who, since the Spinoff, have
been employees of our subsidiary, General Chemical Corporation. Except for Mr.
Russell, who is the President and Chief Executive Officer of GenTek, none of
these officers is an executive officer of GenTek. The positions indicated in the
table are the position such persons held with General Chemical Group. See
'Management.' Our senior management currently receives compensation similar to
that received by the senior management of General Chemical Group in the past.
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<PAGE>
All stock compensation in prior years has been in the form of shares of
the common stock, or options to purchase shares of the common stock, of General
Chemical Group.
<TABLE>
<CAPTION>
LONG TERM
ANNUAL COMPENSATION COMPENSATION AWARDS
---------------------------- ----------------------
NAME AND FISCAL ALL OTHER
PRINCIPAL POSITION YEAR SALARY BONUS OPTIONS COMPENSATION
------------------ ---- ------ ----- ------- ------------
<S> <C> <C> <C> <C> <C>
Richard R. Russell ............................ 1998 $400,000 $ 75,000 -- $26,000
President and Chief Executive Officer 1997 400,000 375,000 -- 46,000
1996 400,000 425,000 400,000 49,000
Ralph M. Passino .............................. 1998 250,000 50,000 -- 16,000
Vice President and General Manager, 1997 250,000 225,000 -- 28,000
Manufacturing Group 1996 250,000 265,000 65,000 30,000
James N. Tanis ................................ 1998 250,000 50,000 -- 16,000
Vice President and General Manager, 1997 250,000 225,000 -- 28,000
Performance Products 1996 250,000 225,000 65,000 28,000
James A. Wilkinson ............................ 1998 220,000 40,000 -- 14,000
Vice President, Manufacturing 1997 220,000 110,000 -- 20,000
1996 220,000 100,000 20,000 18,000
Bodo B. Klink ................................. 1998 205,000 35,000 -- 13,000
Vice President, Business Development and 1997 205,000 120,000 5,000 20,000
Services 1996 195,000 150,000 20,000 20,000
</TABLE>
OPTION GRANTS
The following table sets forth information concerning individual grants
of stock options by General Chemical Group to the executive officers of the
General Chemical Group named in the previous table through year-end 1998 for the
purchase of General Chemical Group Common Stock. There were no stock options
granted by General Chemical Group to these officers during 1998. For a
discussion of the treatment of General Chemical Group stock option plans in
connection with the spinoff with respect to the executive officers of GenTek,
see ' -- General Chemical Group Stock Option and Restricted Unit Conversion'
below.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
-------------------------------------------------------------------------------
NUMBER OF SECURITIES VALUE OF UNEXERCISED
SHARES UNDERLYING UNEXERCISED IN-THE-MONEY
ACQUIRED OPTIONS AT 12/31/98 OPTIONS AT 12/31/98
ON VALUE --------------------------- ---------------------------
NAME EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- -------- -------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Richard R. Russell.............. -- -- -- 400,000 $0 $0
Ralph M. Passino................ -- -- 24,000 41,000 0 0
James N. Tanis.................. -- -- 24,000 41,000 0 0
James A. Wilkinson.............. -- -- 12,000 8,000 0 0
Bodo B. Klink................... -- -- 12,000 13,000 0 0
</TABLE>
GENERAL CHEMICAL GROUP STOCK OPTION AND RESTRICTED UNIT CONVERSION
Under the employee benefits agreement, effective on the spinoff date,
holders of outstanding options to purchase General Chemical Group common stock
and holders of restricted stock units had their interests adjusted as described
below.
Stock Options. Our employees who held General Chemical Group stock
options as of the Spinoff Date received options to purchase under the GenTek
Inc., long-term incentive plan the same number of shares of GenTek as entitled
by their GCG stock options. The exercise price of their General Chemical Group
stock options was adjusted, and the exercise price of their GenTek stock options
was established, in a manner that preserved (1) the difference between the
exercise price and value of the shares covered by the General Chemical Group
stock option and (2) the ratio of the exercise price per share to the fair
market value of the share covered by the option. All other terms of such
adjusted options remained unchanged in the spinoff. Individuals who continue to
provide employment, consulting and similar services to both GenTek and General
Chemical Group similarly retained their options to acquire shares of common
stock of General Chemical Group and received additional options to acquire
shares of common stock of GenTek, in each case as adjusted in the manner
described above.
Restricted Units. Each restricted unit, whether held by employees of
GenTek or General Chemical Group, represented a similar award with respect to a
share of each of GenTek and General Chemical Group.
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<PAGE>
BENEFICIAL OWNERSHIP OF COMMON STOCK
The table below sets forth, to the best of our knowledge, certain
information regarding the beneficial ownership of shares of our common stock by:
(1) each person who beneficially owns more than 5% of such shares,
(2) each of our directors,
(3) each of the executive officers named in the tables in the preceding section
of this prospectus and
(4) all directors and executive officers as a group.
Our issued and outstanding capital stock consists of shares of Common
Stock, entitling its holder to one vote for each share, and Class B Common
Stock, entitling its holder to ten votes for each share. Holders of Class B
Common Stock may convert each such share of Class B Stock at any time and from
time to time into one share of Common Stock. The shares of Common Stock are
registered under the Exchange Act and are listed on the New York Stock Exchange.
There are significant restrictions on transfers of Class B Common Stock. Except
for the disparity in voting power, the conversion provisions and the transfer
restrictions, shares of Common Stock and Class B Common Stock are substantially
identical, including their participation in dividends and in liquidation
distributions.
As of October 31, 1999, a total of 20,818,246 shares were issued and
outstanding, consisting of 16,859,825 shares of Common Stock and 3,958,421
shares of Class B Common Stock.
The ownership percentages of our Common Stock shown above have been
calculated assuming the conversion of all outstanding shares of Class B Common
Stock into Common Stock. For the purpose of identifying persons who beneficially
own more than 5% of the shares of Common Stock, we have assumed that no
outstanding shares of Class B Common Stock have been converted.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP OF
GENTEK
---------------------------
COMMON PERCENT OF
NAME OF BENEFICIAL OWNER STOCK CLASS
------------------------ ---------- ----------
<S> <C> <C>
DIRECTORS AND OFFICERS
Paul M. Montrone(1)(2)(3)(4).............................. 9,811,421 47.3%
Paul M. Meister(5)........................................ 2,061,251 9.9
John W. Gildea(6)(12)..................................... 595,996 2.9
Richard R. Russell(7)..................................... 76,972 *
Ralph M. Passino(8)....................................... 76,986 *
James N. Tanis(9)......................................... 69,986 *
James A. Wilkinson(10).................................... 46,693 *
Bodo W. Klink(11)......................................... 39,157 *
Scott M. Sperling(12)..................................... 25,000 *
Ira Stepanian(12)......................................... 25,000 *
Bruce Koepfgen(13)........................................ 9,000
All directors and Named Executive Officers as a group
(11 persons)(14)........................................ 10,793,711 52.0
5% SHAREHOLDERS
Paul M. Montrone(1)(2)(3)(4).............................. 9,811,421 47.3
Paul M. Meister(5)........................................ 2,061,251 9.9
1996 and February 1998 GRATs(2)(4)........................ 3,552,502 17.1
J.P. Morgan and Co. Incorporated(15)...................... 1,717,550 8.3
Thomson Horstmann & Bryant, Inc.(16)...................... 889,250 4.3
</TABLE>
- ------------
* Less than 1%.
(1) Includes 894,812 shares of Class B Common Stock and 1,331,107 shares of
Common Stock held directly by Mr. Montrone, 30,000 shares of Common Stock
held directly by Sandra A. Montrone, the wife of Mr. Montrone, and 3,000
shares of Common Stock held by family trust. Also includes the shares of
Class B Common Stock and Common Stock owned by the 1996 GRAT, the February
1998 GRAT and the December 1998 GRAT and the 1999 GRAT (see notes 3, 4 and
5 below). By virtue of his position as co-trustee of the December 1998 GRAT
and the 1999 GRAT and his relationship with the trustee of the 1996 GRAT
and the February 1998 GRAT, as well as his status as the settlor and
annuity beneficiary of such GRATs, Mr. Montrone may be deemed beneficial
owner of all the shares held by such GRATs. The address for Mr. Montrone is
c/o GenTek Inc., Liberty Lane, Hampton, New Hampshire 03842. See also
'Certain Relationships and Affiliate Transactions -- Stockholder
Agreements.'
(2) A grantor retained annuity trust formed in 1996 (the '1996 GRAT') owns
829,140 shares of Class B Common Stock and 1,214,881 shares of Common
Stock. A grantor retained annuity trust formed in February 1998 (the
'February 1998 GRAT') owns 611,903 shares of Class B Common Stock and
896,578 shares of Common Stock. Mr. Paul Montrone was the settlor, and is
the annuity beneficiary, of both the 1996 GRAT and the February 1998 GRAT.
Sandra G. Montrone, the wife of
(footnotes continued on next page)
62
<PAGE>
(footnotes continued from previous page)
Mr. Montrone, and Mr. Meister are the co-trustees of the 1996 GRAT and Mrs.
Montrone is the sole trustee with investment and voting discretion of the
February 1998 GRAT. By virtue of her position as sole trustee,
Ms. Montrone may be deemed the beneficial owner of all shares held by the
1996 GRAT and the February 1998 GRAT. Wilmington Trust Company is the
administrative trustee of the February 1998 GRAT. The address for the 1996
GRAT and the February 1998 GRAT is c/o Sandra G. Montrone, as trustee,
Liberty Lane, Hampton, New Hampshire 03842.
(3) Two grantor retained annuity trusts, one formed in December 1998 (the
'December 1998 GRAT') and another formed in March 1999 (the '1999 GRAT'
and, together with the 1996 GRAT, February 1998 GRAT and December 1998
GRAT, the 'Montrone Trusts'), of which Mr. and Ms. Montrone are
co-trustees, each own 811,283 shares of Class B Common Stock and 1,188,717
Shares of Common Stock. Wilmington Trust Company is the administrative
trustee of the December 1998 GRAT and the 1999 GRAT. By virtue of their
position as co-trustees, each of Mr. and Ms. Montrone may be deemed the
beneficial owner of all shares held by the December 1998 GRAT and the 1999
GRAT.
(4) Does not include 100,000 shares of Common Stock held by a charitable
foundation, of which Mr. Montrone is a Director and Ms. Montrone is a
Director and officer. By virtue of their positions with the charitable
foundation, Mr. and Ms. Montrone may be deemed to be beneficial owners of
the shares of Common Stock held by the charitable foundation. Mr. and
Ms. Montrone disclaim any beneficial ownership of the 100,000 shares of
Common Stock held by the charitable foundation.
(5) Includes 10,000 shares of Common Stock owned by Mr. Meister directly, an
aggregate of 7,500 restricted units granted pursuant to the General
Chemical Group's Restricted Unit Plan, of which 1,500 restricted units
vested on each of November 15, 1996, May 15, 1997 and May 15, 1998 and
3,000 restricted units vested on May 15, 1999.
Also includes 829,140 shares of Class B Common Stock and 1,214,881 shares
of Common Stock held by the 1996 GRAT, of which Mr. Meister is a
co-trustee.
(6) Includes 75,000 shares of Common Stock held by Mr. Gildea directly, 25,000
shares of Common Stock held by defined benefit plan of Gildea Investment
Company, a Connecticut S Corporation of which Mr. Gildea is an officer
and sole stockholder and information presented herein is based solely upon
a Schedule 13D filing made with the SEC on February 16, 1999 by Mr. John
W. Gildea, a director of GenTek, on behalf of himself and Network Fund III,
Ltd. ('Network'). Network is an investment fund managed by Gildea
Management Company, of which Mr. Gildea is the Chairman of the Board of
Directors, Chief Executive Officer and sole stockholder. According to such
filing, Network possesses sole voting power over 470,996 shares of the
above shares and sole dispositive power over 470,996 of the above shares
while Mr. Gildea possesses sole voting and sole dispositive power over
all of the above shares. The address of Mr. Gildea is 115 East Putnam
Avenue, Greenwich, CT 06830. The address for Network is P.O. Box 219,
Butterfield House, Grand Cayman, Cayman Islands, BWI.
(7) Includes 20,000 shares of Common Stock held by Mr. Russell's wife, 1,000
shares of Common Stock held by Mr. Russell's daughter, an aggregate of
55,972 restricted units granted pursuant to the General Chemical Group's
Restricted Unit Plan, of which 11,194 restricted units vested on each of
November 15, 1996, May 15, 1997 and May 15, 1998 and 22,390 restricted
units vested on May 15, 1999. Mr. Russell disclaims any beneficial
ownership of the 21,000 shares of Common Stock held by his wife and
daughter.
(8) Consists of 9,000 shares of Common Stock held by Mr. Passino's wife and
children, an aggregate of 27,986 restricted units granted pursuant to the
General Chemical Group's Restricted Unit Plan, of which 5,597 restricted
units vested on each of November 15, 1996, May 15, 1997 and May 15, 1998
and 11,195 restricted units vested on May 15, 1999, options to purchase
40,000 shares of Common Stock, which options vested 12,000 shares on each
of May 15, 1997 and May 15, 1998 and 16,000 shares on May 15, 1999.
Mr. Passino disclaims any beneficial ownership of the 9,000 shares of
Common Stock held by his wife and children.
(9) Includes 2,000 shares of Common Stock held by Mr. Tanis directly, an
aggregate of 16,791 restricted units granted pursuant to the General
Chemical Group's Restricted Unit Plan, of which 5,597 restricted units
vested on each of November 15, 1996, May 15, 1997 and May 15, 1998 and
11,195 restricted units will vest on May 15, 1999. Also includes options to
purchase 40,000 shares of Common Stock, which options vested 12,000 shares
on each of May 15, 1997 and May 15, 1998 and 16,000 shares on May 15, 1999.
(10) Includes 13,633 shares of Common Stock held by Mr. Wilkinson directly,
4,353 shares held by Mr. Wilkinson's spouse, 8,707 restricted units vesting
on May 15, 1999 and options to purchase 20,000 shares of Common Stock,
which options vested 6,000 shares on each of May 15, 1997 and May 15, 1998
and 8,000 shares on May 15, 1999.
(11) Includes 500 shares of Common Stock held by Mr. Klink directly, an
aggregate of 18,657 restricted units granted pursuant to the General
Chemical Group's Restricted Unit Plan, of which 3,732 restricted units
vested on each of November 15, 1996, May 15, 1997 and May 15, 1998 and
7,461 restricted units vested on May 15, 1999. Also includes options to
purchase 20,000 shares of Common Stock, which options vested 6,000 shares
on each of May 15, 1997 and May 15, 1998, and 8,000 shares on May 15, 1999.
(12) Includes 5,000 restricted units granted pursuant to General Chemical
Group's Restricted Unit Plan for Non-Employee Directors and options to
purchase 20,000 shares of Common Stock.
(13) Includes 5,000 restricted units granted pursuant to GenTek's Restricted
Unit Plan for Non-Employee Directors.
(14) Of such shares, 9,811,421 are beneficially owned by Mr. Montrone (see
notes 1, 2, 3 and 4 above) and 590,996 are beneficially owned by
Mr. Gildea (see note 5 above). Also includes the 2,061,251 shares
beneficially owned by Mr. Meister, of which 2,044,021 shares are included
in the shares beneficially owned by Mr. Montrone.
(15) The information presented herein is based solely upon a Schedule 13G filing
made with the SEC by J.P. Morgan and Co. Incorporated ('J.P. Morgan') on
October 8, 1999. According to such filing, J.P. Morgan has sole voting
power over 1,359,650 of the above shares, shared voting power over none of
the above shares and sole dispositive power over all of the above shares.
The address of J.P. Morgan is 60 Wall Street, New York, New York 10260. The
percentage ownership of Common Stock by J.P. Morgan has been calculated
assuming the conversion of all outstanding shares of Class B Common Stock
into Common Stock. Prior to such conversion, the percentage ownership of
Common Stock for J.P. Morgan would be 10.2%.
(16) The information presented herein is based solely upon a Schedule 13G filing
made with the SEC by Thomson Horstmann Bryant, Inc. ('Horstmann') on
January 28, 1999. According to such filing, Horstmann as sole voting power
over 572,600 of the above shares, shared voting power over 15,600 of the
above shares and sole dispositive power over all of the above shares. The
address of Horstmann is Park 80 West, Plaza Two, Saddle Brook, New Jersey
07663. The percentage ownership of Common Stock by Horstmann has been
calculated assuming the conversion of all outstanding shares of Class B
Common Stock into Common Stock. Prior to such conversion, the percentage
ownership of Common Stock for Horstmann would be 5.3%.
63
<PAGE>
AFFILIATE RELATIONSHIPS AND TRANSACTIONS
OUR ARRANGEMENTS WITH THE GENERAL CHEMICAL GROUP RELATING TO THE SPINOFF
In connection with the spinoff, the General Chemical Group and GenTek
entered into agreements to facilitate the separation of our manufacturing and
performance products businesses from the industrial chemicals business of
General Chemical Group. For a description of these agreements see 'Our
Arrangements with General Chemical Group Relating to the Spinoff' below.
AGREEMENTS WITH LATONA ASSOCIATES
Latona Associates Inc. is a management company that, since 1995, has
provided General Chemical Group with strategic management, business and
financial advisory services, including guidance and advice related to
financings, security offerings, recapitalizations, restructurings, acquisitions
and tax and employee benefit matters. In 1998, General Chemical Group paid
Latona Associates $5.9 million for such services, of which approximately $4.7
million was attributable to our businesses. Through the first three quarters of
1999, we have paid Latona $3.6 million. Paul M. Montrone, the controlling
stockholder and Chairman of our Board, also controls Latona Associates. In
addition, Paul M. Meister, a member of our Board, is a Managing Director of
Latona Associates.
In connection with the spinoff, Latona Associates agreed to provide its
services separately to us and to General Chemical Group and to split its current
fee between us and General Chemical Group. As a result, we will pay Latona
Associates an annual fee of $4.5 million, payable quarterly in advance, adjusted
annually after 1999 for increases in the U.S. Department of Labor, Bureau of
Labor Statistics, Consumer Price Index. In addition, if we request Latona to
provide advisory services in connection with any acquisition, business
combination or other strategic transaction, we will pay Latona Associates
additional fees, comparable to those received by investment banking firms for
such services (subject to the approval of a majority of our independent
directors). In 1999, Latona Associates has advised us with respect to our
acquisitions of Noma, Defiance and Krone and has received total fees of $3.6
million for services rendered in connection with these transactions. In 1998,
Latona received fees of $0.5 million for advisory services provided with respect
to acquisitions, combinations and other strategic transactions.
Our agreement with Latona Associates is substantially similar to General
Chemical Group's existing agreement with Latona and will extend through 2004.
The agreement may be terminated by us or Latona Associates if the other party
ceases, or threatens to cease, to carry on its business, or commits a material
breach of the agreement which is not remedied within 30 days of notice of such
breach. We may terminate the agreement if Mr. Montrone ceases to hold, directly
or indirectly, shares of our capital stock constituting at least 20% of the
aggregate voting power of our capital stock.
While there can be no assurance that the amount of fees to be paid by
GenTek to Latona Associates will not exceed the amount that GenTek would have to
pay to obtain from unaffiliated third parties the services to be provided by
Latona Associates, GenTek believes that the employees of Latona Associates have
extensive knowledge concerning its business which would be impractical for a
third party to obtain. As a result, GenTek has not compared the fee payable to
Latona Associates with fees that might be charged by third parties for similar
services.
Proposals regarding amendments to, waivers of, extensions of or other
changes in the terms of the agreement with Latona Associates, as well as any
transactions perceived to involve potential conflicts of interest, will be dealt
with on a case-by-case basis, taking into account relevant factors including the
requirements of the New York Stock Exchange and prevailing corporate practices.
REGISTRATION RIGHTS AGREEMENT
In order to facilitate obtaining the private letter ruling of the
Internal Revenue Service concerning the tax-free nature of the spinoff,
Mr. Montrone and the Montrone family trusts converted 5,800,000 of their shares
of Class B Common Stock into Common Stock of General Chemical Group. As a result
of such conversion, the voting power of the shares held or controlled by Mr.
Montrone and the Montrone family trusts decreased from 89.9% to 80.6%. We
believe that, without such conversion, the spinoff could have adverse tax
consequences to General Chemical Group.
64
<PAGE>
Under a registration rights agreement, Mr. Montrone and the Montrone
family trusts may request, at any time until April 1, 2004, the registration of
their shares of Common Stock (including shares of Common Stock received upon
conversion of any Class B Common Stock) for sale under the Securities Act. We
will be required to accept up to three requests for registration and, in
addition, to include the shares of Mr. Montrone and the Montrone family trusts
in a proposed registration of shares of Common Stock under the Securities Act in
connection with the sale of shares of Common Stock by us or any of our
stockholders. We will be responsible for the expenses of the registration of
shares of Mr. Montrone and the Montrone family trusts, other than brokerage and
underwriting commissions and taxes relating to the sale of the shares.
65
<PAGE>
OUR ARRANGEMENTS WITH GENERAL CHEMICAL GROUP
RELATING TO THE SPINOFF
In connection with the spinoff, General Chemical Group and GenTek
entered into the agreements described in this section to facilitate the
separation of our manufacturing and performance products business from the
industrial chemicals business of General Chemical Group and an orderly
transition in establishing GenTek and General Chemical Group each as separate,
stand-alone companies. The agreements summarized below have been filed as
exhibits to the registration statement of which this prospectus forms a part.
The following summarizes the material terms of such agreements.
Currently, GenTek and General Chemical Group have two common directors:
Messrs. Montrone and Meister. Because Messrs. Montrone and Meister serve as
directors of both GenTek and General Chemical Group, they may have conflicts of
interest in connection with the agreements summarized below. The Boards of
Directors of GenTek and General Chemical Group will deal with proposals
regarding amendments to, waivers of, extensions for other changes in the terms
of the agreements summarized below on a case by case basis, taking into account
the requirements of the New York Stock Exchange and prevailing corporate
practice, including the disclosure of the terms of the potential transaction and
the interests of Messrs. Montrone and Meister or the approval of the transaction
by the disinterested directors of GenTek.
There can be no assurance that the terms of the agreements summarized
below are at least as favorable to GenTek as terms it would have negotiated with
unaffiliated third parties. Given the pre-spinoff relationship of GenTek and
General Chemical Group, the desire of GenTek and General Chemical Group to
continue aspects of their pre-spinoff operations for a transitional period and
the extensive knowledge of GenTek's personnel concerning Group and General
Chemical, it was impracticable or undesirable for GenTek to seek to enter into
similar arrangements with unaffiliated third parties. As a result, GenTek has
not compared the terms of these agreements with the terms it would have
negotiated with unaffiliated third parties.
SEPARATION AGREEMENT
The separation agreement provided for, among other things, the split up
at and after the spinoff between GenTek and General Chemical Group of certain
assets and liabilities held by General Chemical Group before the spinoff. Under
the separation agreement:
GENTEK'S ASSETS: The following became assets of GenTek at or prior to
the spinoff:
the capital stock of General Chemical Corporation;
the capital stock of Noma, Reheis, Defiance, Toledo Technologies Inc.,
Balcrank Products Inc., PDI and the other subsidiaries that are engaged
in our businesses; and
any other assets that are not used principally in the industrial
chemicals business.
GENERAL CHEMICAL GROUP'S ASSETS: The following assets were retained by
General Chemical Group at and after the spinoff:
the capital stock of New Hampshire Oak, General Chemical Industrial
Products Inc., General Chemical Canada Ltd. and the other subsidiaries
that are engaged in the industrial chemicals business of General
Chemical Group;
all of General Chemical Corporation's 51% interest in General Chemical
(Soda Ash) Partners, and all rights of the managing partner of such
partnership; and
all other assets used principally in the industrial chemicals business.
GENTEK'S LIABILITIES: As of the Spinoff, all liabilities of GenTek's
businesses became exclusively the liabilities of our company, including all
liabilities:
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incurred in the conduct or operation of our business or the ownership
or use of our assets, whether arising before, at or after the spinoff;
of our subsidiaries, whether or not incurred in the conduct or
operation of our businesses or the ownership of the our assets;
of GenTek arising under the separation agreement or any other
agreements with General Chemical Group relating to the spinoff;
undertaken by General Chemical Group in connection with its acquisition
of Noma, Defiance, Reheis, Peridot and Sandco Automotive; and
arising under or in connection with the Form 10, but only to the extent
such liabilities relate to statements in, or omissions from, the Form
10 regarding GenTek or our businesses.
GENERAL CHEMICAL GROUP'S LIABILITIES: All liabilities of General
Chemical Group, other than the liabilities of GenTek just described, have been
retained by General Chemical Group, including all liabilities:
incurred in the conduct or operation of its industrial chemicals
business or the ownership or use of Industrial Assets;
set forth on the balance sheet of the industrial chemicals business;
arising under or in connection with the Form 10, except for liabilities
relating to information or statements in, or omissions from, the
Form 10 regarding GenTek or its businesses;
of General Chemical Group arising under the separation agreement or any
other agreements with GenTek relating to the spinoff; and
of General Chemical Group or any of its subsidiaries that do not relate
either to our businesses or the industrial chemicals business,
including liabilities relating to any business formerly owned or
operated by any of them (other than any such business that had been
engaged in our businesses) or arising out of the sale thereof.
INDEMNIFICATION. After the spinoff, GenTek and General Chemical Group
will indemnify each other and their respective directors, officers, employees
and agents from any losses, including reasonable attorney's fees, incurred by
any respective indemnitee due to the failure of the indemnifying party to
satisfy its obligations under the separation agreement.
If the indemnity is insufficient to hold harmless an indemnified party
for any indemnifiable losses, each indemnifying party will pay its fair share of
the losses. In addition, General Chemical Group will use its best efforts to
maintain directors' and officers' liability insurance coverage at least equal to
General Chemical Group's pre-spinoff directors' and officers' liability
insurance coverage for a period of six years for directors and officers of
General Chemical Group who will become directors and officers of GenTek as of
the spinoff date for their acts as directors and officers of General Chemical
Group for periods prior to the spinoff date.
NON-COMPETITION AND NON-SOLICITATION. Each of GenTek and General
Chemical Group have agreed that, subject to certain exceptions, neither will
compete with the other prior to the fifth anniversary of the spinoff. GenTek and
General Chemical Group have also agreed not to hire, or solicit for employment,
any director, officer or supervisory-level employee of the other until the third
anniversary of the spinoff.
EMPLOYEE BENEFITS AGREEMENT
In connection with the spinoff, GenTek and General Chemical Group
entered into an employee benefits agreement that, among other things, separated
the assets and liabilities under General Chemical Group's employee benefit plans
and other employment-related liabilities between us and General Chemical Group.
As a general matter, GenTek and General Chemical Group each agreed
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(1) to continue to employ our respective employees and
(2) to assume the liabilities existing at the time of the spinoff for our
respective employees and former employees.
The employee benefits agreement also provides for the treatment of
certain retirement plans, investment and savings programs, medical and life
insurance benefits, retiree medical and life insurance benefits and stock
awards.
We and General Chemical Group, effective as of the date of the spinoff,
established or have maintained pension plans, health and welfare plans, a
savings (401(k)) plan, and executive compensation plans to mirror the plans that
General Chemical Group or its subsidiaries sponsored for their employees prior
to the spinoff. The employee benefits agreement provides for the separation of
the amounts necessary to fund the projected benefit obligations under the
General Chemical Group pension plans of our current and former employees, on the
one hand, and General Chemical Group's current and former employees, on the
other hand, determined on an equitable basis in accordance with the actuarial
assumptions used by the applicable General Chemical Group pension plan with
respect to its last completed actuarial report. Similar principles will apply
with respect to any employee benefit plan maintained outside of the United
States.
We have established a long-term incentive plan under which stock
options, stock appreciation rights, and other equity-related incentive awards,
as well as cash performance awards, may be granted. Under the employee benefits
agreement, effective as of the spinoff date, the outstanding General Chemical
Group equity-related awards held by our current or former employees also
received similar awards with respect to our stock, adjusted so as to preserve
(a) the difference between the exercise price and the value of shares of General
Chemical Group prior to the spinoff date and (b) the ratio of the exercise price
per share of our common stock and the common stock of General Chemical Group to
the pre-spinoff fair market value of the General Chemical Group shares relating
to the award.
TRANSITION SUPPORT AGREEMENT
Under a transition support agreement, for a period of up to twelve
months following the spinoff, we will provide General Chemical Group with tax,
legal, accounting, treasury, purchasing services, human resources, insurance
management and claims administration, and certain other administrative services,
and General Chemical Group will provide us with certain services as we may agree
upon. In addition, we provide General Chemical Group with management information
services and related functions, including personnel, hardware and software, on a
service contract basis. This arrangement will remain in effect through
approximately December 2001. During this period, we will provide to General
Chemical Group the services related to the mitigation and remediation of the
potential impact of Year 2000 problems of the General Chemical Group.
We provide General Chemical Group with these general administrative and
management information services and functions for a fee that reflects a pro rata
allocation, based on the extent of services and functions provided, of our
overall costs and expenses for such services and functions, plus an appropriate
margin. Upon not less than 60 days prior written notice, either we or General
Chemical Group may direct the other to discontinue any services provided under
the transition support agreement, except with respect to management information
services and related functions. The transition support agreement may be
terminated by either party for a material uncured breach by the other party, the
insolvency of the other party, or the change of control of the other party. The
agreement also provides that generally neither party will be liable to the other
party for any costs, losses, damages or claims related to services provided by
it under the transition support agreement, other than for gross negligence or
willful misconduct.
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SUBLEASE AGREEMENT
General Chemical Group uses a portion of our office space in Parsippany,
New Jersey under a sublease agreement with our subsidiary, General Chemical
Corporation. The sublease payments by General Chemical Group reflect a pro rata
allocation, based upon the square footage of the subleased premises, of General
Chemical Corporation's overall rental and other occupancy costs. The sublease
agreement also provides for customary maintenance and ancillary services.
TAX SHARING AGREEMENT
We and General Chemical Group entered into a tax sharing agreement which
provides, among other things, that
(1) except for taxes described in clauses (2) and (3) below, we will be
responsible for all taxes of any affiliated consolidated, combined or
unitary tax group that includes GenTek or any of its subsidiaries for all
periods ending on or before the spinoff date;
(2) we and General Chemical Group generally will each be responsible for 50% of
any taxes attributable to the spinoff, including any taxes resulting from
the application of section 355(e) of the Code to the spinoff, including any
taxes resulting from the application of section 355(e) of the Code to the
spinofff, except that we and General Chemical Group will be responsible for
100% of such taxes that are attributable to an act of such party or any of
its subsidiaries;
(3) we will pay to General Chemical Group our share of current taxes of any
affiliated consolidated, combined or unitary tax group that includes us or
any of our subsidiaries, for all periods ending on or before the spinoff
date; and
(4) separate company taxes generally will be borne by the company that is
responsible for such taxes under local law.
The tax sharing agreement also establishes, as between us and General
Chemical Group, procedures for the conduct and settlement of certain tax audits
and related proceedings and the determination of the amount of the tax sharing
payments described above. The tax sharing agreement will not be binding on the
Internal Revenue Service or any other taxing authority and will not affect the
several liability of our company and General Chemical Group and our respective
subsidiaries to the Internal Revenue Service for Federal income taxes of the
General Chemical Group consolidated group relating to periods beginning prior to
the spinoff date.
The tax sharing agreement also restricts the ability of our company and
General Chemical Group to take certain actions which could adversely affect the
tax-free nature of the spinoff including as a result of the recognition of gain
under section 355(e) of the Code. In particular, the Tax Sharing Agreement
provides that in the event Paul Montrone and the Montrone family trusts no
longer control 50% of the voting power of our company or General Chemical Group,
both we and General Chemical Group generally will be prohibited from entering
into any transaction or series of transactions, during the two years following
the spinoff, under which one or more persons would control 50% or more of the
voting power or value of our company or General Chemical Group. The tax sharing
agreement provides that each of our company and General Chemical Group may
enjoin the other company from engaging in any such restricted action.
INTELLECTUAL PROPERTY AGREEMENT
Under an intellectual property agreement, General Chemical Group has the
rights to and interest in the copyrights, trademarks, trade secrets and other
intellectual property of General Chemical Group used prior to the spinoff
primarily in the industrial chemicals business, and we have the rights to and
interest in all other intellectual property of General Chemical Group. As of the
spinoff, we and General Chemical Group each licensed to the other party, on a
non-exclusive basis, those items of
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intellectual property that such party owns and the other party needs to use for
the continued operations of its businesses, subject to customary limitations.
We entered into a license with General Chemical Group regarding the
General Chemical name and logo. We own this name and logo and granted to General
Chemical Group, for a one-time up-front fee, a perpetual license to use this
licensed property in connection with the soda ash and calcium chloride
activities and operations of the industrial chemicals business of General
Chemical Group.
PURCHASES OF SODA ASH AND CALCIUM CHLORIDE
We are an end user of soda ash. We purchase our soda ash requirements
from General Chemical Group, both to meet our own supply needs and to resell to
our distributors and customers who purchase multiple GenTek products. These
purchases are on terms similar to those for our purchases of soda ash from the
industrial chemicals business of General Chemical Group prior to the spinoff. We
will also purchase calcium chloride for resale to our distributors and customers
who purchase multiple products of our businesses. These purchases of soda ash
and calcium chloride are not material to our businesses.
We are party to contracts with end users and distributors of soda ash
and calcium chloride. Prior to the spinoff, we assigned certain of our soda ash
and calcium chloride sales contracts to General Chemical Industrial Products
Inc., a subsidiary of General Chemical Group, except for contracts with
distributors that also cover products of our businesses. These other contracts
remain with us. General Chemical Industrial Products Inc. provides us with soda
ash and calcium chloride to enable us to satisfy any such unassigned contracts,
on terms substantially similar to those provided in the unassigned contracts.
Once these contracts with end users and distributors expire, it is anticipated
that, if acceptable to these customers, General Chemical Industrial Products
Inc. will enter into new contracts with them directly. For the year ended
December 31, 1998 and the nine months ended September 30, 1999, sales by General
Chemical Group to us amounted to $5.3 million and $10.0 million, respectively.
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DESCRIPTION OF CREDIT FACILITY
GENERAL. GenTek and Noma have entered into a credit facility with a
group of lenders and The Chase Manhattan Bank, as administrative agent. The
credit facility provides for $300 million of revolving loans to GenTek, $100
million of tranche A term loans to GenTek and $150 million of tranche B term
loans to Noma. On the spinoff date, GenTek borrowed $250 million under the
revolving portion of the credit facility and all $100 million of the A Term
Loans, and Noma borrowed all $150 million of the B Term Loans. Approximately
$486 million of such borrowings was used to repay a portion of General Chemical
Group's third party indebtedness, including borrowings to finance our
acquisition of Noma and Defiance earlier this year prior to the spinoff. We used
the proceeds of the offering of the old notes to repay part of the amounts
outstanding under the revolving portion of the credit facility, and subsequently
borrowed $159 million under the revolving portion of the credit facility to
finance our acquisition of Krone. See 'Use of Proceeds.'
Our term loan borrowings under the credit facility at September 30, 1999
consisted of $100 million of tranche A term loans, $150 million of tranche B
term loans and $215 million of loans under the revolving portion of the credit
facility. As of September 30, 1999, we had the ability to borrow an additional
$85 million under the revolving portion of the credit facility (excluding $13
million for letters of credit), subject to customary borrowing conditions.
Amounts borrowed under the revolving portion of the credit facility may be used
to finance acquisitions and for general corporate purposes including working
capital, capital expenditures and other payments. A portion of the revolving
portion of the credit facility is available for the issuance of letters of
credit.
SECURITY. All indebtedness of GenTek under the credit facility is
guaranteed, on a joint and several basis, by the direct and indirect domestic
subsidiaries of GenTek (with certain exceptions), and all indebtedness of Noma
under the credit facility is guaranteed by GenTek, the domestic subsidiaries of
GenTek and the subsidiaries of Noma. The credit facility is secured by 100% of
the owned capital stock of the direct and indirect domestic subsidiaries of
GenTek, and 65% of certain foreign subsidiaries of GenTek.
MATURITY; PREPAYMENT. Commitments under the revolving portion of the
credit facility terminate on April 30, 2005, at which time all outstanding
borrowings under the revolving portion of the credit facility will mature and be
payable. The tranche A term loans mature and are payable in the following
amounts (in equal quarterly installments): (a) $2.5 million from September 30,
2000 through June 30, 2001, (b) $5.0 million from September 30, 2001 through
June 30, 2002, (c) $12.5 million from September 30, 2002 through June 30, 2003,
(d) $30.0 million from September 30, 2003 through June 30, 2004, and (e) $50.0
million from September 30, 2004 through April 30, 2005. The tranche B term loans
mature and are payable in the following amounts (in equal quarterly
installments): (a) $1.5 million in each 12-month period beginning September 30,
1999 until September 30, 2006, and (b) $139.5 million from September 30, 2006
through April 30, 2007.
The credit facility is subject to mandatory prepayments out of proceeds
received from the sale or disposition of certain assets, sale or issuance of
certain indebtedness and certain insurance recoveries of GenTek. GenTek may
prepay borrowings under the credit facility without any premium or penalty.
INTEREST RATES. Interest is due on amounts outstanding under the credit
facility on March 31, June 30, September 30 and December 31, except that in the
case of Eurodollar loans, GenTek and Noma may elect to pay interest
semi-annually. The interest rate applicable to borrowings under the credit
facility will be based, at the option of GenTek, on ABR or Eurodollar Rate, in
each case plus a specified margin based on the GenTek's ratio of funded debt to
pro forma EBITDA calculated on a rolling four quarter basis. Such margin on the
revolving portion of the credit facility and the tranche A term loans ranges
between 0% and 0.75% in the case of ABR loans, and between 1.00% and 2.00% in
the case of Eurodollar loans. The margin on the tranche B term loans ranges
between 1.00% and 1.50% in the case of ABR loans and between 2.25% and 2.75% in
the case of Eurodollar loans.
REPRESENTATIONS AND WARRANTIES. The credit facility contains
representations and warranties customarily found in loan agreements for similar
financings.
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COVENANTS; EVENTS OF DEFAULT. The credit facility contains numerous
restrictive financial and other covenants, including without limitation:
(1) restrictions on indebtedness, liens and guarantees;
(2) restrictions on certain mergers, consolidations, liquidations and
dissolutions, sales of assets, investments, leases, changes in lines of
business, modifications of subordinated and other debt instruments,
amendments to the documents executed in connection with the spinoff,
transactions with affiliates, and negative pledge clauses and clauses
restricting subsidiary distributions;
(3) restrictions on certain payments (capital expenditures, prepayment on the
notes and other junior indebtedness, dividend payments, and redemptions or
other payments on the capital stock); and
(4) certain financial tests, including a maximum senior leverage ratio, a
maximum leverage ratio and a minimum interest coverage ratio. The credit
facility provides for certain customary events of default, including an
event of default upon the occurrence of a change of control of GenTek.
The credit facility requires GenTek to comply with the following
financial ratios as of the last day of any of its fiscal quarters, beginning
with the quarter ending September 30, 1999:
<TABLE>
<S> <C>
Senior Leverage Ratio....................................... 3.75:1.00
Leverage Ratio.............................................. 5.00:1.00
Interest Coverage Ratio..................................... 2.50:1.00
</TABLE>
The credit facility has specific tailored definitions of senior leverage
ratio, leverage ratio and interest coverage ratio. We urge you to read the
credit agreement in order to understand these definitions and the financial
ratios. GenTek believes that it is currently in compliance with the covenants in
its credit facility.
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DESCRIPTION OF NOTES
GenTek issued the old notes under an indenture, dated as of August 9,
1999, between GenTek and U.S. Bank Trust National Association, as trustee. The
new notes will also be issued under the indenture. The terms of the new notes
are identical in all material respects to the terms of the old notes except that
the new notes are registered under the Securities Act and therefore will not
contain restrictions on transfer or provisions relating to additional interest.
The following is a summary of the material provisions of the indenture.
It does not contain all of the information that may be important to an investor
in the notes. It is subject to, and is qualified in its entirety by reference
to, the Trust Indenture Act of 1939, and to all of the provisions of the
indenture. GenTek has filed the indenture as an exhibit to the registration
statement of which this prospectus is a part. The definitions of most
capitalized terms used in the following summary are set forth below under
'Certain Definitions.' References in this 'Description of the Notes' section to
'GenTek' mean only GenTek Inc. and not any of its subsidiaries.
SERVICE CHARGES AND TAXES ON TRANSFER OR EXCHANGE
Under the indenture, GenTek will not impose any service charge for any
registration of transfer or exchange of the notes. However, GenTek may require a
holder of notes to pay any tax or other governmental charge that may be imposed
in connection with such transfer or exchange.
RANKING
The notes:
rank junior to, and be subordinated in right of payment to, all
existing and future Senior Indebtedness of GenTek;
pari passu in right of payment with all senior subordinated
indebtedness of GenTek; and
senior in right of payment to all Subordinated Indebtedness of GenTek.
The notes will also be effectively subordinated to any secured
Indebtedness of GenTek to the extent of the value of the assets securing such
Indebtedness.
The indebtedness evidenced by the Subsidiary Guarantees:
ranks junior to, and is subordinated in right of payment to, all
existing and future Guarantor Senior Indebtedness of the applicable
Subsidiary Guarantor;
pari passu in right of payment with all senior subordinated
Indebtedness of such Subsidiary Guarantor; and
senior in right of payment to all Subordinated Indebtedness of such
Subsidiary Guarantor.
The Subsidiary Guarantees will also be effectively subordinated to any
secured Indebtedness of the applicable Subsidiary Guarantor to the extent of the
value of the assets securing such Indebtedness.
At September 30, 1999, GenTek had $555.4 million of Senior Indebtedness
outstanding and the ability to borrow an additional $85.0 million of Senior
Indebtedness under the Credit Facility. All debt incurred under the $550.0
million Credit Facility will be Senior Indebtedness of GenTek and will be
guaranteed by the Subsidiary Guarantors on a senior basis.
The operations of GenTek are conducted through its subsidiaries. Unless
the subsidiary is a Subsidiary Guarantor, claims of creditors of such
subsidiaries, including trade creditors, and claims of preferred stockholders
(if any) of such Subsidiaries will have priority with respect to the assets and
earnings of such subsidiaries over the claims of the creditors of GenTek,
including holders of the notes. The notes, therefore, will be effectively
subordinated to creditors, including trade creditors, and preferred
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stockholders (if any) of the Subsidiaries of GenTek that are not Subsidiary
Guarantors. At September 30, 1999, the Non-Guarantor Subsidiaries had total
indebtedness (excluding indebtedness owed to GenTek) of $231 million. See
' -- Subordination' below and the risk factors relating to contractual and
structural subordination and GenTek's dependence upon subsidiaries under 'Risk
Factors' herein.
MATURITY, INTEREST AND PRINCIPAL OF THE NOTES
The notes will be limited to $200 million aggregate principal amount and
will mature on August 1, 2009. Interest on the notes will accrue at a rate of
11% per annum and will be payable semi-annually in arrears on each February 1
and August 1, commencing February 1, 2000, to the holders of record of notes at
the close of business on January 15 and July 15, respectively, immediately
preceding such interest payment date. Cash interest will accrue from the most
recent interest payment date to which interest has been paid or, if no interest
has been paid, from August 9, 1999. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
OPTIONAL REDEMPTION
GenTek may opt to redeem the notes in whole or in part, at any time on
or after August 1, 2004, at the redemption prices (expressed as a percentage of
principal amount) set forth below, plus accrued and unpaid interest thereon, if
any, to the redemption date (subject to the right of holders of record of notes
on the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the twelve-month period beginning on August 1
of the years indicated below:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
- ---- -----
<S> <C>
2004........................................................ 105.500%
2005........................................................ 103.667%
2006........................................................ 101.833%
2007 and thereafter......................................... 100.000%
</TABLE>
In addition, at any time and from time to time on or prior to August 1,
2002, GenTek may redeem up to 35% of the originally issued aggregate principal
amount of the notes with the net cash proceeds of one or more Equity Issuances,
at a redemption price in cash equal to 111.0% of the principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the date of redemption
(subject to the right of holders of record of note on the relevant record date
to receive interest due on the relevant interest payment date); provided,
however, that at least 65% of the originally issued aggregate principal amount
of the notes must remain outstanding immediately after giving effect to each
such redemption (excluding any notes held by GenTek or any of its Affiliates).
Notice of any such redemption must be given within 90 days after the date of the
closing of the relevant Equity Issuance.
SELECTION AND NOTICE OF REDEMPTION
In the event that less than all of the notes are to be redeemed at any
time pursuant to an optional redemption, selection of such notes for redemption
will be made by the trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the notes are listed or, if the
notes are not then listed on a national securities exchange, on a pro rata
basis, by lot or by such method as the trustee shall deem fair and appropriate;
provided, however, that no notes of a principal amount of $1,000 or less shall
be redeemed in part; provided, further, that if a partial redemption is made
with the net cash proceeds of an Equity Issuance, selection of the notes or
portions thereof for redemption shall be made by the trustee only on a pro rata
basis or on as nearly a pro rata basis as is practicable (subject to the
procedures of The Depository Trust Company), unless such method is otherwise
prohibited.
Notice of redemption shall be mailed by first-class mail at least 30 but
not more than 60 days before the redemption date to each holder of notes to be
redeemed at its registered address. If any note is to be redeemed in part only,
the notice of redemption that relates to such note shall state the portion
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of the principal amount thereof to be redeemed. A new note in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the holder
thereof upon cancellation of the original note. On and after the redemption
date, interest will cease to accrue on notes or portions thereof called for
redemption as long as GenTek has deposited with the paying agent for the notes
funds in satisfaction of the applicable redemption price pursuant to the
indenture.
SUBORDINATION
The payment of the principal of, premium, if any, and interest on and
other Obligations relating to the Notes is subordinated in right of payment, as
provided in the indenture, to the prior payment in full in cash of all Senior
Indebtedness.
Upon any payment or distribution of assets or securities of GenTek of
any kind or character, whether in cash, property or securities (excluding any
payment in, or distribution of, Permitted Junior Securities and excluding any
payment from the trust described under 'Satisfaction and Discharge of Indenture;
Defeasance' if the funding of such trust was permitted (a 'Defeasance Trust
Payment')), upon any dissolution or winding-up or total liquidation or
reorganization of GenTek, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all Senior Indebtedness shall
first be paid in full in cash before the holders or the trustee on behalf of the
holders shall be entitled to receive any payment or distribution by or on behalf
of GenTek of the principal of, premium, if any, or interest on, or other
Obligations with respect to, the notes, or any payment or distribution by or on
behalf of the Company to acquire any of the notes or related Obligations for
cash, property or securities, or any payment or distribution by or on behalf of
GenTek with respect to the notes of any cash, property or securities (excluding
any payment in, or distribution of, Permitted Junior Securities and excluding
any Defeasance Trust Payment).
Before any payment or distribution may be made by, or on behalf of,
GenTek of the principal of, premium, if any, or interest on, or other
Obligations with respect to, the notes upon any such dissolution or winding-up
or total liquidation or reorganization or in bankruptcy, insolvency,
receivership or other proceedings, any payment in, or distribution of, assets or
securities of GenTek of any kind or character, whether in cash, property or
securities (excluding any payment or distribution of Permitted Junior Securities
and excluding any Defeasance Trust Payment), to which the holders or the trustee
on their behalf would be entitled, but for the subordination provisions of the
indenture, shall be made by GenTek or by any receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or distribution,
directly to the holders of the Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such holders)
or their representatives or to the trustee or trustees or agent or agents under
any agreement or indenture pursuant to which any of such Senior Indebtedness may
have been issued, as their respective interests may appear, to the extent
necessary to pay all such Senior Indebtedness in full in cash after giving
effect to any prior or concurrent payment, distribution or provision therefor to
or for the holders of such Senior Indebtedness.
No direct or indirect payment or distribution (excluding any payment in,
or distribution of, Permitted Junior Securities and excluding any Defeasance
Trust Payment) by or on behalf of GenTek or any Subsidiary of principal of,
premium, if any, or interest on, or other Obligations with respect to, the
Notes, whether pursuant to the terms of the notes, upon acceleration, pursuant
to an Offer to Purchase, redemption, defeasance, other purchase or otherwise,
will be made if, at the time of such payment or distribution, there exists a
default in the payment of all or any portion of the Obligations on any
Designated Senior Indebtedness, whether at maturity, on account of mandatory
prepayment, acceleration or otherwise, and such default shall not have been
cured or waived or the benefits of this sentence waived by or on behalf of the
holders of such Designated Senior Indebtedness.
In addition, during the continuance of any event of default (other than
a payment default described in the preceding sentence) with respect to any
Designated Senior Indebtedness pursuant to which the maturity thereof may be
immediately accelerated, and upon receipt by the Trustee of written notice (a
'Payment Blockage Notice') from the holder or holders of such Designated Senior
Indebtedness or the trustee or agent acting on behalf of the holders of such
Designated Senior Indebtedness, then,
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unless and until such event of default has been cured or waived or has ceased to
exist or such Designated Senior Indebtedness has been discharged or repaid in
full in cash or the benefits of these provisions have been waived by the holders
of such Designated Senior Indebtedness, no direct or indirect payment or
distribution (excluding any payment in, or distribution of, Permitted Junior
Securities and excluding any Defeasance Trust Payment) will be made by or on
behalf of GenTek of principal of, premium, if any, or interest on, or other
Obligations with respect to, the notes, to such holders, during a period (a
'Payment Blockage Period') commencing on the date of receipt of such notice by
the trustee and ending 179 days thereafter.
Notwithstanding anything in the subordination provisions of the
Indenture or the Notes to the contrary:
in no event will a Payment Blockage Period extend beyond 179 days from
the date the Payment Blockage Notice in respect thereof was given;
there shall be a period of at least 181 consecutive days in each
360-day period when no Payment Blockage Period is in effect; and
not more than one Payment Blockage Period may be commenced with respect
to the notes during any period of 365 consecutive days.
No event of default that existed or was continuing on the date of
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period (to the extent the
holder of Designated Senior Indebtedness, or trustee or agent, giving notice
commencing such Payment Blockage Period had knowledge of such existing or
continuing event of default) may be, or be made, the basis for the commencement
of any other Payment Blockage Period by the holder or holders of such Designated
Senior Indebtedness or the trustee or agent acting on behalf of such Designated
Senior Indebtedness, whether or not within a period of 365 consecutive days,
unless such event of default has been cured or waived for a period of not less
than 90 consecutive days. If, notwithstanding the foregoing, GenTek (or any
other Person on behalf of GenTek) makes any payment or distribution to the
trustee or to holders prohibited by the subordination provisions of the
indenture, then such payment or distribution will be required to be paid over to
or for the benefit of holders of Designated Senior Indebtedness.
The failure to make any payment or distribution for or on account of the
Notes by reason of the provisions of the Indenture described under this
'Subordination' heading will not be construed as preventing the occurrence of
any Event of Default in respect of the Notes. See 'Events of Default' below.
By reason of the subordination provisions described above, in the event
of insolvency of GenTek, funds which would otherwise be payable to holders of
notes will be paid to the holders of Senior Indebtedness to the extent necessary
to pay the Senior Indebtedness in full in cash, and GenTek may be unable to meet
fully its obligations with respect to the notes.
The indenture will contain substantially similar subordination
provisions relating to each Subsidiary Guarantor's obligations under its
Subsidiary Guarantee.
THE GUARANTEES
Each of the Subsidiary Guarantors will fully and unconditionally
guarantee (each, a 'Subsidiary Guarantee'), on a joint and several basis, all of
GenTek's obligations under the notes and the indenture, including the
obligations to pay principal, premium, if any, and interest with respect to the
notes. The Subsidiary Guarantees will be general unsecured obligations of the
Subsidiary Guarantors. The obligations of each Subsidiary Guarantor under its
Subsidiary Guarantee will be subordinated and junior in right of payment to the
prior payment in full of all existing and future Guarantor Senior Indebtedness
of such Subsidiary Guarantor to substantially the same extent as the notes are
subordinated to all existing and future Senior Indebtedness of GenTek.
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Under the indenture, each of GenTek's Eligible Subsidiaries on the Issue
Date will be a Subsidiary Guarantor. Pursuant to the indenture, after the Issue
Date, GenTek will cause each Eligible Subsidiary formed or acquired thereafter
that borrows under, or is required to become a guarantor of, the Credit Facility
to execute and deliver to the trustee a supplemental indenture pursuant to which
such Eligible Subsidiary will become a Subsidiary Guarantor. In addition, GenTek
may, at its option, cause any of its other Subsidiaries that becomes a guarantor
of the Credit Facility to execute and deliver to the trustee a supplemental
indenture pursuant to which such Subsidiary will become a Subsidiary Guarantor.
Eligible Subsidiaries are all Restricted Subsidiaries, other than:
Foreign Subsidiaries,
Subsidiaries of Foreign Subsidiaries, and
Accounts Receivable Subsidiaries.
Under the current Credit Facility, all Subsidiaries of the Company
(other than Foreign Subsidiaries) 80% or more of the common Equity Interests of
which is owned directly or indirectly by GenTek (other than through any Foreign
Subsidiary) are required to guaranty GenTek's obligations under the Credit
Facility. In addition, GenTek may, at its option, cause any of its other
Subsidiaries to guaranty GenTek's obligations under the Credit Facility.
Pursuant to the Subsidiary Guarantees, if GenTek defaults in payment of
any amount owing in respect of any Notes, each Subsidiary Guarantor will be
obligated to duly and punctually pay the same. Pursuant to the terms of the
indenture, each of the Subsidiary Guarantors has agreed that its obligations
under its Guarantee will be unconditional, irrespective of the absence of any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
Notwithstanding the foregoing, the obligations of each Subsidiary
Guarantor will be limited to an amount not to exceed the maximum amount that can
be guaranteed, as it relates to such Subsidiary Guarantor, without being
voidable under applicable law, including laws relating to fraudulent conveyance
or fraudulent transfer or similar laws affecting the rights of creditors
generally.
If no Default exists or would exist under the indenture, concurrently
with any sale or disposition of any Subsidiary Guarantor by merger, sale of all
or substantially all of its assets, liquidation or otherwise which is in
compliance with the terms of the indenture (other than a transaction subject to
the provisions described under 'Merger and Consolidation') such Subsidiary
Guarantor and each Subsidiary of such Subsidiary Guarantor that is also a
Subsidiary Guarantor will automatically and unconditionally be released from all
obligations under its Subsidiary Guarantee. In addition, subject to the
foregoing conditions, any Subsidiary Guarantor will automatically and
unconditionally be released from all obligations under its Subsidiary Guarantee,
unless GenTek otherwise elects, if such Subsidiary Guarantor:
is designated as an Unrestricted Subsidiary in compliance with the
terms of the Indenture or
ceases to be a guarantor of, or is released from its guarantees of, and
all pledges and security granted in connection with, the Credit
Facility.
OFFER TO PURCHASE UPON CHANGE OF CONTROL
Following the occurrence of a Change of Control, GenTek shall notify the
holders of such occurrence in the manner prescribed by the indenture and shall,
within 30 days after the Change of Control Date, make an Offer to Purchase all
notes then outstanding, and shall purchase all notes validly tendered, at a
purchase price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the Purchase Date (subject
to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date). GenTek's obligations to
make and consummate an Offer to Purchase following the occurrence of a
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Change of Control may be satisfied if another Person makes and consummates such
Offer to Purchase in the manner and at the times prescribed herein.
If a Change of Control occurs which also constitutes an event of default
under the Credit Facility or any other Indebtedness, the lenders under the
Credit Facility or such other Indebtedness would be entitled to exercise the
remedies available to them as lenders under applicable law and pursuant to the
terms of the Credit Facility or such Indebtedness. Any claims of such lenders
holding secured indebtedness of GenTek or Senior Indebtedness will be prior to
any claim of the holders, as more fully discussed elsewhere in this prospectus.
If an Offer to Purchase is made, there can be no assurance that GenTek
will have available funds sufficient to pay for all of the notes that might be
tendered by holders seeking to accept the Offer to Purchase. If GenTek fails to
repurchase all of the notes tendered for purchase, such failure will constitute
an Event of Default under the indenture. See 'Events of Default' below.
If GenTek makes an Offer to Purchase, GenTek will comply with all
applicable tender offer laws and regulations, including, Section 14(e) and
Rule 14e-1 under the Exchange Act, and any other applicable Federal or state
securities laws and regulations and any applicable requirements of any
securities exchange on which the notes are listed, and any violation of the
provisions of the indenture relating to such Offer to Purchase occurring as a
result of such compliance shall not be deemed an Event of Default or an event
that, with the passing of time or giving of notice, or both, would constitute an
Event of Default.
Except as described above with respect to a Change of Control, the
indenture does not contain provisions that permit the holders to require that
GenTek repurchase or redeem the notes in the event of a takeover,
recapitalization or similar transaction.
COVENANTS
The indenture will contain the following covenants:
LIMITATION ON INCURRENCE OF INDEBTEDNESS AND PREFERRED EQUITY INTERESTS.
(1) GenTek will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, Incur any Indebtedness, and (2) GenTek will not permit
any Restricted Subsidiary to issue any Preferred Equity Interests (other than to
the Company or to a Restricted Subsidiary); provided, however, that GenTek
and/or any Restricted Subsidiary may Incur Indebtedness and a Restricted
Subsidiary may issue Preferred Equity Interests (other than Disqualified Equity
Interests) if, at the time of and immediately after giving pro forma effect
thereto and the application of the proceeds therefrom, GenTek's Consolidated
Coverage Ratio would be greater than or equal to:
2.25 to 1.0, if such Indebtedness is Incurred or Preferred
Equity Interest is issued on or prior to February 1, 2001,
and
2.5 to 1.0, if such Indebtedness is Incurred or Preferred
Equity Interest is issued after February 1, 2001.
The provisions of the first paragraph of this covenant will not apply to
the Incurrence of any Permitted Indebtedness.
For purposes of determining compliance with this covenant;
(x) in the event that an item of Indebtedness meets the criteria of more than
one of the categories of Permitted Indebtedness described in clauses (1)
through (11) of the definition thereof or is being considered for
Incurrence pursuant to the first paragraph of this covenant, GenTek shall,
in its sole discretion, classify such item of Indebtedness;
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(A) as any of the appropriate items of Permitted Indebtedness (and not
applied for purposes of calculating the amount of Indebtedness that
may be Incurred under the Consolidated Coverage Ratio of the first
paragraph of this covenant); or
(B) as Indebtedness being Incurred under the Consolidated Coverage Ratio
of the first paragraph of this covenant, and thereafter may, at its
discretion, reclassify such item of Indebtedness from time to time in
any manner that complies with this covenant at the time of such
reclassification; provided that amounts outstanding under clauses (1)
and (4) of Permitted Indebtedness on the Issue Date may not be
reclassified; and
(y) to avoid duplication, with respect to any item of Indebtedness, any other
obligation of the obligor on such Indebtedness (or of any other Person
that could have Incurred such Indebtedness under this covenant) arising
under any guaranty, Lien or letter of credit, bankers' acceptance or other
similar instrument or obligation supporting such Indebtedness shall be
disregarded to the extent that such guaranty, Lien or letter of credit,
bankers' acceptance or other similar instrument or obligation secures the
principal amount of such Indebtedness and the Incurrence of such
Indebtedness has otherwise been included in determining compliance with
this covenant.
LIMITATION ON RESTRICTED PAYMENTS.
GenTek will not, and will not cause or permit any Restricted Subsidiary
to, directly or indirectly,
(1) declare or pay any dividend or any other distribution in respect of any
Equity Interests of GenTek or make any payment or distribution to the
direct or indirect holders (in their capacities as such) of Equity
Interests of GenTek, other than:
(a) any dividends, distributions and payments made to GenTek or any
Restricted Subsidiary and
(b) dividends or distributions payable to any Person solely in Qualified
Equity Interests of GenTek or in options, warrants or other rights to
purchase Qualified Equity Interests of GenTek;
(2) purchase, redeem or otherwise acquire or retire for value any Equity
Interests of GenTek (other than any Equity Interests of GenTek owned by
GenTek or any Restricted Subsidiary);
(3) purchase, redeem, defease or retire for value, or make any principal
payment on, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, any Subordinated Indebtedness, other than:
(a) any Subordinated Indebtedness held by GenTek or any Restricted
Subsidiary and
(b) any purchase, redemption, defeasance or other acquisition or
retirement for value in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due
within one year of the date of such acquisition or retirement; or
(4) make any Investment (other than a Permitted Investment) in any Person
(any such payment or any other action described in (1), (2), (3) or (4) each, a
'Restricted Payment'); unless
(A) no Default shall have occurred and be continuing at the time of or
immediately after giving effect to such Restricted Payment;
(B) immediately after giving effect to such Restricted Payment, GenTek would be
able to Incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under the Consolidated Coverage Ratio of the first paragraph
of the 'Limitation on Incurrence of Indebtedness and Preferred Equity
Interests' covenant; and
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(C) immediately after giving effect to such Restricted Payment, the aggregate
amount of all Restricted Payments declared or made on or after the Issue
Date does not exceed an amount equal to the sum of:
(1) 50% of cumulative Consolidated Net Income determined for the period
(taken as one accounting period) from January 1, 1999 and ending on
the last day of the most recent fiscal quarter immediately preceding
the date of such Restricted Payment for which consolidated financial
statements of GenTek are available (or, if such cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss);
plus
(2) the aggregate net cash proceeds and the Fair Market Value of
property, in each case, received by GenTek either:
(a) as capital contributions to GenTek after the Issue Date; or
(b) from the issue and sale (other than to a Subsidiary of GenTek)
of Qualified Equity Interests of GenTek after the Issue Date
(excluding the net proceeds:
(a) from any issuance or sale of Qualified Equity Interests
or capital contribution if such net proceeds are to be
made the subject of an optional redemption prior to
August 1, 2002; or
(b) from any issuance or sale of Equity Interests or capital
contribution financed, directly or indirectly, using
funds borrowed from GenTek or any Subsidiary of GenTek
until and to the extent such borrowing is repaid; or
(c) from any issuance or sale of Designated Preferred
Stock); plus
(3) the principal amount (or accreted amount (determined in accordance
with GAAP), if less) of any Indebtedness of GenTek or any Restricted
Subsidiary Incurred after the Issue Date which has been converted
into or exchanged for Qualified Equity Interests of GenTek after the
Issue Date; plus
(4) in the case of the disposition or repayment of any Investment
constituting a Restricted Payment made after the Issue Date, an
amount (to the extent not included in the computation of Consolidated
Net Income) equal to the lesser of:
(a) the return of capital with respect to such Investment
(including the proceeds of such disposition); and
(b) the amount of such Investment which was treated as a Restricted
Payment, in either case, less the cost of the disposition of
such Investment and net of taxes to the extent such costs and
taxes exceed the amount, if any, by which the proceeds of such
disposition or repayment exceed the lesser of the amounts
referred to in the preceding such clauses (a) and (b) of this
clause (4); plus
(5) so long as the Designation thereof was treated as a Restricted Payment
made after the Issue Date, with respect to any Unrestricted Subsidiary
as to which a Revocation has occurred in accordance with the
'Designation of Unrestricted Subsidiaries' covenant below, the lesser
of
(a) the Fair Market Value of the Investment of GenTek or any
Restricted Subsidiary in such Subsidiary as of the date of such
Revocation; or
(b) the Designation Amount with respect to such Designation; plus
(6) without duplication;
(a) to the extent not included in the computation of Consolidated
Net Income, the amount of cash dividends or cash distributions
(other than, in the case of an Unrestricted Subsidiary that is
treated as a partnership for tax purposes, to permit GenTek or
a Restricted
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Subsidiary to pay taxes related to its interest in such
Unrestricted Subsidiary) received from any Unrestricted
Subsidiary since the Issue Date; and
(b) the amount equal to the net reduction in Investments in an
Unrestricted Subsidiary resulting from the repayment of
principal of loans or other advances or other transfers of
assets to GenTek or any Restricted Subsidiary from such
Unrestricted Subsidiary; minus
(7) the greater of (x) $0 and (y) the Designation Amount (measured as of
the date of Designation) with respect to any Subsidiary of GenTek
which has been designated as an Unrestricted Subsidiary after the
Issue Date in accordance with the 'Designation of Unrestricted
Subsidiaries' covenant below; plus
(8) $20.0 million.
For purposes of the preceding clause (C), the value of the aggregate net
proceeds received by GenTek upon the issuance of Capital Stock either upon the
conversion of convertible Indebtedness or in exchange for outstanding
Indebtedness or upon the exercise of options, warrants or rights will be the net
proceeds received upon the issuance of such Indebtedness, options, warrants or
rights plus the incremental amount of cash or Fair Market Value of other
property received by GenTek upon the conversion, exchange or exercise thereof.
For purposes of this covenant, the amount of any Restricted Payment, if other
than cash, shall be the Fair Market Value of the asset(s) proposed to be
transferred by GenTek or such Restricted Subsidiary, as the case may be,
pursuant to such Restricted Payment.
The foregoing provisions will not prevent:
(1) the payment of any dividend or distribution on, or redemption of, Equity
Interests within 60 days after the date of declaration of such dividend or
distribution or the giving of formal notice of such redemption, if at the
date of such declaration or giving of such formal notice such payment or
redemption would comply with the provisions of the indenture;
(2) the purchase, redemption, retirement or other acquisition of any Equity
Interests in exchange for, or out of the net cash proceeds of the
substantially concurrent issue and sale (other than to a Subsidiary of
GenTek) of, Qualified Equity Interests of GenTek or a substantially
concurrent capital contribution to GenTek; provided that any such net cash
proceeds and the value of any Qualified Equity Interests issued in exchange
for such retired Equity Interests are excluded from clause (C)(2) of the
preceding paragraph;
(3) the purchase, redemption, retirement, defeasance or other acquisition of
Subordinated Indebtedness, Disqualified Equity Interests of the Company or
Designated Preferred Stock of GenTek or any other payment thereon, made in
exchange for, or out of the net cash proceeds of
(a) a substantially concurrent issue and sale (other than to a Subsidiary
of GenTek) of, Qualified Equity Interests of GenTek or a
substantially concurrent capital contribution to GenTek; provided
that any such net cash proceeds and the value of any Qualified Equity
Interests issued in exchange for Subordinated Indebtedness are
excluded from clauses (C)(2) and (C)(3) of the preceding paragraph;
or
(b) a substantially concurrent issue and sale of other Subordinated
Indebtedness having a Weighted Average Life to Maturity no less than
that of the Subordinated Indebtedness being purchased, redeemed,
retired, defeased or otherwise being acquired; or
(c) a substantially concurrent issue and sale of Disqualified Equity
Interests of GenTek or Designated Preferred Stock of GenTek;
(4) Permitted Equity Incentive Payments;
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(5) any Investment constituting a Restricted Payment in any Person that is made
out of the net cash proceeds received by GenTek either; as
(a) a substantially concurrent capital contribution; or
(b) a substantially concurrent issue and sale (other than to a Subsidiary
of GenTek) of Qualified Equity Interests of GenTek, provided that
such net cash proceeds are excluded from clause (C)(2) of the
preceding paragraph;
(6) any purchase, redemption, repurchase, defeasance or other acquisition or
retirement of Subordinated Indebtedness to the extent required by the
agreement governing such Subordinated Indebtedness, following the
occurrence of a Change of Control (or other similar event described therein
as a 'change of control'), but only if GenTek shall have complied with the
covenant described under ' -- Change of Control' and, if required,
purchased all Notes tendered pursuant to the offer to repurchase all the
Notes required thereby, prior to or concurrently with purchasing or
repaying such Subordinated Indebtedness;
(7) to the extent of surplus legally available therefor pursuant to applicable
law the payment of regular dividends to the holders of common stock of
GenTek in an amount not to exceed $7.5 million per year in the aggregate;
and
(8) the declaration and payment of regularly accruing dividends in cash or
in-kind to holders of Disqualified Equity Interests or Designated Preferred
Stock of GenTek, in each case issued after the Issue Date; provided,
however, that in the case of each of clauses (2) through (8), no Default
shall have occurred and be continuing or would arise therefrom.
In determining the amount of Restricted Payments permissible under this
covenant, amounts expended under clauses (1) and (8) of the immediately
preceding paragraph shall be included as Restricted Payments and amounts
expended pursuant to any other clauses shall be excluded. The amount of any
non-cash Restricted Payment shall be deemed to be equal to the Fair Market Value
thereof at the date of the making of such Restricted Payment. For purposes of
determining compliance with this covenant, in the event that a Restricted
Payment meets the criteria of more than one of the exceptions described in
clauses (1) through (8) above or is entitled to be made pursuant to the first
paragraph of this covenant, GenTek may, in its sole discretion, classify such
Restricted Payment in any manner that complies with this covenant at the time of
such Restricted Payment.
LIMITATION ON LIENS.
GenTek will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, assume, incur, create or suffer to exist any Liens of
any kind against or upon any of their respective properties or assets, whether
owned on the Issue Date or thereafter acquired, or any proceeds therefrom, to
secure any Indebtedness (an 'Initial Lien') unless contemporaneously therewith
effective provision is made, in the case of GenTek, to secure the notes and all
other amounts due under the Indenture and, in the case of a Restricted
Subsidiary that is a Subsidiary Guarantor, to secure such Restricted
Subsidiary's Subsidiary Guarantee and all other amounts due under the indenture,
equally and ratably with such Indebtedness (or, in the event that such
Indebtedness is subordinated in right of payment to the notes or any Subsidiary
Guarantee, prior to such Indebtedness) with a Lien on the same properties and
assets securing such Indebtedness for so long as such Indebtedness is secured by
such Lien, except for:
(1) Liens securing any Senior Indebtedness or Guarantor Senior Indebtedness or
any guaranty of Senior Indebtedness or Guarantor Senior Indebtedness by
GenTek or any Restricted Subsidiary; and
(2) Permitted Liens.
Any Lien created in favor of the notes pursuant hereto will be automatically and
unconditionally released and discharged upon:
(1) the unconditional release and discharge of the Initial Lien to which it
relates; or
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(2) any sale, exchange or transfer to any Person that is not an Affiliate of
GenTek or any Restricted Subsidiary of the property or assets secured by
such Initial Lien, or of all of the Equity Interests held by GenTek and the
Restricted Subsidiaries in, or all or substantially all of the assets of,
the Restricted Subsidiary whose property or assets were the subject of such
Lien, provided that, in the case of this clause (2), the provisions of the
covenant 'Disposition of Proceeds of Asset Sales' are, to the extent
applicable, complied with in connection with such sale, exchange or
transfer.
GenTek and the Subsidiary Guarantors shall not be required to comply
with the foregoing covenant so long as such covenant would be prohibited by the
terms of the Credit Facility without giving effect to a replacement or successor
refinancing thereof.
DISPOSITION OF PROCEEDS OF ASSET SALES.
GenTek will not, and will not cause or permit any Restricted Subsidiary
to, directly or indirectly, make any Asset Sale; unless
(1) GenTek or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the assets sold or otherwise disposed of; and
(2) at least 75% of such consideration consists of cash, Cash Equivalents or
Permitted Consideration or any combination thereof; provided that the
principal amount (or accreted value) of any:
(A) (x) Indebtedness (other than any Subordinated Indebtedness or Pari
Passu Debt) of the Company or any Restricted Subsidiary that is
actually assumed by the transferee in such Asset Sale and from which
GenTek and the Restricted Subsidiaries are fully and unconditionally
released and (y) Indebtedness of a Restricted Subsidiary that is no
longer a Restricted Subsidiary as a result of such Asset Sale to the
extent that GenTek and each other Restricted Subsidiary are released
from their guarantee of such Indebtedness in connection with such
Asset Sale, shall be deemed to be cash for purposes of determining
the percentage of cash consideration received by GenTek or the
Restricted Subsidiaries; and
(B) notes or other securities or similar obligations received by GenTek
or the Restricted Subsidiaries from such transferee that are
immediately converted, sold or exchanged (or are converted, sold or
exchanged within 90 days of the related Asset Sale) by GenTek or the
Restricted Subsidiaries into cash
shall be deemed to be cash in an amount equal to the net cash proceeds realized
upon such conversion, sale or exchange for purposes of determining the amount of
cash consideration received by the Company or the Restricted Subsidiaries.
With respect to any Asset Sale, GenTek or such Restricted Subsidiary, as
the case may be, may:
(1) apply the Net Cash Proceeds of such Asset Sale within 365 days of receipt
thereof to repay Senior Indebtedness;
(2) apply the Net Cash Proceeds of such Asset Sale to purchase Replacement
Assets; or
(3) apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt
thereof or repay Pari Passu Debt not exceeding the Pari Passu Debt Pro Rata
Share.
Notwithstanding the foregoing:
(x) up to $35.0 million of Net Cash Proceeds in aggregate need not be
applied in accordance with the preceding clauses (1), (2) and (3)
and need not be treated as Unutilized Net Cash Proceeds under the
following paragraph and
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(y) in the event a Restricted Subsidiary that is not a Wholly-Owned
Restricted Subsidiary dividends or distributes to all of its
stockholders on a pro rata basis any Net Cash Proceeds to GenTek or
another Restricted Subsidiary, GenTek or such Restricted Subsidiary
need only apply its share of such Net Cash Proceeds in accordance
with the preceding clause (1), (2) or (3).
To the extent all or part of the Net Cash Proceeds of any Asset Sale are
not applied within 365 days of such Asset Sale in accordance with the preceding
paragraph (except as otherwise permitted therein) or the proviso of the first
paragraph of this covenant (such Net Cash Proceeds, the 'Unutilized Net Cash
Proceeds'), GenTek shall, within 20 days after such 365th day, make an Offer to
Purchase all outstanding notes up to a maximum principal amount (expressed as a
multiple of $1,000) of notes equal to such Unutilized Net Cash Proceeds, at a
purchase price in cash equal to 100% of the principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the Purchase Date; provided that
the Offer to Purchase may be deferred until there are aggregate Unutilized Net
Cash Proceeds equal to or in excess of $50.0 million, at which time the entire
amount of such Unutilized Net Cash Proceeds, and not just the amount in excess
of $50.0 million, shall be applied as required pursuant to this paragraph.
With respect to any Offer to Purchase effected pursuant to this
covenant, among the notes, to the extent the aggregate principal amount of notes
tendered pursuant to such Offer to Purchase exceeds the Unutilized Net Cash
Proceeds to be applied to the repurchase thereof, such notes shall be purchased
pro rata based on the aggregate principal amount of such notes tendered by each
holder. To the extent the Unutilized Net Cash Proceeds exceed the aggregate
amount of notes tendered by the holders pursuant to such Offer to Purchase,
GenTek may retain and utilize any portion of the Unutilized Net Cash Proceeds
not applied to repurchase the notes for any purpose consistent with the other
terms of the indenture.
In the event that GenTek makes an Offer to Purchase the Notes, GenTek
shall comply with any applicable securities laws and regulations, including any
applicable requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange
Act, and any violation of the provisions of the indenture relating to such Offer
to Purchase occurring as a result of such compliance shall not be deemed an
Event of Default or an event that with the passing of time or giving of notice,
or both, would constitute an Event of Default.
Each Holder shall be entitled to tender all or any portion of the Notes
owned by such holder pursuant to the Offer to Purchase, subject to the
requirement that any portion of a note tendered must be tendered in an integral
multiple of $1,000 principal amount and subject to any proration among tendering
holders as described above.
TRANSACTIONS WITH AFFILIATES.
GenTek will not, and will not cause or permit any Restricted Subsidiary
to, directly or indirectly, conduct any business or enter into any transaction
(or series of related transactions) with or for the benefit of any of the
Affiliates of GenTek (each an 'Affiliate Transaction'), unless:
(1) such Affiliate Transaction is on terms, taken as a whole, which are no less
favorable to GenTek or such Restricted Subsidiary, as the case may be, than
would be available at the time in a comparable transaction with an
unaffiliated third party:
(2) if such Affiliate Transaction or series of related Affiliate Transactions
(other than any such Affiliate Transactions between GenTek or a Restricted
Subsidiary and an Accounts Receivable Subsidiary in the ordinary course of
business) involves aggregate payments or other consideration having a Fair
Market Value in excess of $10.0 million, such Affiliate Transaction is in
writing and either:
(A) a majority of the members of the Board of Directors of GenTek that
are disinterested with respect to such Affiliate Transaction shall
have approved such Affiliate Transaction and determined that such
Affiliate Transaction is fair and reasonable to GenTek; or
(B) in the event there are no such members, GenTek has obtained a
Fairness Opinion (as hereinafter defined); and
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(3) if such Affiliate Transaction or series of related Affiliate Transactions
involves aggregate payments or other consideration having a Fair Market
Value in excess of $15.0 million, GenTek shall have obtained a written
opinion from an Independent Financial Advisor (which is delivered to the
Trustee) stating that the terms of such Affiliate Transaction are fair,
from a financial point of view, to GenTek or the Restricted Subsidiary
involved in such Affiliate Transaction, as the case may be.
Notwithstanding the foregoing, the restrictions set forth in this
covenant shall not apply to:
(1) any employment or separation agreement, collective bargaining agreement,
benefit plan, program or arrangement, related trust agreement or any other
similar arrangement for or with any employee, officer or director entered
into by GenTek or any Restricted Subsidiary in the ordinary course of
business, whether before or after the Issue Date;
(2) loans or other advances in an aggregate principal amount not to exceed $2.0
million at any one time outstanding;
(3) transactions between or among GenTek and/or the Restricted Subsidiaries,
provided that transactions not in the ordinary course of business between
or among GenTek and/or Restricted Subsidiaries and in which an Affiliate of
GenTek has a beneficial Equity Interest shall be made in compliance with
the first paragraph of this covenant;
(4) purchases of soda ash, calcium chloride and other products from GCIP and
its Affiliates pursuant to existing agreements or in the ordinary course of
business on terms in aggregate no less favorable than would be available in
a comparable transaction at the time with an unaffiliated third party;
(5) payments made, and performance obligations, pursuant to the Separation
Agreements or the Registration Rights Agreement as such agreements are in
effect on the Issue Date;
(6) payments not to exceed $4.6 million per year (subject to increase as
provided for on the Issue Date) pursuant to the Management Agreement as in
effect on the date of the indenture and other payments of fees for services
rendered from an Affiliate which have been approved by a majority of the
disinterested directors of GenTek;
(7) payments of indemnification or contribution made to any directors,
officers, employees or agents of GenTek or any Restricted Subsidiary as
determined in good faith by the Board of Directors of GenTek or such
Restricted Subsidiary;
(8) any Restricted Payment permitted under the covenant described under
' -- Covenants -- Limitation on Restricted Payments';
(9) the payment of compensation, performance of indemnification or contribution
obligations, or any issuance, grant or award of stock, options, other
equity-related interests or other securities, to employees, officers or
directors in the ordinary course of business; and
(10) any transaction in the ordinary course of business between GenTek or any
Restricted Subsidiary, on the one hand, and a joint venture or similar
entity primarily engaged in a Related Business in which GenTek or any
Restricted Subsidiary has an Equity Interest, on the other hand.
LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS.
GenTek will not, directly or indirectly, Incur any Indebtedness that by
its terms would expressly rank senior in right of payment to the notes and
expressly rank subordinate in right of payment to any other Indebtedness of
GenTek. GenTek will not permit any Subsidiary Guarantor to, and no Subsidiary
Guarantor will, directly or indirectly, Incur any Indebtedness that by its terms
would expressly rank senior in right of payment to the Subsidiary Guarantee of
such Subsidiary Guarantor and expressly rank subordinate in right of payment to
any other Indebtedness of such Subsidiary Guarantor.
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LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
GenTek will not, and shall not cause or permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(A) pay dividends or make any other distributions to GenTek or any other
Restricted Subsidiary on its Equity Interests or with respect to any other
interest or participation in; or measured by, its profits, or pay any
Indebtedness owed to GenTek or any other Restricted Subsidiary,
(B) make loans or advances to, or guaranty any Indebtedness or other
obligations of, GenTek or any other Restricted Subsidiary; or
(C) transfer any of its properties or assets to GenTek or any other Restricted
Subsidiary, except for such encumbrances or restrictions existing under or
by reason of:
(1) the Credit Facility as in effect on the Issue Date and any
amendments, restatements, renewals, replacements or refinancings
thereof; provided, however, that any such amendment, restatement,
renewal, replacement or refinancing contains terms and conditions
with respect to such encumbrances or restrictions that are customary
at the time for similar credit facilities, as determined by the Board
of Directors of GenTek;
(2) applicable law or regulations, including regarding restrictions on
the transfer of assets required or imposed by any regulatory
authority having jurisdiction over GenTek or any Restricted
Subsidiary or any of their respective businesses;
(3) any instrument governing Indebtedness or Equity Interests of an
Acquired Person acquired by GenTek or any Restricted Subsidiary as in
effect at the time of such acquisition (except to the extent any such
Indebtedness or Equity Interests were Incurred by such Acquired
Person in connection with, as a result of or in contemplation of such
acquisition); provided that such encumbrances and restrictions are
not applicable to any Restricted Subsidiary, or the properties or
assets of any Restricted Subsidiary, other than the Acquired Person;
(4) (A) non-assignment provisions that restrict in a customary manner
the subletting, assignment or transfer of any property or asset
that is subject to a lease, license or similar contract, or the
assignment or transfer of any lease, license or other contract;
(B) customary provisions restricting dispositions of real property
interests set forth in any easement or similar agreements of
GenTek or any Restricted Subsidiary or;
(C) restrictions on cash or other deposits or net worth imposed by
customers under agreements entered into in the ordinary course
of business;
(5) Purchase Money Indebtedness or Capital Lease Obligations permitted
under the covenants described under ' -- Limitation on Incurrence of
Indebtedness and Preferred Equity Interests' and ' -- Limitation on
Liens' that only imposes encumbrances and restrictions on the
property so acquired;
(6) any agreement for the sale or disposition of the Equity Interests or
assets of any Restricted Subsidiary; provided that such encumbrances
and restrictions described in this clause (6) are only applicable to
such Restricted Subsidiary or assets, as applicable, and any such
sale or disposition is made in compliance with the covenant
' -- Disposition of Proceeds of Asset Sales' above to the extent
applicable thereto;
(7) Permitted Refinancing Indebtedness permitted under clause (5) of the
second paragraph of ' -- Limitation on Incurrence of Indebtedness and
Preferred Equity Interests' above; provided that such encumbrances
and restrictions contained in the agreements governing such
Indebtedness are not materially more restrictive in the aggregate
than those contained in the
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agreements governing the Indebtedness being refinanced immediately
prior to such refinancing, as determined by the Board of Directors of
GenTek;
(8) the indenture or contained in any other indenture governing debt
securities that are not materially more restrictive than those
contained in the indenture, as determined by the Board of Directors
of GenTek;
(9) customary restrictions in any instrument governing Indebtedness of a
Foreign Subsidiary which Indebtedness was incurred and outstanding
(without taking into account any reclassification of Indebtedness)
under clause (6) of the second paragraph of the covenant 'Limitation
on Incurrence of Indebtedness and Preferred Equity Interests';
(10) any agreement or instrument existing on the Issue Date;
(11) any agreement or instrument relating to Indebtedness of an Accounts
Receivables Subsidiary or the sale or financing of accounts
receivables or interests therein by an Accounts Receivables
Subsidiary; or
(12) any agreement or instrument governing or relating to Indebtedness or
Equity Interests of a Subsidiary Guarantor, provided that such
encumbrances or restrictions are terminated or cease to exist upon
the release of such Subsidiary Guarantor from its obligations under
its Subsidiary Guarantee.
Nothing contained in this covenant shall prevent GenTek or any
Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted in the 'Limitation on Liens' covenant by
itself; or (2) restricting the sale or other disposition of assets of GenTek or
any of its Restricted Subsidiaries that secure Indebtedness of GenTek or any of
the Restricted Subsidiaries by the customary terms of any Lien incurred in
compliance with the 'Limitation on Liens' covenant.
DESIGNATION OF UNRESTRICTED SUBSIDIARIES.
GenTek may make a Designation only if:
(1) no Default shall have occurred and be continuing at the time of or after
giving effect to such Designation;
(2) except to the extent the Investment is in an Unrestricted Subsidiary and
would be a Permitted Investment, at the time of and after giving effect to
such Designation, GenTek could Incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under the Consolidated Coverage Ratio
of the first paragraph of 'Limitation on Incurrence of Indebtedness and
Preferred Equity Interests' above; and
(3) except to the extent the Investment in an Unrestricted Subsidiary would be
a Permitted Investment, GenTek would be permitted to make an Investment at
the time of Designation (assuming the effectiveness of such Designation)
pursuant to the first paragraph of 'Limitation on Restricted Payments'
covenant in an amount equal to the Designation Amount.
All Subsidiaries of Unrestricted Subsidiaries shall be automatically
deemed to be Unrestricted Subsidiaries.
GenTek may revoke any Designation of a Subsidiary as an Unrestricted
Subsidiary (a 'Revocation') if:
(1) no Default shall have occurred and be continuing at the time of and after
giving effect to such Revocation;
(2) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if Incurred at such time, have
been permitted to be Incurred for all purposes of the indenture; and
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(3) any agreement or understanding between such Subsidiary and any of its
Affiliates in effect at the time of Revocation would be permitted by the
'Transactions with Affiliates' covenant as if such agreement or
understanding had occurred at the time of such Revocation.
All Designations and Revocations must be evidenced by resolutions of the
Board of Directors of GenTek, delivered to the trustee certifying compliance
with the foregoing provisions.
PROVISION OF FINANCIAL INFORMATION.
Whether or not GenTek is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, GenTek shall file with the SEC
(if permitted by SEC practice and applicable law and regulations), so long as
any notes remain outstanding, the annual reports, quarterly reports and other
documents which GenTek would have been required to file with the SEC pursuant to
such Section 13(a) or 15(d) (each, an 'Exchange Act Report') or any successor
provision thereto if GenTek were so subject, such documents to be filed with the
SEC on or prior to the respective dates (the 'Required Filing Dates') by which
GenTek would have been required so to file such documents if GenTek were so
subject. GenTek shall also in any event:
(A) within 15 days of each Required Filing Date (whether or not permitted or
required to be filed with the SEC);
(1) transmit (or cause to be transmitted) by mail to all Holders, as
their names and addresses appear in the Note register, without cost
to such Holders; and
(2) file with the trustee, copies of the annual reports, quarterly
reports and other documents (without exhibits) which GenTek is
required to file with the SEC pursuant to the preceding sentence, or,
if such filing is not so permitted (or, prior to the consummation of
the Exchange Offer, when GenTek is not subject to Section 13(d) or
15(d) of the Exchange Act), information and data of a similar nature;
and
(B) if, notwithstanding the preceding sentence, filing such documents by GenTek
with the SEC is not permitted by SEC practice or applicable law or
regulations, promptly upon written request supply copies of such documents
to any Holder.
In addition, for so long as any notes remain outstanding, until the
completion of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, GenTek will furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, and, to any beneficial holder of Notes, if not obtainable from
the SEC, information of the type that would be filed with the SEC pursuant to
the foregoing provisions, upon the request of any such holder.
MERGER AND CONSOLIDATION
GenTek shall not consolidate with or merge with or into (whether or not
GenTek is the Surviving Person) any other Person and GenTek shall not and shall
not cause or permit any Restricted Subsidiary to, sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of GenTek's and
the Restricted Subsidiaries' properties and assets (determined on a consolidated
basis for GenTek and the Restricted Subsidiaries) to any Person in a single
transaction or series of related transactions, unless:
(1) either
(a) GenTek shall be the Surviving Person or
(b) the Surviving Person (if other than GenTek) shall be a corporation
organized and validly existing under the laws of the United States of
America or any State thereof or the District of Columbia, and shall,
in any such case, expressly assume by a supplemental indenture, the
due
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and punctual payment of the principal of, premium, if any, and
interest on all the notes and the performance and observance of every
covenant of the indenture and the registration rights agreement to be
performed or observed on the part of GenTek;
(2) immediately thereafter, no Default shall have occurred and be continuing;
(3) immediately after giving effect to any such transaction including the
Incurrence by GenTek or any Restricted Subsidiary, directly or indirectly,
of additional Indebtedness (and treating any Indebtedness not previously an
obligation of GenTek or any Restricted Subsidiary in connection with or as
a result of such transaction as having been Incurred at the time of such
transaction), the Surviving Person could Incur, on a pro forma basis after
giving effect to such transaction as if it had occurred at the beginning of
the four quarter period immediately preceding such transaction for which
consolidated financial statements of GenTek are available, at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) under the
Consolidated Coverage Ratio of the first paragraph of the covenant
described under 'Limitation on Incurrence of Indebtedness and Preferred
Equity Interests' above; and
(4) GenTek will have delivered to the Trustee an officers' certificate and a
written opinion from legal counsel (including an employee of or counsel to
GenTek or the trustee) who is reasonably acceptable to the trustee, each
stating that such consolidation, merger or transfer and such supplemental
indenture (if any) comply with the indenture.
Notwithstanding the foregoing clause (3) of the immediately preceding
paragraph, any Restricted Subsidiary may consolidate with, merge into or
transfer all or part of its properties and assets to GenTek or any Subsidiary
Guarantor.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all the properties and assets of one or more Restricted
Subsidiaries the Equity Interests of which constitute all or substantially all
the properties and assets of GenTek shall be deemed to be the transfer of all or
substantially all the properties and assets of GenTek.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in the immediately preceding paragraphs in
which GenTek is not the Surviving Person and the Surviving Person is to assume
all the Obligations of GenTek under the notes, the indenture and the
registration rights agreement pursuant to a supplemental indenture, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, GenTek and GenTek shall be discharged from its
Obligations under the indenture and the notes.
No Subsidiary Guarantor (other than a Subsidiary Guarantor whose
Subsidiary Guarantee is to be released in accordance with 'The Guarantees'
above) shall consolidate with or merge with or into another Person (other than
GenTek), unless:
(1) the Surviving Person (if other than such Subsidiary Guarantor) is a
corporation organized and validly existing under the laws of the United
States, any State thereof or the District of Columbia;
(2) the Surviving Person (if other than such Subsidiary Guarantor) expressly
assumes by a supplemental indenture all the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee and the performance and observance
of every covenant of the indenture and the registration rights agreement to
be performed or observed by such Subsidiary Guarantor;
(3) immediately thereafter, no Default or Event of Default shall have occurred
and be continuing; and
(4) if the Surviving Person is not such Subsidiary Guarantor or another
Subsidiary Guarantor, GenTek will have delivered to the trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with the indenture.
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EVENTS OF DEFAULT
The occurrence of any of the following will be defined as an 'Event of
Default' under the indenture:
(a) failure to pay principal of (or premium, if any, on) any note when due
(whether or not prohibited by the provisions of the indenture described
under 'Subordination' above)
(b) failure to pay any interest on any note when due, continued for 30 days or
more (whether or not prohibited by the provisions of the indenture
described under 'Subordination' above);
(c) default in the payment of principal of or interest on any note required to
be purchased pursuant to any Offer to Purchase required by the indenture
when due and payable or failure to pay on the Purchase Date the Purchase
Price for any note validly tendered pursuant to any Offer to Purchase
(whether or not prohibited by the provisions of the indenture described
under 'Subordination' above);
(d) failure to perform or comply with any of the provisions described under
' -- Covenants -- Merger and Consolidation' above;
(e) failure to perform any other covenant or agreement of the Company under the
indenture or in the notes continued for 45 days or more after written
notice to GenTek by the trustee or holders of at least 25% in aggregate
principal amount of the outstanding notes;
(f) default or defaults under the terms of one or more instruments evidencing
or securing Indebtedness of GenTek or any of the Restricted Subsidiaries
having an outstanding principal amount of $25.0 million or more
individually or in the aggregate that have resulted in the acceleration of
the payment of such Indebtedness or failure by GenTek or any of the
Restricted Subsidiaries to pay principal when due at the stated maturity
of any such Indebtedness;
(g) the rendering of a final judgment or judgments (not subject to appeal)
against GenTek or any of the Restricted Subsidiaries in an amount of $25.0
million or more (net of any amounts covered by reputable and creditworthy
insurance companies) which remain undischarged or unstayed for a period of
60 days after the date on which the right to appeal has expired;
(h) certain events of bankruptcy, insolvency or reorganization affecting GenTek
or any of the Restricted Subsidiaries; or
(i) other than as provided in or pursuant to any Subsidiary Guarantee or the
indenture, any Subsidiary Guarantee ceases to be in full force and effect
or any Subsidiary Guarantor denies or disaffirms its obligations under the
indenture or any Subsidiary Guarantee and such Default continues for ten
days.
Subject to the provisions of the indenture relating to the duties of the
trustee, in case an Event of Default shall occur and be continuing, the trustee
will be under no obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the holders, unless such holders
shall have offered to the trustee reasonable indemnity. Subject to such
provisions for the indemnification of the trustee, the holders of a majority in
aggregate principal amount of the outstanding notes will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on such
trustee.
If an Event of Default with respect to the notes (other than an Event of
Default with respect to GenTek described in clause (h) above) occurs and is
continuing, the trustee or the holders of at least 25% in aggregate principal
amount of the outstanding notes, by notice in writing to GenTek, may declare the
unpaid principal of (and premium, if any) and accrued interest to the date of
acceleration on all the outstanding notes to be due and payable immediately and,
upon any such declaration, such principal amount (and premium, if any) and
accrued interest, notwithstanding anything contained in the indenture or the
notes to the contrary will become immediately due and payable; provided,
however, that so long as the Credit Facility shall be in full force and effect,
if an Event of Default shall have occurred and be
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continuing (other than an Event of Default with respect to GenTek described in
clause (h) above), the notes shall not become due and payable until the earlier
to occur of:
(a) five Business Days following delivery of written notice of such
acceleration of the Notes to the agent under the Credit Facility; and
(b) the acceleration of any Indebtedness under the Credit Facility. If an Event
or Default specified in clause (h) above with respect to GenTek occurs
under the indenture, the notes will become immediately due and payable
without any declaration or other act on the part of the trustee or any
holder.
Notwithstanding the foregoing, in the event of a declaration of
acceleration in respect of the notes because an Event of Default specified in
clause (f) above shall have occurred and be continuing, such declaration of
acceleration shall be automatically annulled if the Indebtedness that is the
subject of such Event of Default has been discharged or paid or such Event of
Default shall have been cured or waived by the holders of such Indebtedness and
written notice of such discharge, cure or waiver, as the case may be, shall have
been given to the trustee by GenTek or by the requisite holders of such
Indebtedness or a trustee, fiduciary or agent for such holders, within 60 days
after such declaration of acceleration in respect of the notes and:
(a) no Person shall have commenced judicial proceedings to foreclose upon
assets of GenTek or any of the Restricted Subsidiaries or shall have
exercised any right under applicable law or applicable security documents
to take ownership of any of such assets in lieu of foreclosure; and
(b) no other Event of Default with respect to the notes shall have occurred
which has not been cured or waived during such 60-day period.
Any such declaration with respect to the notes may be rescinded by the
holders of a majority in aggregate principal amount of the outstanding notes
upon the conditions provided in the indenture. For information as to waiver of
defaults, see 'Modification and Waiver' below. The indenture provides that the
trustee shall, within 30 days after the occurrence of any Default with respect
to the notes outstanding, give the holders thereof notice of all uncured
Defaults thereunder known to it. Except in the case of a Default in the payment
of principal of, or premium (if any) or interest on, any note, the trustee may
withhold notice if and so long as a committee of its trust officers in good
faith determines that withholding notice is in the interests of the holders.
No holder will have any right to institute any proceeding with respect
to the indenture or for any remedy thereunder, unless such holder shall have
previously given to the trustee written notice of a continuing Event of Default
thereunder and unless the holders of at least 25% of the aggregate principal
amount of the outstanding notes shall have made written request, and offered
reasonable indemnity, to the trustee to institute such proceeding as the
trustee, and the trustee shall have not have received from the holders of a
majority in aggregate principal amount of such outstanding notes a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days. However, such limitations do not apply to a suit
instituted by a holder for enforcement of payment of the principal of and
premium, if any, or interest on such note on or after the respective due dates
expressed in such note.
GenTek will be required to furnish to the trustee annually a statement
as to the performance by it of certain of its obligations under the indenture
and as to any default in such performance.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, INCORPORATOR AND
STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of GenTek or
any of its Affiliates, as such, shall have any liability for any obligations of
GenTek or any of its Affiliates under the notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each holder of notes by accepting a note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the notes.
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SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
GenTek may terminate its substantive obligations in respect of the notes
and the indenture (subject to the subordination provisions) by delivering all
outstanding notes to the trustee for cancellation and paying all sums payable by
it on account of principal of, premium, if any, and interest on all Notes or
otherwise. In addition to the foregoing, GenTek may, provided that no Default
has occurred and is continuing or would arise therefrom (or, with respect to a
Default with respect to GenTek specified in clause (h) of 'Events of Default'
above, occurs at any time on or prior to the 91st calendar day after the date of
such deposit (it being understood that this condition shall not be deemed
satisfied until after such 91st day)) under the Indenture and provided that no
default under any Senior Indebtedness would result therefrom, terminate its
substantive obligations in respect of the notes (except for its obligations to
pay the principal of (and premium, if any, on) and the interest on the notes):
by
(1) depositing with the trustee, under the terms of an irrevocable trust
agreement, money or United States Government Obligations sufficient
(without reinvestment) to pay all remaining Indebtedness on such notes to
redemption or maturity, as the case may be;
(2) delivering to the trustee either an opinion of counsel or a ruling directed
to the trustee from the Internal Revenue Service to the effect that the
holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and termination of obligations;
(3) delivering to the trustee an opinion of counsel to the effect that GenTek's
exercise of its option under this paragraph will not result in any of
GenTek, the trustee or the trust created by GenTek's deposit of funds
pursuant to this provision becoming or being deemed to be an 'investment
company' under the Investment Company Act of 1940, as amended (the
'Investment Act'); and
(4) complying with certain other requirements set forth in the indenture.
In addition, GenTek may, provided that no Default has occurred and is
continuing or would arise therefrom (or, with respect to a Default with respect
to GenTek specified in clause (h) of 'Events of Default' above, occurs at any
time on or prior to the 91st calendar day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after
such 91st day)) under the indenture and provided that no default under any
Senior Indebtedness would result therefrom, terminate all of its substantive
obligations in respect of the notes (including its obligations to pay the
principal of (and premium, if any, on) and interest on the notes) by:
(1) depositing with the trustee, under the terms of an irrevocable trust
agreement, money or United States Government Obligations sufficient
(without reinvestment) to pay all remaining Indebtedness on the notes to
redemption or maturity, as the case may be;
(2) delivering to the trustee either a ruling directed to the trustee from the
Internal Revenue Service to the effect that the holders will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit and termination of obligations or an opinion of counsel addressed
to the trustee based upon such a ruling or based on a change in the
applicable Federal tax law since the date of the indenture, to such effect;
(3) delivering to the trustee an opinion of counsel to the effect that GenTek's
exercise of its option under this paragraph will not result in any of
GenTek, the Trustee or the trust created by GenTek deposit of funds
pursuant to this provision becoming or being deemed to be an 'investment
company' under the Investment Act; and
(4) complying with certain other requirements set forth in the indenture.
GenTek may make an irrevocable deposit pursuant to this provision only
if at such time it is not prohibited from doing so under the subordination
provisions of the Indenture or certain covenants in the Senior Indebtedness and
GenTek has delivered to the trustee and any paying agent an officers'
certificate to that effect.
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If GenTek exercises its legal defeasance option or its covenant
defeasance option, each Subsidiary Guarantor will be released from all its
obligations with respect to its Note Guarantee and the indenture.
An opinion of counsel delivered pursuant to this provision must be a
written opinion from legal counsel who is reasonably acceptable to the trustee.
The counsel may be an employee of or counsel to GenTek or the trustee.
GOVERNING LAW
The indenture, the notes and the Subsidiary Guarantees will be governed
by the laws of the State of New York without regard to principles of conflicts
of laws.
MODIFICATION AND WAIVER
From time to time, GenTek, the Subsidiary Guarantors and the Trustee,
without the consent of the Holders, may amend the Indenture for certain
specified purposes, including curing ambiguities, defects or inconsistencies and
to make any change does that not, in the opinion of the Trustee, adversely
affect the rights of any of the Holders in any material respect. In formulating
its opinion on such matters, the Trustee will be entitled to rely on such
evidence as it deems appropriate, including, without limitation, solely on an
opinion of counsel. Other modifications and amendments of the Indenture may be
made by GenTek, the Subsidiary Guarantors and the trustee with the consent of
the holders of a majority in aggregate principal amount of the outstanding notes
(including consents obtained in connection with a tender offer or exchange offer
for the notes); provided, however, that no such modification or amendment to the
indenture may, without the consent of the holder of each note affected thereby,
(1) change the maturity of the principal of or any installment of interest on
any such note or alter the optional redemption or repurchase provisions of
any such note or the indenture in a manner adverse to the holders of the
notes;
(2) reduce the principal amount of (or the premium) of any such note;
(3) reduce the rate of or extend the time for payment of interest on any such
note;
(4) change the place or currency of payment of principal of (or premium) or
interest on any such note;
(5) modify any provisions of the indenture relating to the waiver of past
defaults (other than to add sections of the Indenture or the notes subject
thereto) or the right of the holders of notes to institute suit for the
enforcement of any payment on or with respect to any such note or
Subsidiary Guarantee in respect thereof or the modification and amendment
provisions of the indenture and the notes (other than to add sections of
the indenture or the notes which may not be amended, supplemented or
waived without the consent of each holder therein affected);
(6) reduce the percentage of the principal amount of outstanding notes
necessary for amendment to or waiver of compliance with any provision of
the indenture or the notes or for waiver of any Default in respect
thereof;
(7) waive a default in the payment of principal of, interest on, or redemption
payment with respect to, the notes (except a rescission of acceleration of
the notes by the holders as provided in the indenture and a waiver of the
payment default that resulted from such acceleration);
(8) modify the ranking or priority of any note or the Subsidiary Guarantee
thereof by any Subsidiary Guarantor, modify the definition of Senior
Indebtedness or Guarantor Senior Indebtedness or amend or modify the
subordination provisions of the indenture, in any case in any manner
adverse to the holders;
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(9) modify the provisions of any covenant (or the related definitions) in the
indenture requiring GenTek to make an Offer to Purchase following an event
or circumstance which may give rise to the requirement to make an Offer to
Purchase in a manner materially adverse to the holders affected thereby
otherwise than in accordance with the indenture; or
(10) release any Subsidiary Guarantor from any of its obligations under its
Subsidiary Guarantee or the Indenture, except in compliance with the terms
thereof and of the indenture.
The holders of a majority in aggregate principal amount of the
outstanding notes, on behalf of all holders, may waive compliance by GenTek with
certain restrictive provisions of the indenture. Subject to certain rights of
the trustee, as provided in the indenture, the holders of a majority in
aggregate principal amount of the notes, on behalf of all holders, may waive any
past default under the indenture (including any such waiver obtained in
connection with a tender offer or exchange offer for the notes), except a
default in the payment of principal, premium or interest (other than a payment
default resulting from an acceleration of the notes rescinded as provided in the
indenture) or a default arising from failure to purchase any notes tendered
pursuant to an Offer to Purchase, or a default in respect of a provision that
under the indenture cannot be modified or amended without the consent of each
affected holder.
THE TRUSTEE
Except during the continuance of an Event of Default, the trustee will
perform only such duties as are specifically set forth in the indenture. During
the existence of an Event of Default, the trustee will exercise such rights and
powers vested in it under the indenture and use the same degree of care and
skill in its exercise as a prudent person would exercise under the circumstances
in the conduct of such person's own affairs.
The indenture and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the rights of the trustee, should it
become a creditor of GenTek or any other obligor upon the notes, to obtain
payment of claims in certain cases or to realize on certain property received by
it in respect of any such claim as security or otherwise. The trustee is
permitted to engage in other transactions with GenTek or an Affiliate of GenTek;
provided, however, that if the trustee acquires any conflicting interest (as
defined in the indenture or in the Trust Indenture Act), it must eliminate such
conflict or resign.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the indenture.
Reference is made to the indenture for a full definition of all such terms, as
well as any other capitalized terms used herein for which no definition is
provided.
'ACCOUNTS RECEIVABLE SUBSIDIARY' means any Subsidiary of GenTek that is,
directly or indirectly, wholly owned by GenTek (other than director qualifying
shares) and engaged solely in
(1) purchasing, financing and collecting accounts receivable obligations of
customers of GenTek or its Subsidiaries;
(2) the sale or financing of such accounts receivable or interests therein and
(3) other activities incident thereto.
'ACQUIRED INDEBTEDNESS' means Indebtedness of a Person
(1) assumed in connection with an Acquisition from such Person or
(2) existing at the time such Person becomes a Restricted Subsidiary or is
merged or consolidated with or into GenTek or any Restricted Subsidiary;
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provided that (i) such Indebtedness was not Incurred by such Person in
connection with or in contemplation of such Acquisition, merger or consolidation
or such Person becoming a Restricted Subsidiary and (ii) Indebtedness of such
Person which is redeemed, defeased, retired or otherwise repaid at the time of
or immediately upon consummation of the transaction by which such Person becomes
a Restricted Subsidiary or at the time of such merger or consolidation or
acquisition of assets shall not be Acquired Indebtedness.
'ACQUIRED PERSON' means, with respect to any specified Person, any other
Person which merges with or into or becomes a Restricted Subsidiary of such
specified Person.
'ACQUISITION' means
(1) any capital contribution (by means of transfers of cash or other property
to others or payments for property or services for the account or use of
others, or otherwise) by GenTek or any Restricted Subsidiary to any other
Person, or any acquisition or purchase of Equity Interests of any other
Person by GenTek or any Restricted Subsidiary, in either case pursuant to
which such Person shall become a Restricted Subsidiary or shall be
consolidated with or merged into GenTek or any Restricted Subsidiary; or
(2) any acquisition by GenTek or any Restricted Subsidiary of the assets of any
Person which constitute substantially all of an operating unit or line of
business of such Person or which is otherwise outside of the ordinary
course of business.
'ADDITIONAL INTEREST' means the liquidated damages payable upon a
registration default.
'AFFILIATE' of any specified person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, 'control'
(including, with correlative meanings, the terms 'controlling,' 'controlled by'
and 'under common control with'), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that
(1) beneficial ownership of 10.0% or more of the then outstanding Voting Equity
Interests of a Person shall be deemed to be control for purposes of
compliance with the covenant described under ' -- Covenants -- Transactions
with Affiliates'; and
(2) no individual, other than a director of GenTek or an officer of GenTek with
a policy making function, shall be deemed an Affiliate of GenTek or any of
its Subsidiaries solely by reason of such individual's employment, position
or responsibilities by or with respect to GenTek or any of its
Subsidiaries.
'ASSET SALE' means any direct or indirect sale, conveyance, transfer,
lease (that has the effect of a disposition) or other disposition (including,
without limitation, any merger, consolidation or sale-leaseback transaction) to
any Person other than GenTek or a Restricted Subsidiary, in one transaction or a
series of related transactions, of:
(1) any Equity Interest of any Restricted Subsidiary;
(2) any license, franchise or other authorization of GenTek or any Restricted
Subsidiary that is material to GenTek and the Restricted Subsidiaries;
(3) any assets of GenTek or any Restricted Subsidiary which constitute
substantially all of an operating unit or line of business of GenTek and
the Restricted Subsidiaries; or
(4) any other property or asset of GenTek or any Restricted Subsidiary outside
of the ordinary course of business (including the receipt of proceeds paid
on account of the loss of or damage to any property or asset and awards of
compensation for any asset taken by condemnation, eminent
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domain or similar proceedings). For the purposes of this definition, the
term 'Asset Sale' shall not include:
(a) any transaction consummated in compliance with 'Merger and
Consolidation' above or the creation of any Lien not prohibited by
the covenant described under ' -- Covenants -- Limitation on Liens'
above; provided that any transaction consummated in compliance with
'Merger and Consolidation' above involving a sale, conveyance,
assignment, transfer, lease or other disposal of less than all of the
properties or assets of GenTek shall be deemed to be an Asset Sale
with respect to the properties or assets of GenTek and the Restricted
Subsidiaries that are not so sold, conveyed, assigned, transferred,
leased or otherwise disposed of in such transaction;
(b) sales and other dispositions of property or equipment that has become
worn out, obsolete or damaged or otherwise unsuitable for use in
connection with the business of GenTek or any Restricted Subsidiary;
(c) surrender or waiver of contractual rights or the settlement, release
or surrender of contract, tort or other claims of any kind; and
(d) the licensing of intellectual property, or leases or subleases to
third parties not interfering in any material respect with the
business of GenTek or any of the Restricted Subsidiaries. For
purposes of the covenant described under
' -- Covenants -- Disposition of Proceeds of Asset Sales,' the term
'Asset Sale' shall not include (a) any dividend or distribution made
in compliance with the covenant described under
' -- Covenants -- Limitation on Restricted Payments'; (b) any
Investment to the extent constituting a Restricted Payment which is
subject to and made in compliance with the covenant described under
' -- Covenants -- Limitation on Restricted Payments' or any Permitted
Investment; provided that if such Investment is part of a transaction
or a series of transactions involving an Investment or payment in
addition to such Restricted Payment or Permitted Investment, the
balance of the transaction will be treated as an Asset Sale; (c) any
disposition or series of related dispositions for aggregate
consideration not to exceed $3.0 million; and (d) any sale,
conveyance or transfer of accounts receivable to an Accounts
Receivable Subsidiary or in the ordinary course of business on
customary terms to third parties that are not Affiliates of GenTek or
any Subsidiary of GenTek for financing purposes.
'CAPITAL LEASE OBLIGATION' means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
'CASH EQUIVALENTS' means:
(1) U.S. dollars, Canadian dollars, the Euro and any other currency that is
convertible into U.S. dollars or Canadian dollars without legal
restrictions or that is utilized by GenTek or any of the Restricted
Subsidiaries in the ordinary course of its business;
(2) securities (including repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations) issued or directly
and fully guaranteed or insured by the government of the United States,
Canada or any country which has adopted the Euro as its currency, or by any
agency or instrumentality thereof, having maturities of not more than
365 days from the date of acquisition;
(3) certificates of deposit and time deposits with maturities of 365 days or
less from the date of acquisition, bankers' acceptances with maturities not
exceeding 365 days and overnight bank deposits, in each case with any
commercial bank having capital and surplus in excess of $500.0 million (or
the foreign currency equivalent thereof);
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the
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qualifications specified in clause (3) above or with any nationally
recognized securities dealer having total capital funds in excess of
$100,000,000;
(5) commercial paper rated P-1, A-1 or the equivalent thereof by Moody's
Investors Service, Inc. or Standard & Poor's Corporation, respectively, or
at least an equivalent rating category of Duff & Phelps, and in each case
maturing within 365 days after the date of acquisition; and
(6) investments in money market funds complying with the risk limiting
conditions of Rule 2a-7 or any successor rule of the SEC under the
Investment Company Act.
'CHANGE OF CONTROL' means the occurrence of any of the following:
(1) any 'person' (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more Permitted Holders in the aggregate,
is or becomes the 'beneficial owner' (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of a majority of the total
voting power of the Voting Equity Interests of GenTek (including any
successor thereto under the indenture);
(2) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation involving GenTek), in one or a series of
related transactions, of all or substantially all of the assets of GenTek
and its Subsidiaries taken as a whole to any 'person' (as such term is used
in Section 13(d)(3) of the Exchange Act) other than one or more Permitted
Holders;
(3) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of GenTek
(together with any new directors whose election by such Board of Directors
or whose nomination for election by the shareholders of GenTek was approved
by a vote of 66 2/3% of the directors of GenTek then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved or approved by a vote of
Permitted Holders who beneficially own, directly or indirectly, a majority
in the aggregate of the total voting power of the Voting Equity Interests
of GenTek) cease for any reason to constitute a majority of the Board of
Directors of GenTek then in office; or
(4) the adoption of a plan relating to the liquidation or dissolution of
GenTek.
'CHANGE OF CONTROL DATE' means the date of the occurrence of a Change of
Control.
'CONSOLIDATED COVERAGE RATIO' as of any date of determination means the
ratio of (A) the aggregate amount of Consolidated EBITDA for the Four Quarter
Period to (B) Consolidated Interest Expense for such Four Quarter Period;
provided, however, that:
(1) if GenTek or any Restricted Subsidiary has Incurred any Indebtedness since
the beginning of such Four Quarter Period that remains outstanding on such
date of determination or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness,
Consolidated EBITDA and Consolidated Interest Expense for such Four Quarter
Period shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of
such Four Quarter Period (except that in making such computation, the
amount of Indebtedness under any revolving credit facility outstanding on
the date of such calculation shall be computed based on (X) the average
daily balance of such Indebtedness during such Four Quarter Period or such
shorter period for which such facility was outstanding or (Y) if such
facility was created after the end of such Four Quarter Period, the average
daily balance of such Indebtedness during the period from the date of
creation of such facility to the date of such calculation) and the
discharge of any other Indebtedness repaid, repurchased or otherwise
discharged with the proceeds of such new Indebtedness as if such discharge
had occurred on the first day of such Four Quarter Period;
(2) without duplication, if GenTek or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness (each, a
'discharge') since the beginning of the Four Quarter Period that is no
longer outstanding on such date of determination or if the transaction
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giving rise to the need to calculate the Consolidated Coverage Ratio
involves a discharge of Indebtedness (in each case other than Indebtedness
Incurred under any revolving credit facility unless such Indebtedness has
been permanently repaid and the related commitments terminated),
Consolidated Interest Expense for such Four Quarter Period shall be
calculated after giving effect on a pro forma basis to such discharge of
Indebtedness as if such discharge has occurred on the first day of such
Four Quarter Period;
(3) if since the beginning of such Four Quarter Period GenTek or any Restricted
Subsidiary shall have made any Asset Sale, the Consolidated EBITDA for such
Four Quarter Period shall be reduced by an amount equal to the Consolidated
EBITDA (if positive) directly attributable to the assets that are the
subject of such Asset Sale for such Four Quarter Period or increased by
amount equal to the Consolidated EBITDA (if negative) directly attributable
thereto for such Four Quarter Period and Consolidated Interest Expense for
such Four Quarter Period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of
GenTek or any Restricted Subsidiary repaid, repurchased or otherwise
discharged with respect to GenTek and its continuing Restricted
Subsidiaries in connection with such Asset Sale for such Four Quarter
Period (or, if the Equity Interests of any Restricted Subsidiary are sold,
the Consolidated Interest Expense for such Four Quarter Period directly
attributable to the Indebtedness of such Restricted Subsidiary to the
extent GenTek and its continuing Restricted Subsidiaries are no longer
liable for such Indebtedness after such sale);
(4) if since the beginning of such Four Quarter Period GenTek or any Restricted
Subsidiary (by merger or otherwise) shall have made an Acquisition of
assets, including any Acquisition occurring in connection with a
transaction causing a calculation to be made hereunder, Consolidated EBITDA
and Consolidated Interest Expense for such Four Quarter Period shall be
calculated after giving pro forma effect thereto (including the Incurrence
of any Indebtedness) as if such Acquisition occurred on the first day of
such Four Quarter Period; and
(5) if since the beginning of such Four Quarter Period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
GenTek or any Restricted Subsidiary since the beginning of such Four
Quarter Period) shall have made any Asset Sale or any Acquisition that
would have required an adjustment pursuant to clause (2), (3) or (4) above
if made by GenTek or a Restricted Subsidiary during such Four Quarter
Period, Consolidated EBITDA and Consolidated Interest Expense for such Four
Quarter Period shall be calculated after giving pro forma effect thereto as
if such Asset Sale or Acquisition occurred on, with respect to any
Acquisition, the first day of such Four Quarter Period and, with respect to
any Asset Sale, the day prior to the first day of such Four Quarter Period.
For purposes of this definition:
(a) whenever pro forma effect is to be given to an Acquisition, the amount of
income or earnings and any cost savings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be determined in
accordance with Regulation S-X under the Securities Act;
(b) if any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been
the applicable rate for the entire period (taking into account the
operation of any agreement under which Hedging Obligations relating to
interest are outstanding applicable to such Indebtedness);
(c) in giving effect to any Indebtedness to be Incurred, if such Indebtedness
bears, at the option of GenTek or a Restricted Subsidiary, a rate of
interest based on a prime or similar rate, a eurocurrency interbank
offered rate or other fixed or floating rate, the interest expense on such
Indebtedness shall be calculated by applying such optional rate as GenTek
may designate; and
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(d) interest on a Capital Lease Obligation shall be deemed to accrue at an
interest rate determined in good faith by a responsible financial or
accounting officer of GenTek to be the rate of interest implicit in such
Capital Lease Obligation in accordance with GAAP.
'CONSOLIDATED EBITDA' means, for any period, the Consolidated Net Income
for such period, minus (A) any non-cash item increasing Consolidated Net Income
during such period (other than any non-cash item arising from the reversal of an
accrual or reserve previously established in respect of a non-cash item), plus,
without duplication, (B) the following to the extent deducted in calculating
such Consolidated Net Income:
(1) Consolidated Income Tax Expense for such period;
(2) Consolidated Interest Expense for such period;
(3) depreciation expense for such period;
(4) amortization expense for such period (including, without limitation,
goodwill and intangibles);
(5) any out-of-pocket costs and transaction expenses relating to the
underwriting, placement or arrangement for sale of Equity Interests of
GenTek or any Restricted Subsidiary or Incurrences of Indebtedness of
GenTek or any Restricted Subsidiary;
(6) net losses incurred in the retirement of Indebtedness;
(7) all non-cash accruals or cash expenses relating to issuances, grants of
awards of stock, option, other equity-related interests or other securities
to employees, officers or directors in the ordinary course of business; and
(8) all other non-cash items reducing Consolidated Net Income for such period
(other than any non-cash item requiring an accrual or a reserve for cash
disbursements in any future period); provided that, in determining
Consolidated EBITDA, there shall only be included that portion of the items
referred to in clause (A) or (B) related to, or arising in connection with,
any Person all of whose Equity Interests are not beneficially owned
directly or indirectly by GenTek (a 'Specified Person') that is
proportionate to the amount of the net income (loss) of the Specified
Person included in Consolidated Net Income for such period.
'CONSOLIDATED INCOME TAX EXPENSE' means, with respect to GenTek for any
period, the provision for federal, state, local and foreign income taxes payable
by GenTek and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
'CONSOLIDATED INTEREST EXPENSE' means, with respect to GenTek for any
period, without duplication, the sum of:
(1) the interest expense of GenTek and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP
(excluding, except to the extent provided in clause (b) or (d) below,
amortization or write-off of debt issuance costs), including, without
limitation:
(a) any amortization of debt discount;
(b) the net cost under Hedging Obligations relating to interest
(including any amortization of discounts);
(c) the interest portion of any deferred payment obligation;
(d) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing; and
(e) all capitalized interest and all accrued interest; and
(2) to the extent Incurred by GenTek and the Restricted Subsidiaries in such
period but not included in such interest expense, without duplication:
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(a) interest component of Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by GenTek and the Restricted
Subsidiaries during such period as determined on a consolidated basis
in accordance with GAAP; and
(b) dividends and distributions paid, accrued and/or scheduled to be paid
or accrued in respect of Disqualified Equity Interests or Designated
Preferred Stock of GenTek or Preferred Equity Interests of any
Restricted Subsidiary (other than, in each case, (x) any such
dividends or distributions in Qualified Equity Interests of GenTek or
(y) any such dividends or distributions paid or payable to GenTek or
a Restricted Subsidiary) during such period as determined on a
consolidated basis in accordance with GAAP.
In determining Consolidated Interest Expense, there shall only be
included that portion of the items referred to in clause (1) or (2) related to,
or arising in connection with, any Specified Person that is proportionate to the
amount of the net income (loss) of the Specified Person included in Consolidated
Net Income for such period.
'CONSOLIDATED NET INCOME' means, for any period, the consolidated net
income (loss) of GenTek and the Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP; provided, however, that there shall
be excluded from such Consolidated Net Income:
(1) any net income (loss) of any Person that is not a Restricted Subsidiary,
except that (A) subject to the limitations contained in clause (4) below,
GenTek's equity in the net income of any such Person for such period shall
be included in such Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Person during such period to GenTek or a
Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution to a Restricted Subsidiary, to the
limitations contained in clause (3) below) and (B) GenTek's equity in a net
loss of any such Person (other than an Unrestricted Subsidiary) for such
period shall be included in determining such Consolidated Net Income;
(2) for purposes of the covenant described under ' -- Covenants -- Limitation
on Restricted Payments,' any net income (loss) of any Person acquired by
GenTek or a Restricted Subsidiary in a 'pooling of interests' transaction
for any period prior to the date of such acquisition;
(3) any net income (loss) of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions or loans or advances by
such Restricted Subsidiary, directly or indirectly, to GenTek except that
(A) subject to the limitations contained in (4) below, GenTek's equity in
the net income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
that could have been distributed or delivered by such Restricted Subsidiary
during such period to GenTek or a Restricted Subsidiary as a dividend or
other distribution as a loan or other advance if such receiving Restricted
Subsidiary would not itself be subject to such a restriction and in the
case of loans or other advances to GenTek, that GenTek's obligations in
respect of such loans or advances would be subordinated to the Notes (it
being understood that, in the case of a Joint Venture, any restriction
constituting a consent requirement of the other holders of Equity Interests
in such Joint Venture shall be deemed received, absent historical or stated
intent to the contrary), (B) GenTek's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining such
Consolidated Net Income but only up to the aggregate Investment of GenTek
or any Restricted Subsidiary in such Restricted Subsidiary and (C) for so
long as, and during the periods when, such Restricted Subsidiary is a
Subsidiary Guarantor, the net income (loss) of such Restricted Subsidiary
shall be included in Consolidated Net Income;
(4) any gain or loss realized upon the sale or other disposition of any asset
of GenTek or the Restricted Subsidiaries (including pursuant to any
sale/leaseback transaction) that is not sold or otherwise disposed of in
the ordinary course of business and any gain or loss realized upon the sale
or other disposition of any Equity Interests of any Person;
(5) the cumulative effect of a change in accounting principles;
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(6) any item classified as an extraordinary, unusual or nonrecurring gain, loss
or charge (including, but not limited to, any such item related to, or
arising in connection with the Spin-Off or to any Asset Sale or Acquisition
by GenTek or any Restricted Subsidiary after the Issue Date), in each case
on an after-tax basis;
(7) all deferred financing costs written off and premiums paid in connection
with any early extinguishment of Indebtedness;
(8) the write-off of assets in connection with purchase accounting of assets
acquired by GenTek and the Restricted Subsidiaries (including assets
acquired in an Acquisition) if such write-offs are done at the time of, or
within three months after, such acquisition, in each case to the extent not
involving a cash payment; and
(9) any non-cash compensation charge arising from any grant of stock, stock
options or other equity-based awards.
'CONSOLIDATED TANGIBLE ASSETS' means, as of any date of determination,
the total assets, less goodwill and other intangibles shown on the balance sheet
of GenTek and the Restricted Subsidiaries as of the most recent date for which
such a balance sheet is available, determined on a consolidated basis in
accordance with GAAP.
'CONSOLIDATION' means the consolidation of the amounts of each of the
Restricted Subsidiaries with those of GenTek in accordance with GAAP
consistently applied; provided, however, that 'consolidation' will not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of GenTek or any Restricted Subsidiary in an Unrestricted Subsidiary will be
accounted for as an investment. The term 'consolidated' has a correlative
meaning.
'CREDIT FACILITY' means the Credit Agreement, dated as of April 30,
1999, among GenTek, Noma Inc., the lenders and agents named therein and The
Chase Manhattan Bank, as Administrative Agent, including any deferrals,
renewals, extensions, replacements, refinancings or refundings thereof, or
amendments, modifications or supplements thereto and any agreement providing
therefor (including any restatements thereof and any increases in the amount of
commitments thereunder), whether by or with the same or any other lender,
creditor, group of lenders or group of creditors, and including related notes,
guaranty and note agreements, collateral security documents and other
instruments and agreements executed in connection therewith. Without limiting
the generality of the foregoing, 'Credit Facility' shall include any agreement
changing the maturity of the Indebtedness Incurred thereunder or contemplated
thereby, adding Subsidiaries of GenTek as additional borrowers or guarantors
thereunder, increasing the amount of Indebtedness Incurred thereunder or
available to be borrowed thereunder or otherwise altering the terms and
conditions thereof.
'DEFAULT' means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
'DESIGNATED PREFERRED STOCK' means Preferred Equity Interests (not
constituting Disqualified Equity Interests) of GenTek that are designated as
Designated Preferred Stock pursuant to an officer's certificate of GenTek
delivered to the trustee.
'DESIGNATED SENIOR INDEBTEDNESS' means (a) any Indebtedness outstanding
under the Credit Facility and (b) any other Senior Indebtedness or Guarantor
Senior Indebtedness which, at the time of determination, has an aggregate
principal amount outstanding, together with any commitments to lend additional
amounts, of at least $25.0 million, if the instrument governing such Senior
Indebtedness or Guarantor Senior Indebtedness expressly states that such
Indebtedness is 'Designated Senior Indebtedness' for purposes of the indenture
and an officers' certificate of GenTek setting forth such designation by GenTek
has been filed with the trustee.
'DESIGNATION' means a designation by GenTek after the Issue Date of any
Subsidiary of GenTek as an 'Unrestricted Subsidiary' under the indenture.
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'DESIGNATION AMOUNT' means, with respect to any Subsidiary being
designated as an 'Unrestricted Subsidiary' pursuant to the 'Designation of
Unrestricted Subsidiary' covenant, an amount equal to the Fair Market Value of
the Investment of GenTek and the Restricted Subsidiaries in such Subsidiary on
such date.
'DISQUALIFIED EQUITY INTEREST' means any Equity Interest to the extent
that, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable at the option of the holder thereof), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or, at the option of the holder thereof,
in whole or in part, redeemable or exchangeable into Indebtedness on or prior to
the maturity date of the notes; provided any Equity Interests that would not
constitute Disqualified Equity Interests but for provisions thereof giving
holders thereof the right to require such Person to repurchase or redeem such
Capital Stock upon the occurrence of a 'change of control' or 'sale of assets'
occurring prior to the final stated maturity of the notes shall not constitute
Disqualified Equity Interests if the 'change of control' or 'asset sale'
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the similar provisions of the covenants
described under 'Change of Control' and 'Disposition of Proceeds of Asset Sales'
and such provisions require an offer to purchase and are first complied with;
provided, further, that if such Equity Interest is issued pursuant to any plan
for the benefit of directors, officers or employees of GenTek or of any of its
Subsidiaries (or by any such plan to such directors, officers or employees),
such Equity Interest shall not constitute a Disqualified Equity Interest solely
because it may be required to be repurchased by GenTek pursuant to customary
provisions of the plan or in order to satisfy applicable statutory or regulatory
obligations.
'ELIGIBLE SUBSIDIARIES' means all Restricted Subsidiaries, other than
(1) Foreign Subsidiaries;
(2) Subsidiaries of Foreign Subsidiaries, and
(3) Accounts Receivable Subsidiaries.
'EQUITY INTEREST' in any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or limited, and
membership interests in such Person, including any Preferred Equity Interests
(but excluding debt securities convertible or exchangeable into any of the
foregoing).
'EQUITY ISSUANCE' means any public or private issuance of Equity
Interests of GenTek.
'ESOP' means an employee stock ownership plan for the benefit of the
employees of GenTek or its Subsidiaries.
'EXCHANGE ACT' means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
'EXPIRATION DATE' means the expiration date of the Offer to Purchase.
'FAIR MARKET VALUE' means, with respect to any asset, the price (after
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction; provided that the Fair Market Value of
any such asset or assets shall be determined conclusively by the Board of
Directors of GenTek acting in good faith, and shall be evidenced by resolutions
of the Board of Directors of GenTek delivered to the Trustee.
'FOREIGN SUBSIDIARY' means:
(1) any Subsidiary of GenTek that is not organized under the laws of the United
States of America or any state thereof or the District of Columbia and
conducts its principal operations outside the United States; and
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(2) any Subsidiary of GenTek that has no material assets other than securities
of one or more Foreign Subsidiaries and other assets relating to an
ownership interest in such securities or Subsidiaries.
'FOUR QUARTER PERIOD' means the four quarter period of the most recent
four consecutive fiscal quarters ending prior to the date of the relevant
determination for which consolidated financial statements of GenTek are
available.
'GAAP' means generally accepted accounting principles in the United
States of America as in effect on the Issue Date (for purposes of the
definitions of the terms 'Consolidated Coverage Ratio,' 'Consolidated EBITDA,'
'Consolidated Interest Expense,' 'Consolidated Tangible Assets' and
'Consolidated Net Income' and all defined terms in the indenture to the extent
used in or relating to any of the foregoing definitions, and all ratios and
computations based on any of the foregoing definitions) and as in effect from
time to time (for all other purposes of the indenture), including those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained in
the indenture shall be computed in conformity with GAAP as consistently applied.
'GCIP' means General Chemical Industrial Products Inc.
'GCG' means The General Chemical Group Inc.
'GUARANTOR SENIOR INDEBTEDNESS' means, at any date,
(1) all Obligations of a Subsidiary Guarantor under the Credit Facility;
(2) all Hedging Obligations of a Subsidiary Guarantor;
(3) all Obligations of a Subsidiary Guarantor under stand-by letters of credit;
and
(4) all Obligations under other Indebtedness of a Subsidiary Guarantor
including principal, premium, if any, and interest on such Indebtedness,
unless the instrument under which such Indebtedness of a Subsidiary
Guarantor for money borrowed is Incurred expressly provides that such
Indebtedness for money borrowed is not senior or superior in right of
payment to the Subsidiary Guarantee, and all renewals, extensions,
modifications, amendments or refinancings thereof. Notwithstanding the
foregoing, Guarantor Senior Indebtedness shall not include:
(a) to the extent that it may constitute Indebtedness, any Obligation for
federal, state, local, foreign or other taxes;
(b) any Indebtedness of a Subsidiary Guarantor to any Subsidiary of a
Subsidiary Guarantor, unless and for so long as such Indebtedness has
been pledged to secure Obligations under the Credit Facility or other
Guarantor Senior Indebtedness;
(c) any Obligation in respect of any trade payable Incurred for the
purchase of goods or goods or materials, or for services obtained,
in the ordinary course of business;
(d) Indebtedness evidenced by the Subsidiary Guarantee;
(e) Indebtedness of a Subsidiary Guarantor that is expressly subordinate
or junior in right of payment to any other Indebtedness of a
Subsidiary Guarantor;
(f) to the extent that it may constitute Indebtedness, any obligation
owing under leases (other than Capital Lease Obligations), subleases
or licenses; and
(g) any obligation that by operation of law is subordinate to any general
unsecured obligations of a Subsidiary Guarantor.
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'GUARANTY' means, as applied to any obligation,
(1) a guaranty (other than by endorsement of negotiable instruments for deposit
or collection in the ordinary course of business), direct or indirect, in
any manner, of any part or all of such obligation; and
(2) an agreement, direct or indirect, contingent or otherwise, the practical
effect of which is to assure in any way the payment or performance (or
payment of damages in the event of non-performance) of all or any part of
such obligation, including, without limiting the foregoing, the payment of
amounts drawn down by letters of credit. A guaranty shall include, without
limitation, any agreement to maintain or preserve any other Person's
financial condition or to cause any other Person to achieve certain levels
of operating results.
'HEDGING OBLIGATIONS' means, with respect to any Person, the Obligations
of such Person under
(1) interest rate swap agreements, interest rate cap agreements and interest
rate collar agreements,
(2) other agreements or arrangements relating to fluctuations in interest rates
and
(3) foreign currency, commodity or energy hedge, exchange or similar agreements
(agreements referred to in this definition being referred to herein as
'Hedging Agreements').
'INCUR' means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guaranty or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and 'Incurrence,' 'Incurred' and 'Incurring' shall have meanings
correlative to the foregoing); provided, however, that (i) a change in generally
accepted accounting principles that results in an obligation of such Person that
exists at such time becoming Indebtedness shall not be deemed an Incurrence of
such Indebtedness and (ii) neither the accrual of interest nor the accretion of
original issue discount shall be deemed an Incurrence of Indebtedness (although
the amount of such accrual or accretion at any date at which an outstanding
amount of Indebtedness is to be calculated shall be included in the calculation
of such outstanding principal amount). Indebtedness of any Acquired Person or
any of its Subsidiaries existing at the time such Acquired Person becomes a
Restricted Subsidiary (or is merged into or consolidated with the Company or any
Restricted Subsidiary), whether or not such Indebtedness was Incurred in
connection with, as a result of, or in contemplation of, such Acquired Person
becoming a Restricted Subsidiary (or being merged into or consolidated with the
Company or any Restricted Subsidiary), shall be deemed Incurred at the time any
such Acquired Person becomes a Restricted Subsidiary or merges into or
consolidates with the Company or any Restricted Subsidiary.
'INDEBTEDNESS' means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent,
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses;
(3) every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account
of such Person;
(4) every obligation of such Person issued or assumed as the deferred purchase
price of property or services and every conditional sale obligation (but
excluding (a) trade accounts payable incurred in the ordinary course of
business and payable in accordance with industry practices or (b) other
accrued liabilities arising in the ordinary course of business which are
not overdue or which are being contested in good faith);
(5) every Capital Lease Obligation of such Person;
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(6) every net obligation under Hedging Obligations of such Person; and
(7) every obligation of the type referred to in clauses (1) through (6) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable for,
directly or indirectly, as obligor, guarantor or otherwise. Indebtedness:
(a) shall never be calculated taking into account any cash and Cash
Equivalents held by such Person;
(b) shall not include obligations of any Person
(i) for federal, state, local or other taxes, which are not
overdue (taking account of any extensions) or subject to
dispute,
(ii) arising from reclamation obligations, or any bonding thereof
(unless required by and in compliance with applicable laws
and regulations, to the extent such reclamation obligations
are due after the final Stated Maturity of the notes),
(iii) arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the
ordinary course of business, provided that such obligations
are extinguished within three Business Days of their
Incurrence,
(iv) resulting from the endorsement of negotiable instruments for
collection in the ordinary course of business and consistent
with past business practices and
(v) under stand-by letters of credit to the extent collateralized
by cash or Cash Equivalents;
(c) which provides that an amount less than the principal amount thereof
shall be due upon any declaration of acceleration thereof shall be
deemed to be Incurred or outstanding in an amount equal to the
accreted value thereof at the date of determination;
(d) shall include the liquidation preference and any mandatory redemption
payment obligations (excluding currently accruing dividends) in
respect of any Disqualified Equity Interests or Designated Preferred
Equity Interests of GenTek or any Preferred Equity Interests of any
Restricted Subsidiary; and
(e) shall not include obligations under performance bonds, performance
guaranties, surety bonds and appeal bonds, letters of credit or
similar obligations, incurred in the ordinary course of business.
For purposes of determining compliance with any U.S. dollar-denominated
restriction on the Incurrence of Indebtedness denominated in a foreign currency,
the U.S. dollar-equivalent principal amount of such Indebtedness Incurred
pursuant thereto shall be calculated based on the relevant currency exchange
rate in effect on the date that such Indebtedness was Incurred if such
Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced. The principal amount of
any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.
'INDEPENDENT FINANCIAL ADVISOR' means a nationally recognized
accounting, appraisal, investment banking firm or consultant that is, in the
judgment of GenTek's Board of Directors, qualified to perform the task for which
it has been engaged:
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(1) which does not, and whose directors, officers and employees or Affiliates
do not, have a direct or indirect financial interest in GenTek; and
(2) which, in the judgment of the Board of Directors of GenTek, is otherwise
independent and qualified to perform the task for which it is to be
engaged.
'INTEREST' means, with respect to the notes, the sum of any cash
interest and any Additional Interest on the notes.
'INVESTMENT' means, with respect to any Person, any direct or indirect
loan, advance, guaranty or other extension of credit (other than trade
receivables created on customary terms in the ordinary course of business) or
capital contribution to (by means of transfers of cash or other property or
assets to others or payments for property or services for the account or use of
others, or otherwise), or purchase or acquisition of capital stock, bonds,
notes, debentures or other securities or evidences of Indebtedness issued by,
any other Person. Unless the context otherwise requires, the amount of any
Investment shall be the original cost of such Investment, plus the cost of all
additions thereto, and minus the amount of any portion of such Investment repaid
to such Person in cash as a repayment of principal or a return of capital, as
the case may be, but without any other adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment.
In determining the amount of any Investment constituting a guaranty, the maximum
potential amount of such guaranty shall be considered the amount of the
Investment and, in determining the amount of any Investment involving a transfer
of any property or asset other than cash, such property shall be valued at its
Fair Market Value at the time of such transfer. A guaranty of performance by
GenTek or any Restricted Subsidiary in the delivery of the product or material
requirements of a customer or third party in the ordinary course of business
shall not constitute an Investment. If the Issuer or any of the Restricted
Subsidiaries sells or otherwise disposes of any Capital Stock of any direct or
indirect Restricted Subsidiary such that, after giving effect to any such sale
or disposition, such entity ceases to be a Subsidiary, the Issuer shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the Fair Market Value of the Capital Stock of such Restricted
Subsidiary not sold or disposed of.
'ISSUE DATE' means the original issue date of the notes.
'JOINT VENTURE' means any joint venture with respect to a Related
Business constituting a Subsidiary, involving GenTek and one or more Persons, to
which GenTek has contributed assets (whether in the form of cash, property or
services).
'LIEN' means any lien, mortgage, charge, security interest,
hypothecation, assignment for security or encumbrance of any kind (including any
conditional sale or capital lease or other title retention agreement, any lease
in the nature thereof, and any agreement to give any security interest).
'MANAGEMENT AGREEMENT' means the management agreement as in effect on
the Issue Date between GenTek and Latona Associates Inc. (and its permitted
successors and assigns thereunder), as it may be amended, modified or replaced
after the Issue Date with the approval of a majority of the disinterested
directors of GenTek in accordance with the covenant described under
' -- Covenants -- Transactions with Affiliates.'
'MATURITY DATE' means August 1, 2009.
'NET CASH PROCEEDS' means the aggregate proceeds in the form of cash or
Cash Equivalents received by GenTek or any Restricted Subsidiary in respect of
any Asset Sale, including all cash or Cash Equivalents received upon any sale,
liquidation or other exchange of proceeds of Asset Sales received in a form
other than cash or Cash Equivalents, net of:
(1) the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, underwriters or
placement agents' fees, discounts or commissions, sales commissions, and
costs incurred in preparing the respective properties or assets for sale)
and any relocation or severance expenses incurred as a result thereof;
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(2) taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements);
(3) amounts required to be applied to the repayment of Indebtedness secured by
a Lien on the asset or assets that were the subject of such Asset Sale;
(4) amounts deemed, in good faith, appropriate by the Board of Directors of
GenTek to be provided as a reserve, in accordance with GAAP, against any
liabilities associated with such assets which are the subject of such Asset
Sale (provided that the amount of any such reserves shall be deemed to
constitute Net Cash Proceeds at the time such reserves shall have been
released or are not otherwise required to be retained as a reserve); and
(5) with respect to Asset Sales by Restricted Subsidiaries, the portion of such
cash payments attributable to Persons holding a minority interest in such
Restricted Subsidiary.
'OBLIGATIONS' means any principal, interest (including, with respect to
Designated Senior Indebtedness only, Post-Petition Interest), penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness.
'OFFER TO PURCHASE' means a written offer sent by or on behalf of GenTek
by first-class mail, postage prepaid, to each holder at his address appearing in
the register for the Notes on the date of the written offer offering to purchase
up to the principal amount of notes specified in such written offer at the
purchase price specified in such written offer (as determined pursuant to the
indenture). Unless otherwise required by applicable law, the written offer shall
specify the Expiration Date of the Offer to Purchase, which shall be not less
than 20 Business Days nor more than 60 days after the date of such written
offer, and the Purchase Date for purchase of notes to occur no later than five
Business Days after the Expiration Date. GenTek shall notify the trustee at
least 15 Business Days (or such shorter period as is acceptable to the trustee)
prior to the mailing of the written offer of GenTek's obligation to make an
Offer to Purchase, and the written offer shall be mailed by GenTek or, at
GenTek's request, by the Trustee in the name and at the expense of GenTek. The
written offer shall contain all the information required by applicable law to be
included therein. The written offer shall also contain information concerning
the business of GenTek and its Subsidiaries which GenTek in good faith believes
will enable such Holders to make an informed decision with respect to the Offer
to Purchase (which at a minimum will include:
(1) the most recent annual and quarterly financial statements and 'Management's
Discussion and Analysis of Financial Condition and Results of Operations'
contained in the documents required to be filed with the Trustee pursuant
to the Indenture (which requirements may be satisfied by delivery of such
documents together with the written offer);
(2) a description of material developments in GenTek's business subsequent to
the date of the latest of such financial statements referred to in
clause (i) (including a description of the events requiring GenTek to make
the Offer to Purchase);
(3) if applicable, appropriate pro forma financial information concerning the
Offer to Purchase and the events requiring GenTek to make the Offer to
Purchase and
(4) any other information required by applicable law to be included therein).
The written offer shall contain all instructions and materials necessary
to enable such holders to tender notes pursuant to the Offer to Purchase. The
written offer shall also state:
(1) the Section of the indenture pursuant to which the Offer to Purchase is
being made;
(2) the Expiration Date and the Purchase Date;
(3) the Purchase Amount;
(4) the Purchase Price;
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(5) that the Holder may tender all or any portion of the notes registered in
the name of such holder and that any portion of a note tendered must be
tendered in an integral multiple of $1,000 principal amount;
(6) the place or places where notes are to be surrendered for tender pursuant
to the Offer to Purchase;
(7) that interest on any note not tendered or tendered but not purchased by
GenTek pursuant to the Offer to Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase Price will become due and payable
upon each note being accepted for payment pursuant to the Offer to Purchase
and that interest thereon shall cease to accrue on and after the Purchase
Date;
(9) that each holder electing to tender all or any portion of a note pursuant
to the Offer to Purchase will be required to surrender such note at the
place or places specified in the written offer prior to the close of
business on the Expiration Date (such note being, if GenTek or the trustee
so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to GenTek and the trustee duly executed by,
the holder thereof or his attorney duly authorized in writing);
(10) that holders will be entitled to withdraw all or any portion of notes
tendered if GenTek (or its Paying Agent) receives, not later than the close
of business on the fifth Business Day next preceding the Expiration Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the holder, the principal amount of the note the holder tendered, the
certificate number of the note the holder tendered and a statement that
such holder is withdrawing all or a portion of his tender;
(11)that (a) if notes in an aggregate principal amount less than or equal to the
Purchase Amount are duly tendered and not withdrawn pursuant to the Offer to
Purchase, GenTek shall purchase all such notes and (b) if notes in an
aggregate principal amount in excess of the Purchase Amount are tendered and
not withdrawn pursuant to the Offer to Purchase, GenTek shall purchase notes
having an aggregate principal amount equal to the Purchase Amount on a pro
rata basis (with such adjustments as may be deemed appropriate so that only
notes in denominations of $1,000 principal amount or integral multiples
thereof shall be purchased); and
(12) that in the case of any holder whose note is purchased only in part, GenTek
shall execute and the trustee shall authenticate and deliver to the holder
of such note without service charge, a new note or notes, of any authorized
denomination as requested by such holder, in an aggregate principal amount
equal to and in exchange for the unpurchased portion of the note so
tendered.
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any such written offer.
'OPERATING PARTNERSHIP' means any Person
(1) in which GenTek beneficially owns less than a majority of the Voting Equity
Interests and
(2) which has been organized for the purpose of engaging in a line or lines of
business similar to a line or lines of business of GenTek or any Restricted
Subsidiary or in a Related Business.
'PARI PASSU DEBT' means Indebtedness of GenTek or a Subsidiary Guarantor
that neither constitutes Senior Indebtedness or Guarantor Senior Indebtedness,
as applicable, nor Subordinated Indebtedness.
'PARI PASSU DEBT PRO RATA SHARE' means the amount of the applicable Net
Cash Proceeds obtained by multiplying the amount of such Net Cash Proceeds by a
fraction,
(1) the numerator of which is the aggregate accreted value and/or principal
amount, as the case may be, of all Pari Passu Debt outstanding at the time
of the applicable Asset Sale with respect to which GenTek is required to
use Net Cash Proceeds to repay or make an offer to purchase or repay and
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(2) the denominator of which is the sum of (a) the aggregate principal amount
of all Notes outstanding at the time of the applicable Asset Sale and
(b) the aggregate principal amount or the aggregate accreted value, as the
case may be, of all Pari Passu Debt outstanding at the time of the
applicable Offer to Purchase with respect to which GenTek is required to
use the applicable Net Cash Proceeds to offer to repay or make an offer to
purchase or repay.
'PERMITTED CONSIDERATION' means consideration received in connection
with an Asset Sale consisting of
(1) any Investment by GenTek or a Restricted Subsidiary made for strategic
purposes in a customer, supplier, competitor or a company engaged in a
Related Business, provided that, at the time of and after giving effect to
such Asset Sale, the aggregate amount of all such Investments treated as
Permitted Consideration would not exceed 10% of Consolidated Tangible
Assets as of the most recent balance sheet date,
(2) Replacement Assets and
(3) any combination of the consideration described in clause (1) or (2) above.
'PERMITTED DESIGNEE' with respect to any Permitted Holder means
(1) a spouse or child or other lineal descendants (in the case of an
individual) of such Permitted Holder,
(2) any trust principally for the benefit of such Permitted Holder or a spouse
or child or other lineal descendant of such Permitted Holder,
(3) in the event of death or incompetence of a Permitted Holder, such Permitted
Holder's estate, heirs, executor, administrator, committee or other court
appointed representative,
(4) any foundation or not-for-profit organization established by a Permitted
Holders, or
(5) any Person so long as one or more Permitted Holders in the aggregate own a
majority of the Voting Equity Interests of such person.
'PERMITTED EQUITY INCENTIVE PAYMENTS' means
(1) distributions, loans or advances made by GenTek to members of GenTek's or
its Subsidiaries' management to the extent used to fund the repurchase,
redemption or other acquisition or retirement for value of any Equity
Interests of GenTek held by any member of GenTek's or any of its
Subsidiaries' management pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of the
Indenture and as the same may be amended, modified or replaced in
accordance with the covenant described under ' -- Covenants -- Transactions
with Affiliates';
(2) payments of any amounts to an ESOP or other stock plan for employees of
GenTek or any of its Subsidiaries; and
(3) payments to members of management of GenTek and its Subsidiaries pursuant
to equity incentive plans of GenTek to the extent such payments are
reflected as expenses in the calculation of Consolidated Net Income;
provided that the aggregate amount of payments made under the preceding
clauses (1), (2) and (3) shall not exceed the sum of $5.0 million in any
calendar year plus the Net Cash Proceeds received by GenTek since the Issue
Date from, or as a capital contribution from, the issuance or sale to
employees of GenTek and its Subsidiaries of Qualified Equity Interests, to
the extent such Net Cash Proceeds are not and have not been included in any
calculation under clause (c)(2) of the first paragraph (a) or under any
clause (other than clause (v)) of the second paragraph of the covenant
described under ' -- Covenants -- Limitation on Restricted Payments.'
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'PERMITTED HEDGING OBLIGATIONS' means any Hedging Obligations that are
Incurred (a) in the ordinary course of business and (b) for the purpose of
hedging (x) interest rate risk to GenTek or any Restricted Subsidiary with
respect to any fixed or floating rate Indebtedness of GenTek or any Restricted
Subsidiary (including all Hedging Obligations Incurred in connection with the
Credit Facility), (y) currency risk to GenTek or any Restricted Subsidiary in
the ordinary course of business or (z) the risk to GenTek and the Restricted
Subsidiaries of fluctuations in the cost of raw materials, energy inputs or
other commodities used in the ordinary course of business of GenTek and the
Restricted Subsidiaries.
'PERMITTED HOLDER' means Paul M. Meister, Paul M. Montrone, Richard R.
Russell and their respective Permitted Designees.
'PERMITTED INDEBTEDNESS' means:
(1) the Incurrence by GenTek or any Restricted Subsidiary of Indebtedness under
the Credit Facility; provided that the aggregate principal amount of
Indebtedness (with letters of credit being deemed to have a principal
amount at any time equal to the aggregate then undrawn and unexpired amount
thereof plus the aggregate amount of drawings thereunder that have not then
been reimbursed) outstanding under the Credit Facility after giving effect
to such Incurrence does not exceed an amount equal to:
(a) $550.0 million; plus
(b) in the case of a Credit Facility constituting a refinancing (or a
successive refinancing) of the initial Credit Facility, an amount
equal to the amount of reasonable fees, underwriting discounts,
premiums and other costs and expenses incurred in connection with
such refinancing;
(2) the Incurrence by GenTek or any Restricted Subsidiary of Indebtedness under
the Notes, the Subsidiary Guarantees and the indenture;
(3) the Incurrence by GenTek or any Restricted Subsidiary of Purchase Money
Indebtedness or Capital Lease Obligations; provided that, after giving
effect to any such Incurrence, the aggregate principal amount (or accreted
value, as applicable) of all outstanding Indebtedness Incurred under this
clause (3), when aggregated with all outstanding Permitted Refinancing
Indebtedness (including any successive refinancings) Incurred under clause
(5) below to refinance Indebtedness Incurred under this clause (3), does
not exceed at any time outstanding the greater of:
(a) $30.0 million; and
(b) 5% of Consolidated Tangible Assets;
(4) (a) the Incurrence of Indebtedness by Foreign Subsidiaries; provided that
the aggregate principal amount of all outstanding Indebtedness
Incurred by Foreign Subsidiaries under this clause (4) does not exceed
the greater of:
(A) $75.0 million; and
(B) 15.0% of Consolidated Tangible Assets; and
(b) guarantees by GenTek or any Restricted Subsidiary in respect of
Indebtedness permitted by the foregoing clause (a);
(5) the Incurrence by GenTek or any Restricted Subsidiary of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are
used to refund, refinance or replace, Indebtedness that was Incurred under
the first paragraph hereof or clause (2) or (3) of this definition;
(6) the Incurrence or issuance by GenTek or any Restricted Subsidiary of
intercompany Indebtedness or Preferred Equity Interests between or among
GenTek and any of the Restricted Subsidiaries; provided that:
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(a) if GenTek is the obligor on any such Indebtedness to a Restricted
Subsidiary such Indebtedness is expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the notes
(unless Designated Senior Indebtedness expressly prohibits such
subordination); and
(b) (x) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness or Preferred Equity Interests being
held by a Person other than GenTek or a Restricted Subsidiary thereof
and (y) any sale or other transfer of any such Indebtedness or
Preferred Equity Interests to a Person that is neither GenTek nor a
Restricted Subsidiary thereof (other than to secure the Designated
Senior Indebtedness) shall be deemed, in each case, to constitute an
Incurrence of such Indebtedness or issuance of Preferred Equity
Interests by GenTek or such Restricted Subsidiary, as the case may
be, that was not permitted by this clause (6);
(7) Indebtedness arising from any agreement entered into by GenTek or any of
the Restricted Subsidiaries providing for indemnification, purchase price
adjustment, customary earn-out arrangements or similar obligations (other
than guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of the assets disposed of pursuant to an Asset Sale); provided that
such Indebtedness is Incurred or assumed, to the extent applicable, in
compliance with the 'Disposition of Proceeds of Asset Sales' covenant;
(8) the Incurrence by GenTek or any Restricted Subsidiary of Permitted Hedging
Obligations;
(9) the Incurrence by GenTek or any Restricted Subsidiary of Indebtedness
represented by trade letters of credit, reclamation, performance or surety
bonds, completion guarantees or similar arrangements, in each case, in the
ordinary course of business;
(10) the Incurrence by GenTek or any Restricted Subsidiary of additional
Indebtedness and the issuance by any Restricted Subsidiary of Preferred
Equity Interests in an aggregate principal amount or liquidation preference
or other priority claim (or accreted value, as applicable) at any time
outstanding not to exceed $50.0 million at any one time outstanding; and
(11) the issuance by GenTek of any Disqualified Equity Interests or any
Restricted Subsidiary of any Preferred Equity Interests in connection with
an Acquisition by GenTek or such Restricted Subsidiary, provided that the
Fair Market Value of the Equity Interests issued does not exceed 30% of the
Fair Market Value of the total consideration paid by GenTek and the
Restricted Subsidiaries for such Acquisition.
'PERMITTED INVESTMENTS' means:
(1) any Investment in GenTek, any Restricted Subsidiary or a Person that
becomes a Restricted Subsidiary, or is merged with or into or consolidated
with GenTek or a Restricted Subsidiary (provided GenTek or a Restricted
Subsidiary is the survivor), as a result of or in connection with such
Investment;
(2) cash or Cash Equivalents;
(3) Investments in prepaid expenses, negotiable instruments held for collection
and lease, utility and workers' compensation, performance and other similar
deposits;
(4) loans and advances to employees made in the ordinary course of business not
to exceed $3.0 million in the aggregate at any one time outstanding;
(5) Permitted Hedging Obligations;
(6) bonds, notes, debentures or other securities received as consideration from
any Asset Sale that is subject to and made in compliance with the covenant
described under ' -- Covenants -- Disposition of Proceeds of Asset Sales',
provided that, in the case of any Permitted Consideration (excluding
Replacement Assets) received from any Asset Sale to the extent it exceeds
25% of the total
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consideration received from such Asset Sale ('Excess Permitted
Consideration'), such Excess Permitted Consideration shall not be permitted
under this clause (f) but rather must be permitted under another clause or
clauses of this definition or otherwise under the covenant 'Limitation on
Restricted Payments';
(7) transactions with officers, directors and employees of GenTek or any
Restricted Subsidiary entered into in compliance with
' -- Covenants -- Transactions with Affiliates' (including compensation or
employee benefit arrangements with any such director or employee);
(8) any Investment to the extent that the consideration paid by GenTek or a
Restricted Subsidiary therefor consists of Qualified Equity Interests of
GenTek;
(9) to the extent not otherwise included in other clauses of this definition,
Investments in Operating Partnerships or Unrestricted Subsidiaries or
Investments representing Excess Permitted Consideration in an aggregate
amount at any time outstanding not to exceed an amount equal to (a) the
greater of (x) $75.0 million or (y) 15.0% of Consolidated Tangible Assets
plus (b) to the extent not reinvested under this clause (9), any cash
return of capital (whether realized as a result of payments from the
respective Person in which the Permitted Investment was made, the receipt
of net cash proceeds from the sale of the respective Permitted Investment
or otherwise) realized on a Permitted Investment made after the Issue Date
pursuant to this clause (9) (provided such amount under this subclause (b)
shall be excluded from Consolidated Net Income for purposes of the covenant
described under ' -- Covenants -- Limitation on Restricted Payments');
(10) securities or other Investments received in settlement of debts created in
the ordinary course of business and owing to GenTek or any Restricted
Subsidiary, or as a result of foreclosure, perfection or enforcement of any
Lien, or in satisfaction of judgments, including in connection with any
bankruptcy proceeding or other reorganization of another Person;
(11) receivables owing to GenTek or any Restricted Subsidiary created in the
ordinary course;
(12) Investments in the form of the sale (on a 'true sale' non-recourse basis,
other than customary securitization undertakings) or the servicing of
receivables transferred from GenTek or any Restricted Subsidiary, or
transfers of cash, to an Accounts Receivable Subsidiary as a capital
contribution or in exchange for Indebtedness of such Accounts Receivable
Subsidiary or cash and Investments by an Accounts Receivable Subsidiary
incurred in connection with the sale or financing of accounts receivable,
in each case in the ordinary course of business and on customary terms;
(13) Investments in the Notes; and
(14) Investments in any Person not to exceed $20.0 million at any time
outstanding.
'PERMITTED JUNIOR SECURITIES' means any securities of GenTek or any
other Person provided for by a plan of reorganization or readjustment succeeding
to the assets and liabilities of GenTek that are (1) equity securities without
special covenants or (2) subordinated in right of payment to all Senior
Indebtedness that may at the time be outstanding, to substantially the same
extent as, or to a greater extent than, the notes are subordinated as provided
in the indenture, in any event pursuant to a court order so providing and as to
which:
(1) the rate of interest on such securities shall not exceed the effective rate
of interest on the notes on the date of the indenture;
(2) such securities shall not be entitled to the benefits of covenants or
defaults materially more beneficial to the holders of such securities than
those in effect with respect to the notes on the date of the indenture and
(3) such securities shall not provide for amortization (including sinking fund
and mandatory prepayment provisions) commencing prior to the date one year
following the final scheduled maturity date of the Senior Indebtedness (as
modified by the plan of reorganization or readjustment pursuant to which
such securities are issued);
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provided that, in each case with respect to clauses (1) and (2) above, (x) if a
new corporation results from any such reorganization or readjustment, such
corporation assumes all Senior Indebtedness that will be outstanding after
giving effect thereto and (y) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered or impaired,
including, without limitation, such rights being impaired within the meaning of
Section 1124 of Title 11 of the United States Code, or any impairment of the
right to receive interest accruing during the pendency of a bankruptcy or
insolvency proceeding, including proceedings under Title 11 of the United States
Code.
'PERMITTED LIENS' means:
(1) Liens on property of a Person existing at the time such Person becomes a
Subsidiary of GenTek (or at the time GenTek or a Restricted Subsidiary
acquires such property) or is merged into or consolidated with GenTek or
any Restricted Subsidiary; provided, however, that such Liens were in
existence prior to the contemplation of such merger or consolidation and do
not secure any property or assets of GenTek or any Restricted Subsidiary
other than the property or assets subject to the Liens prior to such merger
or consolidation;
(2) Liens imposed by law such as carriers', warehousemen's and mechanics' Liens
and other similar Liens arising in the ordinary course of business which
secure payment of obligations not more than 60 days past due or which are
being contested in good faith and by appropriate proceedings;
(3) Liens existing on the Issue Date or provided for under written arrangements
existing on the Issue Date;
(4) Liens securing only the Notes;
(5) Liens in favor of GenTek or any Restricted Subsidiary;
(6) Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or the nonpayment of which in the aggregate would not
reasonably be expected to have a material adverse effect on GenTek and the
Restricted Subsidiaries or that are being contested in good faith by
appropriate proceedings; provided, however, that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall
have been made therefor;
(7) easements, reservation of rights of way, restrictions and other similar
easements, licenses, restrictions on the use of properties, or minor
imperfections of title that in the aggregate do not in any case materially
detract from the properties subject thereto or interfere with the ordinary
conduct of the business of GenTek and the Restricted Subsidiaries;
(8) pledges, deposits or Liens in connection with workers' compensation,
unemployment insurance and other social security and other similar
legislation or other insurance-related obligations (including, without
limitation, pledges or deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(9) pledges, deposits or Liens to secure the performance of bids, tenders,
trade, government or other contracts (other than for borrowed money),
obligations for utilities, leases, licenses, statutory obligations,
completion guarantees, surety, judgment, appeal or performance bonds, other
similar bonds, instruments or obligations, and other obligations of a like
nature incurred in the ordinary course of business;
(10) (A) mortgages, liens, security interests, restrictions, encumbrances or
any other matters of record that have been placed by any developer,
landlord or other third party on property over which GenTek or any
Restricted Subsidiary has easement rights or on any leased property
and subordination or similar agreements relating thereto; and
(B) any condemnation or eminent domain proceedings affecting any real
property;
(11) Liens arising out of judgments, decrees, orders or awards not constituting
any Event of Default in respect of which GenTek shall in good faith be
prosecuting an appeal or proceedings for review,
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which appeal or proceedings shall not have been finally terminated, or if
the period within which such appeal or proceedings may be initiated shall
not have expired;
(12) Liens securing Hedging Obligations Incurred in compliance with the covenant
described under ' -- Covenants -- Limitation on Incurrence of Indebtedness
and Preferred Equity Interests';
(13) Liens securing Purchase Money Indebtedness; provided, however, that
(a) such Liens secure Indebtedness in an amount not in excess of the
original purchase price or the original cost of any such assets or
repair, addition or improvement thereto (plus an amount equal to the
reasonable fees and expenses in connection with the incurrence of
such Indebtedness),
(b) such Liens do not extend to any other assets of GenTek or the
Restricted Subsidiaries (and, in the case of repair, addition or
improvements to any such assets, such Lien extends only to the assets
(and improvements thereto or thereon) repaired, added to or
improved),
(c) the Incurrence of such Indebtedness is permitted by
' -- Covenants -- Limitation on Incurrence of Indebtedness and
Preferred Equity Interests' above and
(d) such Liens attach within 180 days of such purchase, construction,
installation, repair, addition or improvement;
(14) Liens to secure Indebtedness permitted by clause (4) of the definition of
Permitted Indebtedness;
(15) Liens to secure any refinancings, renewals, extensions, modifications or
replacements (collectively, 'refinancing') (or successive refinancings), in
whole or in part, of any Indebtedness secured by Liens referred to in this
definition (other than clause (22) below) so long as such Lien does not
extend to any other property (other than improvements thereto or proceeds
or dividends or distributions in respect thereof);
(16) Liens securing letters of credit entered into in the ordinary course of
business and consistent with past business practice;
(17) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary
securing any Indebtedness of such Unrestricted Subsidiary;
(18) Liens securing Acquired Indebtedness, provided that such Liens do not
extend to any other assets or property of GenTek or any Restricted
Subsidiary;
(19) leases, subleases, licenses or sublicenses to third parties;
(20) any Lien with respect to the Equity Interests of any joint venture or
similar arrangement pursuant to any joint venture or similar agreement;
(21) Liens to secure Indebtedness or other obligations of an Accounts Receivable
Subsidiary; and
(22) other Liens securing up to $20.0 million of Indebtedness (other than
Subordinated Indebtedness or Pari Passu Indebtedness).
'PERMITTED REFINANCING INDEBTEDNESS' means any Indebtedness of GenTek or
any of the Restricted Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of GenTek or any of the Restricted Subsidiaries (other than
intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount of (or
accreted value, if applicable), plus accrued interest on, the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded (plus the
amount of reasonable fees, underwriting discount, premiums and all other
costs and expenses incurred in connection therewith);
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(2) except in the case of Senior Indebtedness or Indebtedness of a Restricted
Subsidiary, such Permitted Refinancing Indebtedness has a final maturity
date not earlier than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life
to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded is subordinated in right of payment to the notes, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the
notes on terms at least as favorable to the holders as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(4) if such Indebtedness being extended, refinanced, renewed, defeased or
refunded, constitutes Preferred Equity Interests of a Restricted Subsidiary
or Disqualified Equity Interests, then the Permitted Refinancing
Indebtedness shall also constitute Capital Stock of the respective issuer
of the Capital Stock being extended, refinanced, renewed, replaced,
defeased or refunded.
'PERSON' means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, limited liability
limited partnership, trust, unincorporated organization or government or any
agency or political subdivision thereof.
'POST-PETITION INTEREST' means, with respect to any Indebtedness of any
Person, all interest accrued or accruing on such Indebtedness after the
commencement of any bankruptcy, insolvency or liquidation proceeding against
such Person in accordance with and at the contract rate (including, without
limitation, any rate applicable upon default) specified in the agreement or
instrument creating, evidencing or governing such Indebtedness, whether or not,
pursuant to applicable law or otherwise, the claim for such interest is allowed
as a claim in such bankruptcy, insolvency or liquidation proceeding.
'PREFERRED EQUITY INTEREST,' in any Person, means an Equity Interest of
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over Equity
Interests of any other class in such Person. Preferred Equity Interests of any
Acquired Person or any of its Subsidiaries existing at the time such Acquired
Person becomes a Restricted Subsidiary (or is merged into or consolidated with
GenTek or any Restricted Subsidiary) shall be deemed issued at such time.
'PURCHASE AMOUNT' means the aggregate principal amount of the
outstanding notes offered to be purchased by GenTek pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of the indenture requiring the Offer to
Purchase).
'PURCHASE DATE' means the settlement date for the purchase of notes in
connection with an Offer to Purchase.
'PURCHASE MONEY INDEBTEDNESS' means Indebtedness of GenTek or any
Restricted Subsidiary Incurred for the purpose of financing all or any part of
the acquisition (whether directly or through the acquisition of the Equity
Interests of any Person), leasing, construction or improvement of any property,
plant or equipment used in the business of GenTek or any Restricted Subsidiary,
provided that the aggregate principal amount of such Indebtedness does not
exceed such purchase price or cost.
'PURCHASE PRICE' means the purchase price to be paid by GenTek for each
$1,000 aggregate principal amount of notes accepted for payment (as specified
pursuant to the indenture).
'QUALIFIED EQUITY INTEREST' in any Person means any Equity Interest in
such Person other than any Disqualified Equity Interest.
'REDEMPTION DATE' means the date fixed for the redemption of the notes
in accordance with 'Selection and Notice of Redemption.'
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'RELATED BUSINESS' means:
(1) those businesses in which GenTek or any of the Restricted Subsidiaries is
engaged on the date of the Indenture, or that are similar or reasonably
related, complementary or incidental thereto or extensions or developments
thereof; and
(2) any business (the 'Other Business') which forms a part of a business (the
'Acquired Business') which is acquired by GenTek or any of the Restricted
Subsidiaries if a portion of the Acquired Business meets the requirements
of clause (1) of this definition.
'REPLACEMENT ASSETS' means:
(1) properties and capital assets acquired, constructed or improved by GenTek
or a Restricted Subsidiary for use in their business or in a Related
Business, or
(2) Equity Interests in any Person acquired in an Acquisition if such Person
thereby becomes a Restricted Subsidiary.
'RESTRICTED SUBSIDIARY' means any Subsidiary of GenTek that has not been
designated by the Board of Directors of GenTek, by a resolution of the Board of
Directors of GenTek delivered to the trustee, as an Unrestricted Subsidiary
pursuant to the covenant ' -- Designation of Unrestricted Subsidiaries' above.
Any such designation may be revoked by a resolution of the Board of Directors of
GenTek delivered to the Trustee, subject to the provisions of such covenant. An
Accounts Receivable Subsidiary shall not constitute a Restricted Subsidiary.
'REVOCATION' means a revocation by GenTek of any Designation of a
Subsidiary as an Unrestricted Subsidiary.
'SEC' means the Securities and Exchange Commission.
'SENIOR INDEBTEDNESS' means, at any date,
(1) all Obligations of GenTek under the Credit Facility;
(2) all Hedging Obligations of GenTek;
(3) all Obligations of GenTek under stand-by letters of credit; and
(4) all Obligations under other Indebtedness of GenTek including principal,
premium, if any, and interest on such Indebtedness, unless the instrument
under which such Indebtedness of GenTek for money borrowed is Incurred
expressly provides that such Indebtedness for money borrowed is not senior
or superior in right of payment to the Notes, and all renewals, extensions,
modifications, amendments or refinancings thereof. Notwithstanding the
foregoing, Senior Indebtedness shall not include:
(a) to the extent that it may constitute Indebtedness, any Obligation for
federal, state, local, foreign or other taxes;
(b) any Indebtedness of GenTek to any Subsidiary of GenTek, unless and
for so long as such Indebtedness has been pledged to secure
Obligations under the Credit Facility or other Senior Indebtedness;
(c) any Obligation in respect of any trade payable Incurred for the
purchase of goods or materials, or for services obtained, in the
ordinary course of business;
(d) Indebtedness evidenced by the Notes;
(e) Indebtedness of GenTek that is expressly subordinate or junior in
right of payment to any other Indebtedness of GenTek;
(f) to the extent that it may constitute Indebtedness, any obligation
owing under leases (other than Capital Lease Obligations), subleases
or licenses or Management Agreements; and
(g) any obligation that by operation of law is subordinate to any general
unsecured obligations of GenTek.
'SEPARATION AGREEMENTS' means, collectively, the Separation Agreement
dated as of April 15, 1999 among the Company, GCG, General Chemical Corporation
and GCIP, the Employee Benefits Agreement dated April 28, 1999 between GenTek
and GCG, the Transition Support Agreement dated as of April 28, 1999 between
GenTek and GCG, the Intellectual Property Agreement dated as of April 28, 1999
between GenTek, GCG, General Chemical Corporation and GCIP and the Tax Sharing
Agreement dated April 28, 1999 between GenTek and GCG, and the Sublease
Agreement, dated as of April 28,
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1999, between General Chemical Corporation and GCIP, as the same may be amended,
modified or replaced in accordance with the Indenture.
'STATED MATURITY,' when used with respect to any note or any installment
of interest thereon, means the date specified in such note as the fixed date on
which the principal of such note or such installment of interest is due and
payable.
'SUBORDINATED INDEBTEDNESS' means, with respect to GenTek, any
Indebtedness of the Company which is expressly subordinated in right of payment
to the notes.
'SUBSIDIARY' means, with respect to any Person, (a) any corporation of
which the outstanding Voting Equity Interests having at least a majority of the
votes entitled to be cast in the election of directors shall at the time be
owned, directly or indirectly, by such Person, or (b) any other Person of which
at least a majority of Voting Equity Interests are at the time, directly or
indirectly, owned by such first named Person.
'SUBSIDIARY GUARANTEE' means the guaranty of GenTek's obligations under
the indenture and the notes by a Subsidiary Guarantor pursuant to, and in
accordance with, the indenture.
'SUBSIDIARY GUARANTOR' means each Person that Incurs a Subsidiary
Guarantee pursuant to the indenture in accordance with the terms thereof;
provided that upon the release or discharge of such Person from its Subsidiary
Guarantee in accordance with the indenture, such Person ceases to be a
Subsidiary Guarantor.
'SURVIVING PERSON' means, with respect to any Person involved in a
merger or consolidation or the sale, conveyance, assignment, transfer, lease or
other disposal of all or substantially all of a Person's properties and assets,
the Person formed by or surviving such merger or consolidation or receiving
(whether through a sale, conveyance, assignment, transfer or other disposition)
such properties or assets.
'UNITED STATES GOVERNMENT OBLIGATIONS' means direct non-callable
obligations of the United States of America for the payment of which the full
faith and credit of the United States is pledged.
'UNRESTRICTED SUBSIDIARY' means any Subsidiary of GenTek designated as
such pursuant to 'Covenants -- Designation of Unrestricted Subsidiaries' above.
Any such designation may be revoked by a resolution of the Board of Directors of
GenTek delivered to the Trustee, subject to the provisions of such covenant.
'UNUTILIZED NET CASH PROCEEDS' has the meaning set forth in the third
paragraph under 'Covenants -- Disposition of Proceeds of Asset Sales' above.
'VOTING EQUITY INTERESTS' means Equity Interests in a corporation or
other Person either:
(x) with voting power under ordinary circumstances entitling the holders
thereof to vote for the election of the Board of Directors or other
governing body of such corporation or Person; or
(y) for purposes of the definition of 'Change of Control' only, directly or
indirectly accompanied with other rights to direct the policies,
management or affairs of such Person pursuant to contract or otherwise.
'WEIGHTED AVERAGE LIFE TO MATURITY' means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (1) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment of final maturity, in respect thereof, by
(2) the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) the then outstanding
aggregate principal amount of such Indebtedness.
'WHOLLY OWNED RESTRICTED SUBSIDIARY' means any Restricted Subsidiary all
of the outstanding Equity Interests (other than directors' qualifying shares) of
which are owned, directly or indirectly, by GenTek.
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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of material United States income tax
consequences of the exchange of the old notes for the new notes and the
ownership and disposition of the new notes. This summary applies only to a
beneficial owner of a new note who acquires the new notes in exchange for old
notes that such holder acquired for cash at the original offering from the
initial purchasers and for the original offering price thereof.
This summary is based on provisions of the Internal Revenue Code of
1986, existing and proposed Treasury regulations promulgated thereunder and
administrative and judicial interpretations thereof, all as of the date hereof
and all of which are subject to change, possibly on a retroactive basis.
This summary does not address the tax consequences to subsequent
purchasers of the Notes and is limited to acquirors who hold the notes as
'capital assets' within the meaning of section 1221 of the Code. This summary
does not address all of the tax consequences that may be relevant to particular
acquirors in light of their personal circumstances, or to acquirors who are
subject to special rules (such as banks and other financial institutions, real
estate investment trusts, regulated investment companies, insurance companies,
tax-exempt organizations, dealers in securities, persons who have hedged the
interest rate on the notes, partnerships and other pass-through entities or
persons whose functional currency is not the U.S. dollar). In addition, this
summary does not include any description of the tax laws of any state, local or
non-U.S. government that may be applicable to a particular acquiror.
As used herein, the term 'U.S. Holder' means a beneficial owner of a
note that is, for U.S. federal income tax purposes:
(1) a citizen or individual resident of the United States;
(2) a corporation created or organized in the United States or under the laws
of the United States or of any state of the United States;
(3) an estate whose income is includable in gross income for U.S. federal
income tax purposes regardless of its source; or
(4) a trust if:
(A) a court within the United States is able to exercise primary
supervision over the administration of the trust; and
(B) at least one U.S. person has authority to control all substantial
decisions of the trust.
PROSPECTIVE ACQUIRORS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH
RESPECT TO THE PARTICULAR U.S. FEDERAL INCOME AND ESTATE TAX CONSEQUENCES TO
THEM OF THE ACQUISITION, OWNERSHIP AND DISPOSITION OF THE NOTES, AS WELL AS THE
TAX CONSEQUENCES UNDER STATE, LOCAL, NON-U.S. AND OTHER TAX LAWS AND THE
POSSIBLE EFFECTS OF CHANGES IN TAX LAWS.
THE EXCHANGE OFFER
The exchange of an old note for a new note of a U.S. Holder pursuant to
the exchange offer will not constitute a taxable exchange of the old notes, and
thus a U.S. Holder will not recognize taxable gain or loss upon receipt of a new
note. As a result, each U.S. Holder will have the same adjusted tax basis and
holding period in the new notes as it had in the old notes immediately before
the exchange.
INCOME TAXATION OF U.S. HOLDERS
PAYMENT OF INTEREST ON THE NOTES. In general, interest paid on a note
will be taxable to a U.S. Holder as ordinary interest income, as received or
accrued, in accordance with such holder's regular method of accounting for
federal income tax purposes.
118
<PAGE>
LIQUIDATED DAMAGES. Since the old notes provide for the payment of
liquidated damages in the circumstances described in 'The Exchange Offer -- Our
Obligations Under the Registration Rights Agreement,' the notes may be subject
to special rules under the Treasury Regulations that are applicable to debt
instruments that provide for one or more contingent payments. Under the Treasury
Regulations, however, the special rules applicable to contingent payment debt
instruments will not apply if, as of the issue date, the contingency is either
'remote' or 'incidental.' GenTek intends to take the position that, solely for
these purposes, at the time of the original offering, the payment of liquidated
damages was a remote or incidental contingency. GenTek's determination that such
payments were a remote or incidental contingency for these purposes is binding
on a U.S. Holder, unless such U.S. Holder discloses in the proper manner to the
Internal Revenue Service that it is taking a different position. Prospective
investors should consult their tax advisors as to the tax considerations
relating to the payment of liquidated damages, in particular in connection with
the Treasury Regulations relating to contingent payment interests.
SALE, EXCHANGE OR RETIREMENT OF THE NOTES. Upon the sale, exchange,
redemption, retirement at maturity or other disposition of a note, a U.S. Holder
will generally recognize taxable gain or loss equal to the difference between
the sum of the cash and the fair market value of all other property received on
such disposition (except to the extent such cash or property is attributable to
accrued interest, which will be taxable as ordinary income) and such holder's
adjusted tax basis in the note.
Gain or loss recognized on the disposition of a note generally will be
capital gain or loss, and will be long-term capital gain or loss if, at the time
of such disposition, the holder's holding period for the note is more than one
year.
BACKUP WITHHOLDING AND INFORMATION REPORTING. In general, a U.S. Holder
will be subject to backup withholding at the rate of 31% with respect to
payments of interest, principal and premium, if any, paid on, and the proceeds
of a disposition of, a note, unless the holder:
(1) is an entity that is exempt from withholding (including corporations,
tax-exempt organizations and certain qualified nominees) and, when
required, demonstrates this fact; or
(2) provides GenTek with its taxpayer identification number (which for an
individual would be the holder's social security number), certifies under
penalties of perjury that the taxpayer identification number provided to
GenTek is correct and that the holder has not been notified by the Internal
Revenue Service that it is subject to backup withholding due to
underreporting of interest or dividends, and otherwise complies with
applicable requirements of the backup withholding rules. In addition, such
payments of principal, premium and interest to U.S. holders that are not
exempt entities will generally be subject to information reporting
requirements.
A U.S. Holder who does not provide GenTek with its correct taxpayer
identification number may be subject to penalties imposed by the Internal
Revenue Service.
GenTek will report to U.S. holders and the Internal Revenue Service the
amount of any 'reportable payments' (including any interest paid) and any
amounts withheld with respect to the notes during the calendar year.
The amount of any backup withholding from a payment to a U.S. holder
will be allowed as a credit against such holder's federal income tax liability
and may entitle such holder to a refund, provided that the required information
is furnished to the Internal Revenue Service. Treasury Regulations, generally
effective for payments made after December 31, 2000, modify the certification
requirements for backup withholding. It is possible that GenTek and other
withholding agents may request a new withholding exemption from holders in order
to qualify for continued exemption from backup withholding under these new
withholding regulations.
119
<PAGE>
TAXATION OF NON-U.S. HOLDERS
PAYMENT OF INTEREST ON THE NOTES. In general, payments of interest
received by any holder of a note that is not a U.S. Holder will not be subject
to a U.S. federal income tax (or any withholding thereof, except as described
below under 'Backup Withholding and Information Reporting'), provided that:
(1) under an exemption for portfolio interest,
(A) the non-U.S. holder does not actually or constructively own 10% or
more of the total combined voting power of all classes of stock of
GenTek that is entitled to vote;
(B) the holder is not a 'controlled foreign corporation' (generally, a
non-U.S. corporation controlled by U.S. shareholders) that is related
to GenTek actually or constructively through stock ownership; and
(C) either:
(x) the beneficial owner of the note, under penalties of perjury,
provides GenTek or its agent with the beneficial owner's name
and address and certifies that it is not a U.S. person on
Internal Revenue Service Form W-8 (or a suitable substitute or
successor form); or
(y) a securities clearing organization, bank or other financial
institution that holds customers' securities in the ordinary
course of its trade or business holds the note and certifies
to GenTek or its agent under penalties of perjury that such a
Form W-8 (or suitable substitute or successor form) has been
received by it from the beneficial owner or qualifying
intermediary and furnishes the payor a copy thereof;
(2) the non-U.S. holder is subject to U.S. federal income tax with respect to
the note on a net basis because payments received with respect to the note
are effectively connected with the conduct of a trade or business within
the United States by the holder (in which case the holder may also be
subject to U.S. 'branch profits tax') and the holder provides General
Chemical with a properly executed Internal Revenue Service Form 4224 or a
successor form; or
(3) the non-U.S. holder is entitled to the benefits of an income tax treaty
under which the interest is exempt from U.S. withholding tax and the holder
or such holder's agent provides a properly executed Internal Revenue
Service Form 1001 or a successor form claiming the exemption.
Payments of interest not exempt from U.S. federal income tax as described above
will be subject to withholding at the rate of 30% (subject to reduction under
the applicable income tax treaty).
The new withholding regulations generally will be effective with respect
to payments made after December 31, 2000. The new withholding regulations
generally will not affect the certification rules described in the preceding
paragraph, but will provide alternative methods for satisfying such
requirements. The new withholding regulations may require that a non-U.S. holder
(including a non-U.S. partnership or a partner thereof) obtain a taxpayer
identification number and make certifications if interest in respect of a note
is not portfolio interest and the non-U.S. holder wishes to claim a reduced rate
of withholding under an income tax treaty. It is possible that GenTek and other
withholding agents may request a new withholding exemption from non-U.S. holders
in order to qualify for continued exemption from withholding under the new
withholding regulations. Each non-U.S. holder should consult its own tax advisor
regarding the application of the new withholding regulations.
SALE, EXCHANGE OR RETIREMENT OF THE NOTES. A non-U.S. holder generally
will not be subject to U.S. federal income tax (or withholding thereof) in
respect of gain realized on the sale, exchange, redemption, retirement at
maturity or other disposition of notes, unless:
(1) the gain is effectively connected with the conduct of a trade or business
within the United States by the holder; or
(2) the holder is an individual who is present in the United States for a
period or periods aggregating 183 or more days in the taxable year of the
disposition and certain other conditions are met.
120
<PAGE>
With respect to a non-U.S. holder subject to U.S. federal income tax as
described in the preceding paragraph, an exchange of a note for an exchange note
will not be treated as a taxable exchange of the note. The old notes provide for
the payment of liquidated damages in the circumstances described in 'The
Exchange Offer -- Our Obligations Under The Registration Rights Agreement.'
Non-U.S. holders should consult their tax advisors as to the tax considerations
relating to debt instruments that provide for one or more contingent payments,
in particular as to the availability of the exemption for portfolio interest,
and the ability of holders to claim the benefits of income tax treaty exemptions
from U.S. withholding tax on interest, in respect of such liquidated damages.
BACKUP WITHHOLDING AND INFORMATION REPORTING. Under current Treasury
Regulations, backup withholding and certain information reporting do not apply
to payments made by GenTek or a paying agent to non-U.S. holders if the
certification described under 'Payment of Interest on the Notes' is received,
provided that the payor does not have actual knowledge that the holder is a U.S.
person. If any payments of principal and interest are made to the beneficial
owner of a note by or through the non-U.S. office of a non-U.S. custodian,
non-U.S. nominee or other non-U.S. agent of such beneficial owner, or if the
non-U.S. office of a non-U.S. 'broker' (as defined in applicable Treasury
Regulations) pays the proceeds of the sale of a note or a coupon to the seller
thereof, backup withholding and information reporting will not apply.
Information reporting requirements (but not backup withholding) will apply,
however, to a payment by a non-U.S. office of a broker that is a U.S. person,
that derives 50% or more of its gross income for certain periods from the
conduct of a trade or business in the United States, or that is a 'controlled
foreign corporation' (generally, a non-U.S. corporation controlled by U.S.
shareholders) with respect to the United States, unless the broker has
documentary evidence in its records that the holder is a non-U.S. person and
other conditions are met, or the holder otherwise establishes an exemption.
Payment by a U.S. office of a broker is subject to both backup withholding at a
rate of 31% and information reporting unless the holder certifies under
penalties of perjury that it is a non-U.S. person, or otherwise establishes an
exemption. A non-U.S. holder may obtain a refund or a credit against such
holder's U.S. federal income tax liability of any amounts withheld under the
backup withholding rules, provided the required information is furnished to the
Internal Revenue Service.
In addition, interest on a note owned by a non-U.S. holder may be
required to be reported annually on IRS Form 1042S, in which case such form will
be filed with the IRS and furnished to the holder.
The new withholding regulations revise the procedures that withholding
agents and payees must follow to comply with, or to establish an exemption, from
these information reporting and backup withholding provisions for payments after
December 31, 2000. It is possible that GenTek and other withholding agents may
request a new withholding exemption from non-U.S. holders in order to qualify
for continued exemption from backup withholding under the new withholding
regulations. Each non-U.S. holder should consult its own tax advisor regarding
the application to such holder of the new withholding regulations.
ESTATE TAX. Subject to applicable estate tax treaty provisions, notes
held at the time of death (or theretofore transferred subject to certain
retained rights or powers) by an individual who at the time of death is a
non-U.S. holder will not be included in such holder's gross estate for U.S.
federal estate tax purposes, provided that (a) the individual does not actually
or constructively own 10% or more of the total combined voting power of all
classes of stock of GenTek entitled to vote and (b) the income on the notes is
not effectively connected with the conduct of a U.S. trade or business by the
individual.
121
<PAGE>
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account pursuant
to the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such new notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new notes received in exchange for old notes where
such old notes were acquired as a result of market-making activities or other
trading activities. GenTek has agreed that, for a period of 180 days after the
expiration date, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until 180 days after the expiration of the exchange offer on January
12, 2000, all dealers effecting transactions in the new notes may be required
to deliver a
prospectus.
<R/>
GenTek will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the new notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such new notes. Any broker-dealer that
resells new notes that were received by it for its own account pursuant to the
exchange offer and any broker or dealer that participates in a distribution of
such new notes may be deemed to be an 'underwriter' within the meaning of the
Securities Act and any profit on any such resale of new notes and any commission
or concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The letter of transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an 'underwriter' within the
meaning of the Securities Act.
For a period of 180 days after the expiration date GenTek will promptly
send additional copies of this prospectus and any amendment or supplement to
this prospectus to any broker-dealer that requests such documents in the letter
of transmittal. GenTek has agreed to pay all expenses incident to the exchange
offer including the expenses of one counsel for the holders of the old notes
other than commissions or concessions of any broker-dealers and will indemnify
the holders of the old notes including any broker-dealers against certain
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The enforceability of the new notes will be passed on for GenTek by
Debevoise & Plimpton, New York, New York.
EXPERTS
The consolidated financial statements as of December 31, 1998 and 1997
and for each of the three years in the period ended December 31, 1998 included
in this prospectus and the related financial statement schedule included
elsewhere in the registration statement have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report appearing herein and
elsewhere in the registration statement, and have been so included in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
The financial statements of Noma Industries Limited as of December 31,
1998 and 1997 and for each of the three years in the period ended December 31,
1998 included in the Form 10, filed by GenTek, Inc., incorporated by reference
in this prospectus have been audited by Deloitte & Touche LLP, Chartered
Accountants, independent auditors, as stated in their report which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
The financial statements of Krone AG as of December 31, 1998 and 1997
and for each of the two years in the period ended December 31, 1998 included in
the Current Report on Form 8-K, filed
122
<PAGE>
November 3, 1999 by GenTek, Inc., incorporated by reference in this prospectus
have been audited by Deloitte & Touche GmbH, independent auditors, as stated in
their report which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
FINANCIAL STATEMENTS OF NOMA AND KRONE
We have filed the financial statements of Noma with the Commission as
part of our Registration Statement on Form 10, which is incorporated herein by
reference. We have also filed with the Commission the financial statements of
Krone as part of our Current Report on Form 8-K filed on November 3, 1999, which
also is incorporated herein by reference. We describe in the next paragraph how
you can examine the information that we have filed or will file in the future
with the Commission; in addition, we will send you copies of these and any other
exhibits to the registration statement if you direct a request for copies to the
address given in 'Important Information About This Prospectus' prior to the
deadline stated in that section.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-4 to register with the
Commission the new notes to be issued in exchange for the old notes. This
prospectus is part of that registration statement. As allowed by the
Commission's rules, this prospectus does not contain all of the information you
can find in the registration statement or the exhibits to the registration
statement.
Upon effectiveness of the registration statement of which this
prospectus is a part, we will file annual, quarterly and other information with
the Commission. You may read and copy any reports, statements and other
information we file at the Commission's public reference rooms in Washington,
D.C., New York, New York, and Chicago, Illinois. Please call 1-800-SEC-0330 for
further information on the public reference rooms. Our filings will also be
available to the public from commercial document retrieval services and at the
web site maintained by the Commission at http://www.sec.gov.
The indenture for the notes requires us to distribute to the holders of
the notes annual reports containing our financial statements audited by our
independent auditors and quarterly reports containing unaudited condensed
consolidated financial statements for the first three quarters of each fiscal
year.
123
<PAGE>
GENTEK INC.
INDEX TO THE CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
AUDITED CONSOLIDATED FINANCIAL STATEMENTS
Independent Auditors' Report................................ F-2
Consolidated Statements of Operations for the three years
ended December 31, 1998................................... F-3
Consolidated Balance Sheets at December 31, 1997 and 1998... F-4
Consolidated Statements of Cash Flows for the three years
ended December 31, 1998................................... F-5
Consolidated Statements of Changes in Equity (Deficit) for
the three years ended December 31, 1998................... F-6
Notes to the Consolidated Financial Statements.............. F-7
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
Consolidated Statements of Operations for the three months
ended September 30, 1998
and 1999, and the nine months ended September 30, 1998 and
1999...................................................... F-29
Consolidated Balance Sheets at December 31, 1998 and
September 30, 1999........................................ F-30
Consolidated Statements of Cash Flows for the nine months
ended September 30, 1998
and 1999.................................................. F-31
Notes to the Unaudited Consolidated Financial Statements.... F-32
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
TO THE BOARD OF DIRECTORS AND STOCKHOLDERS OF
GENTEK INC.:
We have audited the accompanying consolidated balance sheets of GenTek
Inc. and subsidiaries as of December 31, 1997 and 1998, and the related
consolidated statements of operations, changes in equity (deficit) and cash
flows for each of the three years in the period ended December 31, 1998. Our
audits also included the financial statement schedule in the Index at Item 21.
These financial statements and financial statement schedule are the
responsibility of the Company's management. Our responsibility is to express an
opinion on the financial statements and the financial statement schedule based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly,
in all material respects, the financial position of GenTek Inc. and subsidiaries
at December 31, 1997 and 1998, and the results of their operations and their
cash flows for each of the three years in the period ended December 31, 1998 in
conformity with generally accepted accounting principles. Also, in our opinion,
such financial statement schedule, when considered in relation to the basic
consolidated financial statements taken as whole, presents fairly in all
material respects the information set forth therein.
Deloitte & Touche LLP
Parsippany, New Jersey
February 11, 1999
(March 18, 1999 as to Notes 1 and 3 and July 12, 1999 as to Note 18)
F-2
<PAGE>
GENTEK INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------
1996 1997 1998
-------- -------- --------
<S> <C> <C> <C>
Net revenues................................................ $330,120 $368,516 $443,919
Cost of sales............................................... 229,237 251,912 326,626
Selling, general and administrative expense................. 52,160 49,078 65,572
-------- -------- --------
Operating profit.......................................... 48,723 67,526 51,721
Interest expense............................................ 10,747 8,855 14,624
Interest income............................................. 1,404 1,475 1,165
Foreign currency transaction (gains) losses................. (83) 442 629
Other expense, net.......................................... 263 169 320
-------- -------- --------
Income from continuing operations before income taxes and
extraordinary item..................................... 39,200 59,535 37,313
Income tax provision........................................ 18,425 26,261 (3,756)
-------- -------- --------
Income from continuing operations before extraordinary
item................................................... 20,775 33,274 41,069
Income from discontinued operations (net of tax of
$2,395)................................................... 25,833 23,041 10,299
-------- -------- --------
Income before extraordinary item.......................... 46,608 56,315 51,368
Extraordinary item -- loss from extinguishment of debt (net
of tax)................................................... -- -- 3,661
-------- -------- --------
Net income................................................ $ 46,608 $ 56,315 $ 47,707
-------- -------- --------
-------- -------- --------
EARNINGS PER COMMON SHARE -- BASIC:
Income from continuing operations........................... $ .98 $ 1.55 $ 1.95
Income from discontinued operations (net of tax)............ 1.21 1.08 .49
Extraordinary item -- loss from extinguishment of debt (net
of tax)................................................... -- -- .17
-------- -------- --------
Net income................................................ $ 2.19 $ 2.63 $ 2.27
-------- -------- --------
-------- -------- --------
EARNINGS PER COMMON SHARE -- ASSUMING DILUTION:
Income from continuing operations........................... $ .95 $ 1.48 $ 1.88
Income from discontinued operations (net of tax)............ 1.18 1.02 .47
Extraordinary item -- loss from extinguishment of debt (net
of tax)................................................... -- -- .17
-------- -------- --------
Net income................................................ $ 2.13 $ 2.50 $ 2.18
-------- -------- --------
-------- -------- --------
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-3
<PAGE>
GENTEK INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1997 1998
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 20,401 $ 61,310
Receivables, net.......................................... 49,803 60,620
Inventories............................................... 25,328 37,619
Deferred income taxes..................................... 9,850 11,494
Other current assets...................................... 153 826
-------- --------
Total current assets................................... 105,535 171,869
Property, plant and equipment, net.......................... 160,154 196,526
Goodwill, net of amortization............................... 19,192 71,444
Other assets................................................ 19,432 21,687
Net assets of discontinued operations....................... 85,505 75,292
-------- --------
Total assets........................................... $389,818 $536,818
-------- --------
-------- --------
LIABILITIES AND EQUITY (DEFICIT)
Current liabilities:
Accounts payable.......................................... $ 32,116 $ 42,813
Accrued liabilities....................................... 48,846 51,965
Income taxes payable...................................... 2,662 8,960
Current portion of long-term debt......................... 17,392 50,802
-------- --------
Total current liabilities.............................. 101,016 154,540
Long-term debt.............................................. 240,612 306,729
Other liabilities........................................... 142,429 130,245
-------- --------
Total liabilities...................................... 484,057 591,514
-------- --------
Equity (deficit):
Preferred Stock, $.01 par value; authorized 10,000,000
shares; none issued or outstanding..................... -- --
Common Stock, $.01 par value; authorized 100,000,000
shares; issued and outstanding: 12,558,697 and
12,654,489 shares at December 31, 1997 and 1998,
respectively........................................... 126 127
Class B Common Stock, $.01 par value; authorized
40,000,000 shares; issued and outstanding: 9,758,421
shares at December 31, 1997 and 1998................... 97 97
Capital deficit........................................... (183,814) (182,563)
Accumulated other comprehensive loss...................... (2,197) (2,446)
Retained earnings......................................... 118,855 162,378
Treasury stock, at cost: 1,362,898 and 1,641,166 shares at
December 31, 1997 and 1998............................. (27,306) (32,289)
-------- --------
Total equity (deficit)................................. (94,239) (54,696)
-------- --------
Total liabilities and equity (deficit)................. $389,818 $536,818
-------- --------
-------- --------
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-4
<PAGE>
GENTEK INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------
1996 1997 1998
-------- -------- --------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income................................................ $ 46,608 $ 56,315 $ 47,707
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization........................ 14,099 16,296 23,065
Net loss on disposition/impairment of long-term
assets.............................................. 673 431 11,910
Unrealized exchange (gain) loss...................... 31 1,405 1,313
Restricted unit plan costs........................... 11,319 1,302 1,309
Loss on extinguishment of debt....................... -- -- 6,056
Income from discontinued operations.................. (25,833) (23,041) (10,299)
(Increase) decrease in receivables................... (2,412) (4,835) 1,216
Increase in inventories.............................. (2,441) (1,597) (2,596)
Increase (decrease) in accounts payable.............. (216) 1,944 6,241
Decrease in accrued liabilities...................... (14,312) (1,656) (1,871)
Increase in income taxes payable..................... 459 1,440 6,298
Increase (decrease) in other liabilities and assets,
net................................................. 10,862 8,175 (33,081)
-------- -------- --------
Net cash provided by continuing operations........ 38,837 56,179 57,268
-------- -------- --------
Cash flows from investing activities:
Capital expenditures...................................... (19,231) (26,203) (33,737)
Proceeds from sales or disposals of long-term assets...... 43 63 767
Payments from related parties............................. 14,000 -- --
Cash provided by discontinued operations.................. 16,392 331 20,512
Acquisition of businesses net of cash acquired*........... -- (30,130) (90,935)
-------- -------- --------
Net cash provided by (used for) investing
activities...................................... 11,204 (55,939) (103,393)
-------- -------- --------
Cash flows from financing activities:
Net proceeds from initial public offering................. 40,600 -- --
Proceeds from long-term debt.............................. 20,000 49,000 389,858
Repayment of long-term debt............................... (76,886) (45,536) (293,778)
Payments to acquire treasury stock........................ (123) (27,183) (5,485)
Exercise of stock options................................. -- -- 445
Dividends................................................. (1,668) (5,368) (4,184)
-------- -------- --------
Net cash provided by (used for) financing
activities...................................... (18,077) (29,087) 86,856
-------- -------- --------
Effect of exchange rate changes on cash..................... 30 (843) 178
-------- -------- --------
Increase (decrease) in cash and cash equivalents............ 31,994 (29,690) 40,909
Cash and cash equivalents at beginning of period............ 18,097 50,091 20,401
-------- -------- --------
Cash and cash equivalents at end of period.................. $ 50,091 $ 20,401 $ 61,310
-------- -------- --------
-------- -------- --------
Supplemental information:
Cash paid for income taxes................................ $ 23,051 $ 35,179 $ 19,754
-------- -------- --------
-------- -------- --------
Cash paid for interest.................................... $ 22,809 $ 20,923 $ 29,353
-------- -------- --------
-------- -------- --------
* Purchase of businesses net of cash acquired:
Working capital, other than cash....................... $ 3,110 $(14,303)
Plant, property and equipment.......................... (43,007) (36,436)
Other assets........................................... (19,593) (41,622)
Noncurrent liabilities................................. 29,360 1,426
-------- --------
Net cash used to acquire businesses............... $(30,130) $(90,935)
-------- --------
-------- --------
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-5
<PAGE>
GENTEK INC.
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY (DEFICIT)
FOR THE THREE YEARS ENDED DECEMBER 31, 1998
<TABLE>
<CAPTION>
ACCUMULATED
OTHER
CLASS B COMPREHENSIVE
COMMON COMMON TREASURY CAPITAL INCOME RETAINED COMPREHENSIVE
STOCK STOCK STOCK DEFICIT (LOSS) EARNINGS TOTAL INCOME
------ ------- -------- --------- ------------- -------- --------- -------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1995..... $ 197 $-- $ -- $(237,140) $(1,362) $ 22,969 $(215,336)
Net income..................... -- -- -- -- -- 46,608 46,608 46,608
Foreign currency translation... -- -- -- -- (73) -- (73) (44)
-------
Comprehensive income........... -- -- -- -- -- -- -- $46,564
-------
-------
Dividends (per share $.125).... -- -- -- -- -- (2,780) (2,780)
Proceeds from initial public
offering..................... 25 -- -- 40,575 -- -- 40,600
Conversion of common stock to
Class B Common Stock......... (197) 197 -- -- -- -- --
Conversion of Class B Common
Stock to common stock........ 54 (54) -- -- -- -- --
Restricted unit plan grants,
cancellations, tax benefits
and other.................... 1 -- -- 11,350 -- -- 11,351
Purchase of treasury stock..... -- -- (123) -- -- -- (123)
----- ---- -------- --------- ------- -------- ---------
Balance at December 31, 1996..... 80 143 (123) (185,215) (1,435) 66,797 (119,753)
Net income..................... -- -- -- -- -- 56,315 56,315 $56,315
Foreign currency translation... -- -- -- -- (762) -- (762) (461)
-------
Comprehensive income........... -- -- -- -- -- -- -- $55,854
-------
-------
Dividends (per share $.20)..... -- -- -- -- -- (4,257) (4,257)
Conversion of Class B Common
Stock to common stock........ 46 (46) -- -- -- -- --
Restricted unit plan grants,
cancellations, tax benefits
and other.................... -- -- -- 1,401 -- -- 1,401
Purchase of treasury stock..... -- -- (27,183) -- -- -- (27,183)
----- ---- -------- --------- ------- -------- ---------
Balance at December 31, 1997..... 126 97 (27,306) (183,814) (2,197) 118,855 (94,239)
Net income..................... -- -- -- -- -- 47,707 47,707 $47,707
Foreign currency translation... -- -- -- -- (249) -- (249) (150)
-------
Comprehensive income........... -- -- -- -- -- -- -- $47,557
-------
-------
Dividends (per share $.20)..... -- -- -- -- -- (4,184) (4,184)
Restricted unit plan grants,
cancellations, tax benefits
and other.................... 1 -- -- 1,313 -- -- 1,314
Purchase of treasury stock..... -- -- (4,983) (62) -- -- (5,045)
----- ---- -------- --------- ------- -------- ---------
Balance at December 31, 1998..... $ 127 $ 97 $(32,289) $(182,563) $(2,446) $162,378 $ (54,696)
----- ---- -------- --------- ------- -------- ---------
----- ---- -------- --------- ------- -------- ---------
</TABLE>
F-6
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
NOTE 1 -- BASIS OF PRESENTATION
GenTek Inc.'s ('GenTek' or the 'Company') manufacturing and performance
products businesses (the 'GenTek Business') were formerly part of the businesses
of The General Chemical Group Inc. (GCG). GCG separated the GenTek Business from
GCG's soda ash and calcium chloride business (the Industrial Chemicals Business)
through a spinoff (the 'Spinoff'). GCG accomplished the Spinoff by transferring
the GenTek Business to GenTek, and distributing the common stock of GenTek to
GCG's shareholders on April 30, 1999 (the 'Spinoff Date').
Since the Spinoff Date, GCG and GenTek have been separate, stand-alone
companies with GenTek operating the GenTek Business, and GCG operating the
Industrial Chemicals Business. GenTek's common stock is listed on the New York
Stock Exchange (under the symbol 'GK').
The Spinoff has been treated as a reverse spinoff for financial
statement purposes because a greater proportion of the former assets and
operations of GCG are held by GenTek. Therefore, the Spinoff has been reflected,
for financial statement presentation, as if GenTek formed a new company
consisting of the Industrial Chemicals Segment and distributed the stock of the
company as a dividend to GenTek's stockholders, with the assets and operations
of the Performance Products and Manufacturing Segments remaining with GenTek.
Accordingly, the GenTek financial statements reflect the financial position and
results of operations of the Performance Products and Manufacturing Segments as
continuing operations and the financial position and results of operations of
the Industrial Chemicals Business as discontinued operations.
For the purpose of governing certain ongoing relationships between GCG
and GenTek after the Spinoff and to provide mechanisms for an orderly
transition, GCG and GenTek have entered into various agreements. Management
believes that the agreements are comparable to those which would have been
reached in arm's length negotiations with unaffiliated parties.
NOTE 2 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
All highly liquid instruments purchased with a maturity of three months
or less are considered to be cash equivalents.
Inventories are valued at the lower of cost or market, using the
last-in, first-out ('LIFO') method for most domestic production inventories and
the first-in, first-out ('FIFO') or average-cost method for all other
inventories. Production inventory costs include material, labor and factory
overhead.
Property, plant and equipment are carried at cost and are depreciated
principally using the straight line method. Estimated lives range from 5 to 35
years for buildings and leasehold improvements and one to 20 years for machinery
and equipment.
The Company evaluates the recovery of long-lived assets not held for
sale by measuring the carrying value of these assets against the estimated
undiscounted future cash flows associated with them. At the time such
evaluations indicate that the future cash flows are not sufficient to recover
the carrying value of such assets, the carrying values are adjusted to their
fair values, which have been determined on a discounted cash flow basis. During
1998, based on these evaluations, the Company recorded an $11,600 impairment
charge, which is included in cost of sales, primarily related to two of its
manufacturing facilities in its Performance Products Segment.
Goodwill, which represents the excess of purchase price over fair value
of net assets acquired, is amortized on a straight line basis over a period
which ranges from 25 to 35 years. The Company
F-7
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
assesses the recoverability of this intangible asset by determining whether the
amortization of the goodwill balance over its remaining life can be recovered
through undiscounted future operating cash flows of the acquired operation. As
of December 31, 1997 and 1998, goodwill is reflected net of accumulated
amortization of $400 and $2,671, respectively.
Accruals for environmental liabilities are recorded based on current
interpretations of environmental laws and regulations when it is probable that a
liability has been incurred and the amount of such a liability can be reasonably
estimated. Liabilities for environmental matters were $16,244 and $25,016 at
December 31, 1997 and 1998, respectively. These amounts do not include estimated
third-party recoveries nor have they been discounted.
The Company does not hold or issue financial instruments for trading
purposes. Amounts to be paid or received under interest swap agreements are
recognized as increases or reductions in interest expense in the periods to
which they relate.
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 133, 'Accounting for Derivative
Instruments and Hedging Activities' ('FAS 133'). FAS 133 requires that all
derivative instruments be measured at fair value and recognized in the balance
sheet as either assets or liabilities. The Company is required to adopt FAS 133
for fiscal years beginning after June 15, 1999. The Company does not expect that
the adoption of FAS 133 will have a material effect on the Company's results of
operations or financial condition.
The capital deficit at December 31, 1995 of $237,140 arose as a result
of dividends and distributions in prior periods exceeding accumulated earnings
and capital contributions.
Certain prior-period amounts have been reclassified to conform with the
current presentation.
NOTE 3 -- DISCONTINUED OPERATIONS
Discontinued operations represent the Industrial Chemicals Business of
GCG (see Note 1). An allocation of certain assets, liabilities and expenses has
been made related to discontinued operations. In the opinion of management,
expenses have been allocated to the discontinued operations in a reasonable and
consistent basis using management's estimate of services provided to the
discontinued business by GCG. General corporate overhead expenses have not been
allocated to discontinued operations. However, such allocations are not
necessarily indicative of the level of expenses which might have been incurred
had the Industrial Chemicals Business been operating as a stand-alone entity
during the periods presented or expected to be incurred after the spinoff.
Prior to the Spinoff Date, the Industrial Chemicals Business
participated in the Company's centralized cash management and financing program,
and income from discontinued operations includes an allocation of net interest
expense. Net interest expense has been allocated to the Industrial Chemicals
Business assuming that the Industrial Chemicals Business' pro rata base
borrowing requirements was $150,000 for all periods. The allocations were made
consistently in each year, and management believes the allocations are
reasonable. However, these interest costs would not necessarily be indicative of
what the actual costs would have been had the Industrial Chemicals Business
operated as a separate, stand-alone public entity. Subsequent to the Spinoff,
the Industrial Chemicals Business is responsible for these cash management
functions using its own resources or purchased services and will be responsible
for the costs associated with operating a public company.
The Industrial Chemicals Business' financial results include the costs
incurred by The General Chemical Group pension and postretirement benefit plans
for employees and retirees of the Industrial Chemicals Business. Also, the
provision for income taxes has been determined as if the Industrial Chemicals
Business had filed separate tax returns under its existing structure for the
periods presented.
F-8
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
The assets and liabilities of the Industrial Chemicals Business are
classified on the balance sheet as 'Net assets of discontinued operations' and
consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1997 1998
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents......................... $ 1,352 $ 1,127
Receivables, net.................................. 72,917 58,601
Inventories....................................... 20,630 25,508
Deferred income taxes............................. 4,295 4,392
Other current assets.............................. 2,217 1,659
-------- --------
Total current assets......................... 101,411 91,287
Property, plant and equipment, net..................... 144,035 141,808
Other assets........................................... 16,729 15,619
-------- --------
Total assets from discontinued operations.... $262,175 $248,714
-------- --------
LIABILITIES
Current liabilities:
Accounts payable.................................. $ 29,216 $ 24,298
Accrued liabilities............................... 24,412 25,146
Income taxes payable.............................. 1,914 1,988
-------- --------
Total current liabilities.................... 55,542 51,432
Other liabilities...................................... 77,827 78,561
Minority interest...................................... 43,301 43,429
-------- --------
Total liabilities from discontinued
operations................................. 176,670 173,422
-------- --------
Net assets of discontinued operations.................. $ 85,505 $ 75,292
-------- --------
-------- --------
</TABLE>
The results from operations of the Industrial Chemicals Business are
reflected in the Statements of Operations as 'Income from Discontinued
Operations' and are summarized as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------
1996 1997 1998
-------- -------- --------
<S> <C> <C> <C>
Net revenues............................................... $298,945 $289,700 $261,469
Cost of sales.............................................. 198,802 204,769 202,338
Selling, general and administrative expense................ 19,650 15,365 16,634
-------- -------- --------
Operating profit........................................... 80,493 69,566 42,497
Interest expense........................................... 13,001 12,747 11,747
Interest income............................................ 1,029 1,029 930
Foreign currency transaction (gains) losses................ (86) 185 447
Other expense, net......................................... 441 285 524
-------- -------- --------
Income before minority interest and income taxes........... 68,166 57,378 30,709
Minority interest.......................................... 31,635 24,253 16,666
-------- -------- --------
Income before income taxes................................. 36,531 33,125 14,043
Income tax provision....................................... 10,698 10,084 3,744
-------- -------- --------
Net income............................................ $ 25,833 $ 23,041 $ 10,299
-------- -------- --------
-------- -------- --------
</TABLE>
F-9
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
NOTE 4 -- CAPITAL STOCK
The Company's authorized capital stock consists of 100,000,000 shares of
Common Stock, par value $.01 per share, of which 11,195,799 and 11,013,323 were
outstanding at December 31, 1997 and 1998, respectively, and 40,000,000 shares
of Class B Common Stock, par value $.01 per share, which has ten votes per
share, is subject to significant restrictions on transfer and is convertible at
any time into Common Stock on a share-for-share basis, of which 9,758,421 shares
were outstanding at December 31, 1997 and 1998. The Common Stock and Class B
Common Stock are substantially identical, except for the disparity in voting
power, restriction on transfer and conversion provisions.
The Company's Preferred Stock, par value $.01 per share, consists of
10,000,000 authorized shares, none of which were outstanding at December 31,
1997 and 1998.
During the second quarter of 1997, a former stockholder converted all
4.4 million shares of Class B Common Stock into an identical number of shares of
Common Stock. On April 23, 1997, the Company purchased approximately 1.3 million
shares of Common Stock from the same stockholder, at a price of $20 per share.
During 1997 and 1998, the Company purchased 1,356,573 and 278,268 shares of
Common Stock, respectively. These purchases were funded from the Company's cash
balance and have been recorded as treasury stock.
NOTE 5 -- EARNINGS PER SHARE
The computation of basic earnings per share is based on the weighted
average number of common shares and contingently issuable shares outstanding
during the period. The computation of diluted earnings per share assumes the
foregoing and, in addition, the exercise of all stock options and restricted
units, using the treasury stock method.
The components of the denominator for basic earnings per common share
and diluted earnings per common share are reconciled as follows:
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
-----------------------
1997 1998
---------- ----------
<S> <C> <C>
Basic earnings per common share:
Weighted average common shares outstanding.................. 21,424,401 21,048,240
---------- ----------
---------- ----------
Diluted earnings per common share:
Weighted average common shares outstanding.................. 21,424,401 21,048,240
Options..................................................... 1,078,241 807,404
---------- ----------
Total.................................................. 22,502,642 21,855,644
---------- ----------
---------- ----------
</TABLE>
Options to purchase 10,000 and 398,500 of common stock were outstanding
during 1997 and 1998, respectively, but were not included in the computation of
diluted earnings per common share because the exercise price was greater than
the average market price of the common shares. The options, which expire during
2007 and 2008, were still outstanding at December 31, 1998.
NOTE 6 -- ACQUISITIONS
On July 1, 1997 the Company acquired for $30,130 all of the outstanding
stock of Peridot Holdings, Inc. ('Peridot'), a manufacturer and supplier of
sulfuric acid and water treatment chemicals. On February 6, 1998, the Company
acquired for $6,999 all of the outstanding stock of Sandco Automotive Ltd.
('Sandco'), a manufacturer of engine parts for the North American automobile
industry and its aftermarket. On April 1, 1998, the Company acquired for $83,936
all of the outstanding stock of Reheis Inc. ('Reheis'), a leading producer and
supplier of the active chemical ingredients in antiperspirants and
over-the-counter antacids, as well as a supplier of pharmaceutical intermediates
and other products.
F-10
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
Funding for these transactions was provided by existing cash and borrowings
under the Company's existing credit facilities. The acquisitions were accounted
for under the purchase method, and accordingly, the net assets and results of
operations are included in the financial statements from the date of their
respective acquisitions. The allocation of purchase price for the
above-mentioned acquisitions are based on valuation information available to the
Company which is subject to change as such information is finalized. Goodwill is
being amortized on a straight line basis over a period which ranges from 25 to
35 years. Had the Sandco and Reheis acquisitions occurred as of January 1, 1997,
net sales would have been $457,195 and $459,684 for 1997 and 1998, respectively;
income before extraordinary items would have been $54,309 ($2.41 per share) and
$50,717 ($2.32 per share) for 1997 and 1998, respectively; and net income would
have been $54,309 ($2.41 per share) and $47,056 ($2.15 per share) for 1997 and
1998, respectively.
NOTE 7 -- INCOME TAXES
Income from continuing operations before income taxes is as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------
1996 1997 1998
------- ------- -------
<S> <C> <C> <C>
United States............................................... $36,433 $58,314 $34,150
Foreign..................................................... 2,767 1,221 3,163
------- ------- -------
Total.................................................. $39,200 $59,535 $37,313
------- ------- -------
------- ------- -------
</TABLE>
The components of the income tax provision are as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------
1996 1997 1998
------- ------- -------
<S> <C> <C> <C>
United States:
Current................................................ $12,363 $24,669 $(3,532)
Deferred............................................... 2,262 (3,120) (3,776)
Foreign:
Current................................................ 1,117 589 911
Deferred............................................... (65) (97) (18)
State:
Current................................................ 2,262 4,890 3,470
Deferred............................................... 486 (670) (811)
------- ------- -------
Total............................................. $18,425 $26,261 $(3,756)
------- ------- -------
------- ------- -------
</TABLE>
A summary of the components of deferred tax assets and liabilities is as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
1997 1998
-------- --------
<S> <C> <C>
Postretirement benefits..................................... $ 19,390 $ 19,507
Nondeductible accruals...................................... 35,888 43,830
Other....................................................... 2,472 3,372
-------- --------
Deferred tax assets.................................... 57,750 66,709
-------- --------
Property, plant and equipment............................... 28,788 32,977
Pensions.................................................... 1,860 2,007
Inventory................................................... 3,754 3,437
Other....................................................... 1,048 2,965
-------- --------
Deferred tax liabilities............................... 35,450 41,386
-------- --------
Net deferred tax assets..................................... $ 22,300 $ 25,323
-------- --------
-------- --------
</TABLE>
F-11
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
The difference between the Company's effective income tax rate and the
United States statutory rate is reconciled below:
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
----------------------------
1996 1997 1998
----- ----- ------
<S> <C> <C> <C>
U.S. federal statutory rate................................. 35.0% 35.0% 35.0%
State income taxes, net of federal benefit.................. 4.3 4.5 4.5
Tax effect of foreign operations............................ 6.7 4.1 (5.8)
Reversal of provision for disputed items.................... -- -- (44.1)
Other....................................................... 1.0 .5 .3
----- ----- ------
Total.................................................. 47.0% 44.1% (10.1)%
----- ----- ------
----- ----- ------
</TABLE>
In connection with the Spinoff, GenTek entered into a tax sharing
agreement with GCG which requires GenTek to indemnify and hold harmless GCG for
consolidated tax liabilities attributable to periods before the Spinoff Date.
The IRS examinations of the Company's federal income tax returns for
1990 and 1991 resulted in the issuance of a deficiency notice during 1995. The
Company filed an administrative appeal with the IRS in 1995 contesting the items
denoted in the deficiency notice. At December 31, 1997, the Company had accrued
$25,388 for this notice, which was included in other liabilities on the balance
sheet. During 1998 the Company entered into a settlement agreement with the IRS
settling all items denoted in the original deficiency notice. The settlement
agreement binds the IRS for all years subsequent to 1989 on the items denoted in
the original deficiency notice. The Company recorded an income tax benefit of
$19,527 in connection with the reversal of amounts previously accrued in
connection with the deficiency notice settlement agreement.
NOTE 8 -- PENSION PLANS AND OTHER POSTRETIREMENT BENEFITS
The Company maintains several defined benefit pension plans covering
substantially all employees. A participating employee's annual postretirement
pension benefit is determined by the employee's credited service and, in most
plans, final average annual earnings with the Company. Vesting requirements are
five years in the U.S. and two years in Canada. The Company's funding policy is
to annually contribute the statutorily required minimum amount as actuarially
determined. The Company also maintains several plans providing postretirement
benefits other than pensions covering substantially all hourly and certain
salaried employees. The Company funds these benefits on a pay-as-you-go basis.
The long-term portion of accrued postretirement benefit cost related to
continuing operations of $48,184 and $48,766 at December 31, 1997 and 1998,
respectively, is included in other liabilities on the balance sheet.
<TABLE>
<CAPTION>
OTHER POSTRETIREMENT
PENSION BENEFITS BENEFITS
DECEMBER 31, DECEMBER 31,
------------------------------ ---------------------------
1996 1997 1998 1996 1997 1998
-------- -------- -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
UNITED STATES:
Components of Net Periodic Benefit Cost
Service Cost....................... $ 4,748 $ 5,217 $ 5,645 $ 1,455 $ 1,575 $ 1,568
Interest Cost...................... 13,125 13,873 14,935 3,587 3,896 4,046
Expected Return on Plan Assets..... (12,241) (13,466) (15,156) -- -- --
Amortization of Net Prior
Service Cost.................. 841 843 910 (1,604) (1,604) (1,604)
(Gain)/Loss................... 80 46 10 (757) (587) (628)
-------- -------- -------- ------- ------- -------
Net Periodic Benefit Cost.......... $ 6,553 $ 6,513 $ 6,344 $ 2,681 $ 3,280 $ 3,382
-------- -------- -------- ------- ------- -------
-------- -------- -------- ------- ------- -------
</TABLE>
F-12
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
OTHER POSTRETIREMENT
PENSION BENEFITS BENEFITS
DECEMBER 31, DECEMBER 31,
------------------- ---------------------
1997 1998 1997 1998
-------- -------- --------- ---------
<S> <C> <C> <C> <C>
Change in Benefit Obligation
Benefit Obligation at Prior Measurement Date........ $187,760 $203,495 $ 55,578 $ 57,522
Service Cost........................................ 5,217 5,533 1,575 1,568
Interest Cost....................................... 13,873 14,856 3,896 4,046
Actuarial (Gain)/Loss............................... 960 22,332 (1,800) (948)
Benefits Paid....................................... (9,077) (10,648) (2,318) (2,989)
Plan Amendments..................................... 699 -- -- --
Business Combinations............................... 4,063 1,333 591 --
-------- -------- -------- --------
Benefit Obligation at Measurement Date.............. $203,495 $236,901 $ 57,522 $ 59,199
-------- -------- -------- --------
-------- -------- -------- --------
<CAPTION>
OTHER POSTRETIREMENT
PENSION BENEFITS BENEFITS
DECEMBER 31, DECEMBER 31,
------------------- ---------------------
1997 1998 1997 1998
-------- -------- --------- ---------
Change in Plan Assets
<S> <C> <C> <C> <C>
Fair Value of Assets at Prior Measurement Date...... $166,661 $193,301 $ -- $ --
Actual Return on Plan Assets........................ 29,122 17,124 -- --
Employer Contributions.............................. 2,470 3,065 2,318 2,989
Benefits Paid....................................... (9,077) (10,649) (2,318) (2,989)
Business Combinations............................... 4,125 1,147 -- --
-------- -------- -------- --------
Fair Value of Assets at Measurement Date............ $193,301 $203,988 $ -- $ --
-------- -------- -------- --------
-------- -------- -------- --------
Reconciliation of Funded Status
Funded Status....................................... $(10,194) $(32,913) $(57,522) $(59,199)
Unrecognized Net
Transition (Asset)/Obligation.................. -- 13 -- --
Prior Service Cost............................. 7,091 6,178 (11,104) (9,500)
(Gain)/Loss.................................... (23,796) (3,540) (8,309) (8,629)
-------- -------- -------- --------
Net Amount Recognized............................... $(26,899) $(30,262) $(76,935) $(77,328)
-------- -------- -------- --------
-------- -------- -------- --------
</TABLE>
The assumptions used in accounting for the plans in 1996, 1997 and 1998
were:
<TABLE>
<CAPTION>
PENSION PLANS
---------------------------------------
1996 1997 1998
----------- ----------- -----------
<S> <C> <C> <C>
Discount rate............................................... 7 1/2% 7 1/2% 6 3/4%
Long-term rate of return on assets.......................... 9% 9% 9%
Average rate of increase in employee compensation........... 5% 5% 5%
</TABLE>
The assumption used in accounting for the medical plans in 1998 was an 8
percent health care cost trend rate (decreasing to 6 percent in the year 2001
and beyond). A one percent increase in the health care trend rate would increase
the accumulated postretirement benefit obligation by $3,881 at year end 1998 and
the net periodic cost by $330 for the year. A one percent decrease in the health
care trend rate would decrease the accumulated postretirement benefit obligation
by $4,206 at year end 1998 and the net periodic cost by $357 for the year.
The assumption used in accounting for the plans in 1997 was a 10 percent
health care cost trend rate (decreasing to 7 1/2 percent in the year 2000 and
beyond).
F-13
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
The dates used to measure plan assets and liabilities were October 31,
1997 and 1998 for all plans. Pension plan assets are invested primarily in
stocks, bonds, short-term securities and cash equivalents.
<TABLE>
<CAPTION>
OTHER POSTRETIREMENT
PENSION BENEFITS BENEFITS
DECEMBER 31, DECEMBER 31,
-------------------------- -------------------------
1996 1997 1998 1996 1997 1998
------- ------ ------- ------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
CANADA:
Components of Net Periodic Benefit Cost
Service Cost............................. $ 1,494 $1,352 $ 1,463 $ 310 $ 302 $ 332
Interest Cost............................ 3,727 3,868 3,789 864 1,032 1,014
Expected Return on Plan Assets........... (4,662) (4,877) (4,881) -- -- --
Amortization of Net Prior Service Cost... 92 90 84 -- -- --
(Gain)/Loss.............................. 467 432 458 -- -- --
------- ------ ------- ------- ------ ------
Net Periodic Benefit Cost........... $ 1,118 $ 865 $ 913 $ 1,174 $1,334 $1,346
------- ------ ------- ------- ------ ------
------- ------ ------- ------- ------ ------
</TABLE>
<TABLE>
<CAPTION>
OTHER POSTRETIREMENT
PENSION BENEFITS BENEFITS
DECEMBER 31, DECEMBER 31,
----------------- ---------------------
1997 1998 1997 1998
------- ------- --------- ---------
<S> <C> <C> <C> <C>
Change in Benefit Obligation
Benefit Obligation at Prior Measurement Date.......... $50,714 $55,493 $ 13,297 $ 14,631
Service Cost.......................................... 1,349 1,457 302 330
Interest Cost......................................... 3,857 3,773 1,029 1,010
Actuarial (Gain)/Loss................................. 3,977 5,823 592 (934)
Foreign Currency Translation.......................... (899) (3,701) (235) (977)
Benefits Paid......................................... (3,505) (3,240) (354) (370)
------- ------- -------- --------
Benefit Obligation at Measurement Date........... $55,493 $59,605 $ 14,631 $ 13,690
------- ------- -------- --------
------- ------- -------- --------
Change in Plan Assets
Fair Value of Assets at Prior Measurement Date........ $59,940 $66,181 $ -- $ --
Actual Return on Plan Assets.......................... 10,611 2,633 -- --
Employer Contributions................................ 1,085 1,643 354 370
Foreign Currency Translation.......................... (1,950) (4,412) -- --
Benefits Paid......................................... (3,505) (3,240) (354) (370)
------- ------- -------- --------
Fair Value of Assets at Measurement Date......... $66,181 $62,805 $ -- $ --
------- ------- -------- --------
------- ------- -------- --------
Reconciliation of Funded Status
Funded Status......................................... $11,576 $ 3,201 $(14,631) $(13,691)
Unrecognized Net Prior Service Cost................... 834 695 -- --
(Gain)/Loss........................................... 6,392 13,560 1,340 316
------- ------- -------- --------
Net Amount Recognized............................ $18,802 $17,456 $(13,291) $(13,375)
------- ------- -------- --------
------- ------- -------- --------
</TABLE>
The assumptions used in accounting for the plans in 1996, 1997 and 1998
were:
<TABLE>
<CAPTION>
PENSION PLANS
---------------------------------------
1996 1997 1998
----------- ----------- -----------
<S> <C> <C> <C>
Estimated discount rate..................................... 8% 7 1/2% 6 3/4%
Estimated long-term rate of return on assets................ 9% 9% 9%
Average rate of increase in employee compensation........... 5 1/4% 5 1/4% 5 1/4%
</TABLE>
F-14
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
The assumption used in accounting for the medical plans in 1998 was an
8.4 percent health care cost trend rate (decreasing to 6 percent in the year
2003 and beyond). A one percent increase in the health care trend rate would
increase the accumulated postretirement benefit obligation by $2,803 at year end
1998 and the net periodic cost by $289 for the year. A one percent decrease in
the health care trend rate would decrease the accumulated postretirement benefit
obligation by $2,209 at year end 1998 and the net periodic cost by $223 for the
year.
The assumption used in accounting for the plans in 1997 was a 10 percent
health care cost trend rate (decreasing to 7 1/2 percent in the year 2003 and
beyond).
The dates used to measure plan assets and liabilities were October 31,
1997 and 1998 for all plans. Plan assets are invested primarily in stocks,
bonds, short-term securities and cash equivalents.
Following the Spinoff, the Industrial Chemicals Business and the GenTek
Business assumed responsibility for pension and other postretirement benefits
for retirees whose last work assignment was with their respective business and
the active employees of each or their respective businesses. Separate defined
benefit plans have been established for both companies, with assets included in
trusts under qualified pension plans being divided between the trusts. Each
domestic plan received the legally required funding as specified under the
Employee Retirement Income Security Act of 1974 and foreign plans received
funding as specified under the applicable statutory requirements.
GCG's net periodic benefit cost for pension and other postretirement
benefits disclosed above includes amounts related to the Industrial Chemicals
Business retirees who participated in certain of the Company's defined benefits
and postretirement benefits plans. GCG's periodic benefit cost has been
allocated to the Industrial Chemicals Business and is included in 'Discontinued
Operations' in the Statement of Operations. Periodic benefit cost allocated to
discontinued operations was $5,400, $5,380 and $4,618 for 1998, 1997 and 1996,
respectively.
NOTE 9 -- COMMITMENTS AND CONTINGENCIES
Future minimum rental payments for operating leases (primarily for
transportation equipment, offices and warehouses) related to continuing
operations having initial or remaining noncancellable lease terms in excess of
one year as of December 31, 1998 are as follows:
<TABLE>
<CAPTION>
YEARS ENDING
DECEMBER 31,
- ------------
<S> <C>
1999........................................................ $ 5,180
2000........................................................ 4,286
2001........................................................ 2,188
2002........................................................ 1,901
2003 and thereafter......................................... 1,883
-------
$15,438
-------
-------
</TABLE>
Rental expense for the years ended December 31, 1996, 1997 and 1998 was
$4,239, $4,621, and $5,632, respectively.
Environmental Matters. Accruals for environmental liabilities are
recorded based on current interpretations of applicable environmental laws and
regulations when it is probable that a liability has been incurred and the
amount of such liability can be reasonably estimated. Estimates are established
based upon information available to management to date, the nature and extent of
the environmental liability, the Company's experience with similar activities
undertaken, estimates obtained from outside consultants and the legal and
regulatory framework in the jurisdiction in which the liability arose. The
potential costs related to environmental matters and their estimated impact on
future operations are difficult to predict due to the uncertainties regarding
the extent of any required remediation, the complexity
F-15
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
and interpretation of applicable laws and regulations, possible modification of
existing laws and regulations or the adoption of new laws or regulations in the
future, and the numerous alternative remediation methods and their related
varying costs. The material components of the Company's environmental accruals
include potential costs, as applicable, for investigation, monitoring,
remediation and ongoing maintenance activities at any affected site. Accrued
liabilities for environmental matters were $16,244 and $20,116 at December 31,
1997 and 1998, respectively. These amounts do not include estimated third-party
recoveries nor have they been discounted.
Avtex Site at Front Royal, Virginia. On March 22, 1990, the EPA issued
to the Company a Notice of Potential Liability pursuant to Section 107(a) of
CERCLA (the 'Notice') with respect to a site located in Front Royal, Virginia
(the 'Avtex Site'), owned at the time by Avtex Fibers Front Royal, Inc., which
has filed for bankruptcy. A sulfuric acid plant adjacent to the main Avtex Site
was previously owned and operated by the Company. On September 30, 1998, the EPA
issued an administrative order under Section 106 of CERCLA (the 'Order'), which
requires the Company, AlliedSignal, Inc. and Avtex to undertake certain removal
actions at the acid plant. On October 19, 1998, the Company delivered to the EPA
written notice of its intention to comply with the Order, subject to numerous
defenses. The requirements of the Order include preparation of a study to
determine the extent of any contamination at the acid plant site. The Company
has provided for the estimated costs of $1,600 for these activities in its
accrual for environmental liabilities relating to the Order. The Company is
working cooperatively with the EPA with respect to compliance with the Order and
believes that such compliance will not have a material effect on the Company's
results of operations or financial condition.
In addition to the matters discussed above, the Company is involved in
other claims, litigation, administrative proceedings and investigations and
remediation relative to environmental matters. Although the amount of any
ultimate liability which could arise with respect to these matters cannot be
accurately predicted, it is the opinion of management, based upon currently
available information and the accruals established, that any such liability will
have no material adverse effect on the Company's financial condition, results of
operations or cash flows.
NOTE 10 -- RELATED PARTY TRANSACTIONS
MANAGEMENT AGREEMENT
Prior to the Spinoff, GCG was party to a management agreement with
Latona Associates (which is controlled by a stockholder of GCG) under which GCG
receives corporate supervisory and administrative services and strategic
guidance for a quarterly fee of $1,018, $1,099 and $1,195 per quarter for the
years 1996, 1997 and 1998, respectively.
Latona has agreed to provide its services separately to GenTek and GCG.
GenTek will pay Latona, subsequent to the Spinoff, a quarterly fee of $1,125, to
be adjusted after 1999 for increases in the U.S. consumer price index. In
addition, if Latona provides advisory services to GenTek in connection with any
acquisition, business combination or other strategic transaction, GenTek will
pay Latona Associates additional fees comparable with fees received by
investment banking firms for such services. During 1998, the Company paid Latona
$500 in connection with the acquisition of Reheis. This agreement expires on
December 31, 2004.
F-16
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
NOTE 11 -- ADDITIONAL FINANCIAL INFORMATION
The following are summaries of selected balance sheet items:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1997 1998
------- -------
<S> <C> <C>
Receivables
Trade....................................................... $51,730 $62,810
Other....................................................... 1,626 1,536
Allowance for doubtful accounts............................. (3,553) (3,726)
------- -------
$49,803 $60,620
------- -------
------- -------
Inventories
Raw materials............................................... $ 8,093 $11,395
Work in process............................................. 3,090 6,049
Finished products........................................... 9,999 15,706
Supplies and containers..................................... 4,146 4,469
------- -------
$25,328 $37,619
------- -------
------- -------
</TABLE>
Inventories valued at LIFO amounted to $16,835 and $17,450 at
December 31, 1997 and 1998, respectively, which were below estimated replacement
cost by $615 and $730, respectively. The impact of LIFO liquidations in 1996,
1997 and 1998 was not significant.
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------
1997 1998
Property, Plant and Equipment -------- ---------
<S> <C> <C>
Land and improvements..................................... $ 20,876 $ 26,219
Machinery and equipment................................... 194,992 261,260
Buildings and leasehold improvements...................... 31,637 43,912
Construction in progress.................................. 10,111 19,178
-------- ---------
257,616 350,569
Less accumulated depreciation and amortization............ (97,462) (154,043)
-------- ---------
$160,154 $ 196,526
-------- ---------
-------- ---------
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1997 1998
Accrued Liabilities ------- -------
<S> <C> <C>
Wages, salaries and benefits................................ $17,820 $17,616
Taxes, other than income taxes.............................. 2,867 3,256
Other....................................................... 28,159 31,093
------- -------
$48,846 $51,965
------- -------
------- -------
</TABLE>
F-17
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
NOTE 12 -- LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
DECEMBER DECEMBER
MATURITIES 1997 1998
---------- -------- --------
<S> <C> <C> <C>
Bank Term Loan A -- floating rate........................... 2000-2004 $ -- $100,000
Bank Term Loan B -- floating rate........................... 1999-2006 -- 199,000
Bank Term Loan -- floating rate............................. 1999-2001 65,217 --
Senior Subordinated Notes -- 9.25%.......................... 2003 100,000 --
Canada Senior Notes -- 9.09%................................ 1999 50,787 48,269
$130,000 U.S. Revolving Credit Facility -- floating rate.... 42,000 --
General Chemical Canada Limited
Revolving Credit Facility -- floating rate................ 2000 -- 3,877
Other Debt -- floating rate................................. -- 6,385
-------- --------
Total Debt............................................. 258,004 357,531
Less: Current Portion.................................. 17,392 50,802
-------- --------
Net Long-Term Debt..................................... $240,612 $306,729
-------- --------
-------- --------
</TABLE>
As of December 31, 1998, aggregate maturities of long-term debt for each
of the years in the five year period ending December 31, 2003 were $50,802,
$11,780, $19,700, $13,250 and $23,250.
On June 15, 1998 the Company entered into a new credit facility
consisting of a $100,000 Term Loan ('Term Loan A') maturing on June 15, 2004, a
$200,000 Term Loan ('Term Loan B') maturing on June 15, 2006 and a $300,000
Revolving Credit Facility maturing on June 15, 2004. The term loans and
revolving credit facility bear interest at a rate equal to a spread over a
reference rate. The rate in effect at December 31, 1998 for Term Loan A and Term
Loan B was 6.25 percent and 7.25 percent, respectively. Term Loan A is payable
in consecutive quarterly installments commencing March 31, 2000. Term Loan B is
payable in consecutive quarterly installments commencing September 30, 1998. The
facility is secured by a first priority security interest in all of the capital
stock of the Company's domestic subsidiaries and 65 percent of the capital stock
of the Company's foreign subsidiaries.
General Chemical Canada Limited has a C$15,000 Revolving Credit Facility
maturing June 22, 2000. This facility bears interest at a rate equal to a spread
over a reference rate.
Commitment fees paid for the above-mentioned facilities were $414, $274,
and $446 for 1996, 1997 and 1998, respectively.
NOTE 13 -- STOCK OPTION PLAN AND RESTRICTED UNIT PLAN
The Company's 1996 Stock Option and Incentive Plan (the 'Plan') provides
for the issuance of up to 2,200,000 shares of Common Stock. The Plan authorizes
the granting of incentive and nonqualified stock options, stock appreciation
rights, restricted and unrestricted stock and performance share awards to
executives, directors and other key persons. Any incentive stock options granted
under the Plan must have an exercise price at least equal to the market value of
the shares on the day the option is granted and a maximum term of 10 years.
F-18
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
Information with respect to all stock options is summarized below:
<TABLE>
<CAPTION>
AVERAGE OPTION
PRICE PER
SHARES SHARE
--------- --------------
<S> <C> <C>
Options Outstanding at December 31, 1995.................... -- $--
Options Granted........................................ 1,281,000 17.66
Options Exercised...................................... -- --
Options Forfeited...................................... 10,000 17.50
---------
Options Outstanding at December 31, 1996.................... 1,271,000 17.66
Options Granted........................................ 100,000 22.70
Options Exercised...................................... -- --
Options Forfeited...................................... 29,800 18.23
---------
Options Outstanding at December 31, 1997.................... 1,341,200 18.02
Options Granted........................................ 398,500 23.72
Options Exercised...................................... 25,200 17.67
Options Forfeited...................................... 35,000 18.24
---------
Options Outstanding at December 31, 1998.................... 1,679,500 $19.37
---------
---------
</TABLE>
The Company applies APB Opinion 25 in accounting for the Plan. Had
compensation cost for this plan been determined under FASB Statement No. 123,
the Company's net income for 1996 would have been reduced to $45,623 with basic
earnings per common share of $2.14 and diluted earnings per share of $2.08. Net
income for 1997 would have been reduced to $55,140 with basic earnings per
common share of $2.57 and diluted earnings per share of $2.45. Net income for
1998 would have been reduced to $45,857 with basic earnings per common share of
$2.18 and diluted earnings per share of $2.10. For purposes of this calculation,
the fair value of each option grant was estimated on the grant date using the
Black-Scholes option-pricing model with the following assumptions used for 1996,
1997 and 1998, respectively: dividend yield of 1.0 percent, 0.7 percent and 1.5
percent, respectively; expected volatility of 27 percent, 41 percent and 42
percent, respectively; weighted average risk-free interest rate of 6.42 percent,
5.50 percent and 4.65 percent, respectively; and, weighted average expected
lives of six years. All options granted under the stock option plan had an
exercise price equal to the market price of the Company's stock on the grant
date.
The Company's Restricted Unit Plan provides for the issuance of 850,000
units, with each unit representing one share of Common Stock to be issued to the
participant upon the occurrence of certain conditions ('vesting') unless the
participant elects to defer receipt thereof. All awards are subject to a five
year vesting schedule under which a portion of each participant's award vests
annually over a five year period. Dividend equivalents on outstanding units
accrue to the benefit of the participants and are paid at the time dividends are
paid to Common Stockholders. These units were awarded during the second quarter
of 1996 in replacement of the rights earned by participants beginning in 1989
under the Phantom Equity Plan and certain other prior equity programs of the
Company which were then terminated. The Company recorded a charge to income of
$11,319, $1,302 and $1,309 for 1996, 1997 and 1998, respectively.
NOTE 14 -- FINANCIAL INSTRUMENTS
SWAP AGREEMENTS
The Company does not enter into financial instruments for trading
purposes. The Company periodically enters into interest rate swap agreements to
effectively convert a portion of its floating-rate to fixed-rate debt in order
to reduce the Company's exposure to movements in interest rates. Such agreements
involve the exchange of fixed and floating interest rate payments over the life
of the
F-19
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
agreement without the exchange of the underlying principal amounts. Accordingly,
the impact of fluctuations in interest rates on these interest rate swap
agreements is fully offset by the opposite impact on the related debt. Swap
agreements are only entered into with strong creditworthy counterparties. The
swap agreements in effect were as follows:
<TABLE>
<CAPTION>
INTEREST RATE
NOTIONAL -------------------
DECEMBER 31, AMOUNT MATURITIES RECEIVE(1) PAY(2)
------------ -------- ---------- ---------- ------
<S> <C> <C> <C> <C>
1997........................................... $ 75,000 1998-1999 5.8% 6.8%
1998........................................... $100,000 1999-2006 5.6% 6.6%
</TABLE>
- ------------
(1) Three-month LIBOR.
(2) Represents the weighted average rate.
At December 31, 1998, the Company was also party to a currency and
interest rate swap, which partially hedges the Company's Canadian subsidiary's
9.09 percent Senior Notes. The agreement, which matures in 1999, provides for
the payment of C$48,400 at a fixed rate of 7.54 percent in exchange for the
receipt of US$35,000 at a fixed rate of 9.09 percent. Unrealized gains and
losses on the currency portion of the swap are recognized and offset the foreign
exchange gain or loss on the related debt in the consolidated statements of
operations. Net amounts paid or received on the interest portion of the swap are
accrued as adjustments to interest expense.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The estimated fair values of the Company's financial instruments are as
follows:
<TABLE>
<CAPTION>
DECEMBER 31, 1997 DECEMBER 31, 1998
--------------------- ---------------------
CARRYING CARRYING
AMOUNT FAIR VALUE AMOUNT FAIR VALUE
-------- ---------- -------- ----------
<S> <C> <C> <C> <C>
Long-term debt.................................. $258,004 $262,918 $357,531 $357,737
Unrealized gain on swap agreements.............. $ -- $ 521 $ -- $ 309
</TABLE>
The fair values of cash and cash equivalents, receivables and payables
approximate their carrying values due to the short-term nature of the
instruments.
The fair value of the Company's long-term debt was based on quoted
market prices for publicly traded notes and discounted cash flow analyses on its
nontraded debt. The fair value of the Company's interest rate swap agreements is
the estimated amount the Company would have to pay or receive to terminate the
swap agreements based upon quoted market prices as provided by financial
institutions which are counterparties to the swap agreements.
F-20
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
NOTE 15 -- GEOGRAPHIC AND INDUSTRY SEGMENT INFORMATION
The accounting policies of the segments are the same as those described
in the summary of significant accounting policies.
Geographic area information for continuing operations is summarized as
follows:
<TABLE>
<CAPTION>
TOTAL REVENUES OPERATING PROFIT IDENTIFIABLE ASSETS
------------------------------ --------------------------- -------------------
1996 1997 1998 1996 1997 1998 1997 1998
-------- -------- -------- ------- ------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
United States(1)..... $318,946 $358,774 $423,441 $46,052 $66,342 $47,734 $298,926 $437,892
Foreign(2)........... 17,228 15,710 26,173 2,671 1,184 3,987 5,387 23,634
Elimination(3)....... (6,054) (5,968) (5,695) -- -- -- -- --
-------- -------- -------- ------- ------- ------- -------- --------
$330,120 $368,516 $443,919 $48,723 $67,526 $51,721 $304,313 $461,526
-------- -------- -------- ------- ------- ------- -------- --------
-------- -------- -------- ------- ------- ------- -------- --------
</TABLE>
- ------------
(1) Includes export sales of $4,946, $5,430 and $4,914 for the years ended
December 31, 1996, 1997 and 1998, respectively.
(2) Principally Canada.
(3) Sales between geographic areas are recorded at prices comparable to market
prices charged to third-party customers and are eliminated in consolidation.
Industry segment information for continuing operations is summarized as
follows:
<TABLE>
<CAPTION>
TOTAL REVENUES OPERATING PROFIT
------------------------------ ---------------------------
1996 1997 1998 1996 1997 1998
---- ---- ---- ---- ---- ----
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Performance Products................................... $240,895 $260,351 $315,787 $43,202 $48,292 $25,711
Manufacturing.......................................... 89,225 108,165 128,132 12,472 23,531 30,649
-------- -------- -------- ------- ------- -------
Total Segment...................................... 330,120 368,516 443,919 55,674 71,823 56,360
Eliminations and other corporate expenses.............. -- -- -- (6,951) (4,297) (4,639)
-------- -------- -------- ------- ------- -------
Consolidated........................................... $330,120 $368,516 $443,919 $48,723 $67,526 $51,721
-------- -------- --------
-------- -------- --------
Interest expense....................................... 10,747 8,855 14,624
Other income, net...................................... (1,224) (864) (216)
------- ------- -------
Consolidated income from continuing operations before
income taxes and extraordinary item.................. $39,200 $59,535 $37,313
------- ------- -------
------- ------- -------
</TABLE>
<TABLE>
<CAPTION>
CAPITAL EXPENDITURES DEPRECIATION AND AMORTIZATION
--------------------------- ------------------------------
1996 1997 1998 1996 1997 1998
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Performance Products.............................. $17,612 $23,563 $24,260 $11,332 $13,688 $19,763
Manufacturing..................................... 1,619 2,640 9,477 2,767 2,608 3,302
------- ------- ------- ------- ------- -------
Consolidated...................................... $19,231 $26,203 $33,737 $14,099 $16,296 $23,065
------- ------- ------- ------- ------- -------
------- ------- ------- ------- ------- -------
</TABLE>
<TABLE>
<CAPTION>
IDENTIFIABLE ASSETS
-------------------
DECEMBER 31,
-------------------
1997 1998
---- ----
<S> <C> <C>
Performance Products........................................ $245,734 381,202
Manufacturing............................................... 56,586 78,267
Corporate................................................... 1,993 2,057
-------- --------
Consolidated................................................ $304,313 $461,526
-------- --------
-------- --------
</TABLE>
F-21
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
NOTE 16 -- SUMMARIZED FINANCIAL INFORMATION
The Company has issued its Senior Subordinated Notes due 2009 which are
fully and unconditionally guaranteed, on a joint and several basis, by all of
the Company's wholly owned, domestic subsidiaries ('Subsidiary Guarantors'). The
non-guarantor subsidiaries are foreign or are part of the Industrial Chemicals
Business which are no longer part of GenTek as a result of the Spinoff.
The following condensed consolidating financial information illustrates
the composition of the combined Subsidiary Guarantors. The Company believes that
the separate complete financial statements of the respective guarantors would
not provide additional material information which would be useful in assessing
the financial composition of the Subsidiary Guarantors.
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1996
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net revenues.......................... $ -- $ 312,895 $ 17,225 $ -- $ 330,120
Cost of sales......................... -- 216,661 12,576 -- 229,237
Selling, general and administrative
expenses............................ 4,389 46,572 1,199 -- 52,160
--------- --------- --------- -------- ---------
Operating profit................. (4,389) 49,662 3,450 -- 48,723
Interest expense...................... -- 10,747 -- -- 10,747
Other (income) expense, net........... (177) (1,041) (6) -- (1,224)
--------- --------- --------- -------- ---------
Income before continuing
operations before income taxes
and extraordinary item......... (4,212) 39,956 3,456 -- 39,200
Income tax provision.................. (1,594) 18,741 1,278 -- 18,425
Equity in income from subsidiaries.... 49,226 28,011 -- (77,237) --
--------- --------- --------- -------- ---------
Income from continuing operations
before extraordinary item........... 46,608 49,226 2,178 (77,237) 20,775
Income from discontinued operations
(net of tax)........................ -- -- 25,833 -- 25,833
--------- --------- --------- -------- ---------
Income before extraordinary
item........................... 46,608 49,226 28,011 (77,237) 46,608
Extraordinary item (net of tax)....... -- -- -- -- --
--------- --------- --------- -------- ---------
Net income....................... $ 46,608 $ 49,226 $ 28,011 $(77,237) $ 46,608
--------- --------- --------- -------- ---------
--------- --------- --------- -------- ---------
</TABLE>
F-22
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net revenues.......................... $ -- $ 352,806 $ 15,710 $ -- $ 368,516
Cost of sales......................... -- 240,210 11,702 -- 251,912
Selling, general and administrative
expenses............................ 2,562 45,335 1,181 -- 49,078
--------- --------- --------- -------- ---------
Operating profit................. (2,562) 67,261 2,827 -- 67,526
Interest expense...................... -- 8,855 -- -- 8,855
Other (income) expense, net........... 33 (901) 4 -- (864)
--------- --------- --------- -------- ---------
Income before continuing
operations before income taxes
and extraordinary item......... (2,595) 59,307 2,823 -- 59,535
Income tax provision.................. (1,111) 26,329 1,043 -- 26,261
Equity in income from subsidiaries.... 57,799 24,821 -- (82,620) --
--------- --------- --------- -------- ---------
Income from continuing operations
before extraordinary item...... 56,315 57,799 1,780 (82,620) 33,274
Income from discontinued operations
(net of tax)........................ -- -- 23,041 -- 23,041
--------- --------- --------- -------- ---------
Income before extraordinary
item........................... 56,315 57,799 24,821 (82,620) 56,315
Extraordinary item (net of tax)....... -- -- -- -- --
--------- --------- --------- -------- ---------
Net income....................... $ 56,315 $ 57,799 $ 24,821 $(82,620) $ 56,315
--------- --------- --------- -------- ---------
--------- --------- --------- -------- ---------
</TABLE>
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1998
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net revenues.......................... $ -- $ 410,778 $ 33,141 $ -- $ 443,919
Cost of sales......................... -- 301,347 25,279 -- 326,626
Selling, general and administrative
expenses............................ 2,758 59,621 3,193 -- 65,572
--------- --------- --------- -------- ---------
Operating profit................. (2,758) 49,810 4,669 -- 51,721
Interest expense...................... 455 13,790 379 -- 14,624
Other (income) expense, net........... 30 (208) (38) -- (216)
--------- --------- --------- -------- ---------
Income before continuing
operations before income taxes
and extraordinary item......... (3,243) 36,228 4,328 -- 37,313
Income tax provision.................. (1,469) (3,599) 1,312 -- (3,756)
Equity in income from subsidiaries.... 49,481 13,315 -- (62,796) --
--------- --------- --------- -------- ---------
Income from continuing operations
before extraordinary item...... 47,707 53,142 3,016 (62,796) 41,069
Income from discontinued operations
(net of tax)........................ -- -- 10,299 -- 10,299
--------- --------- --------- -------- ---------
Income before extraordinary
item........................... 47,707 53,142 13,315 (62,796) 51,368
Extraordinary item (net of tax)....... -- 3,661 -- -- 3,661
--------- --------- --------- -------- ---------
Net income....................... $ 47,707 $ 49,481 $ 13,315 $(62,796) $ 47,707
--------- --------- --------- -------- ---------
--------- --------- --------- -------- ---------
</TABLE>
F-23
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
CONDENSED CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1997
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents......... $ 51 $ 20,350 $-- $ -- $ 20,401
Receivables, net.................. -- 47,010 2,793 -- 49,803
Inventories....................... -- 24,177 1,151 -- 25,328
Other current assets.............. -- 10,003 -- -- 10,003
-------- -------- ------- -------- --------
Total current assets......... 51 101,540 3,944 -- 105,535
Property, plant and equipment, net..... -- 158,658 1,496 -- 160,154
Goodwill, net of amortization.......... -- 19,192 -- -- 19,192
Intercompany receivable (payable)...... (51,394) 51,394 -- -- --
Investment in subsidaries.............. (40,856) 88,410 -- (47,554) --
Other assets........................... 2,324 17,108 -- -- 19,432
Net assets of discontinued
businesses........................... -- -- 85,505 -- 85,505
-------- -------- ------- -------- --------
Total assets................. $(89,875) $436,302 $90,945 $(47,554) $389,818
-------- -------- ------- -------- --------
-------- -------- ------- -------- --------
Current liabilities:
Accounts payable.................. $ 379 $ 30,320 $ 1,417 $ -- $ 32,116
Accrued liabilities............... 3,698 47,475 335 -- 51,508
Current portion of long-term
debt............................ -- 17,392 -- -- 17,392
-------- -------- ------- -------- --------
Total current liabilities.... 4,077 95,187 1,752 -- 101,016
Long-term debt......................... -- 240,612 -- -- 240,612
Other liabilities...................... 287 141,359 783 -- 142,429
-------- -------- ------- -------- --------
Total liabilities............ 4,364 477,158 2,535 -- 484,057
Equity (deficit)....................... (94,239) (40,856) 88,410 (47,554) (94,239)
-------- -------- ------- -------- --------
Total liabilities and equity
(deficit).................. $(89,875) $436,302 $90,945 $(47,554) $389,818
-------- -------- ------- -------- --------
-------- -------- ------- -------- --------
</TABLE>
F-24
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
CONDENSED CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1998
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents......... $ 3,147 $ 57,159 $ 1,004 $ -- $ 61,310
Receivables, net.................. 1,900 53,009 5,711 -- 60,620
Inventories....................... -- 33,731 3,888 -- 37,619
Other current assets.............. -- 11,864 456 -- 12,320
-------- --------- ------- -------- --------
Total current assets......... 5,047 155,763 11,059 -- 171,869
Property, plant and equipment, net..... -- 185,784 10,742 -- 196,526
Goodwill, net of amortization.......... -- 69,533 1,911 -- 71,444
Intercompany receivable (payable)...... 231,395 (231,282) (113) -- --
Investment in subsidaries.............. 9,410 84,830 -- (94,240) --
Other assets........................... 2,172 19,480 35 -- 21,687
Net assets of discontinued
businesses........................... -- -- 75,292 -- 75,292
-------- --------- ------- -------- --------
Total assets................. $248,024 $ 284,108 $98,926 $(94,240) $536,818
-------- --------- ------- -------- --------
-------- --------- ------- -------- --------
Current liabilities:
Accounts payable.................. $ 2,550 $ 35,816 $ 4,447 $ -- $ 42,813
Accrued liabilities............... 677 59,075 1,173 -- 60,925
Current portion of long-term
debt............................ 2,000 48,270 532 -- 50,802
-------- --------- ------- -------- --------
Total current liabilities.... 5,227 143,161 6,152 -- 154,540
Long-term debt......................... 297,000 3,876 5,853 -- 306,729
Other liabilities...................... 493 127,661 2,091 -- 130,245
-------- --------- ------- -------- --------
Total liabilities............ 302,720 274,698 14,096 -- 591,514
Equity (deficit)....................... (54,696) 9,410 84,830 (94,240) (54,696)
-------- --------- ------- -------- --------
Total liabilities and equity
(deficit).................. $248,024 $ 284,108 $98,926 $(94,240) $536,818
-------- --------- ------- -------- --------
-------- --------- ------- -------- --------
</TABLE>
F-25
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1996
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in) operating
activities............................ $ (2,012) $ 38,870 $ 1,979 $-- $ 38,837
--------- --------- --------- ------- ---------
Cash flows from investing activities:
Cash provided by discontinued
operations....................... -- -- 16,392 -- 16,392
Other.............................. -- (4,875) (313) -- (5,188)
--------- --------- --------- ------- ---------
Net cash provided by (used in) investing
activities............................ -- (4,875) 16,079 -- 11,204
--------- --------- --------- ------- ---------
Cash flows from financing activities:
Intercompany cash transfers........ (36,795) 54,883 (18,088) -- --
Other.............................. 38,809 (56,886) -- -- (18,077)
--------- --------- --------- ------- ---------
Net cash provided by (used in) financing
activities............................ 2,014 (2,003) (18,088) -- (18,077)
--------- --------- --------- ------- ---------
Effect of exchange rates on cash........ -- -- 30 -- 30
--------- --------- --------- ------- ---------
Increase (decrease) in cash and cash
equivalents........................... 2 31,992 -- -- 31,994
Cash and cash equivalents at beginning
of year............................... -- 18,097 -- -- 18,097
--------- --------- --------- ------- ---------
Cash and cash equivalents at end of
year.................................. $ 2 $ 50,089 $ -- $-- $ 50,091
--------- --------- --------- ------- ---------
--------- --------- --------- ------- ---------
</TABLE>
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in) operating
activities............................ $ (4,048) $ 57,579 $ 2,648 $-- $ 56,179
--------- --------- --------- ------- ---------
Cash flows from investing activities:
Acquisition of businesses net of
cash acquired.................... -- (30,130) -- -- (30,130)
Cash provided by discontinued
operations....................... -- -- 331 -- 331
Other.............................. -- (26,105) (35) -- (26,140)
--------- --------- --------- ------- ---------
Net cash provided by (used in) investing
activities............................ -- (56,235) 296 -- (55,939)
--------- --------- --------- ------- ---------
Cash flows from financing activities:
Intercompany cash transfers........ 36,648 (34,547) (2,101) -- --
Other.............................. (32,551) 3,464 -- -- (29,087)
--------- --------- --------- ------- ---------
Net cash provided by (used in) financing
activities............................ 4,097 (31,083) (2,101) -- (29,087)
--------- --------- --------- ------- ---------
Effect of exchange rates on cash........ -- -- (843) -- (843)
--------- --------- --------- ------- ---------
Increase (decrease) in cash and cash
equivalents........................... 49 (29,739) -- -- (29,690)
Cash and cash equivalents at beginning
of year............................... 2 50,089 -- -- 50,091
--------- --------- --------- ------- ---------
Cash and cash equivalents at end of
year.................................. $ 51 $ 20,350 $ -- $-- $ 20,401
--------- --------- --------- ------- ---------
--------- --------- --------- ------- ---------
</TABLE>
F-26
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1998
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in) operating
activities............................ $ (4,166) $ 56,803 $ 4,631 $-- $ 57,268
--------- --------- --------- ------- ---------
Cash flows from investing activities:
Acquisition of businesses net of
cash acquired.................... -- (90,935) -- -- (90,935)
Cash provided by discontinued
operations....................... -- -- 20,512 -- 20,512
Other.............................. -- (32,170) (800) -- (32,970)
--------- --------- --------- ------- ---------
Net cash provided by (used in) investing
activities............................ -- (123,105) 19,712 -- (103,393)
--------- --------- --------- ------- ---------
Cash flows from financing activities:
Intercompany cash transfers........ (280,040) 309,942 (29,902) -- --
Other.............................. 287,302 (206,831) 6,385 -- 86,856
--------- --------- --------- ------- ---------
Net cash provided by (used in) financing
activities............................ 7,262 103,111 (23,517) -- 86,856
--------- --------- --------- ------- ---------
Effect of exchange rates on cash........ -- -- 178 -- 178
--------- --------- --------- ------- ---------
Increase (decrease) in cash and cash
equivalents........................... 3,096 36,809 1,004 -- 40,909
Cash and cash equivalents at beginning
of year............................... 51 20,350 -- -- 20,401
--------- --------- --------- ------- ---------
Cash and cash equivalents at end of
year.................................. $ 3,147 $ 57,159 $ 1,004 $-- $ 61,310
--------- --------- --------- ------- ---------
--------- --------- --------- ------- ---------
</TABLE>
NOTE 17 -- UNAUDITED QUARTERLY INFORMATION
<TABLE>
<CAPTION>
1997
----------------------------------------------------
FIRST SECOND THIRD FOURTH YEAR
----- ------ ----- ------ ----
<S> <C> <C> <C> <C> <C>
Net revenues................................. $ 86,000 $ 88,212 $ 97,456 $ 96,848 $368,516
Income from continuing operations............ 7,310 9,379 8,941 7,644 33,274
Income from discontinued operations.......... 4,404 7,879 6,161 4,597 23,041
Net income................................... 11,714 17,258 15,102 12,241 56,315
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
Earnings per common share -- basic:
Income from continuing operations....... .34 .44 .42 .36 1.55
Income from discontinued operations..... .21 .37 .29 .21 1.08
-------- -------- -------- -------- --------
Net income......................... .55 .81 .71 .57 2.63
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
Earnings per common share -- assuming
dilution:
Income from continuing operations....... .32 .42 .40 .34 1.48
Income from discontinued operations..... .20 .35 .27 .20 1.02
-------- -------- -------- -------- --------
Net income......................... .52 .77 .67 .54 2.50
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
</TABLE>
F-27
<PAGE>
GENTEK INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS -- (CONCLUDED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
1998
----------------------------------------------------
FIRST SECOND THIRD FOURTH YEAR
----- ------ ----- ------ ----
<S> <C> <C> <C> <C> <C>
Net revenues................................. $100,536 $118,355 $112,562 $112,466 $443,919
Income from continuing operations before
extraordinary item......................... 7,751 10,497 8,725 14,096 41,069
Income (loss) from discontinued operations... 2,110 4,189 3,041 959 10,299
Income before extraordinary item............. 9,861 14,686 11,766 15,055 51,368
Net income................................... 9,861 11,025(1) 11,766 15,055(2) 47,707
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
Earnings per common share -- basic:
Income from continuing operations....... .37 .49 .42 .67 1.95
Income from discontinued operations..... .10 .20 .14 .05 .49
Extraordinary item -- loss on extinguishment
of debt (net of tax)....................... -- .17 -- -- .17
-------- -------- -------- -------- --------
Net income......................... .47 .52 .56 .72 2.27
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
Earnings per common share -- assuming
dilution:
Income from continuing operations....... .35 .48 .40 .65 1.88
Income from discontinued operations..... .10 .19 .14 .04 .47
Extraordinary item -- loss from
extinguishment of debt (net of tax)........ -- .17 -- -- .17
-------- -------- -------- -------- --------
Net income......................... .45 .50 .54 .69 2.18
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
</TABLE>
Note: Basic earnings per common share calculations are based on the
weighted average number of shares outstanding during each of the
quarters. Diluted earnings per common share assume the foregoing
and, in addition, the exercise of all stock options and restricted
units. The sum of the four quarters may not equal the full year
computation due to rounding.
(1) In the second quarter of 1998, the Company recorded an extraordinary loss of
$3,661 ($.17 per share) related to the early retirement of certain
outstanding indebtedness.
(2) During the fourth quarter of 1998, the Company recorded a one-time charge of
$12,885 ($7,789 after tax or $.36 per share) primarily due to an asset
impairment writedown for two of the Company's manufacturing facilities and
incremental accruals of $11,300 ($6,831 after tax or $.31 per share)
principally related to litigation and environmental spending. During the
fourth quarter of 1998, the Company also recorded a non-recurring gain of
$19,500 ($.89 per share) related to an income tax settlement.
NOTE 18 -- SUBSEQUENT EVENTS
On February 23, 1999, the Company acquired for approximately $58,000
Defiance Inc., a manufacturer of specialty antifriction bearings for the
transportation industry and a provider of vehicle testing services, tooling
design and preproduction dies and components primarily for the automotive
industry. On April 6, 1999, the Company acquired for approximately $220,000 Noma
Industries Limited, a leading North American producer of insulated wire and
wire-related products for the automotive, appliance and electronic industries.
On July 2, 1999, the Company acquired Structural Kinematics, a leading provider
of testing and engineering services to the automotive, truck and agricultural
equipment industries.
On July 12, 1999, the Company announced that it has agreed to purchase
Berlin-based Krone AG from Jenoptik AG. Krone is a leading global supplier of
connection and distribution technology for telecommunications and data networks.
The Krone acquisition is expected to be completed during the third quarter. The
acquisitions will be financed through existing credit facilities and additional
debt securities.
F-28
<PAGE>
GENTEK INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------- -------------------
1998 1999 1998 1999
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net revenues..................................... $112,562 $263,834 $331,453 $609,324
Cost of sales.................................... 80,692 195,792 234,935 453,938
Selling, general and administrative expense...... 13,951 34,159 40,347 80,003
-------- -------- -------- --------
Operating profit............................... 17,919 33,883 56,171 75,383
Interest expense................................. 4,099 13,077 10,626 25,378
Interest income.................................. 336 146 678 739
Foreign currency transaction (gains) losses...... 107 (787) 398 (1,175)
Other (income) expense, net...................... (109) 123 11 262
-------- -------- -------- --------
Income from continuing operations before income
taxes and extraordinary item................ 14,158 21,616 45,814 51,657
Income tax provision............................. 5,432 10,896 18,841 23,890
-------- -------- -------- --------
Income from continuing operations before
extraordinary item.......................... 8,726 10,720 26,973 27,767
Income from discontinued operations (net of
tax)........................................... 3,040 -- 9,339 1,006
-------- -------- -------- --------
Income before extraordinary item............... 11,766 10,720 36,312 28,773
Extraordinary item -- loss from extinguishment of
debt (net of tax of $2,395 and $3,231,
respectively).................................. -- -- 3,661 4,939
-------- -------- -------- --------
Net income..................................... $ 11,766 $ 10,720 $ 32,651 $ 23,834
-------- -------- -------- --------
-------- -------- -------- --------
EARNINGS PER COMMON SHARE -- BASIC:
Income from continuing operations................ $ .42 $ .51 $ 1.28 $ 1.32
Income from discontinued operations (net of
tax)........................................... .14 -- .44 .05
Extraordinary item -- loss from extinguishment of
debt (net of tax).............................. -- -- .17 .23
-------- -------- -------- --------
Net income..................................... $ .56 $ .51 $ 1.55 $ 1.14
-------- -------- -------- --------
-------- -------- -------- --------
EARNINGS PER COMMON SHARE -- ASSUMING DILUTION:
Income from continuing operations................ $ .40 $ .50 $ 1.23 $ 1.29
Income from discontinued operations (net of
tax)........................................... .14 -- .43 .05
Extraordinary item -- loss from extinguishment of
debt (net of tax).............................. -- -- .17 .23
-------- -------- -------- --------
Net income....................................... $ .54 $ .50 $ 1.49 $ 1.11
-------- -------- -------- --------
-------- -------- -------- --------
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-29
<PAGE>
GENTEK INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1998 1999
------------ -------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 61,310 $ 34,459
Receivables, net.......................................... 60,620 211,999
Inventories............................................... 37,619 118,012
Deferred income taxes..................................... 11,494 27,645
Other current assets...................................... 826 25,108
-------- ----------
Total current assets................................... 171,869 417,223
Property, plant and equipment, net.......................... 196,526 353,096
Goodwill, net of amortization............................... 71,444 393,357
Other assets................................................ 21,687 31,808
Net assets of discontinued operations....................... 75,292 --
-------- ----------
Total assets........................................... $536,818 $1,195,484
-------- ----------
-------- ----------
LIABILITIES AND EQUITY (DEFICIT)
Current liabilities:
Accounts payable.......................................... $ 42,813 $ 90,052
Accrued liabilities....................................... 60,925 161,752
Current portion of long-term debt......................... 50,802 43,236
-------- ----------
Total current liabilities.............................. 154,540 295,040
Long-term debt.............................................. 306,729 712,204
Other liabilities........................................... 130,245 175,755
-------- ----------
Total liabilities...................................... 591,514 1,182,999
-------- ----------
Equity (deficit):
Preferred Stock, $.01 par value; authorized 10,000,000
shares; none issued or outstanding..................... -- --
Common Stock, $.01 par value; authorized 100,000,000
shares; issued: 12,654,489 and 16,876,017 shares at
December 31, 1998 and September 30, 1999,
respectively........................................... 127 168
Class B Common Stock, $.01 par value; authorized
40,000,000 shares; issued 9,758,421 and 3,958,421
shares at December 31, 1998 and September 30, 1999,
respectively........................................... 97 40
Capital deficit........................................... (182,563) (848)
Accumulated other comprehensive income.................... (2,446) 98
Retained earnings......................................... 162,378 13,289
Treasury stock, at cost: 1,641,166 and 16,192 shares at
December 31, 1998 and September 30, 1999,
respectively........................................... (32,289) (262)
-------- ----------
Total equity (deficit)................................. (54,696) 12,485
-------- ----------
Total liabilities and equity (deficit)................. $536,818 $1,195,484
-------- ----------
-------- ----------
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-30
<PAGE>
GENTEK INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
-----------------------
1998 1999
--------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net income................................................ $ 32,651 $ 23,834
Adjustments to reconcile net income to net cash provided
by continuing operations:
Depreciation and amortization........................ 17,539 31,156
Net loss on disposition of long-term assets.......... 113 219
Unrealized exchange gain (loss)...................... 898 (779)
Restricted unit plan costs........................... 843 607
Loss on extinguishment of debt....................... 6,056 8,170
Income from discontinued operations.................. (6,680) (1,006)
Increase in receivables.............................. (4,547) (21,875)
Increase in inventories.............................. (3,060) (77)
(Decrease) in accounts payable....................... (1,207) (1,331)
Increase (decrease) in accrued liabilities........... (2,438) 11,251
Increase (decrease) in other liabilities and assets,
net................................................. (7,601) (3,165)
--------- ---------
Net cash provided by continuing operations........ 32,567 47,004
--------- ---------
Cash flows from investing activities:
Capital expenditures...................................... (22,185) (22,258)
Proceeds from sales or disposals of long term assets...... 256 354
Cash provided by discontinued operations.................. 19,509 122,711
Acquisition of businesses net of cash acquired*........... (90,935) (445,020)
--------- ---------
Net cash used for investing activities................. (93,355) (344,213)
--------- ---------
Cash flows from financing activities:
Proceeds from long-term debt.............................. 383,428 846,827
Repayment of long-term debt............................... (290,804) (573,435)
Payment to acquire treasury stock......................... (4,000) (635)
Exercise of stock options................................. 314 --
Dividends................................................. (2,099) (2,079)
--------- ---------
Net cash provided by financing activities.............. 86,839 270,678
--------- ---------
Effect of exchange rate changes on cash................... (368) (320)
--------- ---------
Increase (decrease) in cash and cash equivalents............ 25,683 (26,851)
Cash and cash equivalents at beginning of period............ 20,401 61,310
--------- ---------
Cash and cash equivalents at end of period.................. $ 46,084 $ 34,459
--------- ---------
--------- ---------
Supplemental information:
Cash paid for income taxes................................ $ 16,721 $ 25,020
--------- ---------
--------- ---------
Cash paid for interest.................................... $ 16,830 $ 17,696
--------- ---------
--------- ---------
*Purchase of businesses net of cash acquired:
Working Capital, other than cash.......................... $ (14,303) $ (79,008)
Plant, property and equipment............................. (36,436) (158,078)
Other assets.............................................. (41,622) (341,309)
Noncurrent liabilities.................................... 1,426 133,375
--------- ---------
Net cash used to acquire businesses.................... $ (90,935) $(445,020)
--------- ---------
--------- ---------
</TABLE>
See the accompanying notes to the consolidated financial statements.
F-31
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
NOTE 1 -- BASIS OF PRESENTATION
GenTek Inc.'s ('GenTek' or the 'Company') manufacturing and performance
products businesses owned by the Company as of April 30, 1999 (the 'GenTek
Business') were formerly part of The General Chemical Group Inc. ('GCG'). GCG
separated the GenTek Business from GCG's soda ash and calcium chloride business
(the 'Industrial Chemicals Business') through a spinoff (the 'Spinoff'). GCG
accomplished the Spinoff by transferring the GenTek Business to GenTek, and
distributing the common stock of GenTek to GCG's shareholders on April 30, 1999
(the 'Spinoff Date'). Since the Spinoff Date, GCG and GenTek have been separate,
stand-alone companies with GenTek operating the GenTek Business, and GCG
operating the Industrial Chemicals Business.
The Spinoff has been treated as a reverse spinoff for financial
statement purposes because the GenTek Business constitutes a greater proportion
of GCG's assets and operations. Therefore, the Spinoff has been reflected, for
financial statement presentation, as if GenTek formed a new company consisting
of the Industrial Chemicals Segment and distributed the stock of that company as
a dividend to GenTek's stockholders, with the assets and operations of the
Performance Products and Manufacturing Segments remaining with GenTek.
Accordingly, the GenTek financial statements reflect the financial position and
results of operations of the Performance Products and Manufacturing Segments as
continuing operations and the financial position and results of operations of
the industrial chemicals business as discontinued operations. The distribution
of the net liabilities of the industrial chemicals business has been recorded as
a capital contribution to the Company.
For the purpose of governing certain ongoing relationships between GCG
and GenTek after the Spinoff and to provide mechanisms for an orderly
transition, GCG and GenTek entered into various agreements which are described
in Amendment No. 2 to the Registration Statement on Form 10 (file
no. 001-14789) of GenTek (the 'Form 10') filed with the Securities and Exchange
Act of 1934.
The accompanying unaudited consolidated financial statements have been
prepared by the Company pursuant to the rules and regulations of the Securities
and Exchange Commission (the 'SEC'). The financial statements do not include
certain information and footnotes required by generally accepted accounting
principles. In the opinion of management, all adjustments (consisting of normal
recurring adjustments) considered necessary for a fair presentation have been
included. Operating results for the nine months ended September 30, 1999 are not
necessarily indicative of the results that may be expected for the year ended
December 31, 1999. These statements should be read in conjunction with the
annual financial statements included elsewhere in this prospectus.
NOTE 2 -- DISCONTINUED OPERATIONS
Discontinued operations represent the Industrial Chemical Business of
GCG (see Note 1). Prior to the Spinoff Date an allocation of certain assets,
liabilities and expenses was made related to discontinued operations. In the
opinion of management, expenses were allocated to the discontinued operations in
a reasonable and consistent basis using management's estimate of services
provided to the discontinued business by GCG. General corporate overhead
expenses were not allocated to discontinued operations. However, such
allocations are not necessarily indicative of the level of expenses which might
have been incurred had the industrial chemicals business been operating as a
stand-alone entity during the periods presented or expected to be incurred in
the future.
In connection with the Spinoff, General Chemical Industrial Products, a
subsidiary of GCG, entered into certain financing arrangements prior to the
completion of the Spinoff. Out of the proceeds, approximately $130,000 was used
to repay outstanding borrowings of GCG under credit facilities existing prior to
the Spinoff.
F-32
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
NOTE 3 -- STOCKHOLDER'S EQUITY
Prior to the Spinoff, a stockholder converted 5.8 million shares of GCG
Class B Common Stock into an identical number of shares of GCG Common Stock. On
the Spinoff Date, GCG issued shares of Common Stock and Class B Stock of GenTek
and distributed them to the holders of GCG's stock on a one-for-one basis.
Accordingly, as of the Spinoff Date, the equity accounts have been reclassified
to reflect the formation of GenTek and the issuance of its stock by recording
the par value of the stock issued and reclassifying all other equity to paid in
capital.
In conjunction with the Spinoff, the distribution of the net liabilities
of the industrial chemicals business has been recorded as a capital contribution
of $46,815 to the Company. Certain industrial chemical business asset and
liability balances, including but not limited to pension, postretirement and
deferred taxes, have been recorded based on preliminary estimates. As a result,
the capital contribution recorded by the Company reflects these estimates and is
subject to adjustment based on the final calculation of these balances.
NOTE 4 -- COMPREHENSIVE INCOME
Total comprehensive income is comprised of net income and foreign
currency translation gains and losses. Total comprehensive income for the three
months ended September 30, 1998 and 1999 was $11,824 and $10,764, respectively.
Total comprehensive income for the nine months ended September 30, 1998 and 1999
was $32,638 and $24,063, respectively.
NOTE 5 -- EARNINGS PER SHARE
The computation of basic earnings per share is based on the weighted
average number of common shares and contingently issuable shares outstanding
during the period. The computation of diluted earnings per share also includes
the exercise of all stock options and restricted units, using the treasury stock
method.
The shares outstanding used for the basic and diluted earnings per
common share computation are reconciled as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
----------------------- -----------------------
1998 1999 1998 1999
---- ---- ---- ----
<S> <C> <C> <C> <C>
Basic earnings per common share:
Weighted average common shares
outstanding............................... 21,099,838 20,989,245 21,085,181 20,942,676
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
Diluted earnings per common share:
Weighted average common shares
outstanding............................... 21,099,838 20,989,245 21,085,181 20,942,676
Options..................................... 776,724 442,800 894,297 494,766
---------- ---------- ---------- ----------
Total.................................. 21,876,562 21,432,045 21,979,478 21,437,442
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
</TABLE>
At September 30, 1998 and 1999 options to purchase 423,500 shares and
1,574,500 shares of common stock, respectively, were not included in the
computation of diluted earnings per common share because the exercise price was
greater than the average market price of the common shares. The options, which
expire from 2007 through 2009, were still outstanding at September 30, 1999.
F-33
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
NOTE 6 -- ACQUISITIONS
On February 23, 1999, the Company acquired for $58,020 through a cash
tender offer, Defiance Inc. ('Defiance'), a manufacturer of specialty
antifriction bearings for the transportation industry and a provider of vehicle
testing services, tooling design and preproduction dies and components primarily
for the automotive industry. On April 6, 1999, the Company acquired for
approximately $220,000 Noma Industries Limited ('Noma'), a leading North
American producer of insulated wire and wire-related products for the
automotive, appliance and electronic industries. On August 20, 1999, the Company
acquired for approximately $222,000, including approximately $63,000 in assumed
debt, Berlin-based Krone AG from Jenoptik AG. Krone is a leading global supplier
of connector and distribution technology for telecommunications and data
networks. In addition, during the third quarter the Company made two small
acquisitions (Structural Kinematics, a leading provider of testing and
engineering services to the automotive, truck and agricultural equipment
industries, and the business of Pacific Pac International Inc. ('Pacific Pac'),
a supplier of ultra high-purity solvents to the electronics industry). Funding
for these transactions was provided by existing cash and borrowings under the
Company's existing debt and credit facilities. The acquisitions are accounted
for under the purchase method, and accordingly, the net assets and results of
operations are included in the financial statements from the date of their
respective acquisitions. The allocation of purchase price of Defiance, Noma,
Structural Kinematics, Krone and Pacific Pac is based on valuation information
available to the Company which is subject to change as such information is
finalized. Goodwill is being amortized on a straight line basis over a period
which ranges from 25 to 35 years. The following proforma information presents
the results of operations as if the acquisitions had occurred on January 1,
1998. The proforma information has been prepared for comparative purposes and is
not necessarily indicative of what would have occurred had the acquisitions
occurred on such date or of results which may occur in the future. Had the
acquisitions occurred as of January 1, 1998, net sales would have been
$1,135,000 and $896,917, income before extraordinary items would have been
$26,522 ($1.21 per share) and $26,392 ($1.23 per share) and net income would
have been $33,160 ($1.51 per share) and $22,459 ($1.05 per share) for 1998 and
the nine months ended September 30, 1999.
NOTE 7 -- ADDITIONAL FINANCIAL INFORMATION
The components of inventories were as follows:
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1998 1999
---- ----
(UNAUDITED)
<S> <C> <C>
Raw materials........................................... $11,395 $ 43,622
Work in process......................................... 6,049 22,054
Finished products....................................... 15,706 47,759
Supplies and containers................................. 4,469 4,577
------- --------
$37,619 $118,012
------- --------
------- --------
</TABLE>
F-34
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
NOTE 8 -- LONG-TERM DEBT
Long-term debt consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
MATURITIES 1998 1999
---------- ---- ----
(UNAUDITED)
<S> <C> <C> <C>
Bank Term Loans -- floating rates.......... 1999-2007 $299,000 $249,625
$300,000 Revolving Credit
Facility -- floating rate................. 2005 -- 215,000
Senior Subordinated Notes -- 11%............ 2009 -- 200,000
Canada Senior Notes -- 9.09%................ 1999 48,269 --
General Chemical Canada Limited Revolving
Credit Facility -- floating rate.......... 2000 3,877 --
Other Debt -- floating rate................. 6,385 90,815
-------- --------
Total Debt............................. 357,531 755,440
Less: Current Portion.................. 50,802 43,236
-------- --------
Net Long-Term Debt..................... $306,729 $712,204
-------- --------
-------- --------
</TABLE>
On April 30, 1999, the Company entered into a new credit facility with a
syndicate of banks and other financial institutions consisting of a $100,000
Term Loan ('Tranche A') maturing on April 30, 2005, a $150,000 Term Loan
('Tranche B') maturing on April 30, 2007 and a $300,000 Revolving Credit
Facility maturing on April 30, 2005. The term loans and revolving credit
facility bear interest at a rate equal to a spread over a reference rate.
Tranche A is payable in consecutive quarterly installments commencing
September 30, 2000. Tranche B is payable in consecutive quarterly installments
which commenced on July 31, 1999. The facility is secured by a first priority
security interest in all of the capital stock of the Company's domestic
subsidiaries, and 65 percent of the capital stock of the Company's foreign
subsidiaries. The proceeds were used to repay outstanding borrowings of GCG
under its existing credit facilities prior to the Spinoff, resulting in an
extraordinary loss from the extinguishment of debt of $4,939, net of a tax
benefit of $3,231.
On August 9, 1999, the Company issued $200,000 11% Senior Subordinated
Notes due 2009. Net proceeds of the offering of $193,000 were used to repay a
portion of the borrowing outstanding under the Company's Revolving Credit
Facility.
NOTE 9 -- DIVIDENDS
On September 21, 1999, GenTek's Board of Directors declared a quarterly
cash dividend of $.05 per share of Common Stock and Class B Common Stock,
payable October 16, 1999, to shareholders of record on October 1, 1999.
NOTE 10 -- RELATED PARTY TRANSACTIONS
MANAGEMENT AGREEMENT
The Company is party to a management agreement with Latona Associates
('Latona') which is controlled by a stockholder of the Company under which the
Company receives corporate supervisory and administrative services and strategic
guidance. Prior to the Spinoff, Latona provided these services to the GenTek
Business pursuant to its agreement with GCG. The Company was charged $3,369 and
$3,618 for the nine months ended September 30, 1998 and 1999, respectively. In
connection with the Spinoff, Latona agreed to provide its services separately to
GenTek and GCG. GenTek pays Latona, for periods subsequent to the Spinoff, a
quarterly fee of $1,125, to be adjusted after 1999 for increases in
F-35
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
U.S. CPI. In addition, if Latona provides advisory services to GenTek in
connection with any acquisition, business combination or other strategic
transaction, GenTek pays Latona Associates additional fees comparable to fees
received by investment banking firms for such services. During 1998, the Company
paid Latona $500 in connection with acquisitions. During 1999, GenTek was
charged fees of $3,600 in the aggregate in connection with the acquisitions of
Defiance, Noma and Krone. GenTek's agreement with Latona expires on
December 31, 2004.
TRANSITION SUPPORT AGREEMENT
After the Spinoff, GenTek provides GCG with certain administrative
services pursuant to the Transition Support Agreement. For the three and nine
months ended September 30, 1999, GenTek charged GCG $916 and $1,534,
respectively, related to this agreement.
OTHER TRANSACTIONS
GCG supplies soda ash and calcium chloride to General Chemical
Corporation ('GCC'), a wholly-owned subsidiary of GenTek. For the nine months
ended September 30, 1998 and 1999, purchases from GCG amounted to $4,045 and
$10,045, respectively.
NOTE 11 -- SEGMENT INFORMATION
Industry segment information for continuing operations is summarized as
follows:
<TABLE>
<CAPTION>
TOTAL REVENUES OPERATING PROFIT
NINE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------- ------------------
1998 1999 1998 1999
---- ---- ---- ----
<S> <C> <C> <C> <C>
Performance Products..................... $238,265 $254,613 $39,188 $ 34,071
Manufacturing............................ 93,188 315,102 21,842 48,939
Telecommunications Equipment............. -- 39,609 -- 2,941
-------- -------- ------- --------
Total Segment....................... 331,453 609,324 61,030 85,951
Eliminations and other corporate
expenses............................... -- -- (4,859) (10,568)
-------- -------- ------- --------
Consolidated............................. $331,453 $609,324 56,171 75,383
-------- --------
-------- --------
Interest expense......................... 10,626 25,378
Other income, net........................ 269 1,652
------- --------
Consolidated income from continuing
operations before income taxes......... $45,814 $ 51,657
------- --------
------- --------
</TABLE>
<TABLE>
<CAPTION>
IDENTIFIABLE ASSETS
----------------------------
DECEMBER 31, SEPTEMBER 30,
1998 1999
---- ----
<S> <C> <C>
Performance Products.................................... $381,202 $ 344,737
Manufacturing........................................... 78,267 483,703
Telecommunications Equipment............................ -- 358,152
Corporate............................................... 2,057 8,892
-------- ----------
Consolidated............................................ $461,526 $1,195,484
-------- ----------
-------- ----------
</TABLE>
The Telecommunications Equipment segment is comprised of the businesses
of Krone which were acquired by the Company on August 20, 1999. Krone is a
leading global supplier of connection and distribution technology for
telecommunications and data networks.
F-36
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
NOTE 12 -- SUMMARIZED FINANCIAL INFORMATION
The Company's 11% Senior Subordinated Notes due 2009 are fully and
unconditionally guaranteed, on a joint and several basis, by all of the
Company's wholly owned, domestic subsidiaries ('Subsidiary Guarantors'). The
non-guarantor subsidiaries are foreign or are part of the Industrial Chemicals
Business which are no longer part of GenTek as a result of the Spinoff.
The following condensed consolidating financial information illustrates
the composition of the combined Subsidiary Guarantors. The Company believes that
the separate complete financial statements of the respective guarantors would
not provide additional material information which would be useful in assessing
the financial composition of the Subsidiary Guarantors.
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net revenues............................. $ -- $307,157 $24,296 $ -- $331,453
Cost of sales............................ -- 216,493 18,442 -- 234,935
Selling, general and administrative
expense................................ 1,386 36,774 2,187 -- 40,347
------- -------- ------- -------- --------
Operating profit.................... (1,386) 53,890 3,667 -- 56,171
Interest expense......................... 252 10,110 264 -- 10,626
Other (income) expense, net.............. 24 (255) (38) -- (269)
------- -------- ------- -------- --------
Income from continuing operations
before income taxes and
extraordinary item................ (1,662) 44,035 3,441 -- 45,814
Income tax provision..................... (795) 18,648 988 -- 18,841
Equity in income from subsidiaries....... 33,518 11,792 -- (45,310) --
------- -------- ------- -------- --------
Income from continuing operations
before extraordinary item......... 32,651 37,179 2,453 (45,310) 26,973
Income from discontinued operations (net
of tax)................................ -- -- 9,339 -- 9,339
------- -------- ------- -------- --------
Income before extraordinary item.... 32,651 37,179 11,792 (45,310) 36,312
Extraordinary item -- net of tax......... -- 3,661 -- -- 3,661
------- -------- ------- -------- --------
Net income.......................... $32,651 $ 33,518 $11,792 $(45,310) $ 32,651
------- -------- ------- -------- --------
------- -------- ------- -------- --------
</TABLE>
F-37
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net revenues............................. $ -- $449,163 $175,238 $(15,077) $609,324
Cost of sales............................ -- 335,745 133,270 (15,077) 453,938
Selling, general and administrative
expense................................ 7,299 53,585 19,119 -- 80,003
------- -------- -------- -------- --------
Operating profit.................... (7,299) 59,833 22,849 -- 75,383
Interest expense......................... 20,874 18,741 6,187 (20,424) 25,378
Other (income) expense, net.............. (20,399) (3,194) 1,517 20,424 (1,652)
------- -------- -------- -------- --------
Income from continuing operations
before income taxes and
extraordinary item................ (7,774) 44,286 15,145 -- 51,657
Income tax provision..................... (3,197) 20,338 6,749 -- 23,890
Equity in income from subsidiaries....... 33,350 9,402 -- (42,752) --
------- -------- -------- -------- --------
Income from continuing operations
before extraordinary item......... 28,773 33,350 8,396 (42,752) 27,767
Income from discontinued operations
(net of tax)........................... -- -- 1,006 -- 1,006
------- -------- -------- -------- --------
Income before extraordinary item.... 28,773 33,350 9,402 (42,752) 28,773
Extraordinary item -- net of tax......... 4,939 -- -- -- 4,939
------- -------- -------- -------- --------
Net income.......................... $23,834 $ 33,350 $ 9,402 $(42,752) $ 23,834
------- -------- -------- -------- --------
------- -------- -------- -------- --------
</TABLE>
F-38
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
CONDENSED CONSOLIDATING BALANCE SHEET
SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Current assets:
Cash.............................. $ 120 $ 7,711 $ 26,628 $ -- $ 34,459
Receivables....................... 4,366 101,521 106,112 -- 211,999
Inventories....................... -- 49,907 68,105 -- 118,012
Other current assets.............. 1,509 32,837 18,407 -- 52,753
-------- -------- -------- --------- ----------
Total current assets......... 5,995 191,976 219,252 -- 417,223
Property, plant and equipment, net..... -- 256,112 96,984 -- 353,096
Goodwill, net of amortization.......... -- 96,611 296,746 -- 393,357
Intercompany receivable (payable)...... 443,108 (439,218) (3,890) -- --
Investment in subsidiaries............. 83,068 217,211 -- (300,279) --
Other assets........................... 334 23,124 8,350 -- 31,808
-------- -------- -------- --------- ----------
Total assets................. $532,505 $345,816 $617,442 $(300,279) $1,195,484
-------- -------- -------- --------- ----------
-------- -------- -------- --------- ----------
Current liabilites:
Accounts payable.................. $ 6 $ 49,561 $ 40,485 $ -- $ 90,052
Accrued liabilites................ 4,514 65,973 91,265 -- 161,752
Current portion of long-term
debt............................ -- 1,176 42,060 -- 43,236
-------- -------- -------- --------- ----------
Total current liabilites..... 4,520 116,710 173,810 -- 295,040
Long-term debt......................... 515,000 8,264 188,940 -- 712,204
Other liabilities...................... 500 137,774 37,481 -- 175,755
-------- -------- -------- --------- ----------
Total liabilites............. 520,020 262,748 400,231 -- 1,182,999
Equity (deficit)....................... 12,485 83,068 217,211 (300,279) 12,485
-------- -------- -------- --------- ----------
Total liabilites and equity
(deficit).................. $532,505 $345,816 $617,442 $(300,279) $1,195,484
-------- -------- -------- --------- ----------
-------- -------- -------- --------- ----------
</TABLE>
F-39
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities................ $ (905) $ 29,063 $ 4,409 $-- $ 32,567
Cash flows from investing activities:
Acquisition of businesses net of
cash acquired.................. -- (90,935) -- -- (90,935)
Cash provided by discontinued
operations..................... -- -- 19,509 -- 19,509
Other............................ -- (21,644) (285) -- (21,929)
--------- --------- -------- ------ --------
Net cash provided by (used in)
investing activities................ -- (112,579) 19,224 -- (93,355)
--------- --------- -------- ------ --------
Cash flows from financing activities:
Intercompany cash transfers...... (281,412) 310,188 (28,776) --
Other............................ 291,241 (210,787) 6,385 86,839
--------- --------- -------- ------ --------
Net cash provided by (used in)
financing activities................ 9,829 99,401 (22,391) -- 86,839
--------- --------- -------- ------ --------
Effect of exchange rates on cash...... -- -- (368) -- (368)
--------- --------- -------- ------ --------
Increase (decrease) in cash and cash
equivalents......................... 8,924 15,885 874 -- 25,683
Cash and cash equivalents at beginning
of period........................... 51 20,350 -- -- 20,401
--------- --------- -------- ------ --------
Cash and cash equivalents at end of
period.............................. $ 8,975 $ 36,235 $ 874 $-- $ 46,084
--------- --------- -------- ------ --------
--------- --------- -------- ------ --------
</TABLE>
F-40
<PAGE>
GENTEK INC.
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS -- (CONCLUDED)
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1999
(DOLLARS IN THOUSANDS)
(UNAUDITED)
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
SUBSIDIARY NON-GUARANTOR
PARENT GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ---------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net cash provided by (used in)
operating activities................ $ (1,144) $ 39,371 $ 8,777 $-- $ 47,004
Cash flows from investing activities:
Acquisition of businesses net of
cash acquired.................. -- (445,020) -- -- (445,020)
Cash provided by discontinued
operations..................... -- -- 122,711 -- 122,711
Other............................ -- (18,274) (3,630) -- (21,904)
--------- --------- -------- ------ --------
Net cash provided by (used in)
investing activities................ -- (463,294) 119,081 -- (344,213)
--------- --------- -------- ------ --------
Cash flows from financing activities:
Intercompany cash transfers...... (215,169) 320,787 (105,618) -- --
Other............................ 213,286 53,688 3,704 -- 270,678
--------- --------- -------- ------ --------
Net cash provided by (used in)
financing activities................ (1,883) 374,475 (101,914) -- 270,678
--------- --------- -------- ------ --------
Effect of exchange rates on cash...... -- -- (320) -- (320)
--------- --------- -------- ------ --------
Increase (decrease) in cash and cash
equivalents......................... (3,027) (49,448) 25,624 -- (26,851)
Cash and cash equivalents at beginning
of period........................... 3,147 57,159 1,004 -- 61,310
--------- --------- -------- ------ --------
Cash and cash equivalents at end of
period.............................. $ 120 $ 7,711 $ 26,628 $-- $ 34,459
--------- --------- -------- ------ --------
--------- --------- -------- ------ --------
</TABLE>
F-41
<PAGE>
GENTEK INC. [LOGO]
OFFER TO EXCHANGE FOR ALL OUTSTANDING
11% SENIOR SUBORDINATED NOTES DUE 2009
-----------------------------
PROSPECTUS
-----------------------------
------------------------------------------------
BROKER-DEALER PROSPECTUS
DELIVERY REQUIREMENTS
Until 180 days after the expiration of this exchange offer on
January 12, 2000, all dealers that effect transactions in these securities,
whether or not participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealer's obligation to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
Each broker-dealer that receives new notes for its own account in the
exchange offer must acknowledge that it will deliver a prospectus in connection
with any resale of such new notes. The letter of transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an 'underwriter' within the meaning of the Securities Act of
1933. This prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of new notes received
in exchange for old notes where such old notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. We have agreed that, for a period of 180 days after the expiration
date, we will make this prospectus available to any broker-dealer for use in
connection with any such resale.
------------------------------------------------
DECEMBER 3, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
GenTek is incorporated under the laws of the State of Delaware. Section
145 of the Delaware Corporation Law, as amended, and Article VIII of GenTek's
Amended and Restated Certificate of Incorporation provide for the
indemnification, except in certain circumstances set forth below, of officers,
directors, employees and agents of GenTek for certain expenses incurred in
connection with any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative or investigative, and for
the purchase and maintenance of insurance by GenTek on behalf of officers,
directors, employees and agents of GenTek and its subsidiaries (including
officers, directors, employees and agents of the other Registrants) against any
liability asserted against, and incurred by, any such officer, director,
employee or agent in such capacity. Set forth below is the text of Section 145
and the text of Article VIII of GenTek's Amended and Restated Certificate of
Incorporation.
Section 145 of the Delaware Corporation Law, as amended, provides as
follows:
'145 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE. -- (a) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding if this person
acted in good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
the person's 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
this person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person's conduct was
unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in
a manner the person 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 to the corporation unless and only to the
extent that the Court of Chancery 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 indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein,
II-1
<PAGE>
such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the present or former director, officer, employee or agent is proper in
the circumstances because the person has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the corporation as authorized in this
section. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity
while holding such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in
any such capacity, or arising out of such person's status as such, whether
or not the corporation would have the power to indemnify such person
against such liability under this section.
(h) For purposes of this section, 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,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to 'other enterprises'
shall include employee benefit plans; references to 'fines' shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to 'serving at the request of the corporation' shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to
II-2
<PAGE>
have acted in a manner 'not opposed to the best interests of the
corporation' as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorney's fees).'
Article VIII of the Amended and Restated Certificate of Incorporation
of GenTek provides as follows:
'Article VIII LIMITATION OF LIABILITY. A Director of the Corporation
shall not be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a Director, except
for liability (i) for any breach of the Director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL or (iv) for any
transaction from which the Director derived an improper personal
benefit. If the DGCL is amended after the effective date of this Amended
and Restated Certificate of Incorporation to authorize corporation
action further eliminating or limiting the personal liability of
Directors, then the liability of a Director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the DGCL, as so
amended.'
As permitted by Section 145 of the General Corporation Law of the State
of Delaware, as amended, GenTek has purchased and maintains insurance providing
for reimbursement to elected directors and officers of GenTek and its
subsidiaries (including the other Registrants), subject to certain exceptions,
of amounts they may be legally obligated to pay, including but not limited to
damages, judgments, settlements, costs and attorneys' fees (but not including
fines, penalties or matters not insurable under the law), as a result of claims
and legal actions instituted against them to recover for their acts while
serving as directors or officers.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) LIST OF EXHIBITS
<TABLE>
<C> <S>
2.1 -- Amendment No. 2 to Form 10 of GenTek Inc. for registration of Securities of GenTek
Inc. Incorporated by reference to GenTek Inc.'s Registration Statement Amendment
No. 2 on Form 10 (File No. 001-14789) filed with the Securities and Exchange
Commission on April 8, 1999 (the '1999 GenTek Form 10').
2.2 -- Separation Agreement among the Company, GenTek Inc., The General Chemical Group
Inc. and General Chemical Corporation. Incorporated by reference to the relevant
exhibit to the 1999 GenTek Form 10.
2.3 -- Stock Purchase Agreement, dated 12, 1999, between Jenoptik AG and GenTek Inc.
Incorporated by reference to the Current Report of GenTek Inc. on Form 8-K (File
No. 001-14789) filed with the Securities and Exchange Commission on September 3,
1999.
3.1 -- Amended and Restated Certificate of Incorporation of GenTek Inc. Incorporated by
reference to the relevant exhibit to the 1999 GenTek Form 10.
3.2 -- Amended and Restated By-Laws of GenTek Inc. Incorporated by reference to the
relevant exhibit to the 1999 GenTek Form 10.
3.3 -- Certificate of Incorporation of General Chemical Corporation.
3.4 -- Bylaws of General Chemical Corporation.
3.5 -- Certificate of Incorporation of Toledo Technologies Inc.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S>
3.6 -- Bylaws of Toledo Technologies Inc.
3.7 -- Certificate of Incorporation of Printing Developments
Inc.
3.8 -- Bylaws of Printing Developments Inc.
3.9 -- Certificate of Incorporation of Balcrank Products Inc.
3.10 -- Bylaws of Balcrank Products Inc.
3.11 -- Certificate of Incorporation of HMC Patents Holding
Company Inc.
3.12 -- Bylaws of HMC Patents Holding Company Inc.
3.13 -- Certificate of Incorporation of Waterside Urban Renewal
Corporation
3.14 -- Bylaws of Waterside Urban Renewal Corporation
3.15 -- Certificate of Incorporation of Reheis Inc.
3.16 -- Bylaws of Reheis Inc.
3.17 -- Certificate of Incorporation of Defiance, Inc.
3.18 -- Bylaws of Defiance, Inc.
3.19 -- Articles of Incorporation of Binderline Draftline, Inc.
3.20 -- Bylaws of Binderline Draftline, Inc.
3.21 -- Articles of Incorporation of Defiance Precision Products,
Inc.
3.22 -- Bylaws of Defiance Precision Products, Inc.
3.23 -- Articles of Incorporation of Hy-Form Products, Inc.
3.24 -- Bylaws of Hy-Form Products, Inc.
3.25 -- Articles of Incorporation of Defiance Testing and
Engineering Services, Inc.
3.26 -- Bylaws of Defiance Testing and Engineering Services, Inc.
3.27 -- Certificate of Incorporation of Noma Corporation.
3.28 -- Bylaws of Noma Corporation.
3.29 -- Certificate of Incorporation of PCT Mexico Corporation.
3.30 -- Bylaws of PCT Mexico Corporation.
3.31 -- Certificate of Incorporation of Noma O.P. Inc.
3.32 -- Bylaws of Noma O.P. Inc.
3.33 -- Certificate of Incorporation of Electronic Interconnect
Systems Inc.
3.34 -- Bylaws of Electronic Interconnect Systems Inc.
3.35 -- Certificate of Incorporation of Defiance Kinematics Inc.
3.36 -- Certificate of Incorporation of HN Investment Holdings
Inc.
3.37 -- Bylaws of HN Investment Holdings Inc.
3.38 -- Certificate of Incorporation of PPI Holdings, Inc.
3.39 -- Bylaws of PPI Holdings, Inc.
4.1 -- Indenture, dated as of August 9, 1999, between the
Company and U.S. National Trust Association, as Trustee.
Incorporated by reference to the relevant exhibit to
GenTek Inc.'s 10-Q for the nine months ended
September 30, 1999 filed with the Securities and Exchange
Commission on November 15, 1999 (the 'GenTek Third Quarter
1999 10-Q').
4.2 -- Exchange and Registration Rights Agreement, dated as of
August 9, 1999, among the Company, Chase Securities Inc.,
Wasserstein Perella Securities, Inc. and First Union
Capital Markets Corporation. Incorporated by reference to
the relevant exhibit to the GenTek Third Quarter 1999
10-Q.
*5.1 -- Opinion of Debevoise & Plimpton.
10.01 -- GenTek Inc. Restricted Unit Plan for Non-Employee
Directors. Incorporated by reference to the relevant
exhibit to the 1999 GenTek Form 10.
10.02 -- GenTek Inc. Retirement Plan for Non-Employee Directors.
Incorporated by reference to the relevant exhibit to the
1999 GenTek Form 10.
10.03 -- GenTek Inc. Performance Plan. Incorporated by reference
to the relevant exhibit to the 1999 GenTek Form 10.
10.04 -- GenTek Inc. Long-Term Incentive Plan. Incorporated by
reference to the relevant exhibit to the 1999 GenTek
Form 10.
10.05 -- Employee Benefits Agreement among GenTek, Inc., The General
Chemical Group Inc., General Chemical Industrial Products
Inc. and General Chemical Corporation. Incorporated by
reference to the relevant exhibit to the 1999 GenTek Form 10.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S>
10.06 -- Tax Sharing Agreement between GenTek Inc. and The General
Chemical Group Inc. Incorporated by reference to the
relevant exhibit to the 1999 GenTek Form 10.
10.07 -- Intellectual Property Agreement among GenTek Inc., General
Chemical Corporation, The General Chemical Group Inc. and
General Chemical Industrial Products Inc. Incorporated
by reference to the relevant exhibit to the 1999 GenTek
Form 10.
10.08 -- Management Agreement between GenTek Inc. and Latona
Associates Inc. Incorporated by reference to the relevant
exhibit to the 1999 GenTek Form 10.
10.09 -- Registration Rights Agreement between Paul M. Montrone
and the General Chemical Group Inc., as assumed by GenTek
Inc. with respect to Common Stock of GenTek Inc.
Incorporated by reference to the relevant exhibit to the
1999 GenTek Form 10.
10.10 -- Credit Agreement, dated as of April 30, 1999, among GenTek
Inc., Noma Acquisition Corp., the several Lenders from
time to time parties thereto, The Chase Manhattan Bank, as
Administrative Agent, The Bank of Nova Scotia, as
Syndication Agent, and Bankers Trust Company as
Documentation Agent. Incorporated by reference to the
relevant exhibit to GenTek Inc.'s 10-Q for the three
months ended March 31, 1999 filed with the Securities and
Exchange Commission on May 17, 1999 (the 'GenTek First
Quarter 1999 10-Q').
10.11 -- Guarantee and Pledge Agreement, dated as of April 30,
1999, made by GenTek Inc. and certain of its subsidiaries
in favor of the Chase Manhattan Bank, as Administrative
Agent. Incorporated by reference to the relevant exhibit
to the GenTek First Quarter 1999 10-Q.
*12.1 -- Computations of Ratio of Earnings to Fixed Charges.
*21.1 -- Subsidiaries of GenTek Inc.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Deloitte & Touche LLP, Chartered Accountants.
23.3 -- Consent of Deloitte & Touche GmbH.
23.4 -- Consent of Debevoise & Plimpton. Included in Exhibit 5.1
hereto.
*24.1 -- Powers of Attorney.
25.1 -- Statement of Eligibility and Qualification Under the
Trust Indenture Act (Form T-1) of Exchange Agent.
99.1 -- Form of Letter of Transmittal used in connection with the
Exchange Offer.
99.2 -- Notice of Guaranteed Delivery used in connection with the
Exchange Offer.
</TABLE>
- ------------
* Previously filed.
(B) FINANCIAL STATEMENT SCHEDULES
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
BALANCE AT ADDITIONS
BEGINNING OF CHARGED DEDUCTIONS BALANCE AT
PERIOD TO INCOME FROM RESERVES END OF PERIOD
------------ --------- ------------- -------------
<S> <C> <C> <C> <C>
Year ended December 31, 1996
Allowance for doubtful accounts............ $3,652 $ 55 $(288) $3,419
Year ended December 31, 1997
Allowance for doubtful accounts............ $3,419 $134 -$- $3,553
Year ended December 31, 1998
Allowance for doubtful accounts............ $3,553 $584 $(411) $3,726
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
BALANCE AT ADDITIONS
BEGINNING OF CHARGED DEDUCTIONS BALANCE AT
PERIOD TO INCOME FROM RESERVES END OF PERIOD
------------ --------- ------------- -------------
<S> <C> <C> <C> <C>
Year ended December 31, 1996
Environmental Liabilities.................. $16,628 $ 6,771 $(7,080) $16,319
Year ended December 31, 1997
Environmental Liabilities.................. $16,319 $ 5,546 $(5,621) $16,244
Year ended December 31, 1998
Environmental Liabilities.................. $16,244 $10,674 $(6,802) $20,116
</TABLE>
ITEM 22. UNDERTAKINGS.
(a) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
GenTek's annual report 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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrants pursuant to the foregoing provisions, or otherwise,
the Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrants of expenses incurred or paid by a director, officer
or controlling person of the Registrants 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 Registrants will,
unless in the opinion of their 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(c) The undersigned Registrants hereby undertake to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the Registration Statement through the
date of responding to the request.
(d) The undersigned Registrants hereby undertake to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
The undersigned Registrants hereby undertake:
(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 is registered) and any deviation from
II-6
<PAGE>
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the `Calculation of
Registration Fee' table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the 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.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, GenTek Inc.
has caused this Registration Statement on Form S-4 to be signed on its behalf by
the undersigned, thereunto duly authorized, on the 3rd day of December, 1999.
GENTEK INC.
By: *
...................................
NAME: RICHARD R. RUSSELL
TITLE: PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President and Chief Executive Officer December 3, 1999
.........................................
RICHARD R. RUSSELL
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President, Chief Financial Officer and December 3, 1999
......................................... Treasurer
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Chairman and Director December 3, 1999
.........................................
PAUL M. MONTRONE
* Vice Chairman and Director December 3, 1999
.........................................
PAUL M. MEISTER
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
JOHN W. GILDEA
* Director December 3, 1999
.........................................
SCOTT M. SPERLING
* Director December 3, 1999
.........................................
IRA STEPANIAN
* Director December 3, 1999
.........................................
BRUCE KOEPFGEN
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, General
Chemical Corporation has caused this Registration Statement on Form S-4 to be
signed on its behalf by the undersigned, thereunto duly authorized, on the 3rd
day of December, 1999.
GENERAL CHEMICAL CORPORATION
By: *
...................................
NAME: RICHARD R. RUSSELL
TITLE: PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President and Chief Executive Officer December 3, 1999
.........................................
RICHARD R. RUSSELL
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President, Chief Financial Officer and December 3, 1999
......................................... Treasurer
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
* Chairman and Director December 3, 1999
.........................................
RICHARD R. RUSSELL
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Toledo
Technologies Inc. has caused this Registration Statement on Form S-4 to be
signed on its behalf by the undersigned, thereunto duly authorized, on the 3rd
day of December, 1999.
TOLEDO TECHNOLOGIES INC.
By: *
...................................
NAME: RALPH M. PASSINO
TITLE: CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chief Executive Officer December 3, 1999
.........................................
RALPH M. PASSINO
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* President December 3, 1999
.........................................
PAUL KESSLER
DIRECTORS:
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Printing
Developments Inc. has caused this Registration Statement on Form S-4 to be
signed on its behalf by the undersigned, thereunto duly authorized, on the 3rd
day of December, 1999.
PRINTING DEVELOPMENTS INC.
By: *
...................................
NAME: JAMES N. TANIS
TITLE: CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chief Executive Officer December 3, 1999
.........................................
JAMES N. TANIS
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Balcrank
Products Inc. has caused this Registration Statement on Form S-4 to be signed on
its behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
BALCRANK PRODUCTS INC.
By: *
...................................
NAME: RALPH M. PASSINO
TITLE: PRESIDENT
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President December 3, 1999
.........................................
RALPH M. PASSINO
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, HMC Patents
Holding Company Inc. has caused this Registration Statement on Form S-4 to be
signed on its behalf by the undersigned, thereunto duly authorized, on the 3rd
day of December, 1999.
HMC PATENTS HOLDING COMPANY INC.
By: *
...................................
NAME: RICHARD R. RUSSELL
TITLE: PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President December 3, 1999
.........................................
RICHARD R. RUSSELL
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Waterside
Urban Renewal Corporation has caused this Registration Statement on Form S-4 to
be signed on its behalf by the undersigned, thereunto duly authorized, on the
3rd day of December, 1999.
WATERSIDE URBAN RENEWAL CORPORATION
By: *
...................................
NAME: JAMES N. TANIS
TITLE: PRESIDENT
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President December 3, 1999
.........................................
JAMES N. TANIS
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President, Finance December 3, 1999
.........................................
MATTHEW WALSH
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Reheis Inc.
has caused this Registration Statement on Form S-4 to be signed on its behalf by
the undersigned, thereunto duly authorized, on the 3rd day of December, 1999.
REHEIS INC.
By: *
...................................
NAME: JAMES N. TANIS
TITLE: CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chief Executive Officer December 3, 1999
.........................................
JAMES N. TANIS
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Defiance,
Inc. has caused this Registration Statement on Form S-4 to be signed on its
behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
DEFIANCE, INC.
By: *
...................................
NAME: RALPH M. PASSINO
TITLE: PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER
* President and Chief Executive Officer December 3, 1999
.........................................
RALPH M. PASSINO
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President, Chief Financial Officer and December 3, 1999
......................................... Treasurer
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
PAUL M. MEISTER
* Director December 3, 1999
.........................................
TODD M. DUCHENE
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Binderline
Draftline, Inc. has caused this Registration Statement on Form S-4 to be signed
on its behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
BINDERLINE DRAFTLINE, INC.
By: *
...................................
NAME: RALPH M. PASSINO
TITLE: CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chief Executive Officer December 3, 1999
.........................................
RALPH M. PASSINO
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Defiance
Precision Products, Inc. has caused this Registration Statement on Form S-4 to
be signed on its behalf by the undersigned, thereunto duly authorized, on the
3rd day of December, 1999.
DEFIANCE PRECISION PRODUCTS, INC.
By: *
...................................
NAME: RALPH M. PASSINO
TITLE: CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chief Executive Officer December 3, 1999
.........................................
RALPH M. PASSINO
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Hy-Form
Products, Inc. has caused this Registration Statement on Form S-4 to be signed
on its behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
HY-FORM PRODUCTS, INC.
By: *
...................................
NAME: RALPH M. PASSINO
TITLE: PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President and Chief Executive Officer December 3, 1999
.........................................
RALPH M. PASSINO
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Defiance
Testing and Engineering Services, Inc. has caused this Registration Statement on
Form S-4 to be signed on its behalf by the undersigned, thereunto duly
authorized, on the 3rd day of December, 1999.
DEFIANCE TESTING AND ENGINEERING
SERVICES, INC.
By: *
...................................
NAME: RALPH M. PASSINO
TITLE: CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chief Executive Officer December 3, 1999
.........................................
RALPH M. PASSINO
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Noma
Corporation has caused this Registration Statement on Form S-4 to be signed on
its behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
NOMA CORPORATION
By: *
...................................
NAME: BODO B. KLINK
TITLE: PRESIDENT AND SECRETARY
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President and Secretary December 3, 1999
.........................................
BODO B. KLINK
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* President and Secretary December 3, 1999
.........................................
BODO B. KLINK
DIRECTORS:
* Director December 3, 1999
.........................................
BODO B. KLINK
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, PCT Mexico
Corporation has caused this Registration Statement on Form S-4 to be signed on
its behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
PCT MEXICO CORPORATION
By: *
...................................
NAME: BODO B. KLINK
TITLE: PRESIDENT
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* President December 3, 1999
.........................................
BODO B. KLINK
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Noma O.P.
Inc. has caused this Registration Statement on Form S-4 to be signed on its
behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
NOMA O.P. INC.
By: *
...................................
NAME: BODO B. KLINK
TITLE: VICE PRESIDENT AND SECRETARY
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER AMD ACCOUNTING
OFFICER:
* Vice President and Secretary December 3, 1999
.........................................
BODO B. KLINK
DIRECTORS:
* Director December 3, 1999
.........................................
BODO B. KLINK
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Electronic
Interconnect Systems Inc. has caused this Registration Statement on Form S-4 to
be signed on its behalf by the undersigned, thereunto duly authorized, on the
3rd day of December, 1999.
ELECTRONIC INTERCONNECT SYSTEMS INC.
By: *
...................................
NAME: BODO B. KLINK
TITLE: VICE PRESIDENT AND SECRETARY
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Vice President and Secretary December 3, 1999
.........................................
BODO B. KLINK
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President, Finance December 3, 1999
.........................................
GRANT CRANDALL
DIRECTORS:
* Director December 3, 1999
.........................................
BODO B. KLINK
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-24
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Defiance
Kinematics Inc. has caused this Registration Statement on Form S-4 to be signed
on its behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
DEFIANCE KINEMATICS INC.
By: *
...................................
NAME: RALPH M. PASSINO
TITLE: CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chief Executive Officer December 3, 1999
.........................................
RALPH M. PASSINO
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-25
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, HN
Investment Holdings Inc. has caused this Registration Statement on Form S-4 to
be signed on its behalf by the undersigned, thereunto duly authorized, on the
3rd day of December, 1999.
HN INVESTMENT HOLDINGS INC.
By: *
...................................
NAME: TODD M. DUCHENE
TITLE: VICE PRESIDENT
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Vice President December 3, 1999
.........................................
TODD M. DUCHENE
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President December 3, 1999
.........................................
PAUL M. MEISTER
DIRECTORS:
* Director December 3, 1999
.........................................
TODD M. DUCHENE
* Director December 3, 1999
.........................................
PAUL M. MEISTER
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-26
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, PPI
Holdings, Inc. has caused this Registration Statement on Form S-4 to be signed
on its behalf by the undersigned, thereunto duly authorized, on the 3rd day of
December, 1999.
PPI HOLDINGS, INC.
By: *
...................................
NAME: JAMES N. TANIS
TITLE: CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of this Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chief Executive Officer December 3, 1999
.........................................
JAMES N. TANIS
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER:
* Vice President and Treasurer December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
DIRECTORS:
* Director December 3, 1999
.........................................
RICHARD R. RUSSELL
* Director December 3, 1999
.........................................
WILLIAM C. KEIGHTLEY
*By: /S/ MICHAEL R. HERMAN
......................................
MICHAEL R. HERMAN
ATTORNEY-IN-FACT
</TABLE>
II-27
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. NUMBER
--- ------
<C> <S> <C>
2.1 Amendment No. 2 to Form 10 of GenTek Inc. for registration
of Securities of GenTek Inc. Incorporated by reference to
GenTek Inc.'s Registration Statement Amendment No. 2 on
Form 10 (File No. 001-14789) filed with the Securities and
Exchange Commission on April 8, 1999 (the '1999 GenTek
Form 10').................................................
2.2 Separation Agreement among the Company, GenTek Inc., The
General Chemical Group Inc. and General Chemical
Corporation. Incorporated by reference to the relevant
exhibit to the 1999 GenTek Form 10........................
2.3 Stock Purchase Agreement, dated 12, 1999, between Jenoptik
AG and GenTek Inc. Incorporated by reference to the
Current Report of GenTek Inc. on Form 8-K (File
No. 001-14789) filed with the Securities and Exchange
Commission on September 3, 1999...........................
3.1 Amended and Restated Certificate of Incorporation of GenTek
Inc. Incorporated by reference to the relevant exhibit
to the 1999 GenTek Form 10................................
3.2 Amended and Restated By-Laws of GenTek Inc. Incorporated by
reference to the relevant exhibit to the 1999 GenTek
Form 10...................................................
3.3 Certificate of Incorporation of General Chemical
Corporation...............................................
3.4 Bylaws of General Chemical Corporation......................
3.5 Certificate of Incorporation of Toledo Technologies Inc.....
3.6 Bylaws of Toledo Technologies Inc...........................
3.7 Certificate of Incorporation of Printing Developments
Inc.......................................................
3.8 Bylaws of Printing Developments Inc.........................
3.9 Certificate of Incorporation of Balcrank Products Inc.......
3.10 Bylaws of Balcrank Products Inc.............................
3.11 Certificate of Incorporation of HMC Patents Holding Company
Inc.......................................................
3.12 Bylaws of HMC Patents Holding Company Inc...................
3.13 Certificate of Incorporation of Waterside Urban Renewal
Corporation...............................................
3.14 Bylaws of Waterside Urban Renewal Corporation...............
3.15 Certificate of Incorporation of Reheis Inc..................
3.16 Bylaws of Reheis Inc........................................
3.17 Certificate of Incorporation of Defiance, Inc...............
3.18 Bylaws of Defiance, Inc.....................................
3.19 Articles of Incorporation of Binderline Draftline, Inc......
3.20 Bylaws of Binderline Draftline, Inc.........................
3.21 Articles of Incorporation of Defiance Precision Products,
Inc.......................................................
3.22 Bylaws of Defiance Precision Products, Inc..................
3.23 Articles of Incorporation of Hy-Form Products, Inc..........
3.24 Bylaws of Hy-Form Products, Inc.............................
3.25 Articles of Incorporation of Defiance Testing and
Engineering Services, Inc.................................
3.26 Bylaws of Defiance Testing and Engineering Services, Inc....
3.27 Certificate of Incorporation of Noma Corporation............
3.28 Bylaws of Noma Corporation..................................
3.29 Certificate of Incorporation of PCT Mexico Corporation......
3.30 Bylaws of PCT Mexico Corporation............................
3.31 Certificate of Incorporation of Noma O.P. Inc...............
3.32 Bylaws of Noma O.P. Inc.....................................
3.33 Certificate of Incorporation of Electronic Interconnect
Systems Inc...............................................
3.34 Bylaws of Electronic Interconnect Systems Inc...............
3.35 Certificate of Incorporation of Defiance Kinematics Inc.....
3.36 Certificate of Incorporation of HN Investment Holdings
Inc.......................................................
3.37 Bylaws of HN Investment Holdings Inc........................
3.38 Certificate of Incorporation of PPI Holdings, Inc...........
3.39 Bylaws of PPI Holdings, Inc.................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. NUMBER
--- ------
<C> <S> <C>
4.1 Indenture, dated as of August 9, 1999, between the Company
and U.S. National Trust Association, as Trustee.
Incorporated by reference to the relevant exhibit to
GenTek Inc.'s 10-Q for the nine months ended
September 30, 1999 filed with the Securities and Exchange
Commission on November 15, 1999 (the 'GenTek Third Quarter
1999 10-Q')...............................................
4.2 Exchange and Registration Rights Agreement, dated as of
August 9, 1999, among the Company, Chase Securities Inc.,
Wasserstein Perella Securities, Inc. and First Union
Capital Markets Corporation. Incorporated by reference to
the relevant exhibit to the GenTek Third Quarter 1999
10-Q......................................................
*5.1 Opinion of Debevoise & Plimpton.............................
10.01 GenTek Inc. Restricted Unit Plan for Non-Employee Directors.
Incorporated by reference to the relevant exhibit to the
1999 GenTek Form 10.......................................
10.02 GenTek Inc. Retirement Plan for Non-Employee Directors.
Incorporated by reference to the relevant exhibit to the
1999 GenTek Form 10.......................................
10.03 GenTek Inc. Performance Plan. Incorporated by reference to
the relevant exhibit to the 1999 GenTek Form 10...........
10.04 GenTek Inc. Long-Term Incentive Plan. Incorporated by
reference to the relevant exhibit to the 1999 GenTek
Form 10...................................................
10.05 Employee Benefits Agreement among GenTek Inc., The General
Chemical Group Inc., General Chemical Industrial Products
Inc. and General Chemical Corporation. Incorporated by
reference to the relevant exhibit to the 1999 GenTek
Form 10....................................................
10.06 Tax Sharing Agreement between GenTek Inc. and The General
Chemical Group Inc. Incorporated by reference to the
relevant exhibit to the 1999 GenTek Form 10...............
10.07 Intellectual Property Agreement among General Chemical
Corporation, The General Chemical Group Inc., GenTek Inc.
and General Chemical Industrial Products Inc. Incorporated
by reference to the relevant exhibit to the 1999 GenTek
Form 10...................................................
10.08 Management Agreement between GenTek Inc. and Latona
Associates Inc. Incorporated by reference to the relevant
exhibit to the 1999 GenTek Form 10........................
10.09 Registration Rights Agreement between Paul M. Montrone and
The General Chemical Group Inc., as assumed by GenTek Inc.
with respect to Common Stock of GenTek Inc. Incorporated
by reference to the relevant exhibit to the 1999 GenTek
Form 10...................................................
10.10 Credit Agreement, dated as of April 30, 1999, among GenTek
Inc., Noma Acquisition Corp., the several Lenders from
time to time parties thereto, The Chase Manhattan Bank, as
Administrative Agent, The Bank of Nova Scotia, as
Syndication Agent, and Bankers Trust Company as
Documentation Agent. Incorporated by reference to the
relevant exhibit to GenTek Inc.'s 10-Q for the three
months ended March 31, 1999 filed with the Securities and
Exchange Commission on May 17, 1999 (the 'GenTek First
Quarter 1999 10-Q').......................................
10.11 Guarantee and Pledge Agreement, dated as of April 30, 1999,
made by GenTek Inc. and certain of its subsidiaries in
favor of the Chase Manhattan Bank, as Administrative
Agent. Incorporated by reference to the relevant exhibit
to the GenTek First Quarter 1999 10-Q.....................
*12.1 Computations of Ratio of Earnings to Fixed Charges..........
*21.1 Subsidiaries of GenTek Inc. ................................
23.1 Consent of Deloitte & Touche LLP............................
23.2 Consent of Deloitte & Touche LLP, Chartered Accountants.....
23.3 Consent of Deloitte & Touche GmbH...........................
23.4 Consent of Debevoise & Plimpton. Included in Exhibit 5.1
hereto....................................................
*24.1 Powers of Attorney..........................................
25.1 Statement of Eligibility and Qualification Under the Trust
Indenture Act (Form T-1) of Exchange Agent................
99.1 Form of Letter of Transmittal used in connection with the
Exchange Offer............................................
99.2 Notice of Guaranteed Delivery used in connection with the
Exchange Offer............................................
</TABLE>
- ------------
* Previously filed.
STATEMENT OF DIFFERENCES
------------------------
The trademark symbol shall be expressed as .......................... 'TM'
The registered trademark symbol shall be expressed as ............... 'r'
<PAGE>
EXHIBIT 3.3
CERTIFICATE OF INCORPORATION
OF
GENERAL CHEMICAL CORPORATION
FIRST: The name of the Corporation is General Chemical Corporation
(hereinafter the 'Corporation').
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the city
of Wilmington, County of New Castle. The name of its registered agent at that
address is THE CORPORATION TRUST COMPANY.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
'GCL').
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is One Thousand (1000) shares of Common Stock, each
having a par value of one penny ($.01).
FIFTH: The name and mailing address of the Sole Incorporator is as
follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
CORPORATION SERVICE COMPANY
Jacqueline N. Casper 4305 Lancaster Pike
Wilmington, DE 19805
</TABLE>
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
<PAGE>
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as from time to
time fixed by, or in the manner provided in , the By-Laws of the Corporation.
Election of directors need not be by written ballot unless the By-Laws so
provide.
(4) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions of the GCL, this
Certificate of Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if such
By-Laws had not been adopted.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of
<PAGE>
the GCL or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of the GCL, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein granted subject to this reservation.
I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the GCL, do make this
Certificate, hereby declaring and certifying that this is may act and deed and
the facts herein stated are true, and accordingly have hereunto set my hand this
27th day of December, A.D., 1985.
JACQUELINE N. CASPER
-------------------------
Jacqueline N. Casper
Incorporator
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EXHIBIT 3.4
BY-LAWS
OF
GENERAL CHEMICAL CORPORATION
(hereinafter called the 'Corporation')
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
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Section 2. Annual Meetings. The Annual Meetings of Stockholders shall
be held on such date and at such time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting
unless waived as provided herein, written notice of the Annual Meeting stating
the place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by
the Certificate of Incorporation, Special Meetings of Stockholders, for any
purpose or purposes, may be called by either (i) the Chairman, if there be
one, or (ii) the President, (iii) any Vice President, if there be one, (iv) the
Secretary or (v) any Assistant Secretary, if there be one, and shall be called
by any such officer at the request in writing of a majority of the Board of
Directors or at the request in writing of stockholders owning a majority of the
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes
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of the proposed meeting. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. If the adjournment is more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting,
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a notice of the adjourned meeting shall be given to each stockholder entitled to
vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such stockholder. Such votes
may be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 6. Consent of Stockholders in Lieu of Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required or permitted
to be taken at any Annual or Special Meeting of Stockholders of the Corporation,
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders
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of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
Section 7. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
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Section 8. Stock Ledger. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 7 or this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of Directors
shall consist of not less than one nor more than fifteen members, the exact
number of which shall initially be fixed by the Incorporator and thereafter from
time to time by the Board of Directors. Except as provided in Section 2 of this
Article, directotrs shall be elected by a plurality of the votes cast at Annual
Meetings of Stockholders, and each director so elected shall hold office until
the next Annual Meeting and until his successor is duly elected and qualified,
or until his earlier resignation or removal. Any director may resign at any time
upon notice to the Corporation. Directors need not be stockholders.
Section 2. Vacancies. Vacancies and newly created directorships
resulting from any increase in the
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authorized number of directors may be filled by a majority of the directors then
in office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual election and until
their successors are duly elected and qualified, or until their earlier
resignation or removal.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may 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 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there be one, the President, or a majority of the directors.
Notice thereof stating the place, date and hour of the meeting
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shall be given to each director either by mail not less than forty-eight (48)
hours before the date of the meeting, by telephone or telegram on twenty-four
(24) hours' notice, or on such shorter notice as the person or persons calling
such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these By-Laws, at all meetings of the Board
of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of
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the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 7 shall constitute
presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by
a majority of the entire Board of Directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of any such committee. In the absence or
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disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. Any committee, to the
extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation.
Each committee shall keep regular minutes and report to the Board of Directors
when required.
Section 9. Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a stated salary
as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
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Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum, or (ii) the material facts as to
his or their 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 the
shareholders; or
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(iii) the contract or transaction is fair as the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee
thereof or the shareholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a President, a Secretary and a Treasurer. The
Board of Directors, in its discretion, may also choose a Chairman of the Board
of Directors (who must be a director) and one or more Vice-Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may
be held by the same person, unless otherwise prohibited by law, the Certificate
of Incorporation or these By-Laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the
Board of Directors, need such officers be directors of the Corporation.
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Section 2. Election. The Board of Directors at its first meeting held after
each Annual Meeting of Stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors; and all officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the President or any Vice-President and any such
officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security
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holders of any corporation in which the Corporation may own securities and
at any such meeting shall possess and may exercise any and all rights and
power incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if present.
The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the stockholders
and of the Board of Directors. He shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the President is required,
the Chairman of the Board of Directors shall possess the same power as the
President to sign all contracts, certificates and other instruments of the
Corporation which may be authorized by the Board of Directors. During the
absence or disability of the President, the Chairman of the Board of Directors
shall exercise all the powers and discharge all the duties of the President. The
Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be
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assigned to him by these By-Laws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors and, if there be one, the Chairman of the Board of Directors,
have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. He
shall execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except that
the other officers of the Corporation may sign and execute documents when so
authorized by these By-Laws, the Board of Directors or the President. In the
absence or disability of the Chairman of the Board of Directors, or if there be
none, the President shall preside at all meetings of the stockholders and the
Board of Directors. If there be no Chairman of the Board of Directors, the
President shall be the Chief Executive Officer of the Corporation. The President
shall also perform such other duties and may exercise such other powers as from
time to time may be assigned to him by these By-Laws or by the Board of
Directors.
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Section 6. Vice-Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there be no
Chairman of the Board of Directors), the Vice-President or the Vice-Presidents
if there is more than one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each
Vice-President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Chairman of
the Board of Directors and no Vice-President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall also
perform like duties for the
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standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors or President, under whose supervision he shall be.
If the Secretary shall be unable or shall refuse to cause to be given notice of
all meetings of the stockholders and special meetings of the Board of Directors,
and if there be no Assistant Secretary, then either the Board of Directors or
the President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary
or any Assistant Secretary, if there be one, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or
filed are properly kept or filed, as the case may be.
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Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all his transactions as Treasurer
and of the financial condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
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Section 9. Assistant Secretaries. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice-President, if there be one, or the
Secretary, and in the absence or refusal to act, shall perform 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.
Section 10. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice-President,
if there be one, or the Treasurer or in the event of his disability or refusal
to act, shall perform 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. If required by the Board of Directors, an Assistant Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful
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performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (i) by the Chairman of the Board of Directors, the President or a
Vice-President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number of
shares owned by him in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature 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 upon 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 withe the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificates of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall re-
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quire and/or to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock or the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by his attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a new certificate shall be
issued.
Section 5. Record Date. In order that this Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than ten days
before the date of such meet-
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ing, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his
address as it appears on the re-
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cords 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. Written notice may also be given personally or by telegram,
telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, 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.
ARICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock. Before payment of
any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
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contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
'Corporate Seal, Delaware'. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify any person who was
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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 is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he 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 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 reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
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proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person 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 is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of
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Chancery 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
indemnify for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. 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 a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent, however, that a director,
officer, employee or agent of the Corporation has been successful on the mer-
28
<PAGE>
its or otherwise in defense of any action, suit or proceeding described above,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith, without the necessity of authorization in the
specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term 'another enterprise' as used in this Section 4 shall mean
29
<PAGE>
any other corporation or any partnership, joint venture, trust or other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis of such indemnification
by a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections 1 or 2 of this
Article VIII, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given
30
<PAGE>
to the Corporation promptly upon the filing of such application.
Section 6. Expenses Payable in Advance. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized in this Article
VIII.
Section 7. Non-exclusivity and Survival of Indemnification. The
indemnification provided by this Article VIII shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any By-Law, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified
31
<PAGE>
in Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Sections 1
or 2 of this Article VIII but whom the Corporation has the power or obligation
to indemnify under the provisions of the General Corporation Law of the State
of Delaware, or otherwise. The indemnification provided by this Article VIII
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 8. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
32
<PAGE>
Section 9. Meaning of 'Corporation' for Purposes of Article VIII. For
purposes of this Article VIII, 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, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, or new By-Laws may be adopted by the stockholders or by the majority
vote or consent of the Board of Directors, provided, however, that notice of
such alteration, amendment, repeal or adoption of
33
<PAGE>
new By-Laws be contained in the notice of such meeting of stockholders or
Board of Directors as the case may be. All such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to
vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Entire Board of Directors. As used in this Article IX and in
these By-Laws generally, the term 'entire Board of Directors' means the total
number of directors which the Corporation would have if there were no vacancies.
34
<PAGE>
EXHIBIT 3.5
CERTIFICATE OF INCORPORATION
OF
TOLEDO TECHNOLOGIES INC.
---------------------
The undersigned DO HEREBY CERTIFY as follows:
FIRST: The name of the Corporation is Toledo Technologies Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent or such address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
Without limiting in any manner the scope and generality of the
foregoing, it is hereby provided that the purposes, objects and powers of the
Corporation shall be to engage in the business of contract metal stamping, heat
treating and production grinding, and to manufacture, buy, sell, lease and deal
in metal stampings and in parts thereof and accessories thereto and in devices,
apparatus and kindred articles used in connection therewith.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 100 shares of common stock of the par value of $1.00
per share.
<PAGE>
-2-
FIFTH: The names and mailing address of each of the incorporators are as
follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Andrew B. Samet Bendix Center
Southfield, Michigan 48076
David H. Young Bendix Center
Southfield, Michigan 48076
</TABLE>
SIXTH: Election of directors need not be by written ballot unless and to
the extent provided in the By-Laws of the Corporation.
SEVENTH: The Board of Directors shall have the power, without the assent
or vote of the stockholders to make, alter, amend or repeal By-Laws of the
Corporation.
EIGHTH: Unless otherwise determined by the Board of Directors of the
Corporation, the Corporation shall indemnify, to the full extent permitted by
the laws of Delaware as from time to time in effect, the persons described in
Section 145 of the General Corporation Law of the State of Delaware as in effect
on the date hereof or other provisions of the laws of Delaware relating to
indemnification of directors, officers, employees and agents as from time to
time in effect. Such indemnification shall inure to the benefit of heirs,
executors, administrators and personal representatives of those entitled to
indemnification.
NINTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers
<PAGE>
-3-
appointed for this Corporation under the provisions of section 291 of Title 8 of
the Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
IN WITNESS WHEREOF, this Certificate of incorporation has been signed by
the incorporators this 14th day of December, 1977.
ANDREW B. SAMET
--------------------------
Andrew B. Samet
DAVID H. YOUNG
--------------------------
David H. Young
<PAGE>
EXHIBIT 3.6
TOLEDO TECHNOLOGIES INC.
A DELAWARE CORPORATION
BY - LAWS
ARTICLE I
Stockholders
Section 1.1 Annual Meeting.
An annual meeting of stockholders for the purpose of electing directors
and of transacting such other business as may come before it shall be held each
year at such date, time and place, either within or without the State of
Delaware, as may be specified by the Board of Directors.
Section 1.2 Special Meetings.
Special meetings of stockholders shall be held at such place either within
of without the State of Delaware, as may be designated in the notice of the
meeting, whenever called in the manner required by law for purposes as to
which there are special statutory provisions, and for other purposes whenever
called by the Chairman of the Board or the President, or the Board of
Directors; or the holders of record of a majority of the outstanding shares
of stock by filing with the Secretary a written application for such meeting
stating the time, place and purposes thereof.
Section 1.3 Notice of Meetings.
Notice of stockholders' meetings, stating the place, date and hour
thereof, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given by the Chairman of the Board,
the President, any Vice President, the Secretary or any Assistant Secretary to
each stockholder
<PAGE>
- 2 -
of record entitled to vote thereat not less than ten (10) days nor more than
sixty (60) days before the date of the meeting, unless a different period is
prescribed by law.
Section 1.4 Quorum.
Except as otherwise provided by law, at any meeting of stockholders the
holders of a majority of the outstanding shares of stock entitled to vote at
the meeting shall be present or represented by proxy in order to constitute
a quorum for the transaction of any business. In the absence of a quorum, the
holders of a majority of the outstanding shares of stock entitled to vote
thereat and present or represented by proxy, or the chairman of the meeting
may adjourn the meeting from time to time, and any meeting may be held as
thus adjourned, and any business may be transacted thereat.
Section 1.5 Organization.
The Chairman of the Board, or in his absence the President, or in their
absence a Vice President, shall call to order meetings of stockholders and
shall act as chairman of such meetings. The Board of Directors or the
stockholders may appoint any stockholder or any director or officer of the
Corporation to act as chairman of any meeting in the absence of the Chairman
of the Board, the President and a Vice President.
The Secretary of the Corporation shall act as secretary of all meetings
of stockholders, but in the absence of the Secretary the chairman of the
meeting may appoint any other person to act as secretary of the meeting.
Section 1.6 Voting.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for him by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy
<PAGE>
- 3 -
provides for a longer period. Unless otherwise provided in the certificate of
incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by him. Except as
otherwise provided by law or in the certificate of incorporation and except
for the election of directors, at any meeting duly called and held at which a
quorum is present, each question shall be decided by a majority of the votes
which could be cast at such meeting by the holders of outstanding shares of
stock entitled to vote thereon who are present in person or by proxy. At any
election of directors at which a quorum is present, the directors shall be
elected by a plurality of the votes cast at such election.
ARTICLE II
Board of Directors
Section 2.1 Number and Term of Office.
The business, property and affairs of the Corporation shall be managed and
controlled by a Board of three (3) directors; provided, however, that the
Board, by resolution adopted by vote of a majority of the then authorized
number of directors, may increase or decrease the number of directors, but
in no event shall the number of directors be less than one (1) nor more than
fifteen (15). The directors shall be elected at the annual meeting of
stockholders, and serve until the next succeeding annual meting of
stockholders or until the election and qualification of their respective
successors, except as hereinafter otherwise provided for in Article IV.
Section 2.2 Chairman of the Board.
The directors may elect one of their members to be Chairman of the Board
of Directors. The Chairman shall be subject to the control of and may
<PAGE>
- 4 -
be removed by the Board of Directors with or without cause. He shall perform
such duties as may from time to time be assigned to him by the Board.
Section 2.3 Meetings.
The directors may hold their meetings either within or without the State
of Delaware.
Regular meetings of the Board of Directors may be held at such time and
place as shall from time to time be determined by the Board, and no notice
thereof shall be required to be given to the directors.
Special meetings of the Board of Directors shall be held at such time and
place as shall be designated in the notice of the meeting whenever called by
the Chairman of the Board, the President or by a majority of the directors then
in office.
Section 2.4 Notice of Special Meetings.
The Secretary, or in his absence any other officer of the Corporation,
shall give notice of the time and place of holding of special meetings of the
Board of Directors by mail at least five (5) business days before the meeting,
or by telegram, cable or radiogram or personal service at least 24 hours
before the meeting, to each director. Unless otherwise stated in the notice
thereof, any and all business may be transacted at any meeting without
specification of such business in the notice.
Section 2.5 Quorum and Organization of Meetings.
A majority of the directors then in office shall constitute a quorum for
the transaction of business; best if at any meting of the Board of Directors
there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time, and the meeting may be held as adjourned
without further notice or waiver. Except as otherwise provided by law or by
these bylaws, a majority of the directors present at any meeting at which a
quorum is
<PAGE>
- 5 -
present may decide any question brought before such meeting. Meetings shall be
presided over by the Chairman of the Board, or in his absence by the President,
or in the absence of both by such other person as may be selected by the
directors. The Secretary of the Corporation shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
Section 2.6 Committees.
Each committee which may be established by the Board of Directors or these
by-laws may fix its own rules and procedures. Notice of meetings of committees,
other than of regular meetings provided for by the rules, shall be given to
committee members. All action taken by committees shall be recorded in minutes
of the meetings.
Section 2.7 Action without Meeting.
Nothing contained in these by-laws shall be deemed to restrict the power
of the directors or members of any committee to take any action, required or
permitted to be taken by them, without a meeting, in accordance with applicable
provisions of law.
Section 2.8 Compensation of Directors.
The amount, if any, which each director shall be entitled to receive
as compensation for his services as such shall be fixed from time to time by
resolution of the Board of Directors. If any director shall serve as a member
of any committee of the Board or perform special services at the instance
of the Board, such director may be paid such additional compensation as the
Board of Directors may determine. Each director shall be entitled to such
reimbursement for traveling expenses incurred by him in attending any meeting
of the Board of Directors or of a committee as the Board of Directors may
determine. Such compensation and reimbursement shall be payable even though an
adjournment is had because of the absence of a quorum.
<PAGE>
- 6 -
ARTICLE III
Officers
Section 3.1 Officers.
The executive officers of the Corporation shall be a President, one or
more Vice Presidents, a Treasurer and a Secretary, each of whom shall be
elected by the Board of Directors. The Board of Directors may elect or appoint
such other officers (including a Controller and one or more Assistant
Treasurers and Assistant Secretaries) as it may deem necessary or desirable
each of whom shall haves such authority, shall perform such duties and shall
hold office for such term as may be prescribed by the Board of Directors from
time to time. Any person may hold at one time two or more offices.
Section 3.2 The President.
The President shall be the chief executive and operating officer of the
Corporation and, subject to the provisions of these by-laws and to the
direction of the Board of Directors, shall have the general management and
control of the affairs and business of the Corporation and shall perform all
other duties and enjoy all other powers commonly incident to his office, or
which are or may at any time be authorized or required by law.
Section 3.3 Vice President.
Each Vice President shall generally assist the President and shall have
such powers, and perform such duties, as may be delegated to him by the Board
of Directors or the President.
In the absence or disability of the President, unless the Board of
Directors shall otherwise direct, any Vice President designated by the President
shall exercise the powers and perform the duties of the President.
<PAGE>
- 7 -
Section 3.4 Treasurer and Assistant Treasurer.
The Treasurer, subject to the direction of the Board of Directors, shall
have the care and custody of all funds and securities which may come into his
hands. When necessary or proper he shall endorse on behalf of the Corporation,
for collection, checks, notes and other obligations, and shall deposit all
funds of the Corporation in such banks or other depositaries as may be
designated by the Board of Directors, he shall perform all other duties and
enjoy all other powers commonly incident to his office or which are or may at
any time be authorized or required by law. He may be required to give a bond
for the faithful discharge of his duties, in such sum and with such surety or
sureties as the Board of Directors may require.
Each Assistant Treasurer shall generally assist the Treasurer and shall
have such power, and perform such duties, as may be delegated to him by the
Board of Directors or the Treasurer.
At the request of the Treasurer, any Assistant Treasurer, in the case of
the absence or inability to act of the Treasurer, may act temporarily in his
place. In the case of the death of the Treasurer, or in the case of his absence
or inability to act without having designated an Assistant Treasurer to act
temporarily in his place, the Assistant Treasurer so to perform the duties of
the Treasurer shall be designated by the President.
Section 3.5 Secretary and Assistant Secretary.
The Secretary shall record all of the proceedings of the meetings of the
stockholders and directors in a book to be kept for that purpose and, when
required, the minutes of meetings of the committees, and shall be responsible
for the custody of all such minutes. Subject to the direction of the Board of
Directors, the Secretary shall have the custody of the stock ledger and
documents
<PAGE>
- 8 -
of the Corporation. He shall have custody of the corporate seal and shall affix
and attest such seal to any instrument whose execution under seal shall have
been duly authorized. He shall give notice of meetings and, subject to the
direction of the Board of Directors, shall perform all other duties and enjoy
all other powers commonly incident to his office, or which are or may at any
time be authorized or required by law.
Each Assistant Secretary shall generally assist the Secretary and shall
have such power, and perform such duties, as may be delegated to him by the
Board of Directors or the Secretary.
At the request of the Secretary, any Assistant Secretary, in the case of
the absence or inability to act of the Secretary, may act temporarily in his
place. In the case of the death of the Secretary, or in the case of his absence
or inability to act without having designated an Assistant Secretary to act
temporarily in his place, the Assistant secretary so to perform the duties of
the Secretary shall be designated by the President.
Section 3.6 Compensation.
Compensation of officers, agents and employees shall be fixed from time to
time by the Board of Directors or by the committee or committees, or person or
persons, if any, to whom such power shall have been delegated by the Board of
Directors.
ARTICLE IV
Resignations, Removals and Vacancies
Section 4.1 Resignations.
Any director, officer or agent of the Corporation, or any member of any
committee, may resign at any time upon written notice to the Corporation,
<PAGE>
- 9 -
attention of the Board of Directors, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein or, if no time is specified therein, then upon receipt thereof. The
acceptance of such resignation shall not be necessary to make it effective.
Section 4.2 Removals.
At any meeting thereof, or by written consent, the stockholders entitled
to vote may remove from office or terminate the employment of any director,
officer, employee or agent with or without cause; and the Board of Directors,
by vote of not less than a majority of the Board as then authorized at any
meeting thereof, or by written consent, may remove from office or terminate the
employment of any officer, employee or agent with or without cause.
Section 4.3 Vacancies.
Any vacancy occurring in any office of any director, officer or agent
through death, resignation, removal or otherwise, and any newly created
directorships resulting from any increase in the authorized number of
directors, may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, or by the
stockholders, and, subject to the provisions of this Article, the person so
chosen shall hold office until his successor shall have been chosen and
qualified.
ARTICLE V
Capital Stock
Section 5.1 Stock Certificates.
The certificates for shares of the capital stock of the Corporation shall
be in such form as shall be prescribed by law and approved by the Board of
Directors. All certificates shall bear the name of the person owning the shares
<PAGE>
- 10 -
represented thereby; shall state the number of shares represented by such
certificate and the date of issue; and such information shall be entered in the
Corporation's books.
Section 5.2 Transfer of Shares.
Shares of the capital stock of the Corporation may be transferred only on
the books of the Corporation by the holder thereof in person or by his duly
authorized attorney, and upon the surrender of the certificate for such shares,
properly endorsed.
Section 5.3 Addresses of Stockholders.
It shall be the duty of every stockholder to notify the Corporation of his
post office address and of any change therein. The latest address furnished by
each stockholder shall be entered on the books of the Corporation and the
latest address appearing thereon shall be deemed conclusively to be the post
office address and the last-known post office address of such stockholder. If
any stockholder shall fail to notify the Corporation of his post office
address, it shall be sufficient to send corporate notices to such stockholder
at the address, if any, understood by the Secretary to be his post office
address, or in the absence of such address, to such stockholder at the General
Post Office in the city, town or place in the State of Delaware where the
registered office of the Corporation is located.
Section 5.4 Regulations.
The Board of Directors shall have power and authority to make all such
rules and regulations as it may deem expedient concerning the issue, transfer,
registration, cancellation and replacement of certificates for shares of stock
of the Corporation.
<PAGE>
- 11 -
ARTICLE VI
Miscellaneous
Section 6.1 Contracts, etc.
Except as otherwise prescribed by law or in these by-laws, such officer or
officers, employee or employees or agent or agents of the Corporation as shall
be specified by the Board of Directors shall sign, in the name and on behalf of
the Corporation, all deeds, bonds, contracts, mortgages and other instruments
or documents, the execution of which shall be authorized by the Board of
Directors; and such authority may be general or confined to specific instances.
Section 6.2 Checks, Drafts, etc.
All checks, drafts, notes, bonds, bills of exchange or other orders,
instruments or obligations for the payment of money shall be signed by such
officer or officers, employee or employees or agent or agents of the
Corporation as shall be specified by the Board of Directors.
Section 6.3 Corporate Seal.
The Corporate Seal shall have inscribed thereon the name of the
Corporation and shall be in such form as may be approved from time to time by
the Board of Directors.
Section 6.4 Fiscal Year.
The fiscal year of the Corporation shall begin the first day of October in
each year and terminate on the thirtieth day of September in each succeeding
year.
Section 6.5 Notices and Waivers Thereof.
Whenever any notice whatever is required by these by-laws or by the
certificate of incorporation, or by any law to be given to any stockholder,
director, or officer, such notice, except as otherwise provided by law, may be
given personally
<PAGE>
- 12 -
or, in the case of directors or officers, by telegram, cable or radiogram,
addressed to such director or officer at his place of business with the
Corporation; or the notice may be given in writing by mail, in a sealed
wrapper, postage prepaid, addressed to such stockholder at the address as
provided in Section 5.3 of Article V, or to such director or officer at his
place of business with the Corporation, if any, or such address as appears on
the books of the Corporation. Any notice given by telegram, cable or radiogram
shall be deemed to have been given when it shall have been delivered for
transmission and any notice given by mail shall be deemed to have been given
when it shall have been deposited in a post office, in a regularly maintained
letter box or with a postal carrier.
Any written waiver of notice, signed by the person entitled to notice, or,
in the case of a stockholder, by his duly authorized attorney, whether before
or after the time of the action for which such notice is required, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 6.6 Voting upon Stocks.
The Board of Directors (whose authorization in this connection shall be
necessary in all eases) may from time to time appoint an attorney or attorneys
or agent or agents of the Corporation, or may at any time or from time to time
authorize the President, any Vice President, the Treasurer or the Secretary to
appoint an attorney or attorneys or agent or agents of the Corporation, in the
name and on behalf of the Corporation to cast the votes which the Corporation
<PAGE>
- 13 -
may be entitled to cast as a stockholder or otherwise in any other corporation
or association, any of the stock or securities of which may be held by the
Corporation, at meetings of the holders of the stock or other securities of
such other corporation or association, or to consent in writing to any action
by any such other corporation or association; and the person or persons so
appointed may be instructed as to the manner of casting such votes or giving
such consent, and may be authorized to execute and deliver, on behalf of the
Corporation and under its corporate seal, or otherwise, such written proxies,
consents, waivers or other instruments as may be deemed necessary or proper in
the premises.
ARTICLE VII
Amendments
The stockholders entitled to vote shall have power to make, alter, amend
or repeal the by-laws of the Corporation, and the Board of Directors shall have
power equal in all respects to that of the stockholders to make, alter, amend
or repeal the by-laws by vote of not less than a majority of the Board as then
authorized.
<PAGE>
EXHIBIT 3.7
CERTIFICATE OF INCORPORATION
OF
PRINTING DEVELOPMENTS, INC.
FIRST: The name of the Corporation is Printing Developments, Inc.
(hereinafter the 'Corporation').
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name of its registered agent at that
address is THE CORPORATION TRUST COMPANY.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
'GCL').
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is One Thousand (1000) shares of Common Stock, each
having a par value of one penny ($.01).
FIFTH: The name and mailing address of the Sole Incorporator is as
follows:
<TABLE>
Name Mailing Address
---- ---------------
<S> <C>
Jacqueline N. Casper CORPORATION SERVICE COMPANY
4305 Lancaster Pike
Wilmington, DE 19805
</TABLE>
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
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(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as from time to
time fixed by, or in the manner provided in, the By-Laws of the Corporation.
Election of directors need not be by written ballot unless the By-Laws so
provide.
(4) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions of the GCL, this
Certificate of Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if such
By-Laws had not been adopted.
SEVENTH: Meeting of stockholders may be held within or without the State
of Delaware, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of
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the GCL or on the application of trustees in dissolution or of any receiver or
receivers appointed for this Corporation under the provisions of Section 279 of
the GCL, order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
this Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the GCL, do make this
Certificate, hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto set my hand this
27th day of December, A.D., 1985.
JACQUELINE N. CASPER
--------------------------------
Jacqueline N. Casper
Incorporator
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EXHIBIT 3.8
BY-LAWS
OF
PRINTING DEVELOPMENTS, INC.
(hereinafter called the 'Corporation')
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place,
either within or without the State of Delaware as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting or in
a duly executed waiver of notice thereof.
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Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting
unless waived as provided herein, written notice of the Annual Meeting stating
the place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, Special Meetings of Stockholders, for any purpose
or purposes, may be called by either (i) the Chairman, if there be one, or (ii)
the President, (iii) any Vice President, if there be one, (iv) the Secretary or
(v) any Assistant Secretary, if there be one, and shall be called by any such
officer at the request in writing of a majority of the Board of Directors or at
the request in writing of stockholders owning a majority of the capital stock of
the Corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes
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of the proposed meeting. Written notice of a Special Meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting,
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a notice of the adjourned meeting shall be given to each stockholder entitled to
vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such stockholder. Such votes
may be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 6. Consent of Stockholders in Lieu of Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required or permitted
to be taken at any Annual or Special Meeting of Stockholders of the Corporation,
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders
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of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
Section 7. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
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Section 8. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 7 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of Directors shall
consist of not less than one nor more than fifteen members, the exact number of
which shall initially be fixed by the Incorporator and thereafter from time to
time by the Board of Directors. Except as provided in Section 2 of this Article,
directors shall be elected by a plurality of the votes cast at Annual Meetings
of Stockholders, and each director so elected shall hold office until the next
Annual Meeting and until his successor is duly elected and qualified, or until
his earlier resignation or removal. Any director may resign at any time upon
notice to the Corporation. Directors need not be stockholders.
Section 2. Vacancies. Vacancies and newly created directorships resulting
from any increase in the
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authorized number of directors may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and qualified, or until
their earlier resignation or removal.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may 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 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there be one, the President, or a majority of the directors.
Notice thereof stating the place, date and hour of the meeting
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shall be given to each director either either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone or telegram
on twenty-four (24) hours' notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the certificate of Incorporation or these By-Laws, at all meetings of the Board
of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of
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the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless Otherwise
provided by the Certificate of Incorporation or these By-Laws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 7 shall constitute
presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by
a majority of the entire Board of Directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of any such committee. In the absence or
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disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee,
to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required.
Section 9. Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a stated salary
as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees any be allowed like compensation for attending
committee meetings.
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Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their 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 the
shareholders; or
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(iii) 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, a committee
thereof or the shareholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a President, a Secretary and a Treasurer.
The Board of Directors, in its discretion, may also choose a Chairman of the
Board of Directors (who must be a director) and one or more Vice-Presidents,
Assistant Secretaries, Assitant Treasurers and other officers. Any number of
offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these By-Laws. The officers of the Corporation
need not be stockholders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be directors of the
Corporation.
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Section 2. Election. The Board of Directors at its first meeting held
after each Annual Meeting of Stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined form time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securties owned by the Corporation may be executed in the name of
and one behalf of the Corporation by the President or any Vice-President and any
such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security
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holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner thereof,
the Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the stockholders
and of the Board of Directors. He shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the President is required,
the Chairman of the Board of Directors shall possess the same power as the
President to sign all contracts, certificates and other instruments of the
Corporation which may be authorized by the Board of Directors. During the
absence or disability of the President, the Chairman of the Board of Directors
shall exercise all the powers and discharge all the duties of the President. The
Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be
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assigned to him by these By-Laws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors and, if there be one, the Chairman of the Board of Directors,
have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. He
shall execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
that the other officers of the Corporaion may sign and execute documents when
so authorized by these By-Laws, the Board of Directors or the President. In the
absence or disability of the Chairman of the Board of Directors, or if there
be none, the President shall preside at all meetings of the stockholders and
the Board of Directors. If there be no Chairman of the Board of Directors, the
President shall be the Chief Executive Officer of the Corporation. The
President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these By-Laws or by
the Board of Directors.
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Section 6. Vice-Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there be no
Chairman of the Board of Directors), the Vice President or the Vice-Presidents
if there is more than one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each
Vice-President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Chairman of
the Board of Directors and no Vice-President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall also
perform like duties for the
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standing committees when required. the Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or President, under whose supervision he shall be. If the
Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
if there be no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary or
any Assistant Secretary, if there be one, shall have authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant Secretary.
The Board of Directors may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by his signature. The
Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
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Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all his transactions as Treasurer
and of the financial condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
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Section 9. Assistant Secretaries. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice-President, if there be one, or the
Secretary, and in the absence of the Secretary or in the event of his disability
or refusal to act, shall perform 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.
Section 10. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice-President,
if there be one, or the Treasurer, and in the absence of the Treasurer or in the
event of his disability or refusal to act, shall perform 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. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful
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performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the Chairman of the Board of Directors, the President or a Vice-President
and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned by
him in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature 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 upon 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 were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall re-
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quire and/or give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-Laws. Transfers of stock shall be made
on the books of the Corporation only by the person named in the certificate or
by his attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a new certificate shall be
issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than ten days
before the date of such meet-
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ing, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address
as it appears on the re-
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cords 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. Written notice may also be given personally or by telegram, telex
or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, a waiver thereof in writing, signed, by
the person or persons entitled to said notice, whether before of after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock. Before payment of
any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
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contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its origanization and the words
'Corporate Seal, Delaware'. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify any person who was
25
<PAGE>
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 is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he 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 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 reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
26
<PAGE>
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person 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 is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of
27
<PAGE>
Chancery 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
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Section 1 or Section
2 of this Article VIII, as the case may be. 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 a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders. To the extent, however, that a director, officer,
employee or agent of the Corporation has been successful on the mer-
28
<PAGE>
its or otherwise in defense of any action, suit or proceeding described above,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith, without the necessity of authorization in the
specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term 'another enterprise' as used in this Section 4 shall mean
29
<PAGE>
any other corporation or any partnership, joint venture, trust or other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be.
Section 3. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis of such indemnification
by a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections 1 or 2 of this
Article VIII, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given
30
<PAGE>
to the Corporation promptly upon the filing of such application.
Section 6. Expenses Payable in Advance. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized in this Article
VIII.
Section 7. Non-exclusivity and Survival of Indemnification. The
indemnification provided by this Article VIII shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any By-Law, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified
31
<PAGE>
in Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Sections 1 or
2 of this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the General Corporation Law of the State of
Delaware, or otherwise. The indemnification provided by this Article VIII shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person.
Section 8. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
32
<PAGE>
Section 9. Meaning of 'Corporation' for Purposes of Article VIII. For
purposes of this Article VIII, 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, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its separate existence had continued.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, or new By-Laws may be adopted by the stockholders or by the majority
vote or consent of the Board of Directors, provided, however, that notice of
such alteration, amendment, repeal or adoption of
33
<PAGE>
new By-Laws be contained in the notice of such meeting of stockholders or Board
of Directors as the case may be. All such amendments must be approved by either
the holders of a majority of the outstanding capital stock entitled to vote
thereon or by a majority of the entire Board of Directors then in office.
Section 2. Entire Board of Directors. As used in this Article IX and in
these By-Laws generally, the term 'entire Board of Directors' means the total
number of directors which the Corporation would have if there were no vacancies.
34
<PAGE>
Exhibit 3.9
CERTIFICATE OF INCORPORATION
OF
Balcrank Products Inc.
------------------
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the 'General Corporation Law of the State of Delaware'), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the 'corporation')
is Balcrank Products Inc.
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle; and
the name of the registered agent of the corporation in the State of Delaware is
The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is One Thousand (1,000). The par value of each of such
shares is One Dollar ($1.00). All such shares are of one class and are shares of
Common Stock.
FIFTH: The name and the mailing address of the incorporator are as follows;
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
<S> <C>
N. S. Truax 229 South State Street, Dover, Delaware
</TABLE>
SIXTH: The corporation is to have perpetual existence.
<PAGE>
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase 'whole
Board' and the phrase 'total number of directors' shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of directors
need be by written ballot.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received
-2-
<PAGE>
any payment for any of its stock, the power to adopt, amend, or repeal
the By-Laws of the corporation may be exercised by the Board of Directors
of the corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered terms pursuant
to the provisions of subsection (d) of Section 141 of the General
Corporation Law of the State of Delaware shall be set forth in an initial
By-Law or in a By-Law adopted by the stockholders entitled to vote of the
corporation unless provisions for such classification shall be set forth in
this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders.
Whenever the corporation shall be authorized to issue more than one
class of stock, no outstanding share of any class of stock which is denied
voting power under the provisions of the certificate of incorporation
shall entitle the holder thereof to the right to vote at any meeting of
stockholders except as the provisions of paragraph (2) of subsection (b)
of section 242 of the General Corporation Law of the State of Delaware
shall otherwise require; provided, that no share of any such class which
is otherwise denied voting power shall entitle the holder thereof to vote
upon the increase or decrease in the number of authorized shares of said
class.
NINTH: The personal liability of the directors of the corporation is hereby
eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of
Section 102 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-Law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in
-3-
<PAGE>
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
ELEVENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed on September 13, 1989.
N. S. TRUAX
------------
N. S. Truax
Incorporator
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<PAGE>
EXHIBIT 3.10
As adopted by Board of
Directors September 15, 1989
BALCRANK PRODUCTS INC.
(A Delaware Corporation)
BY-LAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
STOCKHOLDERS
------------
Page
<S> <C>
Section 1. Annual Meetings ............................... 1
Section 2. Special Meetings .............................. 1
Section 3. Notice of Meetings: Waiver .................... 2
Section 4. Quorum ........................................ 2
Section 5. Voting ........................................ 3
Section 6. Voting by Ballot .............................. 3
Section 7. Adjournment ................................... 3
Section 8. Proxies ....................................... 3
Section 9. Organization: Procedure ....................... 4
Section 10. Inspectors of Election ........................ 4
Section 11. Consent of Stockholders in Lieu
of Meeting .................................. 5
ARTICLE II
BOARD OF DIRECTORS
------------------
Section 1. General Powers ................................ 5
Section 2. Number ........................................ 5
Section 3. Election and Term of Directors ................ 5
Section 4. Regular Meetings .............................. 6
Section 5. Special Meetings; Notice ...................... 6
Section 6. Quorum; Voting ................................ 6
Section 7. Adjournment ................................... 7
Section 8. Action without a Meeting ...................... 7
Section 9. Regulations; Manner of Acting ................. 7
Section 10. Action by Telephonic Communications ........... 7
Section 11. Resignations .................................. 7
Section 12. Removal of Directors .......................... 8
Section 13. Vacancies and Newly Created
Directorships ............................... 8
Section 14. Compensation .................................. 8
Section 15. Reliance on Accounts and Reports, etc.......... 8
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
----------------------------------------
Page
<S> <C>
Section 1. How Constituted ............................... 9
Section 2. Powers ........................................ 9
Section 3. Proceedings ................................... 10
Section 4. Quorum and Manner of Acting ................... 10
Section 5. Resignations .................................. 10
Section 6. Removal ....................................... 10
Section 7. Vacancies ..................................... 10
ARTICLE IV
OFFICERS
--------
Section 1. Number ....................................... 11
Section 2. Election ..................................... 11
Section 3. Salaries ..................................... 11
Section 4. Removal and Resignation, Vacancies............ 11
Section 5. Authority and Duties of Officers ............. 11
Section 6. The Chairman ................................. 12
Section 7. The President ................................ 12
Section 8. The Vice Presidents .......................... 12
Section 9. The Secretary ................................ 12
Section 10. The Treasurer ................................ 14
Section 11. Additional Officers .......................... 15
Section 12. Security ..................................... 15
ARTICLE V
CAPITAL STOCK
-------------
Section 1. Certificates of Stock ......................... 15
Section 2. Partly Paid Shares ............................ 15
Section 3. Facsimile Signatures, etc ..................... 16
Section 4. Lost, Stolen or Destroyed Certificates......... 16
Section 5. Transfers of Stock ............................ 16
Section 6. Record Date ................................... 16
Section 7. Registered Stockholders ....................... 17
Section 8. Transfer Agent and Registrar .................. 17
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VI
INDEMNIFICATION
---------------
Page
<S> <C>
Section 1. Indemnification of Directors,
Officers, etc. .............................. 17
ARTICLE VII
OFFICES
-------
Section 1. Registered Office.............................. 18
Section 2. Other Offices.................................. 18
ARTICLE VIII
GENERAL PROVISIONS
------------------
Section 1. Dividends .................................... 18
Section 2. Reserves ..................................... 19
Section 3. Execution of Instruments ..................... 19
Section 4. Deposits ..................................... 19
Section 5. Checks, Drafts, etc .......................... 19
Section 6. Sale, Transfer, etc., of Securities .......... 19
Section 7. Voting as Stockholder ........................ 19
Section 8. Fiscal Year .................................. 20
Section 9. Seal ......................................... 20
Section 10. Books and Records: Inspection ................ 20
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 1. Amendment ..................................... 20
</TABLE>
(iii)
<PAGE>
BALCRANK PRODUCTS INC.
B Y - L A W S
-------------
ARTICLE I
---------
STOCKHOLDERS
------------
Section 1. Annual Meetings. The annual meeting of the stockholders of the
Corporation for the election of Directors and the transaction of such other
business as may properly come before such meeting shall be held at the principal
office of the Corporation, at 3:45 P.M. local time on the third Tuesday in April
(or, if such day is a legal holiday, then on the next succeeding business day)
or at such other place (within or without the State of Delaware) or such other
date and hour, as may be fixed from time to time by the Board of Directors and
set forth in the Notice or waiver of notice of such meeting.
[Sections 211(a), (b)]*
Section 2. Special meetings. Special meetings of the stockholders may be
called at any time by the Chairman or the President (or, in their absence or
disability, by any Vice President), or by the Board of Directors. A special
meeting shall be called by the Chairman or the President (or, in their absence
or disability, by any Vice President), or by the Secretary, immediately upon
receipt of a written request by stockholders holding in the aggregate not less
than 10% of the outstanding shares of the Corporation at the time entitled to
vote at any meeting of the stockholders. If such officers shall fail to call
such meeting within 20 days after receipt of such request, any stockholder
executing such request may call such meeting. Special meetings of the
stockholders shall be held at such places, within or without the State of
Delaware, as shall be specified in the respective notices or waivers of notice
thereof.
[Section 211(d)]
- -------------
* Citations are to the General Corporation Law of Delaware and are inserted
for reference only and do not constitute a part of the By-Laws.
<PAGE>
Section 3. Notice of Meetings Waiver. The Secretary or any Assistant
Secretary shall cause written notice of the place, date and hour of each meeting
of the stockholders, and, in the case of a special meeting, the purpose or
purposes for which such meeting is called, to be given personally or by mail,
not less than ten nor more than sixty days before the date of such meeting, to
each stockholder of record entitled to vote at such meeting. Such further notice
shall be given as may be required by law .
If such notice is mailed, it shall be deemed to have been given to a
stockholder when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address as it appears on the record of stockholders of
the corporation, or, if he shall have filed with the Secretary of the
Corporation a written request that notices to him be mailed to some other
address, then directed to him at such other address.
No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after such meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in any written waiver of
notice. The attendance of any stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
Except as set forth in Section 1.07 of these By-Laws, notice of any
adjourned meeting of the stockholders of the Corporation need not be given.
[Sections 222, 229]
Section 4. Quorum. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares of stock entitled to vote at any meeting
shall constitute a quorum for the transaction of business at such meeting. When
a quorum is once present to organize a meeting, it is not broken by the
subsequent withdrawal of any stockholders.
- 2 -
<PAGE>
Section 5. Voting. Every holder of record of shares entitled to vote at a
meeting of stockholders shall be entitled to one vote for each share standing in
his name on the books of the Corporation on the record date fixed pursuant to
Section 5.06 of these By-Laws. Except as otherwise required by law or by the
Certificate of Incorporation, the vote of a majority of the shares represented
at any meeting of which a quorum is present shall be sufficient for the
transaction of any business at such meeting. [Section 216]
Section 6. Voting by Ballot. No vote of the stockholders need be taken by
written ballot, unless otherwise required by statute. Any vote which need not be
taken by ballot maybe conducted in any manner approved by the meeting.
Section 7. Adjournment. If a quorum is not present 'at any meeting of the
stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present,
without notice other than announcement at any such meeting of the place, date
and hour to which such meeting is adjourned. However, if the adjournment is for
more than thirty days, or if after the adjournment the Board of Directors fixes
a new record date for the adjourned meeting pursuant to Section 5.06 of these
By-Laws, a notice of the adjourned meeting, conforming to the requirements of
Section 1.03 hereof, shall be given to each stockholder of record entitled to
vote at such meeting. At any adjourned meeting at which a quorum is present, any
business may be transacted that might have been transacted on the original date
of the meeting. [Section 222(a)]
Section 8. Proxies. Any stockholder entitled to vote at any meeting of the
stockholders or to express consent to or dissent from corporate action without a
meeting may, by a written instrument signed by such stockholder or his
attorney-in-fact, authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy
shall be revocable at the pleasure of the stockholder executing it, except in
those cases where applicable law provides that a proxy shall be irrevocable.
[Section 212(b),(c)]
- 3 -
<PAGE>
Section 9. Organization; Procedure. At every meeting of stockholders the
presiding officer shall be the Chairman or in his absence the President, or in
their absence a Vice President designated by the Board of Directors, or in the
absence of such officers, a presiding officer chosen by a majority of the
stockholders present in person or by proxy. The Secretary or, in his absence, an
Assistant Secretary or, in his absence, an appointee of the presiding officer
shall act as Secretary of the meeting. The order of business and all other
matters of procedure at every meeting of stockholders may be determined by such
presiding officer.
Section 10. Inspectors of Election. In advance of any meeting of
stockholders, the Board of Directors may appoint one or more Inspectors to act
at such meeting or any adjournment thereof. If Inspectors are not so appointed,
the person presiding at such meeting may, and on the request of any stockholder
entitled to vote at such meeting shall, appoint one or more Inspectors. In the
event any person so appointed fails to appear or act, such vacancy may be
filled by the Board in advance of such meeting or at such meeting by the person
presiding thereat. Each Inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
Inspector at such meeting with strict impartiality and according to the best of
his ability. At any meeting of stockholders for which Inspectors shall have been
appointed, such Inspectors 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 validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all shareholders. On request of the person
presiding at the meeting or any stockholder entitled to vote thereat, the
Inspectors shall make a report in writing of any challenge, 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 and of the vote as certified by them.
- 4 -
<PAGE>
Section 11. Consent of Stockholders in Lieu of Meeting. Whenever the vote
of stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action, by law, by the Certificate of
Incorporation or by these By-Laws, the meeting and vote of stockholders may be
dispensed with if all of the stockholders who would have been entitled to vote
upon the action if such meeting were held shall consent in writing to such
corporate action being taken. [Section 228]
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. Except as may be provided by law, by the
Certificate of Incorporation or by these By-Laws, the property, affairs and
business of the Corporation shall be managed by the Board of Directors and the
Board may exercise all powers of the Corporation. [Section 141(a)]
Section 2. Number. The Board of Directors shall consist of three Directors
or such other number of Directors as may be determined from time to time by the
Board. In no event, however, shall the number of Directors be less than one or
greater than twelve. [Section 141(b)]
Section 3. Election and Term of Directors. Except as otherwise provided in
section 2.12 of these By-Laws, the Directors shall be elected at each annual
meeting of the stockholders to hold office until the next annual meeting of
stockholders. Each Director shall hold office until the expiration of the term
for which he is elected and until his successor has been elected and has
qualified, or until his earlier death, resignation or removal. If the annual
meeting for the election of Directors is not held on the date designated
therefor, the Directors shall cause the meeting to be held as soon thereafter as
convenient. At each meeting of the stockholders for the election of Directors,
at which a quorum is present, the Directors shall be elected by a plurality of
votes cast by the holders of shares entitled to vote in such election. [Sections
141(b), 211(b), 216]
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<PAGE>
Section 4. Regular Meetings. The Board of Directors shall meet for the
purpose of electing officers and for the transaction of such other business as
may come before the meeting, immediately following adjournment of the annual
meeting of stockholders at the place of such annual meeting. Notice of such
meeting of the Board need not be given. The Board from time to time may provide
for the holding of other regular meetings and fix the place (which may be within
or without the State of Delaware) and the date and hour of such meetings. Notice
of such regular meetings need not be given, except that if the Board shall fix
or change the time or place of any such regular meetings, notice of such action
shall be mailed promptly, or sent by telegram, radio or cable, to each Director
who shall not have been present at the meeting at which such action was taken,
addressed to him at his usual place of business or delivered to him personally.
Notice of such action need not be given to any Director who attends the first
regular meeting after such action is taken without protesting the lack of notice
to him, prior to or at the commencement of such meeting, or to any Director who
submits a signed waiver of notice, whether before or after such meeting.
[Section 141(g)]
Section 5. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman or the President or, in
their absence or disability, by any Vice President, at such place (within or
without the State of Delaware) as may be specified in the respective notices or
waivers of notice of such meetings. At least two days before the day on
which a special meeting is to be held, notice of the meeting stating the time
and place thereof shall be mailed, or sent by telegram, radio or cable to each
Director, addressed to him at his usual place of business, or delivered to him
personally. Notice of any special meeting need not be given to any Director who
attends such meeting without protesting the lack of notice to him, prior to or
at the commencement of such meeting, or to any Director who submits a signed
waiver of notice, whether before or after such meeting, and any business may be
transacted thereat. No notice need be given of any adjourned meeting, unless the
time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of this section
shall be given to each Director. [Section 141(g)]
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<PAGE>
Section 6. Quorum; Voting. At all meetings of the Board of Directors the
presence of a majority of the total number of Directors (but in no event less
than one-third of the total number of Directors) shall constitute a quorum for
the transaction of business. Except as otherwise required by law, the vote of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. [Section 141(b)]
Section 7. Adjournment. A majority of the Directors present, whether or not
a quorum is present, may adjourn any meeting to another time and place. Notice
of the adjourned meeting shall be given to the extent required by Section 2.05
of these By-Laws.
Section 8. Action without 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 such Committee, as the
case may be, consent thereto in writing, and such writing or writings are filed
with the minutes of proceedings of the Board or such Committee.
[Section 141(f)]
Section 9. Regulations: Manner of Acting. To the extent consistent with
law, the Certificate of Incorporation arid these By-Laws, the Board of Directors
may adopt such rules and regulations for the conduct of meetings of the Board
and for the management of the property, affairs and business of the Corporation
as the Board may deem appropriate. The Directors shall act only as a Board, and
the individual Directors shall have no power as such.
Section 10. Action by Telephonic Communications. Members of the Board of
Directors, or any committee designated by the Board, may participate in a
meeting of the Board or Committee by means of conference. telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting pursuant to this
provision shall be deemed to constitute presence in person at such meeting.
Section 11. Resignations. Any Director may resign at any time by delivering
a written notice of resignation signed by such Director to the Chairman, the
President, a Vice President, the Secretary or any Assistant Secretary. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
[Section 141(b) ]
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<PAGE>
Section 12. Removal of Directors. Any or all of the Directors may be
removed at any time, either with or without cause, by vote of the stockholders
or, for cause, by resolution of a majority of the Directors then in office. Any
vacancy in the Board, caused by any removal of a Director by vote of the
stockholders, may be filled by the stockholders entitled to vote for the
election of the Director so removed. If such stockholders do not fill such
vacancy at the meeting at which such removal was effected (or in the written
instrument effecting such removal, if such removal was effected by consent
without a meeting) such vacancy may be filled in the manner provided in section
2.13 hereof. [Section 141(b)]
Section 13. Vacancies and Newly Created Directorships. Subject to the
provisions of Section 2.12 hereof, any newly created Directorship resulting from
an increase in the number of Directors and any vacancy occurring in the Board of
Directors for any reason (including without limitation the removal of a Director
without cause) may be filled by vote of a majority of the Directors then in
office, although less than a quorum exists. A Director elected to fill a vacancy
shall be elected to hold office for or the unexpired term of his predecessor.
Any such newly created Directorship and any such vacancy may also be filled at
any time by vote of the stockholders.
Section 14. compensation The amount, if any, which each Director shall be
entitled to receive as compensation for his services as such shall be fixed from
time to time by the Board of Directors.
Section 15. Reliance on Accounts and Reports, etc. Any Director shall, in
the performance of his duties, be fully protected in relying in good faith upon
the books of account or reports made to the Corporation by any of its officers,
or by an independent certified public accountant, or by an appraiser selected
with reasonable care by the Board or by any Committee designated by the Board,
or in relying in good faith. upon other records of the Corporation. [Section
141(e)]
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ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 1. How Constituted. The Board of Directors, by resolution or
resolutions adopted by a majority of the whole Board, may designate from among
the Directors an Executive Committee and/or one or more other Committees, each
such Committee to consist of such number of Directors, not less than two, as
from time to time may be fixed by resolution or resolutions similarly adopted.
The Board, by resolution or resolutions similarly adopted, may designate one or
more Directors as alternate members of any such Committee, who may replace any
absent or disqualified member or members at any meeting of such Committee.
Thereafter members (and alternate members, if any) of each such Committee may be
designated annually, by resolution similarly adopted at the meeting of the Board
of Directors immediately following the annual meeting of stockholders. Any such
Committee may be abolished and/or redesignated from time to time by resolution
or resolutions similarly adopted. Each member (and each alternate member) of any
such Committee shall hold office until his successor shall have been designated
or until he shall cease to be a Director, or until his death, resignation or
removal. [Section 141(c)]
Section 2. Powers. During the intervals between the meetings of the Board
of Directors, unless otherwise provided from time to time by resolution or
resolutions adopted by a majority of the whole Board, the Executive Committee
shall have and way exercise all powers of the Board in the management of the
property, affairs and business of the Corporation, but shall nor have power or
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. Each other such Committee shall have and may exercise such powers
of the Board as may be provided by resolution or resolutions similarly adopted.
The Executive committee shall have, and any such other Committee may be granted
by resolution or resolutions similarly adopted, power to authorize the seal of
the Corporation to be affixed to any or all papers which may require it.
[Section 141(c)]
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<PAGE>
Section 3. Proceedings. Any such Committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such date and time and upon such notice, if any, as such Committee shall
determine from time to time. Such Committee shall keep a record of its
proceedings and shall report any such proceedings to the Board of Directors at
the first meeting of the Board following any such proceedings.
Section 4. Quorum and Manner of Acting. Except as may be otherwise provided
in the resolution designating any such Committee, at all meetings of any such
Committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such Committee, but in no event less than
two, shall constitute a quorum for the transaction of business. The act of the
majority of the members (or alternate members) present at any meeting at which a
quorum is present, but in no event less than two, shall be the act of such
Committee. Any action required or permitted to be taken at any meeting of any
such Committee may be taken without a meeting, if all members of such Committee
(and such alternates as may be required to replace any disqualified members)
shall consent to such action in writing and such writing or writings are filed
with the minutes of the proceedings of the Committee. The members (or alternate
members of any such Committee) shall act only as a Committee, and the individual
members (or alternate members) of such Committee shall have no power as such.
[Section 141(c))
Section 5. Resignations. Any member (and any alternate member) of any such
Committee may resign at any time by delivering a written notice of resignation
signed by such member to the Board of Directors. Such resignation shall take
effect upon acceptance thereof by resolution adopted by a majority of the whole
Board.
Section 6. Removal. Any member (and any alternate member) of any such
Committee may be removed at any time, with or without cause, by resolution
adopted by a majority of the whole Board.
Section 7. Vacancies. If any vacancy shall occur in any such Committee, by
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, if they are
at least two in number, and any such vacancy may be filled by resolution adopted
by a majority of the whole Board of Directors.
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ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by the
Board of Directors and shall be a Chairman, a President (and chief executive
officer), a Vice President, a Secretary and a Treasurer. The Board of Directors
may also elect additional Vice Presidents, and one or more Assistant Secretaries
and Assistant Treasurers, all in such numbers as the Board of Directors may
determine. Any two or more offices may be held by the same person, except the
offices of President and Secretary. No officer need be a Director of the
Corporation. [Section 142(a),(b)]
Section 2. Election. Unless otherwise determined by the Board of Directors,
the officers of the Corporation shall be elected by the Board at the first
meeting of the Board following each annual meeting of stockholders, and shall be
elected to hold office until the first meeting of the Board following the next
annual meeting of stockholders. Each officer shall hold office for the term for
which he is elected and until his successor has been elected and has qualified,
or until his earlier resignation or removal. [Section 142(a),(b)]
Section 3. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed from time to time by the Board of Directors.
Section 4. Removal and Resignation, Vacancies. Any officer may be removed
at any time by the Board of Directors with or without cause. Any officer may
resign at any time by delivering a written notice of resignation signed by such
officer to the Board. Unless otherwise specified therein such resignation shall
take effect upon delivery. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, shall be filled by the
Board. [Section 142(a),(e))
Section 5. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law.
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<PAGE>
Section 6. The Chairman. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and directors and shall have such
other powers and duties as may from time to time be assigned by the Board.
Section 7. The President. The President shall have the following powers and
duties:
(a) He shall be the chief executive officer of the Corporation, and,
subject to the directions of the Board of Directors, shall have
general charge of the business and affairs of the Corporation and
general supervision over its officers, employees and agents.
(b) Subject to the directions of the Board of Directors, he shall exercise
all powers and perform all duties incident to the office of a
president of a corporation, and shall exercise such other powers and
perform such other duties as from time to time may be assigned to him
by the Board.
(c) In the absence of the Chairman of the Board, the President shall
preside at all meetings of stockholders and directors.
Section 8. The Vice Presidents. Each Vice President: shall exercise such
powers and perform such duties as from time to time may be assigned to him by
the Board of Directors or the President. At the request of the President or in
his absence or disability, the Vice President designated by the Board of
Directors or if no such designation shall have been made, then the Vice
President designated by the President shall perform all the duties of the
President and, when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Any Vice President may sign (unless the
Chairman, the President or another Vice President shall have signed),
certificates representing shares of the Corporation the issuance of which shall
have been authorized by the Board.
Section 9. The Secretary. The Secretary shall have the following powers and
duties:
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<PAGE>
(a) He shall keep or cause to be kept a record of all the proceedings of
the meetings of the stockholders and of the Board of Directors in
books provided for that purpose.
(b) He shall cause all notices to be duly given in accordance with the
provisions of these By-Laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a resolution of
the Board of Directors, he shall furnish a copy of such resolution to
the members of such Committee.
(d) He shall be the custodian of the records and of the seal of the
Corporation and cause such seal (or a facsimile thereof) to be affixed
to all certificates representing shares of the Corporation prior to
the issuance thereof and to all instruments the execution of which on
behalf of the Corporation under its seal shall have been duly
authorized in accordance with these By-Laws, and when so affixed he
may attest the same.
(e) He shall properly maintain and file all books, reports, statements,
certificates and all other documents and records required by law, the
Certificate of Incorporation or these By-Laws.
(f) He shall have charge of the stock books and ledgers of the Corporation
and shall cause the stock and transfer books to be kept in such manner
as to show at any time the number of shares of stock of the
Corporation of each clays issued and outstanding, the names
(alphabetically arranged) and the addresses of the holders of record
of such shares, the number of shares held by each holder and the date
as of which each became such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant Treasurer or
Assistant Secretary shall have signed) certificates representing
shares of the Corporation the issuance of which shall have been
authorized by the Board of Directors.
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<PAGE>
(h) He shall perform, in general, all duties incident to the office of
Secretary and such other duties as may be given to him by these
By-Laws or as may be assigned to him from time to time by the Board of
Directors or the President.
Section 10. The Treasurer. The Treasurer shall have the following powers
and duties:
(a) He shall have charge and supervision over and be responsible for the
moneys, securities, receipts and disbursements of the Corporation.
(b) He shall cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or
other depositories as shall be selected in accordance with Section
8.05 of these By-Laws.
(c) He shall cause the moneys of the Corporation to be disbursed by checks
or drafts (signed as provided in section 8.06 of these By-Laws) upon
the authorized depositaries of the Corporation and cause to be taken
and preserved proper vouchers for all moneys disbursed.
(d) He shall render to the Board of Directors or the President, whenever
requested, a statement of the financial condition of the Corporation
and of all his transactions as Treasurer, and render a full financial
report at the annual meeting of the stockholders, if called upon to do
so.
(e) He shall be empowered from .time to time to require from all officers
or agents of the Corporation reports or statements giving such
information as he may desire with respect to any and all financial
transactions of the Corporation.
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(f) He may sign (unless an Assistant Treasurer or the Secretary or an
Assistant Secretary shall have signed) certificates representing stock
of the Corporation the issuance of which shall have been authorized by
the Board of Directors.
(g) He shall perform all duties incident to the office of Treasurer, and
such other duties as from time to time may be assigned to him by the
Board of Directors or the President.
Section 11. Additional Officers. The Board of Directors may appoint such
other officers and agents as it may deem appropriate and such other officers and
agents shall hold their offices for such terms and shall exercise such powers
and perform such duties as may be determined from time to time by the Board.
[Section 142(b)]
Section 12. Security. The Board of Directors may require any officer or
agent of the Corporation to provide security for the faithful performance of his
duties, in such amount and of such character as may be determined from time to
time by the Board. [Section 142(c)]
ARTICLE -V
CAPITAL STOCK
Section 1. Certificates of Stock. Every stockholder shall be entitled to
have a certificate signed by, or in the name of the Corporation by the Chairman,
the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, certifying the number of
shares owned by him in the Corporation. Such certificate shall be in such form
as the Board of Directors may determine, to the extent consistent with
applicable provisions of law, the Certificate of Incorporation and these
By-Laws.
[Section 158]
Section 2. Partly Paid Shares. In the event any certificate shall be issued
to represent partly paid shares which are subject to call for the remainder of
the consideration to be paid therefore, such certificate shall state (upon its
face or back) the total amount of the consideration to be paid therefor and the
amount of such consideration paid thereon to dates. [Section 156]
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Section 3. Facsimile Signatures, etc. If such certificate is countersigned
by a transfer agent other than the Corporation or its employee, or by a
registrar other than the Corporation or its employee, any, other signature on
the certificate may be a facsimile. In the event that 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, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue. [Section 158]
Section 4. Lost, Stolen or Destroyed Certificates. The Board of Directors
may direct that a new certificate be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon delivery to the Board of an affidavit of the owner or owners of
such certificate, setting forth such allegation. The Board may require the owner
of such lost, stolen or destroyed certificate, or his legal representative, to
give the Corporation a bond sufficient to indemnify it against any claim that
may be made against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of any such new certificate. [Section 167]
Section 5. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate representing shares, duly
endorsed or accompanied by appropriate evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate, and record the transaction
upon its books. Subject to the provisions of the Certificate of Incorporation
and these By-Laws, the Board of Directors may prescribe such additional rules
and regulations as it may deem appropriate relating to the issue, transfer and
registration of shares of the Corporation.
Section 6. Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any
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rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting, provided, however, that the Board may fix a new record date for
the adjourned meeting. [Section 213(a),(c)]
Section 7. Registered Stockholders. Prior to due surrender of a certificate
for registration of transfer, the Corporation may treat the registered owner as
the person exclusively entitled to receive dividends and other distributions, to
vote, to receive notice and otherwise to exercise all the rights and powers of
the owner of the shares represented by such certificate, and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
such shares on the part of any other person, whether or not the Corporation
shall have notice of such claim or interest. Whenever any transfer of shares
shall be made for collateral security, and not absolutely, it shall be so
expressed in the entry of the transfer if, when the certificates are presented
to the Corporation for transfer, both the transferor and transferee request the
Corporation to do so. [Section 159)
Section 8. Transfer Agent and Registrar. The Board of Directors may appoint
one or more transfer agents and one or more registrars, and may require all
certificates representing shares to bear the signature of any of such agents or
registrars.
ARTICLE VI
INDEMNIFICATION
Section 1. Indemnification of Directors. Officers, etc. Any person who was
or is party or is threatened to be made a party to any threatened, pending
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or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was at any time since the
inception of the Corporation a Director, officer, employee or agent of the
Corporation, or is or was at any time since the inception of the Corporation
serving at the request of the Corporation as a Director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall be indemnified by the Corporation to the full extent
permitted by Subsections (a) through (i) of Section 145 of the General
Corporation Law of the State of Delaware (or any similar provision or provisions
of applicable law at the time in effect). The foregoing right of indemnification
shall in no way be exclusive of any other rights of indemnification to which any
such Director, officer, employee or agent may be entitled under any agreement,
vote of stockholders or disinterested Directors or otherwise.
ARTICLE VII
OFFICES
Section 1. Registered office. The principal office or place of business of
the Corporation in the State of Delaware shall be located at 1209 Orange Street,
City of Wilmington, County of New Castle, Delaware.
Section 2. Other Offices. The Corporation may maintain offices or places
of business at such other locations within or without the State of Delaware as
the Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Subject to any applicable provisions of law and the
Certificate of Incorporation, dividends upon the shares of the Corporation may
be declared by the Board of Directors at any regular or special meeting of the
Board and any such dividend may be paid in cash, property, or shares of the
Corporation. [Section 173]
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Section 2. Reserves. There may be set apart from time to time out of any
funds of the Corporation available for dividends such reserve or reserves as the
Board of Directors may deem appropriate, and the Board of Directors may
similarly modify or abolish any such reserve or reserves. [Section 171]
Section 3. Execution of Instruments. Subject to the approval of the Board
of Directors, the Chairman, the President, or any Vice President may enter into
any contract or execute and deliver any instruments in the name and on behalf of
the Corporation. The Board may authorize any other officer or agent to enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. Any such authorization may be general or limited to
specific contracts or instruments.
Section 4. Deposits. Any funds of the Corporation may be deposited from
time to time in such banks, trust companies or other depositories as may be
determined by the Board of Directors, or by such officers or agents as may be
authorized by the Board to make such determination.
Section 5. Checks. Drafts, etc. All notes, drafts, bills of exchange,
acceptances, checks, endorsements and other evidences of indebtedness of the
Corporation, and its orders for the payment of money shall be signed by such
officer or officers or such agent or agents of the Corporation, and in such
manner, as the Board of Directors from time to time may determine.
Section 6. Sale. Transfers etc. of Securities. To the extent authorized by
the Board of Directors, the Chairman, the President, or any Vice President
together with the Secretary or Treasurer or an Assistant Secretary or Assistant:
Treasurer may sell, transfer, endorse, and assign any shares of stock, bonds or
other securities owned by or held in the name of the Corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal,
any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
Section 7. Voting as Stockholder. Unless otherwise determined by resolution
of the Board of Directors, the President, or any Vice President shall have full
power and authority on behalf of the Corporation to attend any meeting of
stockholders of any Corporation
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in which the Corporation may hold stock, and to act, vote (or execute proxies to
vote) and exercise in person or by proxy all other rights, powers and privileges
incident to the ownership of such stock. Such officers acting on behalf of the
Corporation shall have full power and authority to execute any instrument
expressing consent to or dissent from any action of any such corporation without
a meeting. The Board of Directors may by resolution from time to time confer
such power and authority upon any other person or persons.
Section 8. Fiscal. Year. Unless otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall commence on the first day of
January in each calendar year and terminate on the 31st day of December.
Section 9. Seal. The seal of the Corporation shall be circular in form and
shall contain the name of the Corporation, the year of incorporation and the
words 'Corporate Seal Delaware'. The seal may be used by causing it or a
facsimile thereof to be impressed, affixed or reproduced, or in any other lawful
manner.
Section 10. Books and Records; Inspection. Except to the extent otherwise
required by law, the books and records of the Corporation shall be kept at such
place or places within or without the State of Delaware as may be determined
from time to time by the Board of Directors.
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 1. Amendment. These By-Laws may be amended, altered or repealed by
the Corporation's stockholders or by the Board of Directors, provided that the
Board of Directors shall not have the power to classify directors for election
for staggered terms. [Section 109 (a) ]
ARTICLE X
INAPPLICABILITY OF SECTION 203
Section 1. The corporation expressly elects not to be governed by Section
203 of the Delaware General Corporation Law.
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EXHIBIT 3.11
CERTIFICATE OF INCORPORATION
OF
HMC PATENTS HOLDING COMPANY, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the 'General Corporation Law of the State of Delaware'),
hereby certifies that:
FIRST: The name of the corporation (hereinafter called the 'corporation')
is
HMC PATENTS HOLDING COMPANY, INC.
SECOND: The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle,
and the name of the registered agent of the corporation in the State of
Delaware is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is One Thousand (1,000). The par value of each of such
shares is One Dollar ($1.00). All such shares are of one class and are shares of
Common Stock.
FIFTH: The name and the mailing address of the incorporator are as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
<S> <C>
N. S. Truax 229 South State Street, Dover, Delaware
</TABLE>
SIXTH: The corporation is to have perpetual existence.
<PAGE>
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. if a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and regulation
of the powers of the corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase 'whole
Board' and the phrase 'total number of directors' shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of directors
need be by written ballot.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received
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<PAGE>
any payment for any of its stock, the power to adopt, amend, or repeal
the By-Laws of the corporation may be exercised by the Board of Directors
of the corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered term
pursuant to the provisions of subsection (d) of Section 141 of the General
Corporation Law of the State of Delaware shall be set forth in an initial
By-Law or in a By-Law adopted by the stockholders entitled to vote of the
corporation unless provisions for such classification shall be set forth in
this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of section 242 of the
General Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have
power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
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<PAGE>
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
ELEVENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the corporation by this
certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed on November 16, 1987.
N. S. TRUAX
---------------------------------
N. S. Truax
Incorporator
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<PAGE>
EXHIBIT 3.12
As adopted by the Board of Directors
on November 17, 1987
HMC PATENTS HOLDING COMPANY, INC.
(A Delaware Corporation)
BY-LAWS
TABLE OF CONTENTS
ARTICLE I
STOCKHOLDERS
<TABLE>
<CAPTION>
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<S> <C> <C>
Section l. Annual Meetings ............................................. 1
Section 2. Special Meetings ............................................ 1
Section 3. Notice of Meetings; Waiver .................................. 2
Section 4. Quorum ...................................................... 2
Section 5. Voting ...................................................... 3
Section 6. Voting by Ballot ............................................ 3
Section 7. Adjournment ................................................. 3
Section 8. Proxies ..................................................... 3
Section 9. Organization; Procedure ..................................... 4
Section 10. Inspectors of Election ...................................... 4
Section 11. Consent of Stockholders in Lieu
of Meeting ................................................. 5
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers .............................................. 5
Section 2. Number ...................................................... 5
Section 3. Election and Term of Directors .............................. 5
Section 4. Regular Meetings ............................................ 6
Section 5. Special Meetings; Notice .................................... 6
Section 6. Quorum; Voting .............................................. 6
Section 7. Adjournment ................................................. 7
Section 8. Action without a Meeting .................................... 7
Section 9. Regulations; Manner of Acting ............................... 7
Section 10. Action by Telephonic Communications ......................... 7
Section 11. Resignations ................................................ 7
Section 12. Removal of Directors 8
Section 13. Vacancies and Newly Created
Directorships ............................................. 8
Section 14. Compensation ................................................ 8
Section 15. Reliance on Accounts and Reports, etc. ...................... 8
</TABLE>
(i)
<PAGE>
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITEES
<TABLE>
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<S> <C> <C>
Section 1. How Constituted .............................................. 9
Section 2. Powers ....................................................... 9
Section 3. Proceedings .................................................. 10
Section 4. Quorum and Manner of Acting .................................. 10
Section 5. Resignations ................................................. 10
Section 6. Removal ...................................................... 10
Section 7. Vacancies .................................................... 10
ARTICLE IV
OFFICERS
Section 1. Number ....................................................... 11
Section 2. Election ..................................................... 11
Section 3. Salaries ....................... ............................. 11
Section 4. Removal and Resignation, Vacancies ........................... 11
Section 5. Authority and Duties of Officers ............................. 11
Section 6. The Chairman ................................................. 12
Section 7. The President ................................................ 12
Section 8. The Vice Presidents .......................................... 12
Section 9. The Secretary ................................................ 12
Section 10. The Treasurer ................................................ 14
Section 11. Additional Officers .......................................... 15
Section 12. Security ..................................................... 15
ARTICLE V
CAPITAL STOCK
Section 1. Certificates of Stock ........................................ 15
Section 2. Partly Paid Shares ........................................... 15
Section 3. Facsimile Signatures, etc. ................................... 16
Section 4. Lost, Stolen or Destroyed Certificates ....................... 16
Section 5. Transfers of Stock ........................................... 16
Section 6. Record Date .................................................. 16
Section 7. Registered Stockholders ...................................... 17
Section 8. Transfer Agent and Registrar ................................. 17
</TABLE>
(ii)
<PAGE>
ARTICLE VI
INDEMNIFICATION
<TABLE>
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Section 1. Indemnification of Directors, officers, etc. ................ 17
ARTICLE VII
OFFICES
Section 1. Registered Office ........................................... 18
Section 2. Other Offices ............................................... 18
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends ................................................... 18
Section 2. Reserves .................................................... 19
Section 3. Execution of Instruments .................................... 19
Section 4. Deposits .................................................... 19
Section 5. Checks, Drafts, etc. ........................................ 19
Section 6. Sale, Transfer, etc., of Securities ......................... 19
Section 7. Voting as Stockholder ....................................... 19
Section 8. Fiscal Year ................................................. 20
Section 9. Seal ........................................................ 20
Section 10. Books and Records; Inspection ............................... 20
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 1. Amendment .................................................... 20
</TABLE>
(iii)
<PAGE>
HMC PATENTS HOLDING COMPANY, INC.
B Y - L A W S
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meetings. The annual meetings of the stockholders of the
Corporation for the election of Directors and the transaction of such other
business as may properly come before such meeting shall be held at the principal
office of the Corporation, at 1:00 PM local time on the 3rd Tuesday in April
(or, if such day is a legal holiday, then on the next succeeding
business day) or at such other place (within or without the State of Delaware)
or such other date and hour, as may be fixed from time to time by the Board of
Directors and set forth in the Notice or waiver of notice of such meeting.
[(Sections 211(a), (b)]*
Section 2. Special Meetings. Special meetings of the stockholders may be
called at any time by the Chairman or the President (or, in their absence or
disability, by any Vice President), or by the Board of Directors. A special
meeting shall be called by the Chairman or the President (or, in their absence
or disability, by any Vice President), or by the Secretary, immediately upon
receipt of a written request by stockholders holding in the aggregate not less
than 10% of the outstanding shares of the Corporation at the time entitled to
vote at any meeting of the stockholders. If such officers shall fail to call
such meeting within 20 days after receipt of such request, any stockholder
executing such request may call such meeting. Special meetings of the
stockholders shall be held at such places, within or without the State of
Delaware, as shall be specified in the respective notices or waivers of notice
thereof. (Section 211(d)]
- -------------------
* Citations are to the General Corporation Law of Delaware and are
inserted for reference only and do not constitute a part of the By-Laws.
<PAGE>
Section 3. Notice of Meetings; Waiver. The Secretary or any Assistant
Secretary shall cause written notice of the place, date and hour of each
meeting of the stockholders, and, in the case of a special meeting, the purpose
or purposes for which such meeting is called, to be given personally or by mail,
not less than ten nor more than sixty days before the date of such meeting, to
each stockholder of record entitled to vote at such meeting. Such further notice
shall be given as may be required by law.
If such notice is mailed, it shall be deemed to have been given to a
stockholder when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address as it appears on the record of stockholders of
the Corporation, or, if he shall have filed with the Secretary of the
Corporation a written request that notices to him be mailed to some other
address, then directed to him at such other address.
No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after such meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need the specified in any written waiver of
notice. The attendance of any stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose for objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
Except as set forth in Section 1.07 of these By-Laws, notice of any
adjourned meeting of the stockholders of the Corporation need not be given.
[Sections 222, 229]
Section 4. Quorum. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares of stock entitled to vote at any meeting
shall constitute a quorum for the transaction of business at such meeting. When
a quorum is once present to organize a meeting, it is not broken by the
subsequent withdrawal of any stockholders.
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<PAGE>
Section 5. Voting. Every holder of record of shares entitled to vote at a
meeting of stockholders shall be entitled to one vote for each share standing in
his name on the books of the Corporation on the record date fixed pursuant to
Section 5.06 of these By-Laws. Except as otherwise required by law or by the
Certificate of Incorporation, the vote of a majority of the shares represented
at any meeting of which a quorum is present shall be sufficient for the
transaction of any business at such meeting. [Section 216]
Section 6. Voting by Ballot. No vote of the stockholders need be taken by
written ballot, unless otherwise required by statute. Any vote which need not be
taken by ballot may be conducted in any manner approved by the meeting.
Section 7. Adjournment. If a quorum is not present at any meeting of the
stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present,
without notice other than announcement at any such meeting of the place, date
and hour to which such meeting is adjourned. However, if the adjournment is for
more than thirty days, or if after the adjournment the Board of Directors fixes
a new record date for the adjourned meeting pursuant to Section 5.06 of these
By-Laws, a notice of the adjourned meeting, conforming to the requirements of
Section 1.63 hereof, shall be given to each stockholder of record entitled to
vote at such meeting. At any adjourned meeting at which a quorum is present, any
business may be transacted that might have been transacted on the original date
of the meeting. [Section 222(a)]
Section 8. Proxies. Any stockholder entitled to vote at any meeting of the
stockholders or to express consent to or dissent from corporate action without a
meeting may, by a written instrument signed by such stockholder or his
attorney-in-fact, authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy shall
be revocable at the pleasure of the stockholder executing it, except in those
cases where applicable law provides that a proxy shall be irrevocable. [Section
212(b),(c)]
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<PAGE>
Section 9. Organization; Procedure. At every meeting of stockholders the
presiding officer shall be the Chairman or in his absence the President, or in
their absence a Vice President designated by the Board of Directors, or in the
absence of such officers, a presiding officer chosen by a majority of the
stockholders present in person or by proxy. The Secretary or, in his absence, an
Assistant Secretary or, in his absence, an appointee of the presiding officer
shall act as Secretary of the meeting. The order of business and all other
matters of procedure at every meeting of stockholders may be determined by such
presiding officer.
Section 10. Inspectors of Election. In advance of any meeting of
stockholders, the Board of Directors may appoint one or more Inspectors to act
at such meeting or any adjournment thereof. If Inspectors are not so appointed,
the person presiding at such meeting may, and on the request of any stockholder
entitled to vote at such meeting shall, appoint one or more Inspectors. In the
event any person so appointed fails to appear or act, such vacancy may be filled
by the Board in advance of such meeting or at such meeting by the person
presiding thereat. Each Inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
Inspector at such meeting with strict impartiality and according to the best of
his ability. At any meeting of stockholders for which Inspectors shall have
been appointed, such Inspectors 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 validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all shareholders. On request of
the person presiding at the meeting or any stockholder entitled to vote thereat,
the Inspectors shall make a report in writing of any challenge, 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 and of the vote as certified by them.
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<PAGE>
Section 11. Consent of Stockholders in Lieu of Meeting. Whenever the vote
of stockholders at a meeting thereof is required or permitted to be taken for
or in connection with any corporate action, by law, by the Certificate of
Incorporation or by these By-Laws, the meeting and vote of stockholders may be
dispensed with if all of the stockholders who would have been entitled to vote
upon the action if such meeting were held shall consent in writing to such
corporate action being taken. [Section 228]
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. Except as may be provided by law, by the
Certificate of Incorporation or by these By-Laws, the property, affairs and
business of the Corporation shall be managed by the Board of Directors and the
Board may exercise all powers of the Corporation. [Section 141(a)]
Section 2. Number. The Board of Directors shall consist of two Directors or
such other number of Directors as may be determined from time to time by the
Board. In no event, however, shall the number of Directors be 1ess than one or
greater than twelve. [Section 141(b)]
Section 3. Election and Term of Directors. Except as otherwise provided in
Section 2.12 of these By-Laws, the Directors shall be elected at each annual
meeting of the stockholders to hold office until the next annual meeting of
stockholders. Each Director shall hold office until the expiration of the term
for which he is elected and until his successor has been elected and has
qualified, or until his earlier death, resignation or removal. If the annual
meeting for the election of Directors is not held on the date designated
therefor, the Directors shall cause the meeting to be held as soon thereafter as
convenient. At each meeting of the stockholders for the election of Directors,
at which a quorum is present, the Directors shall be elected by a plurality of
votes cast by the holders of shares entitled to vote in such election. [Sections
141(b), 211(b), 216]
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<PAGE>
Section 4. Regular Meetings. The Board of Directors shall meet for the
purpose of electing officers and for the transaction of such other business as
may come before the meeting, immediately following adjournment of the annual
meeting of stockholders at the place of such annual meeting. Notice of such
meeting of the Board need not be given. The Board from time to time may provide
for the holding of other regular meetings and fix the place (which may be within
or without the State of Delaware) and the date and hour of such meetings. Notice
of such regular meetings need not be given, except that if the Board shall fix
or change the time or place of any such regular meetings, notice of such action
shall be mailed promptly, or sent by telegram, radio or cable, to each Director
who shall not have been present at the meeting at which such action was taken,
addressed to him at his usual place of business or delivered to him personally.
Notice of such action need not be given to any Director who attends the first
regular meeting after such action is taken without protesting the lack of notice
to him, prior to or at the commencement of such meeting, or to any Director who
submits a signed waiver of notice, whether before or after such meeting.
[Section 141(g)]
Section 5. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman or the President or, in
their absence or disability, by any Vice President, at such place (within or
without the State of Delaware) as may be specified in the respective notices
or waivers of notice of such meetings. At least two days before the day on which
a special meeting is to be held, notice of the meeting stating the time and
place thereof shall be mailed, or sent by telegram, radio or cable to each
Director, addressed to him at his usual place of business, or delivered to him
personally. Notice of any special meeting need not be given to any Director who
attends such meeting without protesting the lack of notice to him, prior to or
at the commencement of such meeting, or to any Director who submits a signed
waiver of notice, whether before or after such meeting, and any business may be
transacted thereat. No notice need be given of any adjourned meeting, unless the
time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of this section
shall be given to each Director. [Section 141(g)]
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<PAGE>
Section 6. Quorum; Voting. At all meetings of the board of Directors the
presence of a majority of the total number of Directors (but in no event less
than one-third of the total number of Directors) shall constitute a quorum for
the transaction of business. Except as otherwise required by law, the vote of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. [Section 141(b)]
Section 7. Adjournment. A majority of the Directors present, whether or
not a quorum is presents may adjourn any meeting to another time and place.
Notice of the adjourned meeting shall be given to the extent required by
Section 2.05 of these By-Laws.
Section 8. Action without 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 such Committee, as the
case may be, consent thereto in writing, and such writing or writings are filed
with the minutes of proceedings of the Board or such Committee. [Section 141(f)]
Section 9. Regulations; Manner of Acting. To the extent consistent with
law, the Certificate of Incorporation and these By-Laws, the Board of Directors
may adopt such rules and regulations for the conduct of meetings of the Board
and for the management of the property, affairs and business of the Corporation
as the Board may deem appropriate. The Directors shall act only as a Board, and
the individual Directors shall have no power as such.
Section 10. Action by Telephonic Communications. Members of the Board of
Directors, or any Committee designated by the Board, may participate in a
meeting of the Board or Committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting pursuant to this
provision shall be deemed to constitute presence in person at such meeting.
Section 11. Resignations. Any Director may resign at any time by delivering
a written notice of resignation signed by such Director to the Chairman, the
President, a Vice President, the Secretary or any Assistant Secretary. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
(Section 141(b)]
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<PAGE>
Section 12. Removal of Directors. Any or all of the Directors may be
removed at any time, either with or without cause, by vote of the stockholders
or, for cause, by resolution of a majority of the Directors then in office. Any
vacancy in the Board, caused by any removal of a Director by vote of the
stockholders, may he filled by the stockholders entitled to vote for the
election of the Director so removed. If such stockholders do not fill such
vacancy at the meeting at which such removal was effected (or in the written
instrument effecting such removal, if such removal was effected by consent
without a meeting) such vacancy may be filled in the manner provided in Section
2.13 hereof. [Section 141(b)]
Section 13. Vacancies and Newly Created Directorships. Subject to the
provisions of Section 2.12 hereof, any newly created Directorship resulting from
an increase in the number of Directors and any vacancy occurring in the Board
of Directors for any reason (including without limitation the removal of a
Director without cause) may be filled by vote of a majority of the Directors
then in office, although less than a quorum exists. A Director elected to fill
a vacancy shall be elected to hold office for the unexpired term of his
predecessor. Any such newly created Directorship and any such vacancy may also
be filled at any time by vote of the stockholders.
Section 14. Compensation. The amount, if any, which each Director shall be
entitled to receive as compensation for his services as such shall be fixed from
time to time by the Board of Directors.
Section 15. Reliance on Accounts and Reports, etc. Any Director shall, in
the performance of his duties, be fully protected in receiving in good faith
upon the books of account or reports made to the Corporation by any of its
officers, or by an independent certified public accountant, or by an appraiser
selected with reasonable care by the Board or by any Committee designated by
the Board, or in relying in good faith upon other records of the Corporation.
[Section 141(e)]
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<PAGE>
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 1. How Constituted. The Board of Directors, by resolution or
resolutions adopted by a majority of the whole Board, may designate from among
the Directors an Executive Committee and/or one or more other Committees, each
such Committee to consist of such number of Directors, not less than two, as
from time to time may be fixed by resolution or resolutions similarly adopted.
The Board, by resolution or resolutions similarly adopted, may designate one or
more Directors as alternate members of any such Committee, who may replace any
absent or disqualified member or members at any meeting of such Committee.
Thereafter members (and alternate members, if any) of each such Committee may be
designated annually, by resolution similarly adopted at the meeting of the Board
of Directors immediately following the annual meeting of stockholders. Any such
Committee may be abolished and/or redesignated from time to time by resolution
or resolutions similarly adopted. Each member (and each alternate member) of any
such Committee shall hold office until his successor shall have been designated
or until he shall cease to be a Director, or until his death, resignation or
removal. [Section 141(c)]
Section 2. Powers. During the intervals between the meetings of the Board
of Directors, unless otherwise provided from time to time by resolution or
resolutions adopted by a majority of the whole Board, the Executive Committee
shall have and may exercise all powers of the Board in the management of the
property, affairs and business of the Corporation, but shall not have power or
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. Each
other such Committee shall have and may exercise such powers of the Board as may
be provided by resolution or resolutions similarly adopted. The Executive
Committee shall have, and any such other Committee may be granted by resolution
or resolutions similarly adopted, power to authorize the seal of the Corporation
to be affixed to any or all papers which may require it. [Section 141(c)]
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<PAGE>
Section 3. Proceedings. Any such Committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such date and time and upon such notice, if any, as such Committee shall
determine from time to time. Such Committee shall keep a record of its
proceedings and shall report any such proceedings to the Board of Directors at
the first meeting of the Board following any such proceedings.
Section 4. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution designating any such Committee, at all meetings of
any such Committee the presence of members (or alternate members) constituting a
majority of the total authorized membership of such Committee, but in no event
less than two, shall constitute a quorum for the transaction of business. The
act of the majority of the members (or alternate members) present at any
meeting at which a quorum is present, but in no event less than two, shall be
the act of such Committee. Any action required or permitted to be taken at any
meeting of any such Committee may be taken without a meeting, if all members of
such Committee (and such alternates as may be required to replace any
disqualified members) shall consent to such action in writing and such writing
or writings are filed with the minutes of the proceedings of the Committee.
The members (or alternate members of any such Committee) shall act only as a
Committee, and the individual members (or alternate members) of such Committee
shall have no power as such. [Section 141(c)]
Section 5. Resignations. Any member (and any alternate member) of any
such Committee may resign at any time by delivering a written notice of
resignation signed by such member to the Board of Directors. Such resignation
shall take effect upon acceptance thereof by resolution adopted by a majority
of the whole Board.
Section 6. Removal. Any member (and any alternate member) of any such
Committee may be removed at any time, with or without cause, by resolution
adopted by a majority of the whole Board.
Section 7. Vacancies. If any vacancy shall occur in any such Committee, by
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, if they are
at least two in number, and any such vacancy may be filed by resolution adopted
by a majority of the whole Board of Directors.
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<PAGE>
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by the
Board of Directors and shall be a Chairman, a President (and chief executive
officer), a Vice President, a Secretary and a Treasurer. The Board of Directors
may also elect Additional Vice Presidents, and one or more Assistant Secretaries
and Assistant Treasurers, all in such numbers as the Board of Directors may
determine. Any two or more offices may be held by the same person, except the
offices of President and Secretary. No officer need be a Director of the
Corporation. [Section 142(a),(b)]
Section 2. Election. Unless otherwise determined by the Board of Directors,
the officers of the Corporation shall be elected by the Board at the first
meeting of the Board following each annual meeting of stockholders, and shall be
elected to hold office until the first meeting of the Board following the next
annual meeting of stockholders. Each officer shall hold office for the term for
which he is elected and until his successor has been elected and has qualified,
or until his earlier resignation or removal. [Section 142(a),(b)]
Section 3. Salaries. The salaries of all officers and agents of
the Corporation shall be fixed from time to time by the Board of Directors.
Section 4. Removal and Resignation, Vacancies. Any officer may be removed
at any time by the Board of Directors with or without cause. Any officer may
resign at any time by delivering a written notice of resignation signed by such
officer to the Board. Unless otherwise specified therein such resignation shall
take effect upon delivery. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, shall be filled by the
Board. [Section 142(a),(e)]
Section 5. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law.
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<PAGE>
Section 6. The Chairman. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and directors and shall have such
other powers and duties as may from time to time be assigned by the Board.
Section 7. The President. The President shall have the following powers and
duties:
(a) He shall be the chief executive officer of the Corporation, and,
subject to the directions of the Board of Directors, shall have
general charge of the business and affairs of the Corporation and
general supervision over its officers, employees and agents.
(b) Subject to the directions of the Board of Directors, he shall exercise
all powers and perform all duties incident to the office of a
president of a corporation, and shall exercise such other powers and
perform such other duties as from time to time may be assigned to him
by the Board.
(c) In the absence of the Chairman of the Board, the President shall
preside at all meetings of stockholders and directors.
Section 8. The Vice Presidents. Each Vice President shall exercise such
powers and perform such duties as from time to time may be assigned to him by
the Board of Directors or the President. At the request of the President or in
his absence or disability, the Vice President designated by the Board of
Directors or if no such designation shall have been made, then the Vice
President designated by the President shall perform all the duties of the
President and, when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Any Vice President may sign (unless the
Chairman, the President or another Vice President shall have signed),
certificates representing shares of the Corporation the issuance of which shall
have been authorized by the Board.
Section 9. The Secretary. The Secretary shall have the following powers and
duties:
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(a) He shall keep or cause to be kept a record of all the proceedings of
the meetings of the stockholders and of the Board of Directors in
books provided for that purpose.
(b) He shall cause all notices to be duly given in accordance with the
provisions of these By-Laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a resolution of
the Board of Directors, he shall furnish a copy of such resolution to
the members of such Committee.
(d) He shall be the custodian of the records and of the seal of the
Corporation and cause such seal (or a facsimile thereof) to be affixed
to all certificates representing shares of the Corporation prior to
the issuance thereof and to all instruments the execution of which on
behalf of the Corporation under its seal shall have been duly
authorized in accordance with these By-Laws, and when so affixed he
may attest the same.
(e) He shall properly maintain and file all books, reports, statements,
certificates and all other documents and records required by law, the
Certificate of Incorporation or these By-Laws.
(f) He shall have charge of the stock books and ledgers of the Corporation
and shall cause the stock and transfer books to be kept in such manner
as to show at any time the number of shares of stock of the
Corporation of each class issued and outstanding, the names
(alphabetically arranged) and the addresses of the holders of record
of such shares, the number of shares held by each holder and the date
as of which each became such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant Treasurer or
Assistant Secretary shall have signed) certificates representing
shares of the Corporation the issuance of which shall have been
authorized by the Board of Directors.
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<PAGE>
(h) He shall perform, in general, all duties incident to the office of
Secretary and such other duties as may be given to him by these
By-Laws or as may be assigned to him from time to time by the Board of
Directors or the President.
Section 10. The Treasurer. The Treasurer shall have the following powers
and duties:
(a) He shall have charge and supervision over and be responsible for the
moneys, securities, receipts and disbursements of the Corporation.
(b) He shall cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or
other depositories as shall be selected in accordance with Section
8.05 of these By-Laws.
(c) He shall cause the moneys of the Corporation to be disbursed by checks
or drafts (signed as provided in section 8.06 of these By-Laws) upon
the authorized depositories of the Corporation and cause to be taken
and preserved proper vouchers for all moneys disbursed.
(d) He shall render to the Board of Directors or the President, whenever
requested, a statement of the financial condition of the Corporation
and of all his transactions as Treasurer, and render a full financial
report at the annual Meeting of the stockholders, if called upon to do
so.
(e) He shall be empowered from time to time to require from all officers
or agents of the Corporation reports or statements giving such
information as he may desire with respect to any and all financial
transactions of the Corporation.
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(f) He may sign (unless an Assistant Treasurer or the Secretary or an
Assistant Secretary shall have signed) certificates representing stock
of the Corporation the issuance of which shall have been authorized by
the Board of Directors.
(g) He shall perform all duties incident to the office of Treasurer, and
such other duties as from time to time may be assigned to him by the
Board of Directors or the President.
Section 11. Additional Officers. The Board of Directors may appoint such
other officers and agents as it may deem appropriate and such other officers and
agents shall hold their offices for such terms and shall exercise such powers
and perform such duties as may be determined from time to time by the Board.
[Section 142(b)]
Section 12. Security. The Board of Directors may require any officer or
agent of the Corporation to provide security for the faithful performance of his
duties, in such amount and of such character as may be determined from time to
time by the Board. [Section 142(c)]
ARTICLE V
CAPITAL STOCK
Section 1. Certificates of Stock. Every stockholder shall be entities to
have a certificate signed by, or in the name of the Corporation by the Chairman,
the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, certifying the number of
shares owned by him in the Corporation. Such certificate shall be in such form
as the Board of Directors may determine, to the extent consistent with
applicable provisions of law, the Certificate of Incorporation and these
By-Laws. [Section 158]
Section 2. Partly Paid Shares. In the event any certificate shall be issued
to represent partly paid shares which are subject to call for the remainder of
the consideration to be paid therefore, such certificate shall state (upon its
face or back) the total amount of the consideration to be paid therefor and the
amount of such consideration paid thereon to date. [Section 156]
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Section 3. Facsimile Signatures, etc. If such certificate is countersigned
by a transfer agent other than the Corporation or its employee, or by a
registrar other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In the event that any officers 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, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue. [Section 158]
Section 4. Lost, Stolen or Destroyed Certificates. The Board of Directors
may direct that a new certificate be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon delivery to the Board of an affidavit of the owner or owners of
such certificate, setting forth such allegation. The Board may require the owner
of such lost, stolen or destroyed certificate, or his local representative, to
give the Corporation a bond sufficient to indemnify it against any claim that
may be made against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of any, such new certificate. [Section 167]
Section 5. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate representing shares, duly
endorsed or accompanied by appropriate evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate, and record the transaction
upon its books. Subject to the provisions of the Certificate of Incorporation
and these By-Laws, the Board of Directors may prescribe such additional rules
and regulations as it may deem appropriate relating to the issue, transfer and
registration of shares of the Corporation.
Section 6. Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any
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<PAGE>
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting, provided, however, that the Board may fix a new
record date for the adjourned meeting. [Section 213(a),(c)]
Section 7. Registered Stockholders. Prior to due surrender of a certificate
for registration of transfer, the Corporation may treat the registered owner as
the person exclusively entitled to receive dividends and other distributions, to
vote, to receive notice and otherwise to exercise all the rights and powers of
the owner of the shares represented by such certificate, and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
such shares on the part of any other person, whether or not the Corporation
shall have notice of such claim or interest. Whenever any transfer of shares
shall be made for collateral security, and not absolutely, it shall be so
expressed in the entry of the transfer if, when the certificates are presented
to the Corporation for transfer, both the transferor and transferee request the
Corporation to do so. [Section 159]
Section 8. Transfer Agent and Registrar. The Board of Directors may appoint
one or more transfer agents and one or more registrars, and may require all
certificates representing shares to bear the signature of any of such agents or
registrars.
ARTICLE VI
INDEMNIFICATION
Section 1. Indemnification of Directors, Officers, etc. Any person who was
or is party or is threatened to be made a party to any threatened, pending
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<PAGE>
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was at any time since
the inception of the Corporation a Director, officer, employee or agent of
the Corporation, or is or was at any time since the inception of the Corporation
serving at the request of the Corporation as a Director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall be indemnified by the Corporation to the full extent
permitted by Subsections (a) through (i) of Section 145 of the General
Corporation Law of the State of Delaware (or any similar provision or provisions
of applicable law at the time in effect). The foregoing right of indemnification
shall in no way be exclusive of any other rights of indemnification to which any
such Director, officer, employee or agent may be entitled under any agreement,
vote of stockholders or disinterested Directors or otherwise.
ARTICLE VII
OFFICES
Section 1. Registered Office. The principal office or place of business of
the Corporation in the State of Delaware shall be located at 1209 Orange Street,
City of Wilmington, County of New Castle.
Section 2. Other Offices. The Corporation may maintain offices or places of
business at such other locations within or without the State of Delaware as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Subject to any applicable provisions of law and the
Certificate of Incorporation, dividends upon the shares of the Corporation may
be declared by the Board of Directors at any regular or special meeting of the
Board and any such dividend may be paid in cash, property, or shares of the
Corporation. [Section 173]
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<PAGE>
Section 2. Reserves. There may be set apart from time to time out of any
funds of the Corporation available for dividends such reserve or reserves as the
Board of Directors may deem appropriate, and the Board of Directors may
similarly modify or abolish any such reserve or reserves. [Section 171]
Section 3. Execution of Instruments. Subject to the approval of the Board
of Directors, the Chairman, the President, or any Vice President may enter into
any contract or execute and deliver any instruments in the name and on behalf of
the Corporation. The Board may authorize any other officer or agent to enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. Any such authorization may be general or limited to
specific contracts or instruments.
Section 4. Deposits. Any funds of the Corporation may be deposited from
time to time in such banks, trust companies or other depositories as may be
deter-mined by the Board of Directors, or by such officers or agents as may be
authorized by the Board to make such determination.
Section 5. Checks, Drafts, etc. All notes, drafts, bills of exchange,
acceptances, checks, endorsements and other evidences of indebtedness of the
Corporation, and its orders for the payment of money shall be signed by such
officer or officers or such agent or agents of the Corporation, and in such
manner, as the Board of Directors from time to time may determine.
Section 6. Sale, Transfer, etc. of Securities. To the extent authorized by
the Board of Directors, the Chairman, the President, or any Vice President
together with the Secretary or Treasurer or an Assistant Secretary or Assistant
Treasurer may sell, transfer, endorse, and assign any Shares of stock, bonds or
other securities owned by or held in the name of the corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal,
any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
Section 7. Voting as Stockholder. Unless otherwise determined by resolution
of the Board of Directors, the President, or any Vice President shall have full
power and authority on behalf of the Corporation to attend any meeting of
stockholders of any Corporation
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in which the Corporation may hold stock, and to act, vote (or (execute
proxies to vote) and exercise in person or by proxy all other rights, powers
and privileges incident to the ownership of such stock. Such officers acting on
behalf of the Corporation shall have full power and authority to execute any
instrument expressing consent to or dissent from any action of any such
corporation without a meeting. The Board of Directors may by resolution from
time to time confer such power and authority upon any other person or persons.
Section 8. Fiscal Year. Unless otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall commence on the first day of
January in each calendar year and terminate on the 31st day of December.
Section 9. Seal. The seal of the Corporation shall be circular in form and
shall contain the name of the Corporation, the year of incorporation and the
words 'Corporate Seal Delaware'. The seal may be used by causing it or a
facsimile thereof to be impressed, affixed or reproduced, or in any other lawful
manner.
Section 10. Books and Records; Inspection. Except to the extent otherwise
required by law, the books and records of the Corporation shall be kept at such
place or places within or without the State of Delaware as may be determined
from time to time by the Board of Directors.
ARTICLE I
AMENDMENT OF BY-LAWS
Section 1. Amendment. These By-Laws may be amended, altered or repealed by
the Corporation's stockholders or by the Board of Directors, provided that the
Board of Directors shall not have the power to classify directors for election
for staggered terms. [Section 109(a)]
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<PAGE>
EXHIBIT 3.13
CERTIFICATE OF INCORPORATION
OF
WATERSIDE URBAN RENEWAL CORPORATION
THIS IS TO CERTIFY THAT, there is hereby organized and formed a corporation
under and by virtue of N.J.S. 14A:1-1 et. seq., the 'New Jersey Business
Corporation Act.'
FIRST: The name of the corporation is WATERSIDE URBAN RENEWAL CORPORATION.
SECOND: The address of the registered office of this corporation is One
Garret Mountain Plaza, West Paterson, New Jersey 07424 (P.O. Box 2925, Paterson,
New Jersey 07509), and the name of the initial registered agent at such address,
upon whom process against this corporation may be served, is Robert M.
Macfarlan.
THIRD: The purposes for which this corporation is organized are:
1. To operate under the provision of N.J.S. 40:55C-40 et. seq., the
Urban Renewal Corporation and Association Law of 1961,' and to initiate and
conduct projects for the clearance, replanning, development and
redevelopment of blighted areas in municipalities and, when so authorized
by financial agreement with a municipality pursuant to the above cited Act,
to acquire by purchase or lease of not less than 15 years from a public or
private owner, plan, develop, construct, alter, maintain or operate
housing, business, industrial, commercial, cultural or recreational
projects or any combination of two (2) or more such types of improvement in
a single project, under such conditions as to use, ownership, management
and control as shall be regulated pursuant to said Act.
<PAGE>
2. To serve a public purpose, with its operations directed toward
providing for and making possible the clearance, replanning, development or
redevelopment of blighted areas or the acquisition, management and
operation of a project under the provisions of N.J.S. 40:55C-40 et. seq.,
and as provided therein, it shall be subject to regulation by the
municipality in which such project is situated, and to limitation on
profits and dividends for so long as it remains the owner of a project
subject for so long as it remains the owner of a project subject to the
provisions of said Act or is by contract or resolution charged with
responsibility for administration and management of a condomium property
pursuant to the provisions of P.L. 1969 (N.J.S. 46:XB-1 et.seq.)
3. To engage in any activity within the purposes for which
corporations may be organized under the 'New Jersey Business Corporation
Act.' N.J.S. 14A:1-1 et. seq., provided however, that so long as the
corporation is obligated under the 'Urban Renewal Corporation and
Association Law of 1961,' N.J.S. 40:55C-40 et. seq., it shall engage in no
business other than the development, redevelopment, ownership, operation
and management of a single project.
FOURTH: In the event that the corporation undertakes a project under the
provisions of the 'Urban Renewal Corporation and Association Law of 1961,'
N.J.S. 40:55C-40 et. seq., it shall not voluntarily transfer such project until
it has first removed both itself and the project from all restrictions and said
Act in the manner therein set forth; provided however, the foregoing restriction
shall not be applied to prevent the transfer of a project to another urban
renewal corporation which, with the consent to the municipality in which the
project is located, shall assume all the contractual obligations of this
corporation under its financial agreement with the said municipality.
<PAGE>
FIFTH: The aggregate number of shares which the corporation shall be
authorized to issue is two thousand five hundred (2,500) shares of common stock
without nominal or par value.
SIXTH: The number of Directors constituting the first Board of Directors of
this corporation shall be one (1) and his name and address is as follows:
Irwin S. Zonis
1401 Broad Street
Clifton, New Jersey 07015
SEVENTH: The name and address of the incorporator is:
Joseph Bernadino
One Garret Mountain Plaza
West Paterson, New Jersey 07424
(P.O. Box 2925)
(Paterson, New Jersey 07509)
IN WITNESS WHEREOF, I have caused this Certificate to be signed and sealed
this 25th day of June, 1981.
JOSEPH BERNADINO
------------------------------
Joseph Bernadino
<PAGE>
[BLANK PAGE]
<PAGE>
EXHIBIT 3.14
BY-LAWS
OF
WATERSIDE URBAN RENEWAL CORPORATION
- -------------------------------------------------------------------------------
Adopted June 29 ,1981
ARTICLE I
OFFICES
1. Registered Office and Agent. -- The registered office of the Corporation
in the State of New Jersey is at One Garret Mountain Plaza, West Paterson, New
Jersey.
The registered agent of the Corporation at such office is Robert. M. Macfarlan.
2. Principal Place of Business. -- The principal place of business of the
Corporation is 1401 Broad Street Clifton, New Jersey.
3. Other Places of Business. -- Branch or subordinate places of business or
offices may be established at any time by the Board at any place or places where
the Corporation is qualified to do business.
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ARTICLE II
SHAREHOLDERS
1. Annual Meeting. -- The annual meeting of shareholders shall be held
upon not less than ten nor more than 14A:5-4(l) sixty (lays written notice of
the time, place, and purpose of the meeting at l0:00 o'clock am. on the first
day of the month of May of each year at
or at such other time and place as shall be specified in the notice of
meeting, in order to elect directors and transact such other business as shall
come before the meeting. If that date is a legal holiday, the meeting shall be
held at the same hour on the next succeeding business day.
2. Special Meetings. -- A special meeting of share- holders may be called
for any purpose by the president or the Board. A special meeting shall be held
upon not less than ten nor more than sixty days written notice of the time,
pIace, and purposes of the meeting.
3. Action Without Meeting. -- The shareholders may act without: a meeting
if, prior or subsequent to such action, each shareholder who would have been
entitled to vote upon such action shall consent in writing to such action. Such
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written consent or consents shall be filed in the minute book.
4. Quorum. -- The presence at a meeting in person or by proxy of the
holders of shares entitled to cast' fifty percent: (50%) of the votes shall
constitute a quorum.
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<PAGE>
ARTICLE III
BOARD OF DIRECTORS
1. Number and Term of Office. -- The Board shall consist of 10 five
members. Each director shall be elected by the shareholders at each annual
meeting and shall hold office until the next annual meeting of shareholders and
until that director's successor shall have been elected and qualified.
2. Regular Meetings. -- A regular meeting of the Board shall be held
without notice immediately following and at the same place as the annual
shareholders' meeting for the purposes of electing officers and conducting such
other business as may come before the meeting. The Board, by resolution, may
provide for additional regular meetings which may be held without notice, except
to members not present at the time of the adoption of the resolution.
3. Special Meetings. -- A special meeting of the Board may be called at any
time by the resident or by two directors for any purpose. Such meeting shall be
held upon 10 days notice if given orally, (either by telephone or in person,)
or by telegraph, or by days notice if given by depositing the notice in the
United States mails, postage prepaid. Such notice shall specify the time and
place of the meeting.
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4. Action Without Meeting. -- The Board may act with- out a meeting if,
prior or subsequent to such action, each member of the Board shall consent in
writing to such action. Such written consent or consents shall be filed in the
minute book.
5. Quorum. -- Three members of the entire Board shall constitute
a quorum for the transaction of business.
6. Vacancies in Board of Directors. -- Any vacancy in the Board, 12
including a vacancy caused by an increase in the number of directors, may be
filled by the affirmative vote of a majority of the remaining directors, even
though less than a quorum of the Board, or by a sole remaining director.
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<PAGE>
ARTICLE IV
WAIVERS OF NOTICE
Any notice required by these by-laws, by the certificate of incorporation,
or by the New Jersey Business Corporation Act may be waived in writing by any
person entitled to notice. The waiver or waivers may be executed either before
or after the event with respect to which notice is waived. Each director or
shareholder attending a meeting without: protesting, prior to its conclusion,
the lack of proper notice shall be deemed conclusively to have waived notice of
the meeting.
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<PAGE>
ARTICLE V
OFFICERS
1. Election. - At its regular meeting following the annual meeting of
shareholders, the Board shall elect a president, a treasurer, a secretary, and
it may elect such other Officers, including one or more vice presidents, as it
shall deem necessary. One person may hold two or more offices.
2 .Duties and Authority of President. -- The president shall be chief
executive officer of the Corporation. Subject only to the authority of the
Board, he shall have general charge and supervision over, and responsibility
for, the business and affairs of the Corporation. Unless otherwise directed by
the Board, all other officers shall be subject to the authority and supervision
of the president. The president may enter into and execute in the name of the
Corporation contracts or other instruments in the regular course of business or
contracts or other instruments not in the regular course of business which are
authorized, either generally or specifically, by the Board. He shall have the
general powers and duties of management usually vested in the office of
president of a corporation.
3. Duties and Authority of Vice President.--The vice president shall
perform such duties and have such authority as from time to time may be
delegated to him by the president
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<PAGE>
or by the Board. In the absence of the president or in the event of his death,
inability, or refusal to act, the vice president shall perform the duties and be
vested with the authority of the president.
4. Duties and Authority of Treasurer. -- The treasurer shall have the
custody of the funds and securities of the Corporation and shall keep or cause
to be kept regular books of account for the Corporation. The treasurer shall
perform such other duties and possess such other powers as are incident to that
office or as shall be assigned by the president or the Board.
5. Duties and Authority of Secretary. -- The secretary shall cause notices
of all meetings to be served as prescribed in these by-laws and shall keep or
cause to be kept the minutes of all meetings of the shareholders and the Board.
The secretary shall have charge of the seal of the Corporation. The secretary
shall perform such other duties and possess such other powers as are incident to
that office or as are assigned by the president or the Board.
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<PAGE>
ARTICLE VI
AMENDMENTS TO AND EFFECT OF BY-LAWS;
FISCAL YEAR
1. Force and Effect of By-laws. -- These by-laws are subject to the
provisions of the New Jersey Business Corporation Act and the Corporation's
certificate of incorporation, as it may be amended from time to time. If any
provision in these by-laws is inconsistent with a provision in that Act or the
certificate of incorporation, the provision of that Act or the certificate of
incorporation shall govern.
2. Wherever in these by-laws references are made to more than one
incorporator, director or shareholder, they shall, if this is a sole
incorporator, director, shareholder corporation, be construed to mean the
solitary person; and all provisions dealing with the quantum of majorities or
quorums shall be deemed to mean the action by the one person constituting the
corporation.
3. Amendments to By-laws. -- These by-laws may be altered, amended or
repealed by the shareholders or the Board. Any by-law adopted, amended or
repealed by the shareholders may be amended or repealed by the Board, unless the
resolution of the shareholders adopting such by-law expressly reserves to the
shareholders the right to amend or repeal it.
4. Fiscal Year. -- The fiscal year of the Corporation shall begin on the
first day of January of each year.
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<PAGE>
EXHIBIT 3.15
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 07/23/1992
922055082 - 2071536
RESTATED CERTIFICATE OF INCORPORATION
OF
REHEIS, INC.
Pursuant to Section 245
of the Corporation Law of the
State of Delaware
REHEIS, INC. (hereinafter called the `Corporation'), originally
incorporated under the name of REHEIS CHEMICAL CORPORATION, INC. by original
Certificate of Incorporation filed in the office of the Secretary of State of
the State of Delaware on September 19, 1985, and currently organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify that the Board of Directors of the Corporation,
at a meeting of the Board of Directors duly called and held, has duly adopted a
resolution, pursuant to Sections 141 and 242 of the General Corporation Law of
the State of Delaware, setting forth an amended and restated Certificate of
Incorporation of the Corporation and declaring said amendment and restatement to
be advisable. The stockholders of the corporation have duly approved said
amendment and restatement by the required vote of such stockholders, adopted by
a written action in lieu of a meeting of such stockholders, all in accordance
with Sections 242, 245 and 228 of the General Corporation Law of the State of
<PAGE>
Delaware. The Certificate of Incorporation of the Corporation, as amended and
restated, is as follows:
FIRST. The name of the Corporation is Reheis, Inc.
SECOND. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
`FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 300,000 shares, consisting of (i)
275,000 shares of Common Stock, $.01 par value per share (`Common Stock'), and
(ii) 25,000 shares of Preferred Stock, $.01 par value per share (`Preferred
Stock').
The following is a statement of the designations and the powers,
privileges and rights, and the qualification, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders
of the Common Stock are subject to and qualified by the rights of the holders of
the Preferred Stock of any series as may be designated by this Board of
Directors upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock are entitled to one vote for
each share held at all meetings of stockholders (and written actions in lieu of
meetings). There shall be no cumulative voting.
3. Dividends. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
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4. Liquidation. Upon the dissolution or liquidation of the Corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
B. PREFERRED STOCK.
Preferred Stock may be issued form time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation, as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not to construed to constitute different classes of
shares for the purposes of voting by classes unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolutions or resolutions
providing for the issue of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be stated and expressed in such
resolutions, all to the full extent now or hereafter permitted by the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
the resolutions providing for issuance of any series of Preferred Stock may
provide that such series shall be superior or rank equally or be junior to the
Preferred Stock of any other series to the extent permitted by law. No vote of
the holders of the Preferred Stock or Common Stock shall be a prerequisite to
the issuance of any shares of any series of the Preferred Stock authorized by
and complying with the conditions of the Certificate of incorporation, the
right to have such vote being expressly waived by all present and future
holders of the capital stock of the Corporation.'
FIFTH. [Omitted].
SIXTH. In furtherance of and not in limitation of powers conferred by
statute, it is further provided:
1. Election of directors need not be by written ballot.
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2. The Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation.
SEVENTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH. Except to the extent that the General Corporation Law of the
State of Delaware prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty, no director of the Corporation shall
be personally liable to the Corporation or its stockholders for monetary damages
for any breach of fiduciary duty as a director, notwithstanding any provision of
law imposing such liability. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
NINTH. 1. Actions, Suits and Proceedings Other than by or in the Right
of the Corporation. The Corporation shall indemnify each 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 (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is
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or was serving, or has agreed to serve, at the request of the Corporation,
as a director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (all
such persons being referred to hereafter as an `Indemnitee'), or by reason
of any action alleged to have been taken or omitted in such capacity, against
all costs, charges and expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he 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 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 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 conduct
was unlawful. Notwithstanding anything to the contrary in this Article, except
as set forth in Section 6 below, the Corporation shall not indemnify an
Indemnitee seeking indemnification in connection with proceeding (or part
thereof) initiated by the Indemnitee unless the initiation thereof was approved
by the Board of Directors of the Corporation.
2. Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any Indemnitee 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 is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at
the request of the Corporation, as a director, officer of trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against all costs, charges and expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person, shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit
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<PAGE>
was brought shall determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
(including attorneys' fees) which the Court of Chancery of Delaware or such
other court shall deem proper.
3. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Article, to the extent that
an Indemnitee has been successful, on the merits or otherwise, in defense of
any action, suit or proceeding referred to in Sections 1 and 2 of this Article,
or in defense of any claim, issue or matter therein, or on appeal from any such
action, suit or proceeding, he shall be indemnified against all costs, charges
and expenses (including attorneys' fees) actually and reasonably incurred by him
or on his behalf in connection therewith.
4. Notification and Defense of Claim. As a condition precedent to his
right to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to such Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section 4. The Indemnitee shall have the
right to employ his own counsel in connection with such claim, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between the Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for the Indemnitee shall be at the expense of the Corporation, except
as otherwise expressly provided by this Article. The Corporation shall not be
entitled to assume the defense of any claim brought by or in the right of the
Corporation or as to which counsel for the Indemnitee shall have reasonably made
the conclusion provided for in clause (ii) above.
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5. Advance of Costs, Charges and Expenses. Subject to the provisions of
Section 6 below, in the event that the Corporation does not assume the defense
pursuant to Section 4 of this Article of any action, suit, proceeding or
investigation of which the Corporation receives notice under this article, any
costs, charges and expenses (including attorneys' fees) incurred by an
Indemnitee in defending a civil or criminal action, suit, proceeding or
investigation or any appeal therefrom shall be paid by the Corporation in
advance of the final disposition of such matter, provided, however, that the
payment of such costs, charges and expenses incurred by an Indemnitee in
advance of the final disposition of such matter shall be made only upon receipt
of an undertaking by or on behalf of the Indemnitee to repay all amounts so
advanced in the event that it shall ultimately be determined that such
Indemnitee is not entitled to be indemnified by the Corporation as authorized
in this Article.
6. Procedure for Indemnification. Any indemnification or advancement of
expenses pursuant to Section 1, 2, 3 or 5 of this Article shall be made
promptly, and in any event within 60 days after receipt by the Corporation of
the written request of the Indemnitee, unless with respect to requests under
Section 1, 2 or 5 the Corporation determines within such 60-day period that
such indemnitee did not meet the applicable standard of conduct set forth in
Section 1 or 2, as the case may be. Such determination shall be made in each
instance by (a) a majority vote of a quorum of the directors of the Corporation
consisting of persons who are not at that time parties to the action, suit or
proceeding in question ('disinterested directors'), (b) if no such quorum is
obtainable, a majority vote of a committee of two or more disinterested
directors, (c) a majority vote of a quorum of the outstanding shares of stock of
all classes entitled to vote for directors, voting as a single class, which
quorum shall consist of stockholders who are not at that time parties to the
action, suit or proceeding in question, (d) independent legal counsel (who may
be regular legal counsel to the Corporation) appointed for such purpose by vote
of the directors in the manner specified in clause (a) or (b) above, or (e) a
court of competent jurisdiction. The right to indemnification or advances as
granted by this Article shall be enforceable by the Indemnitee in any court of
competent jurisdiction if the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within the 60-day period referred to
above. Such Indemnitee's costs, charges and expenses (including attorneys' fees)
incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such proceeding shall also be
indemnified, by the Corporation. Unless otherwise provided by law, the burden of
proving that the
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Indemnitee is not entitled to indemnification or advancement of expenses under
this Article shall be on the Corporation.
7. Subsequent Amendment. No amendment, termination or repeal of this
Article or of the relevant provisions of the Delaware General Corporation Law or
any other applicable laws shall affect or diminish in any way the rights of any
Indemnitee to indemnification under the provisions hereof with respect to any
action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
8. Other Rights. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of such Indemnitee. Nothing contained in this
Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, the Corporation may, to the extent authorized from time to
time by its Board of Directors, grant indemnification rights to other employees
or agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this
Article.
9. Partial Indemnification. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the costs, charges and expenses (including attorneys' fees),
judgments, fines or amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with any action, suit,
proceeding or investigation and any appeal therefrom but not, however, for the
total amount thereof, the Corporation shall nevertheless indemnify the
Indemnitee for the portion of such costs, charges and expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement to which
such Indemnitee is entitled.
10. Insurance. The Corporation may purchase and maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss incurred by him
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in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
11. Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
12. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each indemnitee as to any costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement in connection with any action, suit, proceeding or
investigation, whether civil, criminal or administrative, including an action by
or in the right of the Corporation, to the fullest extent permitted by any
applicable portion of this Article that shall not have been invalidated and to
the fullest extent permitted by applicable law.
13. Definitions. Terms used herein and defined in Section 145(h) and
Section 145(i) of the Delaware General Corporation Law shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
14. Subsequent Legislation. If the Delaware General Corporation Law is
amended after adoption of this Article to expand further the indemnification
permitted to Indemnities, then the Corporation shall indemnify such persons to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
TENTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation, in
the manner now or hereafter prescribed by statute and the Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
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IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Restated Certificate of Incorporation to be signed by
its President and attested by its Assistant Secretary this 23rd day of July,
1992.
REHEIS, INC.
By: PHILIP I. WHITE
-----------------------------------
Philip I. White, President
ATTEST:
[signature illegible]
- --------------------------------
Assistant Secretary
(Corporate Seal)
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EXHIBIT 3.16
SECOND AMENDED AND RESTATED
BY-LAWS
OF
REHEIS, INC.
<PAGE>
BY-LAWS
TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C>
ARTICLE 1 - Stockholders . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Place of Meetings . . . . . . . . . . . . . 1
Section 1.2 Annual Meeting . . . . . . . . . . . . . . 1
Section 1.3 Election of Directors . . . . . . . . . . . 1
Section 1.4 Special Meeting of Stockholders . . . . . . 1
Section 1.5 Notice of Meetings . . . . . . . . . . . . 2
Section 1.6 Business at Special Meetings of
Stockholders . . . . . . . . . . . . . . . 2
Section 1.7 Voting List . . . . . . . . . . . . . . . . 2
Section 1.8 Quorum . . . . . . . . . . . . . . . . . . 2
Section 1.9 Adjournments . . . . . . . . . . . . . . . 3
Section 1.10 Voting and Proxies . . . . . . . . . . . . 3
Section 1.11 Action at Meeting . . . . . . . . . . . . . 3
Section 1.12 Action Without Meeting;
Unanimous Consent . . . . . . . . . . . . 3
ARTICLE 2 - Directors . . . . . . . . . . . . . . . . . . . . 4
Section 2.1 General Powers . . . . . . . . . . . . . . 4
Section 2.2 Number; Qualification; Term of Office . . . 4
Section 2.3 Election . . . . . . . . . . . . . . . . . 4
Section 2.4 Vacancies . . . . . . . . . . . . . . . . . 4
Section 2.5 Resignation . . . . . . . . . . . . . . . . 4
Section 2.6 Regular Meetings . . . . . . . . . . . . . 5
Section 2.7 Special Meetings . . . . . . . . . . . . . 5
Section 2.8 Notice of Special Meetings . . . . . . . . 5
Section 2.9 Meetings by Telephone
Conference Calls . . . . . . . . . . . . . 5
Section 2.10 Quorum . . . . . . . . . . . . . . . . . . 5
Section 2.11 Action at Meeting . . . . . . . . . . . . . 5
Section 2.12 Action by Consent . . . . . . . . . . . . . 6
Section 2.13 Removal of Directors by
Stockholders . . . . . . . . . . . . . . . 6
Section 2.14 Committees . . . . . . . . . . . . . . . . 6
Section 2.15 Compensation of Directors . . . . . . . . 6
ARTICLE 3 - Officers . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1 Enumeration . . . . . . . . . . . . . . . . 7
Section 3.2 Election . . . . . . . . . . . . . . . . . 7
Section 3.3 Qualification . . . . . . . . . . . . . . . 7
Section 3.4 Tenure . . . . . . . . . . . . . . . . . . 7
Section 3.5 Resignation and Removal . . . . . . . . . . 7
Section 3.6 Vacancies . . . . . . . . . . . . . . . . . 8
</TABLE>
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<TABLE>
<S> <C>
Section 3.7 Chairman of the Board and
Vice Chairman of the Board . . . . . . . . 8
Section 3.8 President . . . . . . . . . . . . . . . . . 8
Section 3.9 Vice Presidents . . . . . . . . . . . . . . 8
Section 3.10 Secretary and Assistant Secretaries . . . . 8
Section 3.11 Treasurer and Assistant Treasurers . . . . 9
Section 3.12 Salaries . . . . . . . . . . . . . . . . . 9
ARTICLE 4 - Capital Stock . . . . . . . . . . . . . . . . . . 10
Section 4.1 Issuance of Stock . . . . . . . . . . . . . 10
Section 4.2 Certificates of Stock . . . . . . . . . . . 10
Section 4.3 Transfers . . . . . . . . . . . . . . . . . 10
Section 4.4 Lost, Stolen or Destroyed Certificates . . 11
Section 4.5 Record Date . . . . . . . . . . . . . . . . 11
ARTICLE 5 - General Provisions . . . . . . . . . . . . . . . 12
Section 5.1 Fiscal Year . . . . . . . . . . . . . . . . 12
Section 5.2 Corporate Seal . . . . . . . . . . . . . . 12
Section 5.3 Waiver of Notice . . . . . . . . . . . . . 12
Section 5.4 Voting of Securities . . . . . . . . . . . 12
Section 5.5 Evidence of Authority . . . . . . . . . . . 12
Section 5.6 Certificate of Incorporation . . . . . . . 12
Section 5.7 Transactions with Interested
Parties . . . . . . . . . . . . . . . . . 12
Section 5.8 Severability . . . . . . . . . . . . . . . 13
Section 5.9 Pronouns . . . . . . . . . . . . . . . . . 13
ARTICLE 6 - Amendments . . . . . . . . . . . . . . . . . . . 13
Section 6.1 By the Board of Directors . . . . . . . . . 13
Section 6.2 By the Stockholders . . . . . . . . . . . . 13
</TABLE>
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<PAGE>
BY-LAWS
OF
REHEIS, INC.
ARTICLE I - Stockholders
1.1 Place of Meetings. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors or the President or the Secretary, or, if not so
designated, at the registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held in each calendar year, commencing with
the year 1995, at a date and time fixed by the Board of Directors, or if the
Board of Directors fails to set a date and time on the second Tuesday of August
at 10:00 a.m., provided that if this date shall fall upon a legal holiday at the
place of the meeting, then such meeting be held on the next succeeding
business day at the same hour. If no annual meeting is held in accordance with
the foregoing provisions, the Board of Directors shall cause the meeting to be
held as soon thereafter as convenient. If no annual meeting is held in
accordance with the foregoing provisions, a special meeting may be held in lieu
of the annual meeting, and any action taken at that special meeting shall have
the same effect as if it had been taken at the annual meeting, and in such case
all references in these By-Laws to the annual meeting of the stockholders shall
be deemed to refer to such special meeting.
1.3 Election of Directors. At each annual meeting of stockholders there
shall be held an election of directors to succeed the class of directors whose
term expires at that meeting.
1.4 Special Meeting of Stockholders. Except as otherwise specifically
provided by law, special meetings of the stockholders may be called at any time
by President, Secretary or the Board of Directors of the Corporation.
Upon the written request of any person entitled to call a special meeting
under these By-Laws or applicable law, which request specifies the purpose for
which the meeting is desired, it shall be the duty of the Secretary to give
prompt written
<PAGE>
notice of such meeting to be held at such time as the Secretary may fix, subject
to the provisions of Section 1.5 hereof. If the Secretary shall fail to fix such
date and give notice within 10 days after receipt of such request, the person or
persons calling the meeting may do so.
1.5 Notice of Meetings. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, shall be given at
the direction of the person or persons authorized to call the meeting not less
than 10 not more than 60 days before the date of the meeting to each stockholder
entitled to vote at such meeting. The notices of all meetings shall state the
place, date and hour of the meeting The notice of a special meeting shall state,
in addition, the purpose or purposes for which the meeting is called. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
corporation.
1.6 Business at Special Meetings of Stockholders. Except as otherwise
provided by law or in these By-Laws, the business which shall be conducted at
any meeting of the stockholders shall be related to the purpose or purposes of
such meeting set forth in the notice thereof given pursuant to Section 1.4 and
1.5 of the By-Laws.
1.7 Voting List. The officer who has charge of the stock ledger of the
corporation shall prepare, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, at a place within the city where the meeting is
to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time of the meeting, and may be inspected by any
stockholder who is present.
1.8 Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the holders of one-third of the shares of the
capital stock entitled to vote at the meeting, present in person or represented
by proxy, shall constitute a quorum for the transaction of business. When a
quorum is once present to organize a meeting of stockholders, it is not broken
by the subsequent withdrawal of any stockholders. The holders of a majority of
shares of stock present in person or represented by proxy at any meeting of
stockholders, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place.
2
<PAGE>
1.9 Adjournments. Any meeting of stockholders may be adjourned to any other
time and to any other place at which a meeting of stockholders may be held under
these By-Laws by the stockholders present or represented at the meeting and
entitled to vote, although less than a quorum, or, if no stockholder is present,
any officer entitled to preside at or to act as Secretary of such meeting. It
shall not be necessary to notify any stockholder of any adjournment of less than
30 days if the time and Place of the adjourned meeting are announced at the
meeting at which adjournment is taken, unless after the adjournment a new
record date is fixed for the adjourned meeting. At the adjourned meeting, the
corporation may transact any business which might have been transacted at the
original meeting.
1.10 Voting and Proxies. Each stockholder shall have one vote for each
share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
in the Certificate of Incorporation. Each stockholder of record entitled to vote
at a meeting of stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such consent or dissent
in person or may authorize another person or persons to vote or act for him by
written proxy executed by, the stockholder or his authorized agent and delivered
to the Secretary of the corporation. No such proxy shall be voted or acted upon
after three years from the date of its execution, unless the proxy expressly
provides for a longer period.
1.11 Action at Meeting. When a quorum is present at any meeting, the
holders of a majority of the stock present or represented and voting on a matter
(or if there are two or more classes of stock entitled to vote as separate
classes, then in the case of each such class, the holders of a majority of the
stock of that class present or represented and voting on a matter) shall decide
any matter to be voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the Certificate of
Incorporation or these By-Laws. Any election by stockholders shall be determined
by a plurality of the votes cast by the stockholders entitled to vote at the
election.
1.12 Action without Meeting; Unanimous Consent. Any action required or
permitted to be taken at any annual or special meeting of stockholders of the
corporation may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, is signed by
all of the holders of outstanding stock that would be entitled to vote on such
action at any annual or special meeting.
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ARTICLE 2 - Directors
2.1 General Powers. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law, the
Certificate of incorporation or these By-Laws. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board until the vacancy is filled.
2.2 Number. The Board of Directors shall consist of one or more members.
The total number of directors shall initially be fixed at two and may thereafter
be changed from time to time by action of the stockholders or by action of the
Board. Directors need not be stockholders of the corporation. Each director
shall hold office until his successor is elected and qualified or until his
earlier death, resignation or removal.
2.3 Election. Directors shall, except as otherwise required by law or by
the Certificate of Incorporation, be elected by a plurality of the votes cast at
a meeting of stockholders by the holders of shares entitled to vote in the
election.
2.4 Vacancies. Unless otherwise provided in the Certificate of
Incorporation, any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from an enlargement of the Board, may be filled by
vote of a majority of the directors then in office, although less than a quorum,
or by a sole remaining director, or may be elected by a plurality of the votes
cast by the holders of shares of capital stock entitled to vote in the election
at a special meeting of stockholders called for that purpose. A director elected
to fill a vacancy shall be elected to hold office until his successor is
elected and qualified, or until his earlier death, resignation or removal.
2.5 Resignation. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some
other event.
2.6 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately
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after and at the same place as the annual meeting of stockholders.
2.7 Special Meetings. Special meetings of the Board of Directors may be
held at any time and place, within or without the State of Delaware, designated
in a call by the President, Secretary, or by any two or more directors, or by
one director in the event that there is only a single director in office.
2.8 Notice of Special Meeting. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each director (i)
by giving notice to such director in person or by telephone at least 48 hours in
advance of the meeting, (ii) by sending a telegram or telex, or delivering
written notice by hand, to his last known business or home address at least 48
hours in advance of the meeting, or (iii) by mailing written notice to his last
known business or home address at least 72 hours in advance of the meeting. A
notice or waiver of notice of a meeting of the Board of Directors need not
specify the purpose of the meeting.
2.9 Meetings by Telephone Conference Calls. Directors or any members of any
committee designated by the directors may participate in meetings of the Board
of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation by such means shall constitute
presence in person at such meeting.
2.10 Quorum. One-third of the total number of the whole Board of Directors
shall constitute a quorum for the transaction of business or of any specified
item of business at any meeting of the Board of Directors.
2.11 Action at Meeting. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the Certificate
of Incorporation or these By-Laws.
2.12 Action by Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of Directors
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent to the action in writing, and the written consents are
filed with the minutes of proceedings of the Board or committee.
2.13 Removal of Directors by Stockholders. The entire Board of Directors or
any individual director may be removed from
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office with or without cause by the holders of a majority of the shares them
entitled to vote at an election of directors. In case the entire Board of
Directors be so removed, new directors may be elected by the stockholders at
such time. In the event that less than the entire Board of Directors be so
removed, new directors shall be elected by a majority of the directors then in
office, although less than a quorum.
2.14 Committees. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace an 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 of
the committee present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors 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 of Directors and subject to the provisions of the
General Corporation Law of the State of Delaware, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the seal of the
corporation to be affixed to all papers which may require it. Each such
committee shall keep minutes and make such reports as the board of Directors may
from time to time request. Except as the Board of Directors may otherwise
determine, any committee may make rules for the conduct of its business, but
unless otherwise provided by the directors or in such rules, its business shall
be conducted as nearly as possible in the same manner as is provided in these
By-Laws for the Board of Directors.
2.15 Compensation of Directors. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE 3 - Officers
3.1 Enumeration. The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including a Chairman of the
Board, a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant
Treasurers,
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and Assistant Secretaries. The Board of Directors may appoint such other
officers as it may deem appropriate.
3.2 Election. The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in the
vote choosing or appointing him, or until his earlier death, resignation or
removal.
3.5 Resignation and Removal. Any officer may resign by delivering his
written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event.
Any officer may be removed at any time, with or without cause, by vote of
a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer
for any period following his resignation or removal, or any right to damages
on account of such removal, whether his compensation be by the month or by the
year or otherwise, unless such compensation is expressly provided in a duly
authorized written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy occurring in
any office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of President, Treasurer
and Secretary. Each such successor shall hold office for the unexpired term of
his predecessor and until his successor is elected and qualified, or until his
earlier death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board. The Board of
Directors may appoint a Chairman of the Board and may designate the Chairman of
the Board as Chief Executive Officer. If the Board of Directors appoints a
Chairman of the Board, he shall perform such duties and possess such powers as
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are assigned to him by the Board of Directors. If the Board of Directors
appoints a Vice-Chairman of the Board, he shall, in the absence or disability of
the Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of Directors.
3.8 President. The President shall, subject to the direction of the Board
of Directors, have general charge and supervision of the business of the
corporation. Unless otherwise provided by the Board of Directors, he shall
preside at all meetings of the stockholders, if he is a director, at all
meetings of the Board of Directors. Unless the Board of Directors has designated
the Chairman of the Board or another officer as Chief Executive Officer, the
President shall be the Chief Executive Officer of the corporation. The President
shall perform such other duties and shall have such other powers as the Board of
Directors may from time to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time to
time prescribe. In the event of the absence, inability or refusal to act of the
President, the Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors) shall perform the
duties of the President and when so performing shall have all the powers of and
be subject to all the restrictions upon the President. The Board of Directors
may assign to any Vice President the title of Executive Vice President, Senior
Vice President or any other title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the President
may from time to time prescribe. In addition, the Secretary shall perform such
duties and have such power as are incident to the office of the secretary,
including without limitation the duty and power to give notices of all meetings
of stockholders and special meetings of the Board of Directors, to attend all
meetings of stockholders and the Board of Directors and keep a record of the
proceedings, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or the Secretary may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Secretary, the Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
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Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such
duties and shall have such powers as may from time to tune be assigned to him by
the Board of Directors or the president. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the office of
treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds of
the corporation in depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds and to render as required by the Board of Arrectors
statements of all such transactions and of the financial condition of the
corporation.
The Assistant Treasurer shall perform such duties and possess such powers
as the Board of Directors, the President or the Treasurer may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Treasurer, the Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Treasurer.
3.12 Salaries. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2 Certificates of Stock. Every holder of stock of the corporation shall
be entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
him in the corporation. Each such certificate shall be signed by, or in the
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name of the corporation by, the Chairman or Vice-Chairman, if any, of the Board
of Directors, or the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the By-Laws,
applicable securities laws or any agreement among any number of shareholders or
among such holders and the corporation shall have conspicuously noted on the
face or back of the certificate either the full text of the restriction or a
statement of the existence of such restriction.
4.3 Transfers. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to the
corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of Incorporation
or by these By-Laws, the corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote with respect
to such stock, regardless of any transfer, pledge or other disposition of such
stock until the shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to
have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation, any
transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other action to
which such record date relates.
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If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to a
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. The record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE 5 - General Provisions
5.1 Fiscal Year. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the first
day of January in each year and end on the last day of December in each year.
5.2 Corporate Seal. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 Waiver of Notice. Whenever any notice whatsoever is required to be
given by law, by the Certificate of Incorporation or by these By-Laws, a waiver
of such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telegraph, cable or any other
available method, whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
5.4. Voting of Securities. Except as the directors may otherwise designate,
the President or Treasurer may waive notice of, and act as, or appoint any
person or persons to act as, proxy or attorney-in-fact for this corporation
(with or without power of substitution) at, any meeting of stockholders or
shareholders
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of any other corporation or organization, the securities of which may be held
by this corporation.
5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the corporation shall
as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
5.6 Certificate of Incorporation. All references in these By-Laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
5.7 Transactions with Interested Parties. No contract or transaction
between the corporation and one or more of the directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(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 Arrectors,
a committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
5.8 Severability. Any determination that any provision of these By-Laws is
for any reason inapplicable, illegal or
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ineffective shall not affect or invalidate any other provision of these By-Laws.
5.9 Pronouns. All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
ARTICLE 6 - Amendments
6.1 By the Board of Directors. These By-Laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of a majority of
the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
6.2 By the Stockholders. These By-Laws may be altered, amended or repealed
or new by-laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote at any regular meeting of stockholders, or at
any special meeting of stockholders, provided notice of such alteration,
amendment, repeal or adoption of new by-laws shall have been Stated in the
notice of such special meeting.
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EXHIBIT 3.17
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DEFIANCE, INC.
Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware
Defiance, Inc. a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The Corporation was originally incorporated under the name 'Defiance
Precision Products, Inc.' and the date of filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was August
19, 1985. The original Certificate of Incorporation was amended on July 28,
1987, July 27, 1989 and on December 15, 1994.
2. This Amended and Restated Certificate of Incorporation, having been duly
adopted in accordance with Sections 228, 242 and 245 of the General Corporation
Law of the State of Delaware, amends, restates and integrates the provisions of
the Certificate of Incorporation of the Corporation filed with the Secretary of
State of the State of Delaware, as amended.
3. Accordingly, the Certificate of Incorporation of the Corporation as
filed with the Secretary of State of the State of Delaware, as amended, is
hereby further amended and restated to read in its entirety as set forth below:
<PAGE>
FIRST: The name of the Corporation is Defiance, Inc. (hereinafter called
the 'Corporation').
SECOND: The Corporation's registered office in the State of Delaware is at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business of the Corporation and its purpose is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is 1000 shares of Common Stock, par value $.01 per
share.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for the
purpose of creating, defining, limiting and regulating the powers of the
Corporation and its directors and stockholders.
(a) The number of directors of the Corporation shall be fixed and may be
altered from time to time in the manner provided in the By-Laws, and
vacancies in the Board of Directors and newly created directorships
resulting from any increase in the authorized number of directors may be
filled, and directors may be removed, as provided in the By-Laws.
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(b) The election of directors may be conducted in any manner approved by
the stockholders at the time when the election is held and need not be by
written ballot.
(c) All corporate powers and authority of the Corporation (except as at the
time otherwise provided by law, by this Certificate of Incorporation or by
the By-Laws) shall be vested in and exercised by the Board of Directors.
(d) The Board of Directors shall have the power without the assent or vote
of the stockholders to adopt, amend, alter or repeal the By-Laws of the
Corporation, except to the extent that the By-Laws or this Certificate of
Incorporation otherwise provide.
(e) No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of his or her fiduciary duty
as a director, provided that nothing contained in this Article shall
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good fitfh or which involve intentional misconduct
or a knowing violation of the law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware or (iv) for any transaction from
which the director derived an improper personal benefit.
SIXTH: The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner now or hereafter
prescribed by the laws of the State of Delaware, and all right herein conferred
upon stockholders or directors are granted subject to this reservation.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation,
having been duly adopted by the Board of Directors and the stockholders of the
Corporation, has been executed this 24th day of February, 1999.
Defiance, Inc.
By: MICHAEL R. HERMAN
---------------------------------------------
Michael R. Herman
Vice President, General Counsel and Secretary
<PAGE>
EXHIBIT 3.18
- --------------------------------------------------------------------------------
DEFIANCE, INC.
BY-LAWS
As Adopted on February 24, 1999
- --------------------------------------------------------------------------------
<PAGE>
DEFIANCE, INC.
BY-LAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE I
STOCKHOLDERS .................................................................1
1.01. Annual Meetings ........................................................1
1.02. Special Meetings .......................................................1
1.03. Notice of Meetings; Waiver .............................................1
1.04. Quorum .................................................................2
1.05. Voting .................................................................2
1.06. Voting by Ballot .......................................................2
1.07. Adjournment ............................................................2
1.08. Proxies ................................................................3
1.09. Organization; Procedure ................................................3
1.10. Consent of Stockholders in Lieu of Meeting .............................4
ARTICLE II
BOARD OF DIRECTORS ...........................................................4
2.01. General Powers .........................................................4
2.02. Number and Term of Office. .............................................4
2.03. Election of Directors ..................................................5
2.04. Annual and Regular Meetings ............................................5
2.05. Special Meetings; Notice ...............................................5
2.06. Quorum; Voting .........................................................6
2.07. Adjournment ............................................................6
2.08. Action Without a Meeting ...............................................6
2.09. Regulations; Manner of Acting ..........................................6
2.10. Action by Telephonic Communications ....................................6
2.11. Resignations ...........................................................6
2.12. Removal of Directors ...................................................7
2.13. Vacancies and Newly Created Directorships ..............................7
2.14. Compensation ...........................................................7
2.15. Reliance on Accounts and Reports, etc. .................................7
</TABLE>
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<TABLE>
<S> <C>
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES .....................................7
3.01. How Constituted ........................................................7
3.02. Powers .................................................................8
3.03. Proceedings ............................................................8
3.04. Quorum and Manner of Acting ............................................9
3.05. Action by Telephonic Communications ....................................9
3.06. Absent or Disqualified Members .........................................9
3.07. Resignations ...........................................................9
3.08. Removal ................................................................9
3.09. Vacancies ..............................................................9
ARTICLE III
OFFICERS ....................................................................10
4.01. Number ................................................................10
4.02. Election ..............................................................10
4.03. Salaries ..............................................................10
4.04. Removal and Resignation; Vacancies.....................................10
4.05. Authority and Duties of Officers ......................................10
4.06. The President .........................................................10
4.07. The Vice President ....................................................11
4.08. The Secretary .........................................................11
4.09. The Treasurer .........................................................12
4.10. Additional Officers ...................................................13
4.11. Security ..............................................................13
ARTICLE V
CAPITAL STOCK................................................................13
5.01. Certificates of Stock, Uncertificated Shares ..........................13
5.02. Signatures; Facsimile .................................................14
5.03. Lost, Stolen or Destroyed Certificates ................................14
5.04. Transfer of Stock .....................................................14
5.05. Record Date ...........................................................15
5.06. Registered Stockholders ...............................................15
5.07. Transfer Agent and Registrar ..........................................16
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ARTICLE VI
INDEMNIFICATION .............................................................16
6.01. Nature of Indemnity ...................................................16
6.02. Successful Defense ....................................................17
6.03. Determination That Indemnification Is Proper ..........................17
6.04. Advance Payment of Expenses ...........................................18
6.05. Procedure for Indemnification of Directors and Officers ...............18
6.06. Survival; Preservation of Other Rights ................................19
6.07. Insurance .............................................................19
6.08. Severability ..........................................................19
ARTICLE VII
OFFICES .....................................................................20
7.01. Registered Office .....................................................20
7.02. Other Offices .........................................................20
ARTICLE VIII
GENERAL PROVISIONS ..........................................................20
8.01. Dividends .............................................................20
8.02. Reserves ..............................................................20
8.03. Execution of Instruments ..............................................21
8.04. Corporate Indebtedness ................................................21
8.05. Deposits ..............................................................21
8.06. Checks ................................................................21
8.07. Sale, Transfer, etc. of Securities ....................................21
8.08. Voting as Stockholder .................................................22
8.09. Fiscal Year............................................................22
8.10. Seal ..................................................................22
8.11. Books and Records; Inspection .........................................22
ARTICLE IX
AMENDMENT OF BY-LAWS.........................................................22
9.01. Amendment .............................................................22
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ARTICLE X
CONSTRUCTION ............................................................... 23
10.01. Construction ........................................................ 23
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DEFIANCE, INC.
BY-LAWS
As adopted on February 24, 1999
---------------------------------------------
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the stockholders of
the Corporation for the election of directors and for the transaction of such
other business as properly may come before such meeting shall be held at such
place, either within or without the State of Delaware, and at 10:00 a.m. local
time on the third Tuesday in April (or, if such day is a legal holiday, then on
the next succeeding business day), or at such other date and hour. as may be
fixed from time to time by resolution of the Board of Directors and set forth in
the notice or waiver of notice of the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders
may be called at any time by the President (or, in the event of his absence or
disability, by any Vice President). or by the Board of Directors. A special
meeting shall be called by the President (or, in the event of his absence or
disability, by any Vice President), or by the Secretary, immediately upon
receipt of a written request therefor by stockholders holding in the aggregate
not less than a majority of the outstanding shares of the Corporation at the
time entitled to vote at any meeting of the stockholders. If such officers or
the Board of Directors shall fail to call such meeting within twenty (20) days
after receipt of such request, any stockholder executing such request may call
such meeting. Such special meetings of the stockholders shall be held at such
places, within or without the State of Delaware, as shall be specified in the
respective notices or waivers of notice thereof.
Section 1.03. Notice of Meetings; Waiver. The Secretary or any Assistant
Secretary shall cause written notice of the place, date and hour of each meeting
of the stockholders, and, in the case of a special meeting, the purpose or
purposes for which such meeting is called, to be given personally or by mail,
not less than ten nor more than sixty days prior to the meeting, to each
stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
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address as it appears on the record of stockholders of the Corporation, or. if a
stockholder shall have filed with the Secretary of the Corporation a written
request that notices to such stockholder be mailed to some other address, then
directed to such stockholder at such other address. Such further notice shall
be given as may be required by law.
A written waiver of any notice of any annual or special meeting signed by
the person entitled thereto, shall be deemed equivalent to notice. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders need be specified in a written waiver of notice.
Attendance of a stockholder at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Section 1.04. Quorum. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting.
Section 1.05. Voting. If, pursuant to Section 5.05 of these By-Laws, a
record date has been fixed, every holder of record of shares entitled to vote at
a meeting of stockholders shall be entitled to one vote for each share
outstanding in his or her name on the books of the Corporation at the close of
business on such record date. If no record date has been fixed, then every
holder of record of shares entitled to vote at a meeting of stockholders shall
be entitled to one vote for each share of stock standing in his or her name on
the books of the Corporation at the close of business on the day next preceding
the day on which notice of the meeting is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. Except as otherwise required by law or by the Certificate of Incorporation
or by these By-Laws, the vote of a majority of the shares represented in person
or by proxy at any meeting at which a quorum is present shall be sufficient for
the transaction of any business at such meeting.
Section 1.06. Voting by Ballot. No vote of the stockholders need be taken
by written ballot unless otherwise required by law. Any vote not required to be
taken by ballot may be conducted in any manner approved at the meeting at which
such vote is taken.
Section 1.07. Adjournment. If a quorum is not present at any meeting of
the stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place,
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date and hour thereof are announced at the meeting at which the adjournment is
taken, provided, however, that if the adjournment is for more than thirty days,
or if after the adjournments a new record date for the adjourned meeting is
fixed pursuant to Section 5.05 of these By-Laws, a notice of the adjourned
meeting, conforming to the requirements of Section 1.03 hereof, shall be
given to each stockholder of record entitled to vote at such meeting. At any
adjourned meeting at which a quorum is present, any business may be transacted
that might have been transacted on the original date of the meeting.
Section 1.08. Proxies. Any stockholder entitled to vote at any meeting of
the stockholders or to express consent to or dissent from corporate action
without a meeting may authorize another person or persons to vote at any such
meeting and express such consent or dissent for him or her by proxy. A
stockholder may authorize a valid proxy by executing a written instrument signed
by such stockholder, or by causing his or her signature to be affixed to such
writing by any reasonable means including, but not limited to, by facsimile
signature, or by transmitting or authorizing the transmission of a telegram,
cablegram or other means of electronic transmission to the person designated as
the holder of the proxy, a proxy solicitation firm or a like authorized agent.
No such proxy shall be voted or acted upon after the expiration of three years
from the date of such proxy, unless such proxy provides for a longer period.
Every proxy shall be revocable at the pleasure of the stockholder executing it,
except in those cases where applicable law provides that a proxy shall be
irrevocable. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or by filing another duly executed proxy bearing a later date
with the Secretary. Proxies by telegram, cablegram or other electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. Any copy, facsimile
telecommunication or other reliable reproduction of a writing or transmission
created pursuant to this section may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
Section 1.09. Organization; Procedure. At every meeting of stockholders
the presiding officer shall be the President or, in the event of his or her
absence or disability, a presiding officer chosen by a majority of the
stockholders present in person or by proxy. The Secretary, or in the event of
his or her absence or disability, the Assistant Secretary, if any, or if there
be no Assistant Secretary, in the absence of the Secretary, an appointee of the
presiding officer, shall act as Secretary of the meeting. The order of business
and all other matters of procedure at every meeting of stockholders may be
determined by such presiding officer.
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Section 1.10. Consent of Stockholders in Lieu of Meeting. To the fullest
extent permitted by law, whenever the vote of stockholders at a meeting thereof
is required or permitted to be taken for or in connection with any corporate
action, such action may be taken without a meeting, without prior notice and
without a vote of stockholders, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by law to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the Corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested.
ARTICLE 11
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by
law, by the Certificate of Incorporation or by these By-Laws, the property,
affairs and business of the Corporation shall be managed by or under the
direction of the Board of Directors and the Board of Directors may exercise all
the powers of the Corporation.
Section 2.02. Number and Term of Office. The number of Directors
constituting the entire Board of Directors shall be three (3), which number may
be modified from time to time by resolution of the Board of Directors, but in
no event shall the number of Directors be less than one. Each Director (whenever
elected) shall hold office until his or her successor has been duly elected and
qualified, or until his or her earlier death, resignation or removal.
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Section 2.03. Election of Directors. Except as otherwise provided in
Sections 2.12 and 2.13 of these By-Laws, the Directors, unless elected by
written consent in lieu of an annual meeting, shall be elected at each annual
meeting of the stockholders. If the annual meeting for the election of Directors
is not held on the date designated therefor, the Directors shall cause the
meeting to be held as soon thereafter as convenient. At each meeting of the
stockholders for the election of Directors, provided a quorum is present, the
Directors shall be elected by a plurality of the votes validly cast in such
election.
Stockholders may act by written consent to elect directors; provided,
however, that, if such consent is less than unanimous, such action by written
consent may be in lieu of holding an annual meeting only if all of the
directorships to which directors could be elected at an annual meeting held at
the effective time of such action are vacant and are filled by such action.
Section 2.04. Annual and Regular Meetings. The annual meeting of the
Board of Directors for the purpose of electing officers and for the transaction
of such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders. Notice of such annual meeting
of the Board of Directors need not be given. The Board of Directors from time to
time may by resolution provide for the holding of regular meetings and fix the
place (which may be within or without the State of Delaware) and the date and
hour of such meetings. Notice of regular meetings need not be given, provided,
however, that if the Board of Directors shall fix or change the time or place of
any regular meeting, notice of such action shall be mailed promptly, or sent by
facsimile, telegram, radio or cable, to each Director who shall not have been
present at the meeting at which such action was taken, addressed to him or her
at his or her usual place of business, or shall be delivered to him or her
personally. Notice of such action need not be given to any Director who attends
the first regular meeting after such action is taken without protesting the lack
of notice to him or her, prior to or at the commencement of such meeting, or to
any Director who submits a signed waiver of notice, whether before or after such
meeting.
Section 2.05. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the President or, in the event of his
or her absence or disability, by any Vice President, at such place (within or
without the State of Delaware), late and hour as may be specified in the
respective notices or waivers of notice of such meetings. Special meetings of
the Board of Directors may be called on twenty-four (24) hours' notice, if
notice is given to each Director personally or by telephone or telegrams or on
five (5) days' notice, if notice is mailed to each Director, addressed to him or
her at his or her usual place of business. Notice of any special meeting need
not be
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given to any Director who attends such meeting without protesting the lack of
notice to him or her, prior to or at the commencement of such meeting, or to any
Director who submits a signed waiver of notice, whether before or after such
meeting, and any business may be transacted thereat.
Section 2.06. Quorum; Voting. At all meetings of the Board of Directors,
the presence of a majority of the total authorized number of Directors shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the vote of a majority of the Directors present at any meeting
at which a quorum is present shall be the act of the Board of Directors.
Section 2.07. Adjournment. A majority of the Directors present, whether
or not a quorum is present, may adjourn any meeting of the Board of Directors
to another time or place. No notice need be given of any adjourned meeting
unless the time and place of the adjourned meeting are not announced at the time
of adjournment, in which case notice conforming to the requirements of Section
2.05 of these By-Laws shall be given to each Director.
Section 2.08. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if all members of the Board of Directors consent thereto in writing, and
such writing or writings are filed with the minutes of proceedings of the Board
of Directors.
Section 2.09. Regulations; Manner of Acting. To the extent consistent
with applicable law, the Certificate of Incorporation and these By-Laws, the
Board of Directors may adopt such rules and regulations for the conduct of
meetings of the Board of Directors and for the management of the property,
affairs and business of the Corporation as the Board of Directors may deem
appropriate. The Directors shall act only as a Board and the individual
Directors shall have no power as such.
Section 2.10. Action by Telephonic Communications. Members of the Board
of Directors may participate in a meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting.
Section 2.11. Resignations. Any Director may resign at any time by
delivering a written notice of resignation, signed by such Director, to the
President or the Secretary. Unless otherwise specified therein, such
resignation shall take effect upon delivery.
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Section 2.12. Removal of Directors. Any Director may be removed at any
time, either for or without cause, upon the affirmative vote of the holders of
a majority of the outstanding shares of stock of the Corporation entitled to
vote for the election of such Director. Any vacancy in the Board of Directors
caused by any such removal may be filled at such meeting by the stockholders
entitled to vote for the election of the Director so removed. If such
stockholders do not fill such vacancy at such meeting (or in the written
instrument effecting such removal, if such removal was effected by consent
without a meeting), such vacancy may be filled in the manner provided in Section
2.13 of these By-Laws.
Section 2.13. Vacancies and Newly Created Directorships. If any vacancies
shall occur in the Board of Directors, by reason of death, resignation, removal
or otherwise. or if the authorized number of Directors shall be increased, the
Directors then in office shall continue to act, and such vacancies and newly
created directorships may be filled by a majority of the Directors then in
office, although less than a quorum. A Director elected to fill a vacancy or a
newly created directorship shall hold office until his successor has been
elected and qualified or until his earlier death, resignation or removal. Any
such vacancy or newly created directorship may also be filled at any time by
vote of the stockholders.
Section 2.14. Compensation. The amount, if any, which each Director
shall be entitled to receive as compensation for such Director's services as
such shall be fixed from time to time by resolution of the Board of Directors.
Section 2.15. Reliance on Accounts and Reports, etc. A Director, or a
member of any Committee designated by the Board of Directors shall, in the
performance of such Director's duties, be fully protected in relying in good
faith upon the records of the Corporation and upon information, opinions,
reports or statements presented to the Corporation by any of the Corporation's
officers or employees, or Committees designated by the Board of Directors, or by
any other person as to the matters the member reasonably 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.
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.01. How Constituted. The Board of Directors may designate one
or more Committees, including an Executive Committee, each such Committee to
consist of such number of Directors as from time to time may be fixed by the
Board of Directors. The Board of Directors may designate one or more Directors
as alternate
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members of any such Committee, who may replace any absent or disqualified member
or members at any meeting of such Committee. Thereafter, members (and alternate
members, if any) of each such Committee may be designated at the annual meeting
of the Board of Directors. Any such Committee may be abolished or re-designated
from time to time by the Board of Directors. Each member (and each alternate
member) of any such Committee (whether designated at an annual meeting of the
Board of Directors or to fill a vacancy or otherwise) shall hold office until
his or her successor shall have been designated or until he or she shall cease
to be a Director, or until his or her earlier death, resignation or removal.
Section 3.02. Powers. During the intervals between the meetings of the
Board of Directors, the Executive Committee, except as otherwise provided in
this section, and subject to the provisions of the Certificate of Incorporation,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the property, affairs and business of the
Corporation, including the power to declare dividends and to authorize the
issuance of stock. Each such other Committee, except as otherwise provided in
this section, shall have and may exercise such powers of the Board of Directors
as may be provided by resolution or resolutions of the Board of Directors.
Neither the Executive Committee nor any such other Committee shall have the
power or authority:
(a) to approve or adopt, or recommend to the stockholders, any
action or matter expressly required by the General Corporation Law to be
submitted to the stockholders for approval;
(b) to adopt, amend or repeal any by-law of the Corporation; or
(c) to abolish or usurp the authority of the Board of Directors.
The Executive Committee shall have, and any such other Committee may be granted
by the Board of Directors, power to authorize the seal of the Corporation to be
affixed to any or all papers which may require it.
Section 3.03. Proceedings. Each such Committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Each such Committee shall keep minutes of its proceedings and shall report
such proceedings to the Board of Directors at the meeting of the Board of
Directors next following any such proceedings.
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Section 3.04. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such Committee shall constitute a quorum
for the transaction of business. The act of the majority of the members
present at any meeting at which a quorum is present shall be the act of such
Committee. Any action required or permitted to be taken at any meeting of any
such Committee may be taken without a meeting, if all members of such Committee
shall consent to such action in writing and such writing or writings are filed
with the minutes of the proceedings of the Committee. The members of any such
Committee shall act only as a Committee, and the individual members of such
Committee shall have no power as such.
Section 3.05. Action by Telephonic Communications. Members of any
Committee designated by the Board of Directors may participate in a meeting of
such Committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting.
Section 3.06. Absent or Disqualified Members. In the absence or
disqualification of a member of any Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 3.07. Resignations. Any member (and any alternate member) of
any Committee may resign at any time by delivering a written notice of
resignation, signed by such member, to the Board of Directors or the President.
Unless otherwise specified therein, such resignation shall take effect upon
delivery.
Section 3.08. Removal. Any member (and any alternate member) of any
Committee may be removed at any time, either for or without cause, by resolution
adopted by a majority of the whole Board of Directors.
Section 3.09. Vacancies. If any vacancy shall occur in any Committee, by
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, and any
such vacancy may be filled by the Board of Directors.
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ARTICLE IV
OFFICERS
Section 4.01. Number. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a President, one or more Vice Presidents, a
Secretary and a Treasurer. The Board of Directors also may elect one or more
Assistant Secretaries and Assistant Treasurers in such numbers as the Board of
Directors may determine. Any number of offices may be held by the same person.
No officer need be a Director of the Corporation.
Section 4.02. Election. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual meeting,
officers may be elected at any regular or special meeting of the Board of
Directors. Each officer shall hold office until his successor has been elected
and qualified, or until his earlier death, resignation or removal.
Section 4.03. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
Section 4.04. Removal and Resignation; Vacancies. Any officer may be
removed for or without cause at any time by the Board of Directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the Board of Directors or the President. Unless otherwise
specified therein, such resignation shall take effect upon delivery. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise, shall be filled by the Board of Directors.
Section 4.05. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law.
Section 4.06. The President. The President shall preside at all meetings of the
stockholders and directors at which he is present, shall be the chief executive
officer and the chief operating officer of the Corporation, shall have general
control and supervision of the policies and operations of the Corporation and
shall see that all orders and resolutions of the Board of Directors are
carried into effect. He or she shall manage and administer the Corporation's
business and affairs and shall also perform all duties and
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exercise all powers usually pertaining to the office of a chief executive
officer and a chief operating officer of a corporation. He or she shall have the
authority to sign, in the name and on behalf of the Corporation, checks, orders,
contracts, leases, notes, drafts and other documents and instruments in
connection with the business of the Corporation, and together with the Secretary
or an Assistant Secretary, conveyances of real estate and other documents and
instruments to which the seal of the Corporation is affixed. He or she shall
have the authority to cause the employment or appointment of such employees and
agents of the Corporation as the conduct of the business of the Corporation may
require, to fix their compensation, and to remove or suspend any employee or
agent elected or appointed by the President or the Board of Directors. The
President shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 4.07. The Vice President. Each Vice President shall perform such
duties and exercise such powers as may be assigned to him or her from time to
time by the President. In the absence of the President, the duties of the
President shall be performed and his or her powers may be exercised by such Vice
President as shall be designated by the President, or failing such designation,
such duties shall be performed and such powers may be exercised by each Vice
President in the order of their earliest election to that office; subject in
any case to review and superseding action by the President.
Section 4.08. The Secretary. The Secretary shall have the following
powers and duties:
(a) He or she shall keep or cause to be kept a record of all the
proceedings of the meetings of the stockholders and of the Board of
Directors in books provided for that purpose.
(b) He or she shall cause all notices to be duly given in accordance
with the provisions of these By-Laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a resolution
of the Board of Directors, he or she shall furnish a copy of such resolution
to the members of such Committee.
(d) He or she shall be the custodian of the records and of the seal of
the Corporation and cause such seal (or a facsimile thereof) to be affixed
to all certificates representing shares of the Corporation prior to the
issuance thereof and to all instruments the execution of which on behalf of
the Corporation under its seal shall have been duly authorized in accordance
with these By-Laws, and when so affixed he or she may attest the same.
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(e) He or she shall properly maintain and file all books, reports,
statements, certificates and all other documents and records required by
law, the Certificate of Incorporation or these By-Laws.
(f) He or she shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be kept in such
manner as to show at any time the number of shares of stock of the
Corporation of each class issued and outstanding, the names (alphabetically
arranged) and the addresses of the holders of record of such shares, the
number of shares held by each holder and the date as of which each became
such holder of record.
(g) He or she shall sign (unless the Treasurer, an Assistant Treasurer
or Assistant Secretary shall have signed) certificates representing shares
of the Corporation the issuance of which shall have been authorized by the
Board of Directors.
(h) He or she shall perform, in general, all duties incident to the
office of secretary and such other duties as may be specified in these
By-Laws or as may be assigned to him or her from time to time by the Board
of Directors, or the President.
Section 4.09. The Treasurer. The Treasurer shall be the chief financial
officer of the Corporation and shall have the following powers and duties:
(a) He or she shall have charge and supervision over and be responsible
for the moneys, securities, receipts and disbursements of the Corporation,
and shall keep or cause to be kept full and accurate records of all receipts
of the Corporation.
(b) He or she shall cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the Corporation
in such banks or trust companies or with such bankers or other depositories
as shall be selected in accordance with Section 8.05 of these By-Laws.
(c) He or she shall cause the moneys of the Corporation to be disbursed
by checks or drafts (signed as provided in Section 8.06 of these By-Laws)
upon the authorized depositories of the Corporation and cause to be taken
and preserved proper vouchers for all moneys disbursed.
(d) He or she shall render to the Board of Directors or the
President, whenever requested, a statement of the financial condition of the
Corporation and
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of all his or her transactions as Treasurer, and render a full financial
report at the annual meeting of the stockholders, if called upon to do so.
(e) He or she shall be empowered from time to time to require from all
officers or agents of the Corporation reports or statements giving such
information as he or she may desire with respect to any and all financial
transactions of the Corporation.
(f) He or she may sign (unless an Assistant Treasurer or the Secretary
or an Assistant Secretary shall have signed) certificates representing stock
of the Corporation the issuance of which shall have been authorized by the
Board of Directors.
(g) He or she shall perform, in general, all duties incident to the
office of treasurer and such other duties as may be specified in these
By-Laws or as may be assigned to him or her from time to time by the Board
of Directors, or the President.
Section 4.10. Additional Officers. The Board of Directors may appoint
such other officers and agents as it may deem appropriate, and such other
officers and agents shall hold their offices for such terms and shall exercise
such powers and perform such duties as may be determined from time to time by
the Board of Directors. The Board of Directors from time to time may delegate to
any officer or agent the power to appoint subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties. Any
such officer or agent may remove any such subordinate officer or agent appointed
by him or her, for or without cause.
Section 4.11. Security. The Board of Directors may require any officer,
agent or employee of the Corporation to provide security for the faithful
performance of his or her duties, in such amount and of such character as may be
determined from time to time by the Board of Directors.
ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock, Uncertificated Shares. The shares
of the Corporation shall be represented by certificates, provided that the Board
of Directors may provide by resolution or resolutions that some or all of any
or all classes or series of the stock of the Corporation shall be uncertificated
shares. Any such resolution shall not
13
<PAGE>
apply to shares represented by a certificate until each certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock in the Corporation
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 President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, representing
the number of shares registered in certificate form. Such certificate shall be
in such form. as the Board of Directors may determine, to the extent consistent
with applicable law, the Certificate of Incorporation and these By-Laws.
Section 5.02. Signatures, Facsimile. All of such signatures on the
certificate referred to in Section 5.01 of these By-Laws may be a facsimile,
engraved or printed, to the extent permitted by law. In case 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, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 5.03. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of Directors of an affidavit of
the owner or owners of such certificate, setting forth such allegation. The
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or his or her legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or
the issuance of any such new certificate.
Section 5.04. Transfer of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares, duly
endorsed. or accompanied by appropriate evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books. Within a reasonable time after the transfer of uncertificated
stock, the Corporation shall send to the registered owner thereof a written
notice containing the information required to be set forth or stated on
certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the General
Corporation Law of the State of Delaware. Subject to the provisions of the
Certificate of Incorporation and these By-Laws, the Board of Directors may
prescribe such additional rules and regulations as it may deem appropriate
relating to the issue, transfer and registration of shares of the Corporation.
14
<PAGE>
Section 5.05. Record Date. In order to determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record date,
which record date shall not precede the date on which the resolution fixing the
record date is adopted by the Board of Directors, and which shall not be more
than sixty (60) nor less than ten (10) days before the date of such meeting. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any a adjournment of the meeting,
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the board of directors is required by
law, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the Board of Directors adopts the resolution taking such
prior action.
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights of the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 5.06. Registered Stockholders. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as
15
<PAGE>
the person exclusively entitled to receive dividends and other distributions, to
vote, to receive notice and otherwise to exercise all the rights and powers of
the owner of the shares represented by such certificate, and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
such shares on the part of any other person, whether or not the Corporation
shall have notice of such claim or interests. Whenever any transfer of shares
shall be made for collateral security, and not absolutely, it shall be so
expressed in the entry of the transfer if, when the certificates are presented
to the Corporation for transfer or uncertificated shares are requested to be
transferred, both the transferor and transferee request the Corporation to do
so.
Section 5.07. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Nature of Indemnity. The Corporation shall 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 (a 'Proceeding'),
whether civil, criminal, administrative or investigative, by reason of the fact
that he or she is or was or has agreed to become a director or officer of the
Corporation. or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer, of another corporation, partnership, joint
venture. trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, and may indemnify any person who was or
is a party or is threatened to be made a party to such an action, suit or
proceeding by reason of the fact that he or she is or was or has agreed to
become an employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as an 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 or on his or her
behalf in connection with such action, suit or proceeding and any appeal
therefrom, 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,
with respect to any criminal action or proceeding had no reasonable cause to
believe his or her conduct was unlawful; except that in the case of an action or
suit by or in the right of the Corporation to procure a judgment in its favor
(1) such indemnification shall be limited to expenses (including attorneys'
fees) actually and reasonably incurred by such person in the defense or
settlement of such
16
<PAGE>
action or suit, and (2) no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Delaware Court
of Chancery 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 indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. Notwithstanding the foregoing, but subject
to Section 6.05 of these By-Laws, the Corporation shall not be obligated to
indemnify a director or officer of the Corporation in respect of a Proceeding
(or part thereof) instituted by such director or officer, unless such Proceeding
(or part thereof) has been authorized by the Board of Directors.
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 6.02. Successful Defense. To the extent that a present or former
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
6.01 hereof or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
Section 6.03. Determination That Indemnification Is Proper. Any
indemnification of a present or former director or officer of the Corporation
under Section 6.01 hereof (unless ordered by a court) shall be made by the
Corporation only upon a determination that indemnification of such person is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in Section 6.01 hereof. Any indemnification of a present or
former employee or agent of the Corporation under Section 6.01 hereof (unless
ordered by a court) may be made by the Corporation upon a determination that
indemnification of the present or former employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in Section 6.01 hereof. Any such determination shall be made, with respect
to a person who is a director or officer at the time of such determination, (1)
by a majority vote of the Directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors. even though less then a
quorum, or (3) if there are no such directors, or if such
17
<PAGE>
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
Section 6.04. Advance Payment of Expenses. Expenses (including
attorneys' fees) incurred by a director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the Corporation deems appropriate. The Board of
Directors may authorize the Corporation's counsel to represent such director,
officer, employee or agent in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or proceeding.
Section 6.05. Procedure for Indemnification of Directors and Officers.
Any indemnification of a director or officer of the Corporation under Sections
6.01 and 6.02, or advance of costs, charges and expenses to a director or
officer under Section 6.04 of these By-Laws, shall be made promptly, and in any
event within thirty (30) days, upon the written request of the director or
officer. If a determination by the Corporation that the director or officer is
entitled to indemnification pursuant to this Article VI is required, and the
Corporation fails to respond within sixty (60) days to a written request for
indemnity, the Corporation shall be deemed to have approved such request. If the
Corporation denies a written request for indemnity or advancement of expenses,
in whole or in part, or if payment in full pursuant to such request is not made
within thirty (30) days, the right to indemnification or advances as granted by
this Article VI shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section 6.04 of these
By-Laws where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Section 6.01 of these By-Laws, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, its independent legal counsel, and its stockholders) to have made
a determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Section 6.01 of these By-Laws, nor
the fact that there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel, and its
stockholders) that the claimant
18
<PAGE>
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 6.06. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a 'contract right' may not be modified
retroactively without the consent of such director, officer, employee or agent.
The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 6.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person or on such person's behalf in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article VI, provided that such insurance is
available on acceptable terms, which determination shall be made by a vote of a
majority of the entire Board of Directors.
Section 6.08. Severability. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article VI that shall not have been invalidated and to the
fullest extent permitted by applicable law.
19
<PAGE>
ARTICLE VII
OFFICES
Section 7.01. Registered Office. The registered office of the
Corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle.
Section 7.02. Other Offices. The Corporation may maintain offices or
places of business at such other locations within or without the State of
Delaware as the Board of Directors may from time to time determine or as the
business of the Corporation may require,
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends. Subject to any applicable provisions of law and
the Certificate of Incorporation, dividends upon the shares of the Corporation
may be declared by the Board of Directors at any regular or special meeting of
the Board of Directors and any such dividend may be paid in cash, property, or
shares of the Corporation's capital stock.
A member of the Board of Directors, or a member of any Committee
designated by the Board of Directors shall 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 its officers or
employees, or Committees of the Board of Directors, or by any other person as to
matters the Director reasonably 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, as to the value and amount of the assets,
liabilities and/or net profits of the Corporation, or any other facts pertinent
to the existence and amount of surplus or other funds from which dividends might
properly be declared and paid.
Section 8.02. Reserves. There may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, thinks proper as a reserve or
reserves to meet contingencies. or for equalizing dividends, or for repairing or
maintaining any property of the Corporation or for such other purpose as the
Board of Directors shall think conducive
20
<PAGE>
to the interest of the Corporation, and the Board of Directors may similarly
modify or abolish any such reserve.
Section 8.03. Execution of Instruments. The President, any Vice
President, the Secretary or the Treasurer may enter into any contract or
execute and deliver any instrument in the name and on behalf of the Corporation.
The Board of Directors or the President may authorize any other officer or agent
to enter into any contract or execute and deliver any instrument in the name and
on behalf of the Corporation. Any such authorization may be general or limited
to specific contracts or instruments.
Section 8.04. Corporate Indebtedness. No loan shall be contracted on
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors or the President. Such
authorization may be general or confined to specific instances. Loans so
authorized may be effected at any time for the Corporation from any bank, trust
company or other institution, or from any firm. corporation or individual. All
bonds, debentures, notes and other obligations or evidences of indebtedness of
the Corporation issued for such loans shall be made, executed and delivered as
the Board of Directors or the President shall authorize. When so authorized by
the Board of Directors or the President, any part of or all the properties,
including contract rights, assets, business or good will of the Corporation,
whether then owned or thereafter acquired, may be mortgaged, pledged,
hypothecated or conveyed or assigned in trust as security for the payment of
such bonds, debentures, notes and other obligations or evidences of indebtedness
of the Corporation, and of the interest thereon, by instruments executed and
delivered in the name of the Corporation.
Section 8.05. Deposits. Any funds of the Corporation may be deposited
from time to time in such banks, trust companies or other depositories as may be
determined by the Board of Directors or the President, or by such officers or
agents as may be authorized by the Board of Directors or the President to make
such determination.
Section 8.06. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such agent or agents
of the Corporation, and in such manner, as the Board of Directors or the
President from time to time may determine.
Section 8.07. Sale, Transfer, etc. of Securities. To the extent
authorized by the Board of Directors or by the President, any Vice President,
the Secretary or the Treasurer or any other officers designated by the Board of
Directors or the President may sell, transfer. endorse. and assign any shares of
stock. bonds or other securities owned by or held in the name of the
Corporation, and may make, execute and deliver in the name of
21
<PAGE>
the Corporation, under its corporate seal, any instruments that may be
appropriate to effect any such sale, transfer, endorsement or assignment.
Section 8.08. Voting as Stockholders. Unless otherwise determined by
resolution of the Board of Directors, the President or any Vice President shall
have full power and authority on behalf of the Corporation to attend any meeting
of stockholders of any corporation in which the Corporation may hold stock, and
to act, vote (or execute proxies to vote) and exercise in person or by proxy all
other rights, powers and privileges incident to the ownership of such stock.
Such officers acting on behalf of the Corporation shall have full power and
authority to execute any instrument expressing consent to or dissent from any
action of any such corporation without a meeting. The Board of Directors may by
resolution from time to time confer such power and authority upon any other
person or persons.
Section 8.09. Fiscal Year. The fiscal year of the Corporation shall
commence on the first day of January of each year (except for the Corporation's
first fiscal year which shall commence on the date of incorporation) and shall
terminate in each case on December 31.
Section 8.10. Seal. The seal of the Corporation shall be circular in
form and shall contain the name of the Corporation, the year of its
incorporation and the words 'Corporate Seal' and 'Delaware'. The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
Section 8.11. Books and Records; Inspection. Except to the extent
otherwise required by law, the books and records of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the Board of Directors.
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 9.01. Amendment. These By-Laws may be amended, altered or
repealed
(a) by resolution adopted by a majority of the Board of Directors at any
special or regular meeting of the Board if, in the case of such special
meeting only,
22
<PAGE>
notice of such amendment, alteration or repeal is contained in the notice
or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders if, in the
case of such special meeting only, notice of such amendment, alteration or
repeal is contained in the notice or waiver of notice of such meeting.
ARTICLE X
CONSTRUCTION
Section 10.01. Construction. In the event of any conflict between the
provisions of these By-Laws as in effect from time to time and the provisions of
the Certificate of Incorporation of the Corporation as in effect from time to
time, the provisions of such Certificate of Incorporation shall be controlling.
23
<PAGE>
Exhibit 3.19
STATE OF MICHIGAN
CORPORATION AND SECURITIES COMMISSION
LANSING, MICHIGAN
DO NOT WRITE IN SPACE BELOW--FOR COMMISSION USE
<TABLE>
<S> <C> <C>
Compared by: MICHIGAN DEPARTMENT OF COMMERCE
Date Received: Signature illegible The powers, duties and functions of the
- --------------------- ------------------ Michigan Corporation and Securities Comm-
ission relating hereto have been transferred
- --------------------- to the Department of Commerce, pursuant
Date: to Act 380, P.A. 1965.
- --------------------- MAR 28 1966 F I L E D
- ----------------------------------------- MAR 28 1966
Examiner:
- ---------------------
Signature illegible
- --------------------- DIRECTOR
MICHIGAN DEPT. OF COMMERCE
- --------------------------------------------------------------------------------
</TABLE>
ARTICLES OF INCORPORATION
These Articles of Incorporation are signed and acknowledged by the incorporators
for the purpose of forming a corporation for profit under the provisions of
Act No. 327 of the Public Acts of 1931, as amended, as follows:
ARTICLE I.
The name of the corporation is BINDERLINE DRAFTLINE, INC.
--------------------------------------------------
- --------------------------------------------------------------------------------
ARTICLE II.
The purpose or purposes for which the corporation is formed are as follows:
To develop, design, fabricate, manufacture, buy, sell and engage in the
distribution of binder developments, tooling aids, keller aids and patterns of
all types.
To improve, manage, develop, sell, assign, transfer, lease, mortgage,
pledge or otherwise dispose of or turn to account or deal with all or any part
of the property of the corporation and from time to time to vary any investment
of capital of the corporation.
To borrow money, and to make and issue notes, bonds, debentures, obligations
and evidences of indebtedness of all kinds, whether secured by mortgage, pledge
or otherwise; and generally to make and perform agreements and contracts of
every kind and description.
To the same extent as natural persons might or could do, to purchase or
otherwise acquire, and to hold, own maintain, work, develop, sell, lease,
exchange, hire, convey, mortgage or otherwise dispose of and deal in lands and
leaseholds, and any interest, estate and rights in real property, and any
personal or mixed property, and any franchises, rights, licenses or privileges
necessary, convenient or appropriate for any of the purposes herein expressed.
In general to carry on any business in connection therewith and incident
thereto not forbidden by the laws of the State of Michigan and with all
the powers conferred upon corporation by the laws of the State of Michigan.
ARTICLE III.
Location of the first registered office is:
<TABLE>
<S> <C> <C> <C>
33100 Freeway Drive St. Clair Shores, Macomb Michigan
- ------------------------------------------------------- ----------
(No.) (Street) (City) (County) (Zip Code)
</TABLE>
Post office address of the first registered office is:
<TABLE>
<S> <C> <C> <C>
33100 Freeway Drive St. Clair Shores Michigan
- ------------------------------------------------------- ----------
(No. and Street or P.O. Box) (City) (Zip Code)
</TABLE>
ARTICLE IV.
The name of the first resident agent is John J. Van Assche
----------------------------------
- --------------------------------------------------------------------------------
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
ARTICLE V.
The total authorized capital stock is
<TABLE>
<S> <C> <C>
{Preferred shs..........None } {Par Value $.......None }
(1) { } { }per share
{Common shs.............5,000 } {Par Value $10.00................}
{Book Value $.................}
{ }per share
{Preferred...........None } {Price fixed for sale $.. None}
{ } no par value
and/or shs. of (2) {Common..............None } {Book Value $.............None}
{ }per share
{Price fixed for sale $.......}
</TABLE>
(3) A statement of all or any of the designations and the powers, preferences
and rights, and the qualifications, limitations or restrictions thereof is
as follows:
One class of stock at Ten Dollars ($10.00) per share, with equal voting
powers and preferences.
ARTICLE VI.
The names and places of residence or business of each of the incorporators
and the number and class of shares subscribed for by each are as follows:
(Statute requires one or more incorporators)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Number of Shares
Name Residence or Business Address -------------------------------------
Par Stock Non-Par Stock
(No.) (Street) (City) (State) -------------------------------------
Common Preferred Common Preferred
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Thomas Pascoe
- ---------------------------------------------------------------------------------------------------------------------
20031 Mauer St. Claire Shores Mich 1,000
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
John J. Van Assache
- ---------------------------------------------------------------------------------------------------------------------
65 Roslyn Grosse Points Shores 1,000
Michigan
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Charles R. Van Assche
- ---------------------------------------------------------------------------------------------------------------------
32 S. Duval Grosse Point Shores, 1,000
- ---------------------------------------------------------------------------------------------------------------------
Michigan
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
ARTICLE VII.
The names and addresses of the first board of directors are as follows:
(Statute requires at least three directors)
</TABLE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Names Residence or Business Address
(No.) (Street) (City) (State)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Thomas Pascoe 20031 Mauer St. Claire Shores, Mich.
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
John J. Van Assche 65 Roslyn Grosse Pointe Shores, Mich.
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Charles R. Van Assche 32 S. Duval Grosse Point Shores, Mich.
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</TABLE>
ARTICLE VIII.
The term of the corporation existence is perpetual.
If term is for a limited number of years, then state the number of years
instead of perpetual)
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GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
ARTICLE IX.
OPTIONAL (Please delete Article IX if not applicable).
Whenever a compromise or arrangement or any plan of reorganization of this
corporation is proposed between this corporation and its creditors
or any class of them and/or between this corporation and its shareholders
or any class of them, any court of equity jurisdiction within the state of
Michigan, may on the aplication of this corporation or of any creditor
or any shareholder thereof, or on the application of any receiver or receivers
appointed for this corporation, order a meeting of the creditors or class of
creditors, and/or of the shareholders or class of shareholders, as the case
may be, to be affected by the proposed compromise or arrangement or
reorganization, to be summoned in such manner as said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the shareholders or class of shareholders, as the
case may be, to be affected by the proposed compromise or arrangement or
reorganization, agree to any compromise or arrangement or to any reorganization
of this corporation as a consequence of such compromise or arrangement, said
compromise or arrangement and said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all
the creditors or class of creditors, and/or on all the shareholders or
class of shareholders, as the case may be, and also on this corporation.
ARTICLE X.
(Here insert any desired additional provisions authorized by the Act.)
We, the incorporators, sign our names this 24th day of March 1966.
---- -------
(All parties appearing under Article VI are required to sign in this space)
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THOMAS PASCOE
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Thomas Pascoe
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JOHN J. VAN ASSCHE
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John J. Van Assche
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CHARLES R. VAN ASSCHE
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Charles R. Van Assche
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<TABLE>
<S> <C>
STATE OF MICHIGAN------------------} (One or more of the parties signing must acknowledge
} ss. before the Notary)
COUNTY OF WAYNE }
--------------------------
</TABLE>
On this 24th day of March 1966
------------------------- ----------------------------------------
before me personally appeared Thomas Pascoe, John J. Van Assche and Charles
R. Van Assche
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to me known to be the person described in and who executed the foregoing
instrument, and acknowledged that they executed the same as their
free act and deed.
<TABLE>
<S> <C>
JOANNE R. HALCISAK
----------------------------
(Signature of Notary)
Joanne R. Halcisak
----------------------------
(Print or type name of Notary)
MAIL THREE SIGNED AND ACKNOWLEDGED Notary Public for Wayne County
-------------
COPIES TO: State of Michigan.
Michigan Corporation & Securities Commission My commission expires 1-20-69
-------------
P.O. Box 808 Lansing, Michigan 48904 (Notarial seal required if acknowledgment
taken out of State)
</TABLE>
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GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
EXHIBIT 3.20
Adopted December 30, 1983
BY-LAWS
OF
BINDERLINE DRAFTLINE, INC.
ARTICLE I
OFFICES
SECTION 1. The registered office shall be in the City of St. Clair Shores,
County of Macomb, State of Michigan.
SECTION 2. The Corporation may also have offices at such other places both
within or without the State of Michigan as the Board of Directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
FISCAL YEAR
SECTION 1. The fiscal year of the corporation shall end on the last day of
June, of each year unless another date shall be fixed by resolution of the Board
of Directors. After such date is fixed, it may be changed for future fiscal
years at any time by further resolution of the Board of Directors.
ARTICLE III
MEETINGS OF SHAREHOLDERS
SECTION 1. All meetings of the Shareholders for the election of Directors
shall be by waiver of notice and consent or shall be held at such place either
within or without the State of Michigan as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting. Meetings of
Shareholders for any other purpose may be held at such time and place, within or
without the State of Michigan, as shall be stated in the notice of the meeting
or in a duly executed Waiver of Notice thereof.
<PAGE>
Adopted December 30, 1983
SECTION 2. Annual meetings of Shareholders, if actually held shall be held
on such date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which they shall elect by
a plurality vote a Board Of Directors, and transact such other business as may
properly be brought before the meeting.
SECTION 3. When required by law, written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
Shareholder entitled to vote at such meeting not less than ten (10) nor more
than ninety (90) days before the date of the meeting.
SECTION 4. Special meetings of the Shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation, may be held by waiver of notice and consent or may be called by
the President and shall be called by the President or Secretary at the request
in writing of any two (2) of the Board of Directors, if there are two (2) or
more Directors (otherwise one (1) Director's request shall be sufficient) or at
the request in writing of Shareholders owning not less than ten percent (10%)
of the entire capital stock of the Corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
SECTION 5. When required by law, written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than three (3) nor
more than sixty (60) days before the date of the meeting, to each Shareholder
entitled to vote at such meeting.
SECTION 6. Business transacted at any special meeting of Shareholders shall
be limited to the purposes stated in the notice unless all of said Shareholders
agree to do otherwise.
SECTION 7. Except as otherwise provided by statute or by the Articles of
Incorporation, the holders of fifty (50%) percent of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the Shareholders for the
transaction of business. If, however, such quorum shall not be present or
represented at any meeting of the Shareholders, the Shareholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present
-2-
<PAGE>
Adopted December 30, 1983
or represented at the meeting as originally notified. If the adjournment is
for more than sixty (60) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each Shareholder of record entitled to vote at the meeting.
SECTION 8. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or
of the Articles of Incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
SECTION 9. Each Shareholder shall be entitled to one vote in person or by
proxy for each share of capital stock having voting power held by such
Shareholder, but no proxy shall be voted on after three (3) months from its
date, unless the proxy provides for a longer period. If the Articles of
Incorporation provide for more or less than one vote for any share, on any
matter every reference in this Article to a majority or other proportion of
stock shall refer to such majority or other proportion of the votes of such
stock. At all elections of Directors of the Corporation each Shareholder having
voting power shall be entitled to exercise the right of cumulative voting, if
any, as provided in the Articles of Incorporation.
SECTION 10. Whenever the vote of Shareholders at a meeting thereof is
required or permitted to be taken for or in connection with any corporate
action, by any provision of the statutes, the meeting and vote of Shareholders
may be dispensed with if all of the Shareholders who would have been entitled to
vote upon the action if such meeting were held shall consent in writing to such
corporate action taken; or if the Articles of Incorporation authorized the
action to be taken with the written consent of the holders of less than all of
the stock who would have been entitled to vote upon the action if a meeting were
held, then on the written consent of the Shareholders having not less than such
percentage of the number of votes as may be authorized in the Articles of
Incorporation; provided that in no case shall the written consent be by the
holders of stock having less than the minimum percentage of the vote required by
statute for the proposed corporate action, and provided that prompt notice must
be given to all Shareholders of the taking of corporate action without a meeting
and by less than unanimous written consent.
-3-
<PAGE>
Adopted December 30, 1983
ARTICLE IV
DIRECTORS
SECTION 1. The number of Directors which shall constitute the whole Board
shall consist of two (2) Directors. The Directors shall be elected at the Annual
Meeting of the Shareholders, except as provided in Section 2 of this Article,
and each Director elected shall hold office until his successor is elected and
qualified or until his earlier death, resignation or removal. Directors need not
be Shareholders.
SECTION 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the Directors then in office, though less than a quorum, or by a sole remaining
Director, and the Directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no Directors in office, then an election of
Directors may be held in the manner provided by statute.
SECTION 3. The business of the Corporation shall be managed by its Board of
Directors which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Articles of Incorporation
or by these By-laws directed or required to be exercised or done by the
Shareholders.
SECTION 4. A Director of the Corporation who is either present at a
meeting of the Board of Directors at which action on any corporate matter is
taken, or who is absent but has notice of such action by certified mail, shall
be presumed to have ascented to the action taken unless his dissent shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the Secretary of the meeting
before the adjournment thereof or shall forward such dissent by certified mail
to the Secretary of the Corporation immediately after the adjournment of the
meeting or within seven (7) days after written notification of such action by
certified mail. The objection shall be deemed made when mailed by certified
mail. Such right to dissent shall not apply to a Director who voted in favor of
such action.
-4-
<PAGE>
Adopted December 30, 1983
MEETING OF THE BOARD OF DIRECTORS
SECTION 5. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Michigan.
SECTION 6. The first meeting of each newly elected Board of Directors shall
be held at such time and place as shall be fixed by the vote of the Shareholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected Directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event of the failure of the Shareholders to fix
the time or place of such first meeting of the newly elected Board of
Directors, or in the event such meeting is not held at the time and place so
fixed by the Shareholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
signed by all of the Directors.
SECTION 7. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board.
SECTION 8. Special meetings of the Board may be called by the President on
one day's notice to each Director, either personally or by mail or by telegram;
special meetings shall be called by the President or Secretary in like manner
and on like notice on the written request by two (2) of the Directors.
SECTION 9. At all meetings of the Board, a majority of the Directors shall
constitute a quorum for the transaction of business and the act of a majority of
the Directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute or by the Articles of Incorporation. If a quorum shall not be
present at any meeting of the Board of Directors the Directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
SECTION 10. Unless otherwise restricted by the Articles of Incorporation
or these By-laws, any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
preceedings of the Board or committee.
-5-
<PAGE>
Adopted December 30, 1983
SECTION 11. Members of the Board of Directors may participate in a board
meeting by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall constitute presence
in person at such meeting.
ARTICLE V
NOTICES
SECTION 1. Whenever, under the provisions of the statutes or of the
Articles of Incorporation or of these By-Laws, notice is required to be given to
any Director or Stockholder, it shall not be construed to mean personal notice
unless specifically allowed, but such notice may be given in writing, by mail,
addressed to such Director or Stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to Directors may also be given by telegram.
SECTION 2. Whenever any notice is required to be given under the provisions
of the statutes or of the Articles 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 VI
OFFICERS
SECTION 1. The officers of the Corporation shall consist of the Chairman of
the Board of Directors, the President, one or more Vice Presidents, if elected,
the Treasurer, the Secretary and such other officers and Assistants as the Board
of Directors may appoint. The Chairman of the Board shall be chosen from among
the Board of Directors. The same person may hold any two or more offices
excepting those of President and Vice President, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity.
SECTION 2. The officers shall be elected at the annual meeting of the Board
of Directors. The term of office of all officers shall be one year or until
their respective successors are chosen, but any officer may he removed from
office, with or without cause, at any meeting of the Board of Directors by the
affirmative vote of a majority of the Directors then in office. The Board of
Directors shall have power to fill any vacancies in any offices occurring from
whatever reason.
-6-
<PAGE>
Adopted December 30, 1983
SECTION 3. The salaries and other compensation of all officers of the
Corporation shall be fixed by the Board of Directors.
SECTION 4. The Chairman of the Board shall be the chief executive officer
of the Corporation and shall have responsibility for the general and active
management of the business of the Corporation, and shall see that all orders and
resolutions of the Board are carried into effect. He shall execute all
authorized conveyances, contracts, or other obligations in the name of the
Corporation except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Corporation. He shall preside at all meetings of the Shareholders and Directors
and shall be ex-officio a member of all standing committees of the Board.
SECTION 5. The President shall be the chief operating and administrative
officer of the Corporation. In the absence of the Chairman of the Board, the
President shall preside at all meetings of the Shareholders and at meetings of
the Board of Directors. The President shall exercise such duties as customarily
pertain to the office of the President and shall have general and active
supervision over the property, business and affairs of the Corporation and over
its several officers. The President may appoint officers, agents or employees
other than those appointed by the Board of Directors and shall perform such
other duties as may be prescribed from time to time by the Board of Directors or
by the By-Laws.
SECTION 6. The Vice Presidents (if any) in the order designated by the
Board of Directors, or, lacking such a designation, by the President, shall in
the absence or disability of the President perform the duties and exercise the
powers of the President and shall perform such other duties as the Board of
Directors shall prescribe.
SECTION 7. The Secretary shall attend all meetings of the Board and all
meetings of the Shareholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give, or cause to be given,
notice of all meetings of the Shareholders and special meetings of the Board of
Directors and shall perform such other duties as may be prescribed by the Board
of Directors or by the President, under whose supervision he shall act. He shall
execute with the Chairman of the Board or the President all authorized
conveyances, contracts or other obligations in the name of the Corporation
except as otherwise directed by the Board of Directors. He shall keep in safe
custody the seal of the Corporation and, when authorized by the Board, affix the
same to any instrument requiring it and, when so affixed, it shall be attested
by his signature or by the signature of the Treasurer or an Assistant Secretary.
The Secretary shall keep a register of the post office address of each
shareholder. Said address shall be furnished to the Secretary by such
shareholder and the responsibility for keeping said
-7-
<PAGE>
Adopted December 30, 1983
address current shall be upon the shareholder. The Secretary shall have general
charge of the stock transfer books of the Corporation.
SECTION 8. The Treasurer shall have custody of and keep account of all
money, funds and property of the Corporation, unless otherwise determined by
the Board of Directors, and he shall render such accounts and present such
statements to the Directors, the Chairman of the Board and the President as may
be required of him. He shall deposit funds of the Corporation which may come
into his hands in such bank or banks as the Board of Directors may designate.
He shall keep his bank accounts in the name of the Corporation and shall
exhibit his books and accounts at all reasonable times to any Director of the
Corporation upon application at the office of the Corporation during business
hours. If required by the Board of Directors, he shall give the Corporation
a bond in such sum and with such surety or sureties as shall be satisfactory to
the Board for the faithful performance of the duties of his office and for the
restoration to the corporation in case of his death, resignation or removal
from office of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
SECTION 9. The Assistant Secretaries and the Assistant Treasurers (if any),
respectively, (in the order designated by the Board of Directors or, lacking
such designation, by the President) in the absence of the Secretary or the
Treasurer, as the case may be, shall perform the duties and exercise the powers
of such Secretary or Treasurer and shall perform such other duties as the Board
of Directors shall prescribe.
ARTICLE VII
CERTIFICATES OF SHARES
SECTION 1. Every holder of shares in the Corporation shall be entitled to
have a certificate, signed by, or in the name of the Corporation by, the
Chairman of the Board, Vice-Chairman of the Board, the President or a
Vice-President and the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary of the Corporation, certifying the number of shares owned
by him in the Corporation.
Certificates may be issued for partly paid shares and in such case upon the
face or back of the certificates issued to represent any such partly paid
shares, the total amount paid thereon shall be specified.
If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the
-8-
<PAGE>
Adopted December 30, 1983
Corporation shall issue to represent such class or series of shares, provided
that, except as otherwise provided in Section 471 and 472 of the Michigan
Business Corporation Act, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of shares, a statement that the
Corporation will furnish without charge to each Shareholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 2. where a certificate is countersigned (1) by a transfer agent
other than the Corporation or its employee, or, (2) by a registrar, other than
the Corporation or its employee, any other signature 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 upon 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 were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
SECTION 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate or shares to be lost, stolen or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
SECTION 4. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
-9-
<PAGE>
Adopted December 30, 1983
FIXING RECORD DATE
SECTION 5. In order that the Corporation may determine the Shareholders
entitled to notice of or to vote at any meeting of Shareholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior to any other
action. A determination of Shareholders of record entitled to notice of or to
vote at a meeting of Shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting. Absent Board of Director action, the record date shall be ten
(10) days before the date of such meeting.
REGISTERED STOCKHOLDERS
SECTION 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to interest in such share
or shares on the part of any other person, whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of Michigan.
ARTICLE VIII
INDEMINIFICATION
SECTION 1. To the extent permitted by Michigan law from time to time in
effect and subject to the provisions of Section 3 of this Article, the
Corporation shall 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 (whether
or not by or in the right of the Corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably
-10-
<PAGE>
Adopted December 30, 1983
believed to be in or not opposed to the best interests of the Corporation, or
its Shareholders, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his 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
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 conduct was unlawful.
SECTION 2. To the extent permitted by Michigan law, from time to time in
effect and subject to the provisions of Section 3 of this Article, the
Corporation shall have power to indemnify any person who was or is a party to 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 is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation or its Shareholders 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
duty to the Corporation unless and only to the extent that 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 circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
SECTION 3. Any indemnification under Sections 1 and 2 of this Article
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in said Sections 1 or 2. Such
determination shall be made (1) 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 (2) if such a quorum is not obtainable, or, even if obtainable
and a quorum of disinterested directors so directs, by independent legal counsel
(compensated by the Corporation) in a written opinion, or (3) by the
Shareholders.
-11-
<PAGE>
Adopted December 30, 1983
SECTION 4. If a director, officer, employee or agent of a Corporation has
been successful on the merits or otherwise as a party to any action, suit or
proceedings referred to in Sections 1 or 2 of this Article, or with respect to
any claim, issue or matter therein (to the extent that a portion of his expenses
can be reasonably allocated thereto), he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
SECTION 5. Expenses incurred in defending a civil, criminal, administrative
or investigative action, suit or proceeding, as authorized by the Board of
Directors, whether a disinterested quorum exists or not, upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article shall be
indemnified.
SECTION 6. The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any agreement, vote of Shareholders or disinterested directors, or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 7. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article or of Sections 561 to 569 of
the Michigan Business Corporation Law.
ARTICLE IX
GENERAL PROVISIONS
DIVIDENDS
SECTION 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Articles of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
-12-
<PAGE>
Adopted December 30, 1983
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the Articles of Incorporation and the Michigan Business
Corporation Act.
SECTION 2. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
SECTION 3. When called for by a vote of the Shareholders, the Board of
Directors shall present at each annual meeting and at any special meeting of the
Shareholders a full and clear statement of the business and condition of the
Corporation.
CHECKS
SECTION 4. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
SEAL
SECTION 5. The corporate seal shall have inscribed there on the name of the
Corporation and the words 'Corporate Seal, Michigan'. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
LOANS
SECTION 6. No loans shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
The Corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the Corporation or of its
subsidiary, including any officer or employee who is a director of the
Corporation or its subsidiary, whenever, in the judgment of the directors, such
loans,
-13-
<PAGE>
Adopted December 30, 1983
guaranty or assistance may reasonably be expected to benefit the Corporation.
The loan, guaranty or other assistance may be with or without interest, and may
be unsecured, or secured in such manner as the Board of Directors shall approve,
including, without limitation, a pledge of shares of stock of the Corporation.
Nothing in this section contained shall be deemed to deny, limit or restrict the
powers of guaranty or warranty of any corporation at common law or under any
statute.
CONTRACTS
SECTION 7. The Board of Directors may authorize any officer or officers,
agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
No contract or transaction between a corporation and one or more of its
directors or officers, or between a corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the board or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if;
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship 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 the Shareholders; or
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, a
committee thereof, or the Shareholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
-14-
<PAGE>
Adopted December 30, 1983
ARTICLE X
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or repealed or new By-Laws
may be adopted by the Shareholders or by the Board of Directors, unless such
power is reserved exclusively to the Shareholders by the Articles of
Incorporation, at any regular meeting of the Shareholders or of the Board of
Directors or at any special meeting of the Shareholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
By-Laws be contained in the notice of such special meeting.
ARTICLE XI
COMMITTEES OF DIRECTORS
SECTION 1. The Board of Directors may, by resolution passed by a majority
of the whole board, designate one or more Committees, to consist of two or more
of the Directors of the Corporation. 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. Any such committee, to the
extent provided in the resolution, and as otherwise restricted by the Michigan
Business Corporation Act, shal1 have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that in the absence or disqualification of any
member of such committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
SECTION 2. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
ARTICLE XII
COMPENSATION OF DIRECTORS
SECTION 1. The Directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
-15-
<PAGE>
Adopted December 30, 1983
ARTICLE XIII
SHAREHOLDER LIST
SECTION 1. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of Shareholders, a complete list of the Shareholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Shareholder and the number of shares registered in the name of each Shareholder.
Such list shall be open to the examination of any Shareholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city, where the
meeting is to be held, which place shal1 be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any Shareholder who is
present.
-16-
<PAGE>
EXHIBIT 3.21
Prescribed by: Charter #
SHERROD BROWN -------------------------
Secretary of State Approved by B.G.D.
-----------------------
Date 8/6/84
------------------------------
Fee 85.00
------------------------------
CERTIFICATE OF AMENDMENT
(BY SHAREHOLDERS)
TO THE ARTICLES OF INCORPORATION OF
DEFIANCE PRECISION PRODUCTS, INC.
JAMES W. GILLIS who is President and MICHAEL D. SHEA who is Secretary
of the above named Ohio Corporation for profit with its principal location at
733 Perry Street, Defiance, Ohio 43512, do hereby certify that:
An action by all of the shareholders was taken without meeting in
accordance with Ohio Revised Code Section 1701.54 wherein the following
Resolution was adopted to amend the Articles:
RESOLVED, that the Articles of Incorporation are hereby amended to read as
follows:
FIRST: The name of the Corporation shall be DEFIANCE PRECISION
PRODUCTS, INC.
SECOND: The location of its principal office is in the City of
Defiance, Defiance County, Ohio.
THIRD: The purpose for which it is formed is to engage in any lawful
act or activity for which corporations may be formed under
Section 1701.01 to 1701.98, inclusive, of the Ohio Revised
Code.
FOURTH: The maximum number of shares of all classes which the
Corporation is authorized to have outstanding is one thousand
five hundred (1,500) shares, consisting of one thousand (1,000)
common shares with par value of One ($1.00) Dollar per share
and five hundred (500) preferred shares with a par value of One
Thousand ($1,000.00) Dollars each.
The express terms and provisions of the shares of each of said
classes, including the powers, preferences, and rights thereof
and the relevant, participating, optional or other special
rights or privileges of, and the qualifications, limitations or
restrictions on, the rights of the holders of the shares of
each class, are as follows:
PREFERRED STOCK
(a) The holders of the preferred shares shall not be entitled
to receive any dividends.
Page 1
<PAGE>
(b) Upon any dissolution, liquidation, or winding up of the
Corporation, the holders of preferred shares shall be entitled
to receive, before any payment shall be made to the holders of
common shares, the sum of One Thousand ($1,000.00) Dollars per
share. The consolidation or merger of the Corporation at any
time, or from time to time, with any other corporation or
corporations, or a sale of all or substantially all of the
assets of the Corporation, shall not be construed as a
dissolution, liquidation, or winding up of the Corporation
within the meaning hereof.
After payment of the full preferential amounts aforesaid, the
holders of preferred shares shall not be entitled to
any further participation in any distribution of the assets or
funds of the Corporation, and the remaining assets and funds of
the Corporation shall be divided and distributed among the
holders of the common shares then outstanding according to
their respective interests.
(c) Twenty (20%) percent of the outstanding preferred shares
shall be redeemed by the Corporation during the sixth (6th)
year after date of issue; the Corporation shall annually
thereafter retire twenty (20%) percent of the then outstanding
preferred shares until all of the preferred shares are retired.
The date of redemption, as stated herein, shall be set by the
Board of Directors, upon not less ten (10) days prior written
notice to the holders of record of the preferred shares to be
redeemed, at One Thousand ($1,000.00) Dollars per share. If
such notice is given by mail, it shall be deemed received by
the shareholder from whom redemption is to be made when
deposited by the Corporation in the mail, registered, postage
prepaid, addressed to the last known address of such
shareholder. If less than all of the outstanding preferred
shares are to be redeemed, the redemption may be made either by
lot or prorata or by such other method as the Board of
Directors in its discretion may determine, including, without
limitation of the foregoing, the right to designate which
shareholder shall be required to surrender any part or all of
the preferred shares owned by him. If such notice of redemption
shall have been duly given and if, on or before the redemption
date specified in such notice, all funds necessary for such
redemption shall have been set aside so as to be available
therefor, then notwithstanding that any certificate for shares
so called for redemption shall not been surrendered for
cancellation, all rights with respect to such preferred shares
shall forthwith on such redemption date cease and terminate,
except only the right of the holders
Page 2
<PAGE>
thereof to receive the amount payable upon redemption thereof,
but without interest.
(d) Except as herein otherwise expressly provided, or as
otherwise provided by the laws of the State of Ohio, the
holders of common shares shall exclusively possess all of the
voting power of the Corporation for the election of directors
and for all other purposes and the holders of the preferred
shares shall have no voting power and no holder thereof shall
be entitled to receive notice of any meetings of shareholders.
COMMON STOCK
(a) Subject to the preferences, qualifications, limitations,
voting rights, and restrictions with respect to the preferred
shares of the Corporation as set forth in these Articles, the
holders of the shares of common stock shall possess all rights
appertaining to authorized shares of the Corporation.
IN WITNESS WHEREOF, the above named officers, acting for and on behalf
of the corporation, have subscribed their names this 20th dad of July, 1984.
/s/ James W. Gillis
_________________________________________
JAMES W. GILLIS, President
/s/ Michael D. Shea
_________________________________________
MICHAEL D. SHEA, Secretary
Page 3
<PAGE>
EXHIBIT 3.22
CODE OF REGULATIONS
OF
DEFIANCE PRECISION PRODUCTS, INC.
ARTICLE 1. MEETINGS OF SHAREHOLDERS
SECTION 1. Annual Meetings. An Annual Meeting of the shareholders for the
election od directors, the consideration of the reports to be laid before such
meeting and the transaction of such other business as may come before the
meeting, shall be held not later than four months after the close of the fiscal
year and at such hour as determined by the Board of Directors. When the Annual
Meeting is not held or directors are not elected thereat, they may be elected at
a Special Meeting called and held for that purpose.
SECTION 2. Special Meeting. A Special Meeting of the shareholders may be
called by the President, or a Vice President, or by a majority of the members of
the Board of Directors acting with or without a meeting, or by the persons who
hold twenty-five (25%) percent of all outstanding shares entitled to vote
thereat. Upon the request in writing delivered to the President or Secretary by
any persons entitled to call a meeting of Shareholders, it shall be the duty of
the President or Secretary to give notice to Shareholders and if such request be
refused, then the persons making such request may call a meeting by giving
notice in the manner provided herein.
SECTION 3. Place of Meeting. The meetings of shareholders shall be held at
such place within or without the State of Ohio as may be
<PAGE>
designated in the notice of the meeting. If no designation is made, the place of
meeting shall be the principal office of the Corporation in the State of Ohio.
SECTION 4. Notice of Meetings. Written or printed notice stating the place,
date and hour of the meeting shall be delivered not less than sever nor more
than forty days before the date of the meeting, either personally or by mail, by
or at the direction of the President or the Secretary or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting. If mailed, such notice shall be delivered or deposited in the United
States mail, addressed to the shareholder at the address as it appears on the
stock transfer books of the corporation, with postage thereon prepaid. In the
event of the transfer of shares after notice has been given and prior to the
holding of a meeting, it shall not be necessary to serve notice upon the
transferee. If any meeting is adjourned to another time or place, no further
notice as to such adjourned meeting need be given, other than by announcement at
the meeting at which such adjournment is taken.
SECTION 5. Quorum. The shareholders present in person or by proxy at any
meeting for the election of directors shall constitute a quorum for that
purpose. To constitute a quorum at any meeting of shareholders for any other
purpose, there shall be present, in person or by proxy, the holders of shares
entitling them to exercise a majority of the voting power. Less than such
majority may adjourn the meeting of shareholders from time to time and at any
such adjourned
<PAGE>
meeting any business may be transacted as if the meeting had been held as
originally called.
SECTION 6. Closing of Transfer Books. The Share Transfer Books of the
Corporation may be closed by order of the Board of Directors for a period not
exceeding ten days prior to any meeting of shareholders and for a period not
exceeding ten days prior to the payment of any dividend.
SECTION 7. Proxy. Any shareholder entitled to vote at a meeting of
shareholders may be represented and vote thereat by proxy appointed by an
instrument in writing subscribed by such shareholder or by his duly authorized
attorney and submitted to the Secretary at or before such meeting.
ARTICLE II. BOARD OF DIRECTORS
SECTION 1. Number and Tenure. The number of directors of the corporation
shall be determined from time to time by the shareholders entitled to vote but
shall be no less than the number of shareholders. The election of directors
shall be held at the annual Meeting of the shareholders or at a Special Meeting
called for that purpose. No director need be a shareholder. Each director shall
hold office until the next Annual Meeting of Shareholders following his election
and until his successor shall have been elected and qualified.
SECTION 2. Regular Meetings. A regular meeting of the Board of Directors
shall be held immediately after and at the same place as the First Meeting of
shareholders. the Board of directors may provide, by resolution, the time and
place within or without the State of Ohio for
<PAGE>
the holding of additional regular meetings without other notice than such
resolution.
SECTION 3. Special meetings. Special Meetings of the Board of Directors may
be called by or at the request of the President or any two directors. The person
or persons authorized to call the special meeting may fix the place within or
without the State of Ohio for holding any special meeting of the Board of
Directors called by them.
SECTION 4. Notice. Notice of any Special meeting shall be given at least
three days before the meeting by oral, telegraphic or written notice. If mailed,
such notice shall be deemed to be delivered when deposited in the United States
mail addressed to the director at his residence or business address, with
postage thereon prepaid. If notice is given by telegram, such notice shall be
deemed to be delivered when the telegram is delivered to the telegraph company.
Any director may waive notice of any meeting by written statement signed before
or after the holding of the meeting. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting except where a director
attends for the express purpose of objecting to the transaction of any business
because the meeting was not lawfully called or convened.
SECTION 5. Quorum. A majority of the members of the Board of Directors
shall constitute a quorum for the transaction of business.
SECTION 6. Authority. All the capacity of the Corporation shall be vested
in and all its powers and authority, except as otherwise provided by law, shall
be exercised by the Board of Directors which
<PAGE>
shall manage and conduct the business of the Corporation.
SECTION 7. Manner of Acting. The act of the majority of the directors
present at a meeting, at which a quorum is present shall be the act of the Board
of Directors. Any action which may be taken at a meeting of the Board of
Directors, may be taken without a meeting if a consent in writing setting forth
the action so taken, shall be signed severally or collectively by all of the
directors entitled to vote with respect to the subject matter thereof.
SECTION 8. Vacancy. Any vacancy in the Board of Directors shall be filled
by a majority vote of the remaining directors, even though less than a quorum. A
director elected to fill a vacancy shall be a director until his successor is
elected by the shareholders who may make such election at the next Annual
Meeting of Shareholders or at any special meeting prior thereto.
SECTION 9. Compensation. By resolution of the Board of Directors, the
director may be paid their expense of attendance at meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
SECTION 10. By-Laws. The Board of Directors shall have power and authority
to make such By-Laws, not inconsistent with the Articles, Code of Regulations of
the Laws of Ohio, as the board shall deem proper or desirable.
<PAGE>
ARTICLE III. OFFICERS
SECTION 1. Election. The Board of Directors shall elect a President, a
Treasurer, a Secretary and such Vice Presidents, Assistant Secretaries,
Assistant Treasurers and such other officers, agents and employees, as the Board
may been proper. Such officers shall be elected annually by the Board of
directors at the first meeting of the Board following the Annual Meeting of
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently possible. Each
officer shall hold office until his successor shall have been fully elected and
qualified or until his death, resignation or removal. The President must be a
director of the Corporation.
SECTION 2. Removal. Any officer elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in the judgment of
the Board the best interest of the Corporation would be served thereby.
SECTION 3. Vacancy. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise may be filled by the Board of Directors
for the unexpired term.
SECTION 4. Powers and Duties of Officers. The chief executive officer of
the Corporation shall be the President. Subject to the foregoing, the officers
of the Corporation shall have have such powers and perform such duties as
generally pertain to the respective officers and such further powers and duties
as may be conferred from time to time by the Board of Directors.
<PAGE>
SECTION 5. Salaries. The salaries of the officers shall be fixed from time
to time by the Board of Directors, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation.
ARTICLE IV. INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. Indemnification. Each director and officer, their heirs,
executors and administrators shall be indemnified by the Corporation against
expenses reasonably incurred by him in connection with any claim made against
him or any action, suit or proceeding to which he may be made a party by reason
of his being or having been a director of the Corporation (whether or not he
continues to be a director of the Corporation at the time of incurring such
expenses), except in cases where a claim made against him shall be admitted by
him to be just and except in cases where action, suit or proceedings shall be
settled prior to adjudication by payment of all or a substantial portion of the
amount claimed and except in cases which he shall be adjudged in such action,
suit or proceeding to be liable or to have been derelict in the performance of
his duty as such director.' Such right of indemnification shall not be exclusive
of other rights to which he may be entitled to as a matter of law.
ARTICLE V. CERTIFICATES FOR SHARES
SECTION 1. Certificates. every shareholder in the Corporation shall be
entitled to have a Certificate of shares signed in the name of the Corporation
by the President and Secretary, certifying the number and class of shares
represented by such certificate and such
<PAGE>
recitals as may be required by law. the Board of Directors may, by resolution,
provide that any Vice-President may sign such certificate instead of the
President and that an Assistant Secretary, treasurer or Assistant treasurer,
if any, may sign instead of the Secretary. Certificates of shares shall in all
other respects be in such form as shall be determined by the Board of Directors
and shall be consecutively numbered or otherwise identified. the names and
addresses of the persons to whom the stock is issued with the number of shares
and date of issue shall be entered on the Stock Transfer Books of the
Corporation.
SECTION 2. Transfer of Shares. the shares may be transferred on the proper
books of the Corporation by the holder of record thereof, or by his attorney
legally constituted, or his legal representative, by surrender of the
certificate therefor for cancellation and a written assignment of the shares
evidenced thereby. the Board of Directors may, from time to time, appoint such
transfer agents or registrars of shares as it may deem advisable and may define
their powers and duties.
SECTION 3. Substituted Certificates. In case of certificate of shares is
lost, stolen or destroyed, a new certificate may be issued therefor upon such
terms and indemnity to the Corporation as the Board of directors may prescribe.
The Board of Directors may, in its discretion, refuse to issue such new
certificate save upon the order of a Court having jurisdiction in such matters
pursuant to the statutes made and provided.
<PAGE>
ARTICLE VI. SEAL
There shall be no seal.
ARTICLE VII. TRANSFER OF SECURITIES OR EXECUTION OF DOCUMENTS
All endorsements, assignments, transfers, stock powers, or other
instruments of transfer of securities, or documents, standing in the name of the
Company shall be executed for and in the name of the Company by the President or
a Vice President and also by the Secretary or Treasurer or an Assistant
Secretary, or an Assistant Treasurer.
ARTICLE VIII. AMENDMENTS.
These regulations may be adopted and changed by the affirmative vote of the
holders of record of shares entitling them to exercise a majority of the voting
power on such proposal, or without a meeting by the written consent of the
holders of record of shares entitling them to exercise two-thirds of the voting
power on such proposal.
Thereupon the following written assent to the adoption of the Code of
Regulations aforesaid was entered in these minutes and subscribed by the
shareholders of said Corporation.
<PAGE>
C&S-101
Files. 33-76
EXHIBIT 3.23
(Profit Domestic Corporation)
ARTICLES OF INCORPORATION
This Articles of Incorporation are signed by the incorporator(s) for the
purpose of forming a profit corporation pursuant to the provisions of Act 284,
Public Acts of 1972, as amended, as follows:
ARTICLE I.
The name of the corporation is Hy-Form Products, Inc.
----------------------------------------
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ARTICLE II.
The purpose or purposes for which the corporation is organized is to
engage in any activity within the purposes for which corporations may be
organized under the Business Corporation Act of Michigan.
ARTICLE III.
The total authorized capital stock is:
Preferred shs.( Par value $ )
(1) ( ------------- ---------- ) per share
Common shs. ( 50,000 Par value $ 1.00 )
------------- ----------
(Preferred )
( -------)
and/or shs. of (2) (Common ) no par value. (See part 3 of instruction
----------
(3) A statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows:
This first one thousand shares of the Common Stock of the
Corporation may only be issued in accord with a plan of issue which
meets the requirements of Section 1244 of the Internal Revenue Code.
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
ARTICLE IV.
(1) The address of the registered office is: (See part 4 of Instructions)
35588 Veronica Drive Livonia, Michigan 48150
- -----------------------------------------------------------------------------
(No. and Street) (Town or City) (Zip Code)
(2) The mailing address of the registered office is (need not be completed
unless different from the above address--See part 4 of Instructions)
Michigan
- -----------------------------------------------------------------------------
(No. and Street) (Town or City) (Zip Code)
(3) The name of the resident agent at the registered office is:
Robert B. Light
- -----------------------------------------------------------------------------
ARTICLE V.
The name(s) and address(es) of the incorporator(s) are as follows:
Name Residence or Business Address
- ---- -----------------------------
R. Peter Prokop 412 Fisher Building, Detroit, Michigan 48202
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
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ARTICLE VI.
OPTIONAL (Delete Article VI if not applicable.)
When a compromise or arrangement or a plan of reorganization of this
corporation is proposed between this corporation and its creditors or any class
of them or between this corporation and its shareholders or any class of them,
a court of equity jurisdiction within the state, on application of this
corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors
or class of creditors or of the shareholders or class of shareholders to be
affected by the proposed compromise or arrangement or reorganization, to be
summoned in such manner as the court directs. If a majority in number
representing 3/4 in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise
or arrangement or a reorganization, agree to a compromise or arrangement or a
reorganization of this corporation as a consequence of the compromise or
arrangement, the compromise or arrangement and the reorganization, if sanctioned
by the court to which the application has been made, shall be binding on all
the creditors or class of creditors, or on all the shareholders or class of
shareholders and also on this corporation.
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
ARTICLE VII.
(Here insert any desired additional provisions authorized by the Act)
Any action required or permitted by the Business Corporation Act of Michigan
to be taken at an annual or special meeting of shareholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum numbers of votes that
would be necessary to authorize or take action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking
of the corporation action without a meeting by less than unanimous written
consent shall be given to shareholders who have not consented in writing.
I (We), the incorporator(s) sign my (our) name(s) this 5th day of December, 1977
R. PETER PROKOP
- ---------------------- ---------------------------
R. Peter Prokop
- ---------------------- ---------------------------
- ---------------------- ---------------------------
- ---------------------- ---------------------------
- ---------------------- ---------------------------
(See Instructions on Reverse Side)
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
(Please do not write in spaces below -- for Department use)
- ------------------------------------------------------------------------------
MICHIGAN DEPARTMENT OF COMMERCE -- CORPORATION AND SECURITIES BUREAU
- ------------------------------------------------------------------------------
Date Received
- ------------------
DEC 12 1977 FILED
- ------------------ DEC 16 1977
- ------------------ [SIGNATURE ILLEGIBLE]
DIRECTOR
- ------------------ Michigan Department of Commerce
- ------------------
- ------------------
- ------------------
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C&S-101
(Res. 5-76)
INFORMATION AND INSTRUCTIONS
Articles of Incorporation -- Profit Domestic Corporation
1. Article I--The corporate name of a domestic profit corporation is required
to contain one of the following words or abbreviations: 'Corporation',
'Company', 'Incorporated', 'Limited', 'Corp.', 'Co.', 'Inc.' or 'Ltd.'
2. Article II may state, in general terms, the character of the particular
business to be carried on. Under section 202(b) of the law, it is a
sufficient compliance to state substantially, alone or with specifically
enumerated purposes, that the corporation may engage in any activity
with the purposes for which corporations may be organized under the Business
Corporation Act. The law requires, however, that educational corporations
must state their specific purposes.
3. Article III--The law requires the incorporators of a domestic corporation
having shares without par value to submit in writing the amount of
consideration proposed to be received for each share which shall be
allocated to stated capital.
4. Article IV--A post office box is not permitted to be designated as the
address of the registered office in part 1 of Article IV. The mailing
address in part 2 of Article IV may differ from the address of the
registered office only if a post office box address in the same city as the
registered office is designated as the mailing address.
5. Article V--The law requires one or more incorporators.
The addresses should include a street number and name (or other
designation), in addition to the name of the city and state.
6. The duration of the corporation should be stated in the Articles only if
the duration is not perpetual.
7. The Articles must be signed in ink by each incorporator. The names of
the incorporators as set out in Article V should correspond with the
signatures.
8. One original copy of the Article is required. A true copy will be prepared
by the Corporation and Securities Bureau and returned to the person
submitting the Articles for filing.
9. An effective date, not later than 90 days subsequent to the date of filing,
may be stated in the Articles of Incorporation.
10. FEES: Filing Fee.....................................................$10.00
Franchise Fee--% mill on each dollar of authorized capital
stock, with a minimum franchise fee of.........................$95.00
(Make fee payable to State of Michigan)
11. Mail Articles of Incorporation and fees to:
Michigan Department of Commerce
Corporation and Securities Bureau
Corporation Division
P.O. Drawer C
Lansing, Michigan 48904
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
EXHIBIT 3.24
BY-LAWS
OF
HY-FORM PRODUCTS, INC.
(hereinafter referred to as the 'Corporation')
ARTICLE I
OFFICE
------
Section 1. Location. The principal office of the Corporation in the
State of Michigan shall be located at 35588 Veronica Drive, Livonia, Michigan.
Section 2. Change. The Board of Directors (hereinafter referred to as
the 'Board') may change the principal office of the Corporation from time to
time and may establish other offices, either within or without the State of
Michigan, as the business of the Corporation may require.
ARTICLE II
SHAREHOLDERS AND SHAREHOLDERS' MEETINGS
---------------------------------------
Section 1. Annual Meeting. The annual shareholders' meeting shall be
held on the 15th day in the fourth calendar month after the end of the
Corporation's fiscal year at the hour of 10:00 o'clock a.m., for the purposes of
electing directors, hearing reports of the Corporation and transacting any other
business within the power of the shareholders. If the day fixed for the annual
meeting shall be a legal holiday, such meeting shall be held on the next
succeeding business day. The date of the annual meeting of the shareholders
shall in no event be changed within the thirty (30) days next preceding the date
on which the annual meeting is to be held unless consented to in writing, or by
resolution adopted at a meeting, by a majority of the shareholders entitled to
vote at the annual meeting. If the election of directors shall not be held on
the day designated herein for an annual meeting, or at any adjournment thereof,
the Board may cause the election to be held at a special shareholders' meeting
as soon thereafter as one may be conveniently called and noticed for that
purpose.
Section 2. Special Meetings. Special shareholders' meetings shall be
noticed by the President and Secretary whenever called by the President, Board,
or requested by the shareholders holding more than one-half (1/2) the shares of
capital stock of the Corporation outstanding and entitled to vote. The request
shall state the purpose or purposes for which the meeting is to be called, and
the business transacted at any such meeting shall be limited to the purpose or
purposes stated in the notice thereof.
Section 3. Place of Meeting. The Board may specifically designate any
place either within or without the State of Michigan as the place of meeting for
any annual or special shareholders' meeting.
<PAGE>
If no such designation is made or if a special meeting is called other than at
the request of the Board, the place of meeting shall be the registered office of
the Corporation in the State of Michigan.
Section 4. Notice. Written notice of the time and place of any
shareholders' meeting shall be given personally or mailed to each shareholder
entitled to vote, except as otherwise provided in the Michigan Business
Corporation Act, at his last known address, as the same appears on the stock
transfer book of the Corporation, or otherwise, not less than ten (10) nor more
than thirty (30) days prior to any meeting and any notice of a special meeting
shall indicate briefly the purpose or purposes thereof. Nevertheless, if all the
shareholders waive notice of the meeting, no notice of the same shall be
required, and whenever all the shareholders shall meet in person or by proxy,
such meeting shall be valid for all purposes without call or notice, and at such
meeting any corporate action shall not be invalid for want of notice.
Attendance of a person at a meeting of shareholders, in person or by
proxy, constitutes a waiver of notice of the meeting, except when a shareholder
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.
Section 5. Giving Notice. Any notice required by statute or by these
By-Laws to be given to the shareholders, or to directors, or to any officer of
the Corporation, shall be deemed to be sufficient when deposited in the United
States mail, charged prepaid, addressed to such shareholder, director, or
officer at his last known address, and such notice shall be deemed to have been
given at the time of such mailing.
Section 6. Adjourned Meetings and Notice Thereof. Any annual or
special shareholders' meeting, whether or not a quorum is present, may be
adjourned from time to time by the vote of a majority of the shares present and
entitled to vote, whether the holders thereof are present in person or by proxy;
in the absence of a quorum, no other business may be transacted at such meeting.
A meeting may be adjourned to another time or place without giving
notice of the adjourned meeting if the time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken and at
the adjourned meeting only such business is transacted as might have been
transacted at the original meeting. Provided, however, that after the
adjournment the Board may fix a new record date for the adjourned meeting and a
notice of the adjourned meeting shall be given to each shareholder of record on
the new record date entitled to notice.
<PAGE>
Section 7. Quorum. At any meeting of the shareholders, the holders of
a majority of all the voting shares of the capital stock of the Corporation
issued and outstanding, present and in person or represented by proxy, shall
constitute a quorum. Any meeting at which less than a quorum is represented may,
however, be adjourned from time to time to a further date by those who attend,
without further notice other than the announcement of the time and place of such
meeting, and when a quorum shall be present upon any such adjourned day, any
business may be transacted which might have been transacted at the meeting as
originally called. The shareholders present at a duly called or held meeting at
which a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
Section 8. Voting. Unless a record date for voting purposes is fixed
as provided in Section 1 of Article VI of these By-Laws, only those persons in
whose names shares entitled to vote stand and are registered on the stock
transfer books of the Corporation on the day thirty (30) days prior to any
meeting of shareholders shall be entitled to vote at such meeting. Such vote may
be by voice or by ballot.
Each shareholder of the Corporation shall, at every shareholders'
meeting, be entitled to one vote in person or by proxy for each share of each
class of capital stock of the Corporation outstanding and entitled to vote and
registered in his name on the record date or the date set forth herein.
Except as otherwise provided by law, the Articles of Incorporation, or
these By-Laws, every act or decision done or made by vote of the shareholders
entitled to exercise a majority of the voting power present in person or by
proxy at any shareholders' meeting shall be regarded as an act or decision done
or made with the approval of the shareholders. Except as otherwise provided in
the Articles of Incorporation, directors shall be elected by a plurality of the
votes cast at an election.
Section 9. Organization. The President shall call meetings of the
shareholders to order and shall act as Chairman of such meetings unless
otherwise determined by the holders of a majority of all the shares of the
capital stock issued and outstanding, present in person or by proxy. The
Secretary of the Corporation shall act as Secretary of all meetings of the
Corporation, but in the absence of the Secretary at any meeting of the
shareholders or his inability to act as Secretary, the presiding officer may
appoint any person to act as Secretary of the meeting.
Section 10. Action Without a Meeting.
a. If the Articles of Incorporation so provide, any action required or
permitted under any provision of
<PAGE>
the Michigan Business Corporation Act to be taken at an annual or special
meeting of shareholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize
or take the action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent
shall be given to shareholders who have not consented in writing.
(b) If the Articles of Incorporation do not provide as described in
subsection (a) hereof, any action which under any provision of the Michigan
Business Corporation Act is required or may be taken at a shareholders'
meeting may be taken without such a meeting if authorized by a writing
signed by all of the persons who would be entitled to vote upon such action
at such a meeting and filed with the Secretary of the Corporation. Such
consent shall have the same effect as a unanimous vote of shareholders.
Section 11. Consent of Absentees. The transaction of any annual or
special shareholders' meeting, however called and noticed, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present either in person or by proxy and if, either before or after the meeting,
each of the shareholders, who was entitled to vote but was not present in person
or by proxy, signs a written waiver of notice and written consent to the holding
of such meeting or a written approval of the minutes thereof. All such waivers
and consents or approvals shall be filed with the corporate records or made a
part of the minutes of the meeting.
Section 12. Proxies. Every person entitled to vote or execute consents
or dissents shall have the right to do so either in person or by one or more
agents authorized by a written proxy executed by such person or his duly
authorized agent and filed at or before the meeting at which it is intended to
be used with the Secretary of the Corporation. No such proxy shall be valid
after the expiration of three (3) years from the date of its execution. Any
proxy duly executed shall be deemed not to have been revoked and to be in full
force and effect and, in the absence of any limitation to the contrary contained
in the proxy, it shall extend to all. shareholders' meetings, unless and until
an instrument revoking said proxy or a duly executed proxy bearing a later date
is filed with the Secretary of the Corporation. A proxy shall be deemed
sufficient if it appears on its face to confer the requisite authority and is
signed by the owner of the stock to be voted; no witnesses to the execution of
any proxy shall be required. Notwithstanding that a valid proxy may be
outstanding, except in the case of an irrevocable proxy
<PAGE>
coupled with an interest which shall state that it is irrevocable on its face,
the powers of the proxy holder or holders shall be suspended in the person or
persons executing such proxy shall be present at the meeting and elect to vote
in person.
Section 13. Removal of Directors. The shareholders may remove, with or
without cause, any member of the Board at any special meeting called for that
purpose or by consent in the manner set forth in the Michigan Business
Corporation Act, and the shareholders may elect a director to fill the vacancy
thus created at that meeting, at any other meeting called for the purpose of
filling that vacancy, or by consent.
Section 14. Voting of Shares by Certain Holders. Any other Corporation
that owns shares of stock of this Corporation outstanding and entitled to vote
may vote the same by the President of the shareholder corporation or proxy
appointed by him, unless some other person is appointed to vote such shares by
resolution of the Board of the shareholder corporation.
Shares held by an administrator, executor, guardian, conservator,
receiver, trustee, or other fiduciary may be voted by him, either in person or
by proxy, without a transfer of such shares into his name, provided the
Corporation is furnished satisfactory proof of the authority of such person to
vote those shares.
A shareholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer the pledgor has expressly empowered the pledgee to
vote such shares and had the same indicated on the books of the Corporation, in
which case only the pledgee or his proxy may represent and vote such shares.
Shares held by two or more persons as joint tenants or as tenants in
common may be voted at a meeting of shareholders by any of such persons, unless
another joint tenant or tenant in common seeks to vote any of such shares in
person or by proxy. In the latter event, the written agreement, if any, which
governs the manner in which the shares shall be voted, controls if presented at
the meeting. If no such agreement is presented at the meeting, the majority in
interest of the joint tenants or tenants in common present shall control the
manner of voting. If there is no such majority, the shares, for the purpose of
voting, shall be divided among such joint tenants or tenants in common in
accordance with their interest in the shares.
Shares of this Corporation's own stock belonging to the Corporation or
held by it in a fiduciary capacity shall not be voted, directly or indirectly,
at any meeting or for any purpose and shall not be counted in determining the
total number of shares present for quorum purposes.
<PAGE>
Section 15. New Shareholders. Every person becoming a shareholder in
this Corporation shall be deemed to assent to these By-Laws, and shall designate
to the Secretary the address to which he desires that the notice herein required
to be given may be sent, and all notices mailed to such addresses, with postage
prepaid, shall be considered as duly given at the date of mailing, and any
person failing to so designate his address shall be deemed to have waived notice
of such meeting.
Section 16. Inspectors of Election. Whenever any person entitled to
vote at any shareholders' meeting shall request the appointment of persons to
inspect any election, a majority of the Board present at such meeting shall
appoint no more than three (3) inspectors who need not be shareholders. The
inspectors shall determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine challenges and questions arising in connection with the right
to vote, count and tabulate votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all shareholders. Their certificate of any vote shall be prima facie evidence
thereof.
ARTICLE III
DIRECTORS AND MEETINGS OF THE BOARD OF DIRECTORS
------------------------------------------------
Section 1. Powers. All of the powers of this Corporation not expressly
reserved to or conferred upon the shareholders by statute, the Articles of
Incorporation or these By-Laws shall be vested in the Board of Directors of this
Corporation which shall control and manage its business and affairs.
Section 2. Number of Directors. The authorized number of Directors of
the Corporation shall be three (3) Amendment 12/15/86 but the number may be
changed from time to time by a duly adopted amendment of these By-Laws.
Section 3. Election, and Term of Office of Directors. The Directors,
other than those serving on the first Board, shall be elected at each annual
shareholders' meeting, or otherwise, as provided in Article II, above. The first
Board of Directors shall hold office until the first annual meeting of
shareholders. At the first annual meeting of shareholders and at each annual
meeting thereafter, the shareholders shall elect directors to hold office until
the succeeding annual meeting, except in the case of the classification of
directors as permitted by the Michigan Business Corporation Act. A director
shall hold office for the term for which he is elected and until his successor
is elected and qualified, or until his resignation or removal. A director may
resign by written notice to the Corporation. The resignation is effective upon
its receipt by the Corporation or a subsequent time as set forth in the notice
of resignation.
<PAGE>
Section 4. Vacancies. Vacancies in the Board may be temporarily filled
by a majority of the remaining directors, though less than a quorum, or by a
sole remaining director making such appointment, and each director so appointed
shall hold office until his successor is elected and qualified by the
shareholders, who may make such election at the next annual meeting of the
shareholders or at any special meeting duly called for that purpose.
The shareholders may elect a director at any time to fill any vacancy
temporarily filled or not filled by the one or more remaining directors. If the
Board accepts the resignation of a director tendered to take effect at a future
time, the shareholders shall have the power to elect immediately a successor to
take office when such resignation is intended to become effective.
If because of death, resignation or other cause, the Corporation has
no directors in office, an officer, a shareholder, an executor, administrator,
trustee or guardian of a shareholder, or other fiduciary entrusted with like
responsibility for the person or estate of a shareholder, may call a special
meeting of shareholders in accordance with the By-Laws.
Section 5. Place of Meetings. Regular Board meetings shall be held at
any place within or without the State of Michigan which has been designated from
time to time by resolution of a majority of the Board or by written consent of a
majority of the members of the Board given either before or after the meeting
and filed with the Secretary of the Corporation. In the absence of such
designation, regular meetings shall be held at any place designated with the
written consent of a majority of the directors; otherwise special Board meetings
shall be held at the registered office of the Corporation in the State of
Michigan.
Section 6. Organization Meeting. Immediately following each annual
shareholders' meeting and each adjourned annual and special shareholders'
meeting held for the purpose of electing a new Board, the newly elected Board
may hold a regular meeting for the purpose of organization, election of
officers, and the transaction of other business. Notice of each such meeting
need not be given and is hereby dispensed with.
Section 7. Other Regular Meetings. Board meetings may be regularly
scheduled for dates, times and places as determined by the Board, and in such
case notice of such meetings need not be given and is hereby dispensed with.
Section 8. Special Meetings and Notice Thereof. Special Board meetings
for any purpose or purposes may be called at any time by any director or by the
President or, if he is absent or unable to act, by any Vice-President. The
business transacted at any such meeting shall be limited to the purpose or
purposes stated in the notice thereof if a purpose, although not required, is so
stated.
<PAGE>
Written notice of the place, day, and hour of special Board meetings
shall be given to each director and constitute due, legal, and personal notice
to him if that notice is delivered personally to him or sent to him by mail,
telegraph, or other means of written communication, charges prepaid, addressed
to him at his address as it is shown upon the records or stock transfer books of
the Corporation or, if such address is not so shown on such records or is not
readily ascertainable, at the place in which the regular directors' meetings are
held. If delivered personally, such notice shall be so delivered at least
twenty-four (24) hours prior to the time of the holding of the meeting. If
mailed or telegraphed, such notice shall be deposited in the United States Mail
or delivered to the telegraph company in the place where the principal office
of the Corporation in the State of Michigan is located at least ninety-six (96)
hours prior to the time of holding the meeting; if mailed, such notice shall be
deemed to be delivered when deposited in the United States Mail postage prepaid
and addressed as set forth above.
Section 9. Waiver of Notice. The attendance of a director at any Board
meeting shall constitute a waiver of notice of such meeting, except where a
director attends for the express purpose of objecting to the transaction of any
business because the meeting is not: lawfully called, noticed, or convened.
Section 10. Action of Directors Without a Meeting. Any action required
or permitted to be taken by the Board pursuant to authorization voted at a
meeting of the Board or a committee thereof may be taken without a meeting, if
all members of the Board, before or after the action, shall individually and
collectively consent in writing to such action. Such written consents shall be
filed with the minutes of the proceedings of the Board. Such action by written
consent shall have the same force and effect as a unanimous vote of such
directors at a duly called, noticed, and held Board meeting. Any certificate or
other document filed under any provision of the Michigan Business Corporation
Act which relates to action so taken shall state that the action was taken by
unanimous written consent of the Board without a meeting and that these By-Laws
authorized the directors so to act, and such statement shall be prima facie
evidence of such authority.
Section 11. Quorum. Except to adjourn the meeting as hereinafter
provided, a majority of the Board then in office without regard to the
authorized number of directors shall be necessary to constitute a quorum for
the transaction of business. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the Board unless a greater number be required by law,
the Articles of Incorporation, or these By-Laws.
Unless otherwise restricted by the Articles of Incorporation or
By-Laws, a member of the Board or of a committee designated by the Board may
participate in a meeting by means of conference telephone
<PAGE>
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
subsection constitutes presence in person at the meeting.
Section 12. Adjournment. A quorum may adjourn any Board meeting to
meet again at a stated place, date, and hour; however, in the absence of a
quorum a majority of the Directors present at any regular or special Board
meeting may adjourn from time to time until the time fixed for the next regular
Board meeting.
Section 13. Fees and Compensation. By resolution of the Board, the
Directors may be paid their expenses, if any, of attendance at each Board
meeting and a fixed sum for attendance at each Board meeting of a stated salary
as director. Nothing herein contained shall be construed to preclude any
director from serving the Corporation in any capacity as an officer, agent,
employee or otherwise and receiving a separate compensation thereof.
Section 14. Presumption of Assent. A director who is present at any
Board meeting at which action on any corporate matter is taken shall be presumed
to have assented to any action taken by the Board at that meeting unless his
dissent shall be entered in the minutes of the meeting or he shall file his
written dissent to such action with the person acting as the Secretary of the
meeting before the adjournment thereof or he shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 15. Treasury Stock. The Board may by resolution give the
status of authorized and unissued capital stock to any shares of capital stock
of this Corporation that this Corporation shall have acquired after issuance
thereof.
Section 16. Executive Committees. The Board, by resolution passed by a
majority of the whole Board, may provide for an Executive Committee by
appointing one (1) or more members thereto, each of whom shall be a director or
the President and who shall serve at the pleasure of the Board. Unless one of
the members shall have been designated as Chairman of the Board, the Executive
Committee shall elect a Chairman from its own members. Except as provided herein
or otherwise by resolution of the Board or as otherwise provided in the Michigan
Business Corporation Act, the Executive Committee during the intervals between
Board meetings shall possess and may exercise all of the powers of the Board in
the management of the business and affair of the Corporation. The Executive
Committee shall keep full and fair records and accounts of its proceedings and
transactions. All actions taken by the Executive Committee shall be reported to
the Board at its meeting next succeeding such action and shall be subject to
revision
<PAGE>
and alteration by the Board, except that no rights of third persons created in
reliance thereon shall be affected by any such revision or alteration. Vacancies
in the Executive Committee shall be filled by the Board.
Subject to provisions of these By-Laws, the Executive Committee shall
fix its own rules of procedure and shall meet as provided by such rules, by
resolution of the Board, or at the call of the President or Secretary of the
Corporation or of any member of the Committee. Unless otherwise provided by such
rules, the provisions of the By-Laws relating to the notice required is to be
given for all meetings of the Executive Committee. A majority of the Executive
Committee shall be necessary to constitute a quorum.
Section 17. Other Committees. The Board may by resolution provide for
such other standing or special committees as it deems desirable and discontinue
the same at its pleasure. Each such committe shall have such powers and perform
such duties not inconsistent with law, as may be assigned to it by the Board. If
provision be made for any such committee, the members thereof shall be appointed
by the Board, shall consist of one (1) or more members of the Board and shall
serve at the pleasure of the Board. Vacancies in such committees shall be filled
by the Board.
ARTICLE IV
OFFICERS
--------
Section 1. Officers. The officers of the Corporation shall be a
President, a Secretary, and a Treasurer, and if desired, a Chairman of the
Board, one or more Vice-Presidents, one or more Assistant Secretaries, one or
more Assistant Treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article IV. Two (2) or more
offices may be held by the same person but an officer may not execute,
acknowledge or verify an instrument in more than one (1) capacity, if the
instrument is required by law, the Articles of Incorporation, or ByLaws to be
executed, acknowledged or verified by two (2) or more officers.
Section 2. Election. The officers of the Corporation shall be elected
by the Board, and each shall hold his office until he shall resign, until he
shall be removed or otherwise disqualified to serve, or until his successor
shall be elected and qualified.
Section 3. Subordinate Officers and Agents. The Board may also appoint
such other officers and agents as they may deem necessary for the transaction of
the business of the Corporation. All officers and agents shall respectively have
such authority and perform such duties in the management of the property and
affairs of the Corporation as may be designated by the Board. Without
limitation of any right of an officer or agent to recover damages for breach of
contract, the Board may remove any officer or agent, with or without cause.
<PAGE>
Section 4. Removal and Resignation. Any officer or agent may be
removed by a majority of the whole Board at the time in office at any regular or
special Board meeting.
Any officer may resign at any time by giving written notice to the
Board, the President, or the Secretary. Any such resignation shall take effect
at the date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
in the manner prescribed in these By-Laws for regular appointments to such
office.
Section 6. Chairman of the Board. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board and shall exercise and perform such other powers and duties as may from
time to time be assigned to him by the Board or prescribed by these By-Laws.
Section 7. President. The President shall be the chief executive
officer of the Corporation and shall, subject to the control of the Board, have
general supervision, direction and control of the business and affairs of the
Corporation. He shall preside at all shareholders' meetings and, in the absence
of the Chairman of the Board or if there be no such Chairman, at all Board
meetings. He shall be a member of all the standing committees, including the
executive committee, if any; shall have the general powers and duties of
management usually vested in the office of President of a corporation shall see
that all orders and resolutions of the Board are carried into effect; and shall
have such other powers and duties as may be prescribed by the Board or these
By-Laws.
Section 8. Vice-Presidents. In the event of the President's absence,
disability or refusal to act, the Vice-Presidents, if more than one, in order of
their rank as fixed by the Board or, if not ranked, the Vice-President
designated by the Board shall perform all the duties of and shall be subject to
all the restrictions upon the President. The Vice-Presidents shall have such
other powers and authority and shall perform such other duties as from time to
time may be prescribed for them respectively by the Board or these By-Laws.
Section 9. The Treasurer. The Treasurer shall, subject to the
direction of the Board, have custody and keep account of all money funds,
securities and property of the Corporation, and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation.
<PAGE>
The Treasurer shall deposit all monies and other valuables in the name
and to the credit of the Corporation with such depositaries as may be designated
by the Board; shall disburse the funds of the Corporation as may be ordered by
the Board; shall render to the President and the Board, whenever either requests
it, an account of all of his transactions as Treasurer and of the financial
condition of the Corporation; and shall have such other powers and authority
incident to the office of Treasurer and shall perform such other duties as may
be prescribed by the Board or by these By-Laws.
Section 11. Secretary. The Secretary shall attend all shareholders'
meetings and all Board meetings and shall keep or cause to be kept, in his
custody at the principal or registered office of the Corporation in the State of
Michigan or such other place as the Board may order, a book recording the
minutes of all Board and shareholders' meetings setting forth: the place, date,
and hour of holding; whether regular or special, and, if special, how
authorized; the notice thereof given; the names of those present at Board
meetings; the number of shares present or represented at shareholders' meetings;
and the proceedings thereof.
The Secretary shall keep or cause to be kept at the registered office
of the Corporation in the State of Michigan or at the office of the
Corporation's transfer agent, a share register or a duplicate share register or
a list showing the names of the shareholders and their addresses; the number and
classes of shares held by each; the number and date of certificates issued for
the same; and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall keep in safe custody the seal of the Corporation
and, when authorized by the Board, affix the same or cause the same to be
affixed to any instrument requiring it, and when so affixed, the seal shall be
attested by his or her signature. If the Corporation shall not possess such
corporate seal, the signature of the Secretary, or other officer designated by
the Board, shall be legally sufficient and possesses the same power and
authority as a corporate seal.
The Secretary shall give or cause to be given notice of all Board and
shareholders' meeting required by these By-Laws or by law, and shall perform
such other duties and have such other authorities as are delegated to him or
her by the Board.
Section 12. Assistant Secretaries. In the event of the Secretary's
absence or disability, any Assistant Secretary, if one is appointed by the
Board, shall act as Secretary in all respects. The Assistant Secretaries shall
exercise such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the Board, the President, the
Secretary, or these By-Laws.
<PAGE>
Section 13. Salaries. The salaries of the officers shall be fixed from
time to time by the Board.
ARTICLE V
EXECUTION OF INSTRUMENTS
------------------------
Section 1. Bank Accounts. Each bank account of the Corporation shall
be established and continued only by order of the Board.
Section 2. Checks, Drafts, etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board.
Section 3. Contracts, Conveyances, etc. The Board may authorize any
officer or officers, agent or agents, to enter into any contract, to execute and
deliver any instrument, or to acknowledge any instrument required by law to be
acknowledged in the name of and on behalf of the Corporation. Such authority may
be general or confined to specific instances but the appointment of any person
other than an officer to acknowledge an instrument required by law to be
acknowledged should be made by instrument in writing. When the Board authorizes
the execution of a contract or of any other instrument in the name of and on
behalf of the Corporation, without specifying the executing officers, the
President or Vice-President, and the Secretary or Treasurer may execute the
same.
Section 4. Loans. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board. Such authority may be general or
confined to specific instances. No loan or advance to or overdraft or withdrawal
by an officer, director or shareholder of the Corporation otherwise than in the
ordinary and usual course of the business of the Corporation, and on the
ordinary and usual terms of payment and security shall be made or permitted
unless each such transaction shall be approved by a vote of a majority of the
members of the Board excluding any director involved in such transaction. A full
and detailed statement of all such transactions and any payments shall be
submitted at the next annual meeting of shareholders, and the aggregate amount
of such transactions less any repayments shall be stated in the next annual
report to shareholders.
Section 5. Annual Report. The Corporation shall cause a financial
report of the Corporation for the preceding fiscal year to be made and
distributed to each shareholder thereof within four (4) months after the end of
the fiscal year, or on or before one (1) week prior to the annual shareholders'
meeting, whichever first occurs. The
<PAGE>
report shall include the Corporation's statement of income, its year-end
balance sheet and, if prepared by the Corporation, its statement of source and
application of funds.
ARTICLE VI
CAPITAL STOCK
--------------
Section 1. Closing of Transfer Books. The Board shall have power to
close the stock transfer books of the Corporation for a period not exceeding
thirty (30) days preceding the date of any shareholders' meeting or the date for
payment of any dividend or the date for the allotment of rights or the date when
any change or conversion or exchange of capital stock shall go into effect, or
any other purpose for determining shareholders; however, in lieu of closing the
stock transfer books as aforesaid, the Board may fix in advance a date not
exceeding thirty (30) days nor less than ten (10) days preceding the date of any
shareholders' meeting or the date for the payment of any dividend or the date
for the allotment of rights or the date when any change or conversion or
exchange of capital stock shall go into effect or the date for such other
shareholder purpose as a record date for the determination of the shareholders
entitled to notice of and to vote at any such meeting or entitled to receive
payment of any such dividend or to any such allotment of rights or entitled to
exercise the rights in respect of any such change, conversion, or exchange of
capital stock or for any other purpose for determining shareholders; and in such
case, those and only those shareholders who shall be shareholders of record on
the date so fixed shall be entitled to such notice of and to vote at such
meeting or entitled to receive payment of such dividend or to receive such
allotment of rights or entitled to exercise such rights or such other purpose
for determining shareholders as the case may be, notwithstanding any transfer of
any stock on the books of the Corporation or otherwise, after any such record
date fixed as aforesaid. When a determination of shareholders entitled to notice
of or to vote at any shareholders' meeting has been made as provided in this
section, such determination shall apply to any adjournment thereof unless the
Board fixes a new record date under this section for the adjourned meeting.
Nothing herein shall affect the rights of a shareholder and his transferee or
transferor as between themselves.
Section 2. Issuance of Shares. The shares of capital stock of the
Corporation shall be issued by the Board in such amounts, at such times, for
such consideration, and on such terms and conditions as the Board shall deem
advisable, subject to the provisions of the Articles of Incorporation and these
By-Laws.
Section 3. Certificates for Shares. The certificates for shares of the
capital stock of this Corporation shall be in such form, not inconsistent with
the Articles of Incorporation of the Corporation, as shall be prepared or be
approved by the Board. The certificates shall be signed by the President or
Vice-President, and also by the Secretary.
<PAGE>
When the Corporation is authorized to issue shares of more than one
class, every certificate of stock shall state on the face or back thereof in
full all the terms, provisions, powers, preferences, rights, qualifications and
limitations, of all classes of stock, or shall contain an accurate summary
thereof coupled with a reference to the Articles of Incorporation or any
amendment thereto which contain such terms and provisions and a statement to the
effect that a copy of such terms and provisions will be furnished without charge
to any shareholder upon application to the Corporation.
Section 4. Transfer of Shares. Transfer of shares of the Corporation
shall be made only on the stock transfer books of the Corporation by the holder
of record thereof or by his legal representative who shall furnish satisfactory
evidence of his authority, file it with the Secretary of the Corporation, and
surrender for cancellation the certificate for such shares. All certificates
surrendered to the Corporation for transfer shall be cancelled, except as
otherwise provided in Section 6 of this Article VI of these By-Laws. The
Secretary of the Corporation shall record each such transfer on the stock
transfer books and shall record the fact that a transfer is made for collateral
security and not absolutely when such is stated in the instrument of transfer.
Section 5. Record Owner. The Corporation shall be entitled to treat
the person in whose name any share of stock is registered as the owner thereof
for the following purposes: recapitalization, consolidation, merger,
reorganization, sale of assets, liquidation or otherwise; for votes, approvals,
and consents by shareholders; for notices to shareholders; and for all other
purposes whatever. The Corporation shall not be bound to recognize any equitable
or other claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice thereof, except as expressly
required by the law or these By-Laws.
Section 6. Lost, Mutilated, or Destroyed Stock Certificates. Upon the
presentation to the Corporation of a ,proper affidavit attesting the loss,
destruction or mutilation of any certificate for shares of stock of the
Corporation, the Board may direct the issuance of a new certificate in lieu of
and to replace the certificate so alleged to be lost, destroyed or mutilated.
The Board may require as a condition precedent to the issuance of a new
certificate any or all of the following:
(a) Additional evidence of the loss, destruction or mutilation
claimed;
(b) Advertisement of the loss in such manner as the Board may direct
or approve;
<PAGE>
(c) A bond or agreement of indemnity in such form and amount, with or
without such sureties as the Board may approve; or
(d) The order or approval of a court.
The Corporation may recognize the person in whose name the new certificate, or
any certificate thereafter is issued as owner of the shares described therein
for all purposes until the owner of the original certificate or a transferee
thereof without notice and for value shall enjoin the Corporation and the
holder of any new certificate, or any certificate issued in exchange or
substitution therefor, from so acting.
Section 7. Lien. The Corporation shall have a lien upon all stock or
property of its members invested therein, for all debts due to it by the owners
thereof.
Section 8. Transfer Agent and Registrar. The Board may appoint a
transfer agent and/or a registrar of transfers and may require all certificates
of shares to bear the signature of such transfer agent and of such registrar of
transfers, or as the Board may otherwise direct.
Section 9. Regulations. The Board shall have power and authority to
make all such rules and regulations as the Board shall deem expedient regulating
the issue, transfer, and registration of certificates for shares in this
Corporation.
ARTICLE VII
DIVIDENDS
---------
Section 1. Declaration of Dividends. The Board may from time to time
declare dividends on its outstanding shares upon the following terms and
conditions:
(a) Dividends may be declared from surplus upon shares of all classes,
subject to restrictions, if any, contained in the Articles of
Incorporation; the judgment of the Board shall be conclusive in determining
what is surplus unless the directors are shown to have acted in bad faith
or to have been grossly negligent.
(b) Stock dividends may be declared from appreciation of the value of
the assets of the Corporation provided capital is not impaired.
Section 2. Payment of Dividends. The Corporation may pay dividends
declared in cash, property, obligations of the Corporation, or shares of its
capital stock.
<PAGE>
Section 3. Reserves. The Board may, by resolution, set apart, out of
any funds of the Corporation available for dividends a reserve or reserves for
any proper purpose and may, by resolution, abolish any such reserve.
ARTICLE VIII
FISCAL YEAR
-----------
The Corporation's fiscal year shall terminate on the last day of a
month in each and every year which is determined by the Board.
ARTICLE IX
AMENDMENTS
----------
The By-Laws may be altered, amended, added to, or repealed either by
the affirmative vote of the shareholders representing a majority of all the
shares issued and outstanding, at any annual or special shareholders' meeting if
notice of the proposed addition, alteration, amendment or repeal shall have been
included in the notice of such special meeting or waived in writing, or by the
affirmative vote of not less than a majority of the members of the Board then in
office at any regular or special meeting, if written notice of the proposed
addition, alteration, amendment, or repeal shall have been given to each
director at least five (5) days before the meeting, or waived in writing. The
Board may make and alter all By-Laws including those fixing and altering the
number of directors, except those By-Laws fixing their qualifications,
classifications, or term of office; provided, that any By-Law amended, altered,
added to, or repealed by the Directors as provided herein may thereafter be
amended, altered, added to, or repealed by the shareholders.
CERTIFICATE OF SECRETARY
------------------------
The undersigned certifies that:
(1) Patricia C. Hamilton is the duly elected and acting Secretary of
Hy-Form Products, Inc..
(2) The foregoing By-Laws constitute the original By-Laws of said
Corporation as duly adopted at the first meeting of the Board 1 of Directors
thereof duly held on the third day of January, 1978.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of said Corporation this third day of January, 1978.
PATRICIA C. HAMILTON
----------------------
Secretary
<PAGE>
EXHIBIT 3.25
CAS-S10 (rev 1-83)
- ------------------------------------------------------------------------------
MICHIGAN DEPARTMENT OF COMMERCE -- CORPORATION AND SECURITIES BUREAU
- ------------------------------------------------------------------------------
(FOR BUREAU USE ONLY) Date Received
MAY 10 1985
--------------
--------------
--------------
--------------
- ------------------------------------------------------------------------------
RESTATED ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read instructions on last page before completing form)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended,
the undersigned corporation executes the following Articles:
- ------------------------------------------------------------------------------
1. The present name of the corporation is: Defiance Testing & Engineering
Services, Inc.
2. The corporation identification number (CID) assigned by the Bureau is:
-------------
2 0 7 - 3 8 6
-------------
3. All former names of the corporation are:
4. The date of filing the original Articles of Incorporation was: April 17, 1979
- -------------------------------------------------------------------------------
The following Restated Articles of Incorporation supersede the Articles
of Incorporation as amended and shall be the Articles of Incorporation for
the corporation:
ARTICLE I
- -------------------------------------------------------------------------------
The name of the corporation is:
Defiance Testing & Engineering Services, Inc.
- -------------------------------------------------------------------------------
ARTICLE II
- -------------------------------------------------------------------------------
The purpose or purposes for which the corporation is organized are: to engage
in any activity within the purposes for which corporations may be organized
under the Business Corporation Act of Michigan.
- -------------------------------------------------------------------------------
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
ARTICLE III
- ------------------------------------------------------------------------------
The total authorized capital stock is:
Common shares ___________________________ Par Value Per Share $____________
1.
Preferred shares_________________________ Par Value Per Share $____________
and/or shares without par value as follows:
Common shares 1,100,000 Stated Value Per Share $ 0.00125
---------------------- -----------
2.
Preferred shares______________________ Stated Value Per Share $__________
3. A statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows:
The holders of common stock shall be entitled to one (1) vote per share
- -------------------------------------------------------------------------------
ARTICLE IV
- -------------------------------------------------------------------------------
1. The address of the current registered office is:
26091 Sherwood, Suite E Warren, Michigan 48091
- -------------------------------------------------------------------------------
(Street Address) (City) (ZIP Code)
2. The mailing address of the current registered office if different than above:
, Michigan
- -------------------------------------------------------------------------------
(P.O. Box) (City) (ZIP Code)
3. The name of the current resident agent is: Dennis A. Sikowski
- -------------------------------------------------------------------------------
ARTICLE V (Optional. Delete if not applicable.)
- -------------------------------------------------------------------------------
When a compromise or arrangement or a plan of reorganization of this
corporation is proposed between this corporation and its creditors or any class
of them or between this corporation and its shareholders or any class of them,
a court of equity jurisdiction within the state, on application of this
corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors
or class of creditors or of the shareholders or class of shareholders to be
affected by the proposed compromise or arrangement or reorganization, to be
summoned in such manner as the court directs. If a majority in number
representing 3/4 in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise
or arrangement or a reorganization, agree to a compromise or arrangement or a
reorganization of this corporation as a consequence of the compromise or
arrangement, the compromise or arrangement and the reorganization, if sanctioned
by the court to which the application has been made, shall be binding on all
the creditors or class of creditors, or on all the shareholders or class of
shareholders and also on this corporation.
- -------------------------------------------------------------------------------
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
ARTICLE VI (Optional. Delete if not applicable.)
- -------------------------------------------------------------------------------
Any action required or permitted by the act to be taken at an annual or special
meeting of shareholders may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take the action
at a meeting at which all shares entitled to vote thereon were present and
voted.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to shareholders who have
not consented in writing.
- -------------------------------------------------------------------------------
ARTICLE VII (Additional provisions, if any, may be inserted here; attach
additional pages if needed.)
- -------------------------------------------------------------------------------
See Rider attached hereto and made a part of these Restated Articles of
Incorporation.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
5. These Restated Articles of Incorporation were duly adopted on the 10th day
of May, 1985, in accordance with the provisions of Section 642 of the Act.
- -------------------------------------------------------------------------------
These Restated Articles of Incorporation (Complete and execute either a
or b below, but not both.)
a. [ ] were duly adopted by the unanimous consent of the incorporators before
the first meeting of the Board of Directors.
Signed this _______ day of ____________________________________, 19____
____________________________________ _________________________________
____________________________________ _________________________________
(Signatures of all incorporators; type or print name under each
signature)
b. (Check one of the following)
[ ] were duly adopted by the Board of Directors without a vote of the
shareholders. These Restated Articles of Incorporation only restate
and integrate and do not further amend the provisions of the Articles of
Incorporation as heretofore amended and there is no material discrepancy
between those provisions and the provisions of these Restated Articles.
[ ] were duly adopted by the shareholders. The necessary number of shares
as required by statute were voted in favor of these Restated Articles.
[ ] were duly adopted by the written consent of the shareholders having
not less than the minimum number of votes required by statute in
accordance with Section 407(1) and (2) of the Act. Written notice to
shareholders who have not consented in writing has been given. (Note:
Written consent by less than all of the shareholders is permitted only
if such provision appears in the Articles of Incorporation.)
[xx] were duly adopted by the written consent of all the shareholders
entitled to vote in accordance with Section 407(3) of the Act.
Signed this 10th day of May, 1985
By DENNIS A. SIKOWSKI
-------------------------------
(Signature)
Dennis A. Sikowski, President
-------------------------------
(Type or Print Name and Title)
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
RIDER ATTACHED TO AND MADE A PART OF THE
RESTATED ARTICLES OF INCORPORATION
OF
DEFIANCE TESTING & ENGINEERING SERVICES, INC.
ARTICLE VII:
The affirmative vote or written consent of not less than seventy-six and
one-half (76.5%) percent of the outstanding voting shares of common stock in the
Corporation shall be required to:
(a) amend or modify these Articles of Incorporation and/or the By-Laws of
the Corporation;
(b) authorize and/or issue any additional shares of capital stock of the
Corporation, or authorize and/or issue any options, warrants or other
rights to acquire any capital stock of the corporation, or sell,
exchange or transfer any treasury stock, except that the Corporation
may issue additional shares to an individual or entity who is not a
shareholder on the date of adoption of these Restated Articles of
Incorporation only if Dennis A. Sikowski is then acting as President
of the Corporation and is a shareholder in the Corporation; provided,
however, in the extent any additional shares of capital stock are
issued, the seventy-six and one-half (76.5%) percent voting
requirement shall be increased to that percentage which is one and
one-half (1.5) percentage points greater than the percentage interest
of the capital stock of the Corporation owned by the group consisting
of Salvatore S. Leanza, Stephen C. Hess, Robert L. Erdos, Robert A.
Walz and Michael B. Madden and/or their respective heirs, successors
and assigns immediately after the issuance of said additional shares
of capital stock in the Corporation; and these Restated Articles of
Incorporation shall be restated the reflect the identical terms and
restrictions but substituting the new percentage voting requirement in
place of the seventy-six and one-half (76.5%) percent each place it
appears herein;
(c) sell, purchase, issue, redeem or otherwise dispose of or acquire any
of the capital stock of the Corporation, or any options, warrants or
rights with respect thereto, except in accordance with the terms and
conditions of any Buy-Sell Agreement between the Corporation and its
shareholders dated as of the date of these restated Articles of
Incorporation or thereafter;
(d) negotiate, enter into and/or execute any contract, document or
instrument, involving any sale, lease or licensing of any asset, with
or involving an individual or entity related, directly or indirectly,
to the Corporation or any of its shareholders;
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
(e) cause the Corporation to become a party to, or an obligor under, any
agreement or arrangement for the sale, purchase, redemption or other
acquisition or disposition of the capital stock of the Corporation,
except as allowed pursuant to clause (b) above;
(f) cause the Corporation to become a party to any merger, consolidation
and/or other reorganization;
(g) cause the Corporation to dissolve and liquidate and/or cause the
Corporation to cease conducting its business or any of its businesses;
or
(h) cause the Corporation to file any proceedings for voluntary
bankruptcy, or cause the corporation to assign any of its assets for
the benefit of creditors, or cause the Corporation to engage in any
similar activity or proceeding.
For purposes of clause (d) above, a related individual or entity shall include
(1) an individual related by blood or marriage to any shareholder of the
Corporation or such shareholder's spouse, children or parents, and (2) any
business or entity if any individual described in (1) owns a ten (10%) percent
or greater interest in said business or entity.
2
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
CAS-510 (Rev. 1-83)
DOCUMENT WILL BE RETURNED TO NAME AND MAILING ADDRESS
INDICATED IN THE BOX BELOW. Include name, street and number
(or P.O. Box) city, state and ZIP code.
- ---------------------------------------------------
Sharon A. Gibbons
Seyburn, Smith, Bess, Howard, Kahn & Harnisch, PC Telephone:
3000 Town Center, Suite 2050 Area Code 313
Southfield, Michigan 48075 ----------
Number 353-7620
--------------
- ---------------------------------------------------
INFORMATION AND INSTRUCTIONS
1. Submit one original copy of this document. Upon filing, a microfilm copy
will be prepared for the records of the Corporation and Securities Bureau.
The original copy will be returned to the address appearing in the box
above as evidence of filing.
Since this document must be microfilmed, it is important that the filing be
legible. Documents with poor black and white contrast, or otherwise
illegible, will be rejected.
2. This document is to be used pursuant to sections 641 through 643 of the Act
for the purpose of restating the articles of incorporation of a domestic
profit corporation. Restated articles of incorporation are an integration
into a single instrument of the current provisions of the corporation's
articles of incorporation, along with any desired amendments to those
articles.
3. Restated articles of incorporation which do not amend the articles of
incorporation may be adopted by the board of directors without a vote of
the shareholders. Restated articles of incorporation which amend the
articles of incorporation require adoption by the shareholders. Restated
articles of incorporation submitted before the first meeting of the board
of directors require adoption by all of the incorporators.
4. Item 2 -- Enter the identification number previously assigned by the
Bureau. If this number is unknown, leave it blank.
5. The duration of the corporation should be stated in the restated articles
of incorporation only if it is not perpetual.
6. This document is effective on the date approved and filed by the Bureau. A
later effective date, no more than 90 days after the date of delivery, may
be stated.
7. If the restated articles are adopted before the first meeting of the board
of directors, this document must be signed in ink by all of the
incorporators. If the restated articles merely restate and integrate the
articles, but do not amend, this document must be signed in ink by an
authorized officer or agent of the corporation. If the restated articles
amend the articles of incorporation, this document must be signed in ink by
the president, vice-president, chairperson, or vice-chairperson.
8. FEES: Filing fee (Make remittance payable to State of Michigan)......$10.00
Franchise fee (payable only if authorized capital stock has
increased) -- 1/2 mill (.0005) on each dollar of increase over highest
previous authorized capital stock.
9. Mail form and fee to:
Michigan Department of Commerce
Corporation and Securities Bureau
Corporation Division
P.O. Box 30054
Lansing, MI 48909
Telephone: (517) 373-0493
GOLD SEAL APPEARS ONLY ON ORIGINAL
<PAGE>
Exhibit 3.26
DEFIANCE TESTING & ENGINEERING SERVICES, INC.
BY-LAWS
- --------------------------------------------------------------------------------
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Warren, County of Macomb, State of Michigan, or at such
other registered office as the Board of Directors may determine from time to
time.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Michigan as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETING. All meetings of the Shareholders of the
Corporation shall be held at the registered office or such other place, either
within or without the State of Michigan, as may be determined from time to time
by the Board of Directors.
SECTION 2. ANNUAL MEETING OF SHAREHOLDERS. The annual meeting of
Shareholders, commencing with the year 1987, shall be held within one hundred
twenty (120) days following the year end of the Corporation, if not a legal
holiday, and if a legal holiday, then on the next business day following, at
10:00 o'clock in the forenoon, local Detroit time, or at such other date and
time as shall be determined from time to time by the Board of Directors, unless
such action is taken by written consent as provided in Article II, Section 12,
of these By-Laws. At said meeting, Shareholders shall elect a Board of Directors
and shall transact such other business as may properly be brought before the
meeting. If the annual meeting is not held on the date designated therefor, the
Board shall cause the meeting to be held as soon thereafter as convenient.
SECTION 3. ORDER OF BUSINESS AT ANNUAL MEETING. The order of business at
the annual meeting of the Shareholders shall be as follows:
(a) Reading of notice and proof of mailing
(b) Reports of officers
(c) Election of Directors
<PAGE>
Page 2
(d) Transaction of other business mentioned in the notice
(e) Adjournment
provided that, in the absence of any objection, the presiding officer may vary
the order of business at his discretion.
SECTION 4. NOTICE OF MEETING OF SHAREHOLDERS. Except as otherwise
provided in the Michigan Business Corporation Act (herein called the 'Act'),
written notice of the time, place and purposes of a meeting of Shareholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting, either personally or by mail, to each Shareholder of record
entitled to vote at the meeting. When a meeting is adjourned to another time or
place, it is not necessary to give notice of the adjourned meeting if the time
and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken and at the adjourned meeting only such business
is transacted as might have been transacted at the original meeting. However, if
after the adjournment the Board of Directors fixes a new record date for the
adjourned meeting, a notice of adjourned meeting shall be given to each
Shareholder of record on the new record date entitled to vote at the meeting.
SECTION 5. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer or agent
having charge of the stock transfer books for shares of the Corporation shall
make and certify a complete list of the Shareholders entitled to vote at the
Shareholders' meeting or any adjournment thereof. The list shall:
(a) Be arranged alphabetically within each class and series, with the
address of, and the number of shares held by, each Shareholder.
(b) Be produced at the time and place of the meeting.
(c) Be subject to inspection by any Shareholder during the whole time of
the meeting.
(d) Be prima facie evidence as to who are the Shareholders entitled to
examine the list or to vote at the meeting.
SECTION 6. SPECIAL MEETING OF SHAREHOLDERS. A special meeting of
Shareholders may be called at any time by Shareholders owning, in the aggregate,
not less than twenty-five (25%) percent of all the shares entitled to vote at
such special meeting. The method by which such meeting may be called is as
follows: Upon receipt of a specification in writing setting forth the date and
objects of such proposed special meeting, signed by the Shareholders as above
provided,
<PAGE>
Page 3
the Secretary of the Corporation shall prepare, sign and mail the notice
requisite to such meeting.
SECTION 7. QUORUM OF SHAREHOLDERS. Unless a greater or lesser quorum is
provided in the Articles of Incorporation or the Act, shares entitled to cast a
majority of the votes at a meeting constitute a quorum at the meeting. The
Shareholders present in person or by proxy at such meeting may continue to do
business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum. Whether or not a quorum is present,
the meeting may be adjourned by a vote of the shares present.
SECTION 8. VOTE OF SHAREHOLDERS. Each outstanding share is entitled to
one (1) vote on each matter submitted to a vote, unless otherwise provided in
the Articles of Incorporation. A vote may be cast either orally or in writing.
When an action other than the election of Directors, is to be taken by vote of
the Shareholders, it shall be authorized by a majority of the votes cast by the
holders of shares entitled to vote thereon, unless a greater plurality is
required by the Articles of Incorporation or the Act. Directors shall be elected
by a plurality of the votes cast at an election.
A. Other Corporations. Shares standing in the name of another
corporation may be voted by an officer or agent, or by proxy appointed by an
officer or agent or by some other person, who by action of the Board or pursuant
to these By-Laws, shall be appointed to vote such shares.
B. Legal Representatives and Fiduciaries. Shares held by an
administrator, executor, guardian, custodian, conservator or trustee may be
voted by him, either in person or by proxy, without a transfer of such shares
into his name.
C. Receivers. Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if authority
so to be contained in an appropriate order of the court by which such receiver
was appointed.
D. Pledgor. A Shareholder whose shares are pledged is entitled to vote
the shares until they have been transferred into the name of the pledgee, or a
nominee of the pledgee.
E. Treasury Stock and Subsidiaries. Treasury shares shall not be voted
on any matter nor deemed to be outstanding shares. If the Corporation holds
shares sufficient to elect a majority of the Directors of another domestic
corporation or a foreign corporation, shares of this Corporation held by such
domestic corporation or foreign corporation
<PAGE>
Page 4
shall not be voted on any matter or counted in determining the total number of
outstanding shares of this Corporation.
F. Incompetents and Spendthrifts. Shares held, by an incompetent or
spendthrift may be voted by such incompetent or spendthrift in person or by
proxy and no such vote shall be subject to disaffirmance or avoidance, unless
prior to such vote the Secretary of the Corporation has actual knowledge that
such Shareholder has been adjudicated an incompetent or spendthrift or actual
knowledge of filing of judicial proceedings for appointment of a guardian.
G. Co-owners. Shares held by two (2) or more persons as joint tenants or
as tenants in common may be voted at a meeting of Shareholders by any of such
persons, unless another joint tenant or tenant in common seeks to vote any of
such shares in person or by proxy. In the latter event, the written agreement,
if any, which governs the manner in which the shares shall be voted, controls if
presented at the meeting. If no such agreement is presented at the meeting, the
majority in interest of the joint tenants or tenants in common present shall
control the manner of voting. If there is no such majority, the shares, for the
purpose of voting, shall be divided among such joint tenants or tenants in
common in accordance with their interest in the shares.
SECTION 9. RECORD DATE FOR DETERMINATION OF SHAREHOLDERS. For the
purpose of determining Shareholders entitled to notice of and to vote at a
meeting of Shareholders or an adjournment thereof, or to express consent or to
dissent from a proposal without a meeting, or for the purpose of determining
Shareholders entitled to receive payment of a dividend or allotment of a right,
or for the purpose of any other action, the Board may fix, in advance, a date as
the record date for any such determination of Shareholders. The date shall not
be more than sixty (60) nor less than ten (10) days before the date of the
meeting, nor more than sixty (60) days before any other action. If a record date
is not fixed (a) the record date for determination of Shareholders entitled to
notice of or to vote at a meeting of Shareholders shall be the close of business
on the day next preceding the day on which notice is given, or, if no notice is
given, the day next preceding the day on which the meeting is held, and (b) the
record date for determining Shareholders for any purpose other than that
specified in subdivision (a) shall be the close of business on the day on which
the resolution of the Board relating thereto is adopted. When a determination of
Shareholders of record entitled to notice of or to vote at a meeting of
Shareholders has been made as provided in this Section, the determination
applies to any adjournment of the meeting, unless the Board fixes a new record
date under this Section for the adjourned meeting.
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SECTION 10. PROXIES. A Shareholder entitled to vote at a meeting of
Shareholders or to express consent or dissent without a meeting may authorize
one or more other persons to act for him by proxy. A proxy shall be signed by
the Shareholder or his authorized agent or representative. A proxy is not valid
after the expiration of three (3) years from its date unless otherwise provided
in the proxy.
SECTION 11. INSPECTORS OF ELECTION. The Board of Directors, in advance
of a Shareholders' meeting, may appoint one (1) or more inspectors of election
to act at the meeting or any adjournment thereof. If inspectors are not so
appointed, the person presiding at a Shareholders' meeting may, and on request
of a Shareholder entitled to vote thereat shall, appoint one (1) or more
inspectors. In case a person appointed fails to appear or act, the vacancy may
be filled by appointment made by the Board of Directors in advance of the
meeting or at the meeting by the person presiding thereat. The inspectors shall
determine the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine challenges and questions arising in connection with the right to vote,
count and tabulate votes, ballots or consents, determine the result, and do such
acts as are proper to conduct the election or vote with fairness to all
Shareholders.
SECTION 12. CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any action
required or permitted by the Act to be taken at an annual or special meeting of
Shareholders may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, is signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take the action at a meeting at
which all shares entitled to vote thereon were present and voted. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to Shareholders who have not consented in
writing.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM OF DIRECTORS. The number of Directors which
shall constitute the whole Board shall be at least one (1) Director but no more
than five (5) Directors. The current Board of Directors shall consist of three
(3) Directors. Thereafter, the number of Directors which shall constitute the
Board of Directors for each ensuing year shall be determined at the annual
meeting by vote of the Shareholders prior to such election; provided, however,
that if a motion is not made and carried to increase or decrease
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the number of Directors, the Board shall consist of the same number of Directors
as were elected for the preceding year. The current Board of Directors shall
hold office until the succeeding annual meeting, except in case of the
classification of Directors as permitted by the Act. A Director shall hold
office for the term for which he or she is elected and until his or her
successor is elected and qualified, or until his or her resignation or removal.
Directors need not be Shareholders.
SECTION 2. VACANCIES. A vacancy occurring in the Board may be filled by
the affirmative vote of a majority of the remaining Directors though less than a
quorum of the Board for a term of office continuing only until the next election
of Directors by the Shareholders. If because of death, resignation or other
cause, the Corporation has no Directors in office, an officer, a Shareholder, an
executor, administrator, trustee or guardian of a Shareholder, or other
fiduciary entrusted with like responsibility for the person or estate of a
Shareholder, may call a special meeting of Shareholders in accordance with the
Articles of Incorporation or these By-Laws.
SECTION 3. REMOVAL. A Director or the entire Board may be removed at any
time, with or without cause, by a vote of the holders of a majority of the
shares entitled to vote at an election of Directors.
SECTION 4. RESIGNATION. A Director may resign by written notice to the
Corporation. The resignation is effective upon its receipt by the Corporation or
a subsequent time as set forth in the notice of resignation.
SECTION 5. POWERS. The business and affairs of the Corporation shall be
managed by its Board of Directors except as otherwise provided in the Act or in
the Articles of Incorporation.
SECTION 6. LOCATION OF MEETINGS. Regular or special meetings of the
Board of Directors may be held either within or without the State of Michigan.
SECTION 7. ORGANIZATION MEETING OF BOARD. The first meeting of each
newly elected Board of Directors shall be held at the place of holding the
annual meeting of Shareholders, and immediately following the same, for the
purpose of electing officers and transacting any other business properly brought
before it, provided that the organization meeting in any year may be held at a
different time and place than that herein provided by a consent of a majority of
the Directors of such new Board. No notice of such meeting shall be necessary to
the newly elected Directors in order legally to constitute the meeting, provided
a quorum shall be present,
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unless said meeting is not held at the place of holding and immediately
following the annual meeting of Shareholders.
SECTION 8. REGULAR MEETING OF BOARD. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board, and may be held concurrently with
an organizational meeting of the Board or otherwise.
SECTION 9. SPECIAL MEETING OF BOARD. Special meetings of the Board of
Directors may be called by a majority of the persons then comprising the Board
of Directors (or if there are only two (2) members of the Board of Directors, by
either of said Directors), at any time by means of notice of the time and place
thereof to each Director, given not less than twenty-four (24) hours before the
time such special meeting is to be held.
SECTION 10. COMMITTEES OF DIRECTORS. The Board of Directors may
designate one (1) or more committees, each committee to consist of one or more
Directors of the Corporation. The Board may designate one or more Directors as
alternate members of any committee, who may replace an absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the members thereof present at any meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board of Directors 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 of Directors
creating such committee may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation;
but no such committee shall have the power or authority to amend the Articles of
Incorporation, adopt an agreement of merger or consolidation, recommend to the
Shareholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommend to the Shareholders a dissolution
of the Corporation or a revocation of a dissolution, or amend the By-Laws of the
Corporation; and, unless the resolution of the Board of Directors creating such
committee or the Articles of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Any such committee, and each member thereof,
shall serve at the pleasure of the Board of Directors.
SECTION 11. QUORUM AND REQUIRED VOTE OF BOARD AND COMMITTEES. At all
meetings of the Board of Directors, or of a committee thereof, a majority of the
members of the Board then in office, or of the members of a committee thereof,
constitute a quorum for transaction of business. The vote of the majority of
members present at a meeting at which a quorum is present constitutes the
action of the Board or of the
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committee unless the vote of a larger number is required by the Act. Amendment
of these By-Laws by the Board requires the vote of not less than a majority of
the members of the Board then in office. If a quorum shall not be present at any
meeting of the Board of Directors, the Directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 12. CONSENT OF DIRECTORS IN LIEU OF MEETING. Action required or
permitted to be taken pursuant to authorization voted at a meeting of the Board
of Directors or a committee thereof, may be taken without a meeting if, before
or after the action, all members of the Board or of the committee consent
thereto in writing. The written consents shall be filed with the minutes of the
proceedings of the Board or committee. The consent has the same effect as a vote
of the Board or committee for all purposes.
SECTION 13. COMPENSATION OF DIRECTORS. The Board of Directors, by
affirmative vote of a majority of Directors in office and irrespective of any
personal interest of any of them, may establish reasonable compensation of
Directors or officers, but approval of the Shareholders is required if the
Articles of Incorporation, these By-Laws or any provisions of the Act so
provide.
SECTION 14. PARTICIPATION IN MEETING BY TELEPHONE. By oral or written
permission of a majority of the Board of Directors, a member of the Board of
Directors or of a committee designated by the Board may participate in a meeting
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 constitutes presence in
person at the meeting.
ARTICLE IV
NOTICES
SECTION 1. NOTICE. Whenever any notice or communication is required to
be given to any Director or Shareholder under any provision of the Act, or of
the Articles of Incorporation or of these By-Laws, it may be given in writing,
by mail, addressed to such Director or Shareholder, at the address designated by
him for that purpose or, if none is designated, at his last known address. The
notice or communication is given when deposited, with postage thereon prepaid,
in a post office or official depository under the exclusive care and custody of
the United States postal service. The mailing shall be registered, certified or
other first class mail except where otherwise provided in the Act. Notice may
also be given orally in person or by telephone,
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telex, radiogram or cablegram, and such notice shall be deemed to be given when
the recipient receives the notice personally, by telephone or when the notice,
addressed as provided above, has been delivered to the company, or to the
equipment transmitting such notice. Neither the business to be transacted at,
nor the purpose of, a regular or special meeting of the Board of Directors need
be specified in the notice of the meeting.
SECTION 2. WAIVER OF NOTICE. When, under the Act or the Articles of
Incorporation or these By-Laws, or by the terms of an agreement or instrument,
the Corporation or the Board or any committee thereof may take action after
notice to any person or after lapse of a prescribed period of time, the action
may be taken without notice and without lapse of the period of time, if at any
time before or after the action is completed the person entitled to notice or to
participate in the action to be taken or, in case of a Shareholder, by his
attorney-in-fact, submits a signed waiver of such requirements. Neither the
business to be transacted at, nor the purpose of, a regular or special meeting
of the Board of Directors need be specified in the waiver of notice of the
meeting. Attendance of a person at a meeting constitutes a waiver of notice of
such meeting, except when the person attends a meeting for the express purpose
of objection, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
ARTICLE V
OFFICERS
SECTION 1. SELECTION. The Board of Directors, at its organization
meeting after the organization meeting of incorporators and after each annual
meeting of Shareholders, shall elect or appoint a President, Secretary and a
Treasurer. The Board of Directors may also elect or appoint a Chairman of the
Board, one (1) or more Vice Presidents and such other officers, employees and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. Two (2) or more offices may be held by the same
person but an officer shall not execute, acknowledge or verify an instrument in
more than one (1) capacity.
SECTION 2. COMPENSATION. The salaries of all officers, employees and
agents of the Corporation shall be fixed by the Board of Directors, provided,
however, that the Board may delegate to the officers the fixing of compensation
of assistant officers, employees and agents.
SECTION 3. TERM, REMOVAL AND VACANCIES. Each officer of the Corporation
shall hold office for the term for
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which he is elected or appointed and until his successor is elected or appointed
and qualified, or until his resignation or removal. Any officer elected or
appointed by the Board of Directors may be removed by the Board with or without
cause at any time. Any officer may resign by written notice to the Corporation.
The resignation is effective upon its receipt by the Corporation or at a
subsequent time specified in the notice of resignation. Any vacancy occurring in
any office of the Corporation shall be filled by the Board of Directors.
SECTION 4. CHAIRMAN OF THE BOARD OF DIRECTORS. If the Board of
Directors elects or appoints a Chairman of the Board, he shall be elected or
appointed by, and from among the membership of, the Board of Directors. He shall
preside at all meetings of the Shareholders, of the Board of Directors and of
any Executive Committee. He shall perform such other duties and functions as
shall be assigned to him from time to time by the Board of Directors. He shall
be ex officio, a member of all standing committees. Except where by law the
signature of the President of the Corporation is required, the Chairman of the
Board of Directors shall possess the same power and authority to sign all
certificates, contracts, instruments, papers and documents of every conceivable
kind and character whatsoever in the name of and on behalf of the Corporation
which may be authorized by the Board of Directors. During the absence or
disability of the President, or while the office is vacant, the Chairman of the
Board of Directors shall exercise all of the powers and discharge all of the
duties of the President.
SECTION 5. PRESIDENT. The President shall be elected or appointed by,
the Board of Directors. During the absence or disability of the Chairman of the
Board, or while that office is vacant, the President shall preside over all
meetings of the Board of Directors, of the Shareholders and of any Executive
Committee, and shall perform all of the duties and functions, and when so acting
shall have all powers and authority, of the Chairman of the Board. He shall be,
ex officio, a member of all standing committees. The President shall, in
general, perform all duties incident to the office of President and such other
duties as may be prescribed by the Board of Directors.
SECTION 6. VICE PRESIDENTS. The Board of Directors may elect or appoint
one or more Vice Presidents. The Board of Directors may designate one or more
Vice Presidents as Executive or Senior Vice Presidents. Unless the Board of
Directors shall otherwise provide by resolution duly adopted by it, such of the
Vice Presidents as shall have been designated Executive or Senior Vice
Presidents and are members of the Board of Directors in the order specified by
the Board of Directors (or if no Vice President who is a member of the Board of
Directors shall have been designated as Executive or Senior Vice President, then
such Vice Presidents as are
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members of the Board of Directors in the order specified by the Board of
Directors) shall perform the duties and exercise the powers of the President
during the absence or disability of the President. The Vice Presidents shall
perform such other duties as may be delegated to them by the Board of Directors,
any Executive Committee, or the President.
SECTION 7. SECRETARY. The Secretary shall attend all meetings of the
Shareholders, and of the Board of Directors and of any Executive Committee, and
shall preserve in the books of the Corporation true minutes of the proceedings
of all such meetings. He shall safely keep in his custody the seal of the
Corporation and shall have authority to affix the same to all instruments where
its use is required or permitted. He shall give all notice required by the Act,
these By-Laws or resolution. He shall perform such other duties as may be
delegated to him by the Board of Directors, any Executive Committee, or the
President.
SECTION 8. TREASURER. The Treasurer shall have custody of all corporate
funds and securities and shall keep in books belonging to the Corporation full
and accurate accounts of all receipts and disbursements; he shall deposit all
monies, securities and other valuable effects in the name of the Corporation in
such depositories as may be designated for that purpose by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors whenever requested an account
of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, he shall keep in force a
bond in form, amount and with a surety or sureties satisfactory to the Board of
Directors, conditioned for faithful performance of the duties of his office, and
for restoration to the Corporation in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and property of
whatever kind in his possession or under his control belonging to the
Corporation. He shall perform such other duties as may be delegated to him by
the Board of Directors, any Executive Committee, or the President.
SECTION 9. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Board of
Directors may elect or appoint one or more Assistant Secretaries and one or
more Assistant Treasurers. The Assistant Secretary or Assistant Secretaries,
in the absence or disability of the Secretary, shall perform the duties and
exercise the powers of the Secretary. The Assistant Treasurer or Assistant
Treasurers, in the absence or disability of the Treasurer, shall perform the
duties and exercise the powers of the Treasurer. Any Assistant Treasurer, if
required by the Board of Directors, shall keep in force a bond as provided in
Section 8, Article V. The Assistant Secretaries and Assistant Treasurers, in
general, shall
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perform such duties as shall be assigned to them by the Secretary or by the
Treasurer, respectively, or by the Board of Directors, any Executive Committee,
or the President.
SECTION 10. DELEGATION OF AUTHORITY AND DUTIES BY BOARD OF DIRECTORS.
All officers, employees and agents shall, in addition to the authority
conferred, or duties imposed, on them by these By-Laws, have such authority and
perform such duties in management of the property and affairs of the Corporation
as may be delegated to them by the Board of Directors.
ARTICLE VI
INDEMNIFICATION
SECTION 1. THIRD PARTY ACTIONS. The Corporation may 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 (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a Director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation or its
Shareholders, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his 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 (a) that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation or its Shareholders, and, (b) with respect to any criminal action or
proceeding, that the person had reasonable cause to believe that his conduct was
unlawful.
SECTION 2. ACTIONS IN THE RIGHT OF THE CORPORATION. The Corporation may
indemnify any person who was or is a party to or is threatened to be made a
party of 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 is or was a Director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a Director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorney fees)
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actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation or its Shareholders 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
duty to the Corporation unless and only to the extent that 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 circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
SECTION 3. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a Director, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would have
power to indemnify him against such liability under Section 1 and 2 of this
Article VI.
ARTICLE VII
STOCK AND TRANSFERS
SECTION 1. SHARE CERTIFICATES: REQUIRED SIGNATURES. The shares of the
Corporation shall be represented by certificates signed by the Chairman of the
Board of Directors, President or a Vice President and by the Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary of the Corporation, and
may be sealed with the seal of the Corporation or a facsimile thereof. The
signatures of the officers may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar other than the Corporation
itself or its employee. In case any officer who had signed or whose facsimile
signature has been placed upon a certificate ceases to be such officer before
the certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer at the date of issue.
SECTION 2. SHARE CERTIFICATES: REQUIRED PROVISIONS. A certificate
representing shares of the Corporation shall state upon its face:
(a) That the Corporation is formed under the laws of this State.
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(b) The name of the person to whom issued.
(c) The number and class of shares, and the designation of the
series, if any, which the certificate represents.
(d) The par value of each share represented by the certificate, or a
statement that the shares are without par value.
A certificate representing shares shall be set forth on its face or back or
state that the Corporation will furnish to a Shareholder upon request and
without charge a full statement of the designation, relative rights, preferences
and limitations of the shares of each class authorized to be issued, and if the
Corporation is authorized to issue any class of shares in series, the
designation, relative rights, preferences and limitations of each series so far
as the same have been prescribed and the authority of the Board of Directors to
designate and prescribe the relative rights, preferences and limitations of
other series.
SECTION 3. REPLACEMENT OF LOST OR DESTROYED SHARE CERTIFICATES. The
Corporation may issue a new certificate for shares or fractional shares in place
of certificate theretofore issued by it, alleged to have been lost or destroyed,
and the Board of Directors may require the owner of the lost or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged lost or destroyed certificate, or the
issuance of such new certificate.
SECTION 4. REGISTERED SHAREHOLDERS. The Corporation shall have the right
to treat the registered holder of any share as the absolute owner thereof, and
shall 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 shall
have express or other notice thereof, save as may be otherwise provided by the
statutes of Michigan.
SECTION 5. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint a transfer agent and a registrar of transfers, and may require all
certificates of shares to bear the signature of such transfer agent and of such
registrar of transfers or as the Board may otherwise direct.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS OR OTHER DISTRIBUTIONS IN CASH OR PROPERTY. By
action of the Board of Directors, the
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Corporation may declare and pay dividends or make other distributions in cash,
its bonds or its property, including the shares or bonds of other corporations,
on its outstanding shares, except when currently the Corporation is insolvent or
would thereby be made insolvent, or when the declaration, payment or
distribution would be contrary to any restriction contained in the Articles of
Incorporation. Dividends may be declared or paid and other distributions may be
made out of surplus only. A dividend paid or any other distribution made, in any
part, from sources other than earned surplus, shall be accompanied by a written
notice (a) disclosing the amounts by which the dividends or distribution affects
stated capital, capital surplus and earned surplus, or (b) if such amounts are
not determinable at the time of the notice, disclosing the approximate effect of
the dividend or distribution upon stated capital, capital surplus and earned
surplus and stating that the amounts are not yet determinable.
SECTION 2. RESERVES. The Board of Directors shall have power and
authority to set apart, out of any funds available for dividends, such reserve
or reserves, for any proper purpose, as the Board in its discretion shall
approve, and the Board shall have the power and authority to abolish any reserve
created by the Board.
SECTION 3. VOTING SECURITIES. Unless otherwise directed by the Board,
the Chairman of the Board or President, or in the case of their absence or
inability to act, the Vice Presidents, in order of their seniority, shall have
full power and authority on behalf of the Corporation to attend and to act and
to vote, or to execute in the name or on behalf of the Corporation a consent in
writing in lieu of a meeting of Shareholders or a proxy authorizing an agent or
attorney-in-fact for the Corporation to attend and vote at any meetings of
security holders of corporations in which the Corporation may hold securities,
and at such meetings he or his duly authorized agent or attorney-in-fact shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities and which, as the owner thereof, the Corporation might have
possessed and exercised if present. The Board by resolution from time to time
may confer like power upon any other person or persons.
SECTION 4. CHECKS. All checks, drafts and orders of the payment of money
shall be signed in the name of the Corporation in such manner and by such
officer or officers or such other person or persons as the Board of Directors
shall from time to time designate for that purpose.
SECTION 5. CONTRACTS, CONVEYANCES, ETC. When the execution of any
contract, conveyance or other instrument has been authorized without
specification of the executing officers the Chairman of the Board, President or
any Vice President, and the Secretary or Assistant Secretary, may execute
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the same in the name and on behalf of this Corporation and may affix the
corporate seal thereto. The Board of Directors shall have power to designate the
officers and agents who shall have authority to execute any instrument in behalf
of the Corporation.
SECTION 6. CORPORATE BOOKS AND RECORDS. The Corporation shall keep books
and records of account and minutes of the proceedings of its Shareholders, Board
of Directors and Executive Committee, if any. The Corporation shall keep at its
registered office, or at the office of its transfer agent within or without this
state, records containing the names and addresses of all Shareholders, the
number, class, and series of shares held by each and the dates when they
respectively became holders of record thereof. Any of such books, records or
minutes may be in written form or in any other form capable of being converted
into written form. The Corporation shall convert into written form without
charge any such record not in such form, upon written request of a person
entitled to inspect them.
SECTION 7. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution by the Board of Directors.
SECTION 8. SEAL. If the Corporation has a corporate seal, it shall have
inscribed thereon the name of the Corporation and the words 'Corporate Seal' and
'Michigan'. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or repealed or new
By-Laws may be adopted (a) at any regular or special meeting of Shareholders at
which a quorum is present or represented, by the affirmative vote of a majority
of the Shareholders entitled to vote, or (b) by the affirmative vote of a
majority of the Board of Directors at any regular or special meeting of the
Board of Directors at which a quorum is present unless the power to do so is
reserved exclusively to the Shareholders by the Articles of Incorporation. Such
action may be taken by written consent or at any meeting of Shareholders or the
Board of Directors; provided, that if notice of any such meeting is required by
these By-Laws, the notice of meeting shall contain notice of the proposed
amendment, repeal or new By-Laws. Any By-Laws hereafter made by the Shareholders
shall not be altered or repealed by the Board.
Dated: December 29, 1986
<PAGE>
EXHIBIT 3.27
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:35 AM 01/15/1991
9101551830 - 02252197
CERTIFICATE OF INCORPORATION
OF
NOMA CORPORATION
1. The name of the corporation is Noma Corporation.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Laws of Delaware.
4. The total number of shares of stock which the Corporation shall have
authority to issue is as follows:
10,000 shares of Common Stock, no par value;
1,000 shares of Class A Common Stock, no par value;
8,500 shares of Class A Preferred Stock, $1.00 par value per share;
25,000 shares of Class B Preferred Stock, $1.00 par value per share.
15,000 shares of Class C Preferred Stock, $1,000.00 per value per share.
The terms, limitations and relative rights and preferences of each class of
shares are as follows:
A. Dividends. The holders of Class A Preferred Stock shall be entitled to
receive net of earned surplus, and the corporation shall be bound to pay, a
fixed non-cumulative dividend at the rate of, but not exceeding, seven (7) per
centum per annum, payable quarterly on the last day of March, June, September
and December, before any dividend shall be set aside or paid to the holders of
Class B Preferred, Class C Preferred Stock, Common Stock or Class A Common
Stock.
Subject to the rights of the holders of the Class A Preferred Stock, the
holders of Class B Preferred Stock shall be entitled to receive out of earned
surplus, and the Corporation shall be bound to pay, a fixed non-cumulative
dividend at the rate of, but not exceeding, twelve and one-quarter (12 1/4) per
<PAGE>
centum per annum, payable quarterly on the last day of March, June, September
and December, before any dividends shall be set aside or paid on the Class C
Preferred Stock, Common Stock or Class A Common Stock.
Subject to the rights of the holders of the Class A Preferred Stock and
the Class B Preferred Stock, the holders of Class C Preferred Stock shall be
entitled to receive out of earned surplus, and the Corporation shall pay thereon
if, as and when declared by the Board of Directors of the Corporation, a
non-cumulative dividend on each share at such rate or in such amount as the
Board of Directors may in its absolute discretion determine from time to time.
If within six months after the expiration of any fiscal year of the Corporation,
the Board of Directors in its discretion does not declare such dividend or any
part thereof on such Class C Preferred Stock for such fiscal year, then the
rights of the holders of Class C Preferred Shares to any dividend for such
financial year shall be forever extinguished. The holders of the Class C
Preferred shares shall not be entitled to any dividend other than or in excess
of the preferred, non-cumulative dividends hereinbefore provided for.
B. Liquidation or Dissolution. The holders of Class A Preferred Stock
shall, in case of liquidation or dissolution of the Corporation, before any
amount shall be paid to the holders of Class B Preferred Stock, Class C
Preferred Stock, Class A Common Stock or Common Stock, be entitled to be paid in
full as to par, plus an amount equal to any accrued, unpaid dividends thereon,
but no more.
Subject to the rights of the holders of the Class A Preferred Stock, the
holders of the Class B Preferred Stock, shall, in case of liquidation or
dissolution of the Corporation, before any amount shall be paid to the holders
of the Class C Preferred Sock, Class A Common Stock or Common Stock, be entitled
to be paid in full as to par, plus an amount equal to any accrued, unpaid
dividends thereon, but no more.
Subject to the rights of the holders of the Class A Preferred Stock and the
Class B Preferred Stock, the holders of Class C Preferred Stock shall, in case
of liquidation or dissolution of the corporation, before any amount shall be
paid to the holders of the Class A Common Stock or Common Stock, be entitled to
be paid in full as to par, plus an amount equal to any accrued, unpaid dividends
thereon, but no more.
C. Redemption at Option of Corporation. The Class A, Class B or Class C
Preferred Stock, or any part thereof, at the discretion of the Corporation shall
be subject to redemption at par value, plus an amount equal to any accrued and
unpaid dividends thereon, at any time, upon sixty days notice. The redemption
price of the Class C Preferred Stock is subject to
<PAGE>
adjustment as provided below. All Class A, Class B or Class C Preferred Stock
so redeemed shall not be subject to reissue but shall be cancelled and retired,
and the capital stock of the corporation shall thereupon be reduced accordingly.
In all cases of redemption, notice shall be given by letter directed to the
respective shareholders whose shares are to be redeemed at their respective
addresses appearing on the books of the Corporation ('Notice'). The Notice shall
set out: (1) the number and class of shares to be redeemed; (2) the price to be
paid for each share to be redeemed; (3) the date of such redemption; (4) the
place of such redemption; (5) the name and address of the bank, if any, in which
unclaimed redemption monies will be deposited.
On or after the date of redemption, the Corporation shall pay the
redemption price to the holders of the shares to be redeemed, on presentation
and surrender of the certificate or certificates for such shares, duly
endorsed, at the place specified in the Notice. The Corporation may on or after
the date of redemption deposit any unclaimed redemption monies to a special
account in the bank named in the Notice, to be paid upon presentation and
surrender of the share certificate or certificates as have not at the date of
such deposit been surrendered by the holders thereof, to or to the order of such
holders. Such shares shall be redeemed on the date of redemption, and from and
after the date of redemption, the holder of such shares being redeemed shall
cease to be entitled to dividends and shall not be entitled to exercise any
rights in respect thereof, unless payment of the redemption price is not made on
the retraction date, in which event the rights of such holders shall remain
unaffected until the redemption price has been paid in full.
D. Redemption at Option of Holder. The Class A Common Stock, or any part
thereof, at the option of the holder thereof, shall be redeemed at a value equal
to the price at which such stock was originally purchased from the Corporation,
plus an amount equal to any accrued and unpaid dividends thereon, at any time,
upon thirty days notice. A holder of Class C Preferred Stock may, at his option,
at any time or times, require the Corporation to redeem at par value, plus an
amount equal to any accrued and unpaid dividends thereon (subject to adjustment
as provided below), all or any part of such shares which are registered in such
holder's name on the books at the Corporation. Such right shall be exercised by
the registered holder delivering to the Corporation at its registered office:
(1) a notice in writing executed by such holder specifying (a) the number of
shares of Class C Preferred Stock which such holder wishes to have redeemed by
the Corporation; and (b) the business day on which such holder wishes to have
the Corporation redeem such
<PAGE>
shares (the 'Put Date'); and (2) a share certificate or certificates
representing such shares, duly endorsed, which such holder wishes to have the
Corporation redeem. Upon receipt of the document set out in (1) and (2) above,
the Corporation shall, on the Put Date, pay the Class C Preferred redemption
price for each share of Class C Preferred Stock to be redeemed. Such shares
shall be redeemed on the Put Date, and from and after the Put Date, the holder
of such shares being redeemed shall cease to be entitled to dividends, and
shall not be entitled to exercise any rights in respect thereof, unless the
Class C Preferred redemption price is not made on the Put Date, in which event
the rights of such holder shall remain unaffected until the Class C Preferred
redemption price has been paid in full.
E. Adjustment of Class C Preferred Stock Redemption Price. Notwithstanding
the foregoing, the redemption price for the Class C Preferred Stock shall be
subject to adjustment as hereinafter provided in this paragraph. If the fair
market value, as finally determined by the Corporation (or its successor) and
Noma Inc., or as may be agreed to by such parties and the Minister of the
National Revenue of Canada or by a court or tribunal having jurisdiction in
the matter, after all appeal rights have been exhausted or all times for
appeals have expired without appeals having been taken, of the Transferred
Shares (as such term is defined in the Agreement of Purchase and Sale entered
into between the Corporation and Noma Inc. with respect to the transfer of 700
Common Shares of Electronic Interconnect Systems, Inc., a Massachusetts
corporation) is less than or greater than the aggregate redemption price of
the Class C Preferred Stock issued in respect of the Transferred Shares, than
the redemption price of the Class C Preferred stock shall be deemed to be
increased or decreased such that the aggregate redemption price of the Class C
Preferred Stock shall be equal to the fair market value of the Transferred
Shares, as finally determined. Such increase or decrease, as the case may be,
shall be made nunc pro tunc.
F. Voting Rights. Except as provided by law, the voting power of the
shareholders of the Corporation shall be vested exclusively in the holders of
the Common Stock and the Class A Common Stock. Except as provided by law, the
holders of the Class A and Class B Preferred Stock, as such, shall be entitled
to no voting power whatsoever, nor shall they be entitled to notice of any
meetings. Except as provided by law, the holders of the Class C Preferred Stock,
as such, shall be entitled to no voting power whatsoever, but shall be entitled
to notice of meetings of shareholders called for the purpose of authorizing the
dissolution of the Corporation or the sale of all or substantially all of its
assets and shall be entitled to receive
<PAGE>
all reports and other communications which are sent by the Corporation to the
holders of the Common Stock.
G. Miscellaneous. For purposes of voting rights, dividends, liquidation or
dissolution of any other rights and preferences, the Common Stock and the Class
A Common Stock shall be considered a single class of stock, provided, however,
that the Corporation may declare and pay, and the outstanding Class A Common
Stock shall be entitled to receive, a special dividend or special dividends in
respect of the Corporation's fiscal year ended December 31, 1997 in the
aggregate amount of $17,000,000 without the Corporation being required to
declare or pay, or the outstanding Common Stock being entitled to receive, any
dividend in respect of the Common Stock.
5. The name and mailing address of the sole incorporator is Richard A.
Krantz, Cohen and Wolf, P.C., 1115 Broad Street, Bridgeport, Connecticut, 06604.
6. No director shall have any personal liability to the corporation or its
stockholders for any monetary damages for breach of fiduciary duty as a
director, except that this Article shall not eliminate or limit the liability of
each director (i) for any breach of such director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a
<PAGE>
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which such director derived
an improper personal benefit. This Article shall not eliminate or limit the
liability of such director for any act or omission occurring prior to the
date when this Article becomes effective.
7. The corporation is to have perpetual existence.
8. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
9. Elections of directors need not be by written ballot unless the by-laws
of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the
<PAGE>
Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this corporation under the provisions of
Section 279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders
of this corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this corporation, as the case may be,a agree to any
compromise or arrangement and to any reorganization of this corporation as a
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders, of
this corporation, as the case may be, and also on this corporation.
11. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that my act and deed
<PAGE>
and the facts herein stated are true, and accordingly have hereunto set my
hand as of the 31st day of December, 1990.
RICHARD A. KRANTZ
-----------------
Richard A. Krantz
<PAGE>
EXHIBIT 3.28
BY-LAWS
OF
NOMA CORPORATION
A DELAWARE CORPORATION
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and 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
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
1992 shall be held on the third Tuesday in April if not a legal holiday, and if
a legal holiday, then on the next secular day following, at 10:00 a.m., or at
such other date and time as
<PAGE>
shall be designated from time to time by the board of directors and stated in
the notice of the meeting, at which they shall elect by a plurality vote a board
of directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request
2
<PAGE>
in writing of a majority of the board of directors, or at the request in writing
of stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any
3
<PAGE>
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes 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.
Section 10. 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
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a note, if a consent in writing, setting forth
4
<PAGE>
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered to the corporation, written consents signed by
a sufficient number of holders to take action are delivered to the corporation
by delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the corporation having custody of
the book in which proceeding of meetings of stockholders are recorded.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than three nor more than nine. The first board shall
consist of four directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as
5
<PAGE>
provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified. Directors need not be
stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the
6
<PAGE>
certificate of incorporation or by these by-laws directed or required to be
exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors, in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on one day's notice to each director, either personally or by mail or by
telegram; special meetings shall be called by the president or secretary in like
manner and on like
7
<PAGE>
notice on the written request of two directors unless the board consists of only
one director; in which case special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of the sole
director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time: to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, or any committee, by means of
conference telephone or similar communications equipment by means of which all
persons
8
<PAGE>
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. 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 thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors 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 of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of
9
<PAGE>
stock adopted by the board of directors as provided in Section 151(a) fix any
of the preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation) 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 or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors. when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at
10
<PAGE>
each meeting of the board of directors and may be paid a fixed sum for
attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
11
<PAGE>
Section 2. Whenever any notice is required to be given under the
provisions of the statutes 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a chairman of the board, a president, a
vice-president, a secretary and a treasurer. The board of directors may also
choose additional vice-presidents, and one or more assistant secretaries and
assistant treasurers. Any number of offices may be held by the same person,
unless the certificate of incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a chairman of the board, a president, one
or more vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
12
<PAGE>
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
THE CHAIRMAN OF THE BOARD
Section 6. The chairman of the board shall be designated as chief
executive officer and he shall have general charge of the business affairs of
the corporation as well as such powers and duties as, the by-laws or the board
of directors may from time to time prescribe. The chairman of the board shall
also preside over stockholder meetings and meetings of the board of directors.
THE PRESIDENT
Section 7. The president shall preside at all meetings of the
stockholders and the board of directors, in the absence of the chairman of the
board, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 8. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
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THE VICE-PRESIDENTS
Section 9. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time: to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 10. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of
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directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 11. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 12. The treasurer shall have the custody of the corporate: funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 13. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper, vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
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Section 14. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 15. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer, or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
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If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class
or series of stock, a statement that the corporation will furnish without charge
to each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of
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each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case 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, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed. certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made
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against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled. to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor
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more than sixty days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
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Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement: of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be the calender
year.
SEAL
Section 6. The corporation seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words 'Corporate Seal,
Delaware'. The seal may be used
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by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Law of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
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EXHIBIT 3.29
CERTIFICATE OF INCORPORATION
OF
PCT MEXICO CORPORATION
THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
ARTICLE I
The name of the Corporation is PCT Mexico Corporation.
ARTICLE II
The registered office of the Corporation in the State of Delaware
is located at 1209 Orange Street, in the City of Wilmington, County of New
Castle 19801. The name of the Corporation's registered agent in the State of
Delaware at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
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ARTICLE IV
The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares of Common Stock, with a par value of
$1.00 per share.
ARTICLE V
Election of directors need not be by ballot unless the By-Laws of
the Corporation shall so provide.
ARTICLE VI
In furtherance and not in limitation of the power conferred upon
the Board of Directors by Law, the Board of Directors shall have power to make,
adopt, alter, amend and repeal, from time to time, the By-Laws of the
Corporation, subject to the right of the stockholders entitled to vote with
respect thereto to alter and repeal By-Laws made by the Directors.
ARTICLE VII
The incorporator of the Corporation is Carol A. Soltes, whose
mailing address is 635 Sixth Avenue Pittsburgh, Pennsylvania 15219.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
25th day of September, 1987
CAROL A. SOLTES
-----------------------------
Carol A. Soltes, Incorporator
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EXHIBIT 3.30
BY-LAWS
OF
PCT MEXICO CORPORATION
ARTICLE 1.
OFFICES
Section 1. The registered office of the Corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware. The Corporation may
also have offices at such other places both within and 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 2.
STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as shall be designated
by the Board of Directors. In the absence of any such designation by the Board
of Directors, each such meeting shall be held at the principal office of the
Corporation.
Section 2. Annual Meetings. An annual meeting of stockholders shall be
held for the purpose of electing Directors and transacting such other business
as may properly be brought before the meeting. The date of the annual meeting
shall be determined by the Board of Directors.
Section 3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by law, may be called by
the President and shall be called by the Secretary at the direction of a
majority of the Board of Directors, or at the request in writing of stockholders
owning a majority in amount of the entire capital stock of the Corporation
issued and outstanding and entitled to vote.
Section 4. Notice of Meetings. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall be given not
less than ten nor more than sixty days before the date of the meeting, to each
stockholder entitled
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to vote at such meeting. The notice of any special meeting of stockholders shall
state the purpose or purposes for which the meeting is called.
Section 5. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by law. If a quorum is not
present or represented, the holders of the stock present in person or
represented by proxy at the meeting and entitled to vote thereat shall have
power, by the affirmative vote of the holders of a majority of such stock, to
adjourn the meeting to another time and/or place, without notice other than
announcement at the meeting, until a quorum shall be presented or represented.
At such adjourned meeting, at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 6. Voting. At all meetings of the stockholders, each
stockholder shall be entitled to vote, in person or by proxy, the shares of
voting stock owned by such stockholder of record on the record date for the
meeting. When a quorum is present or represented at any meeting, the vote of the
holders of a majority of the stock having voting power 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 law 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.
Section 7. Informal Action By Stockholders. Any action required to be
taken at a meeting of the stockholders, or any other action which may be taken
at a meeting of the stockholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
stockholders entitled to vote with respect to the subject matter thereof.
ARTICLE 3.
DIRECTORS
Section 1. General Powers. The business and affairs of the
Corporation shall be managed and controlled by or under the
direction of a Board of Directors, which may exercise all such
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powers of the Corporation and do all such lawful acts and things as are not by
law 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, Qualification and Tenure. The number of Directors
shall be fixed from time to time by resolution of the Board of Directors. The
Directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 3 of this Article, and each Director elected shall hold
office until his successor is elected and qualified or until his earlier
resignation or removal. Directors need not be stockholders.
Section 3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the number of directors may be filled by a
majority of the Directors then in office though less than a quorum, and each
Director so chosen shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. If there are no Directors
in office, then an election of Directors may be held in the manner provided by
law.
Section 4. Place of Meetings. The Board of Directors may
hold meetings, both regular and special, either within or without
the State of Delaware.
Section 5. Regular Meetings. The Board of Directors shall hold a
regular meeting, to be known as the annual meeting, immediately following each
annual meeting of the stockholders. Other regular meetings of the Board of
Directors shall be held at such time and at such place as shall from time to
time be determined by the Board. No notice of regular meetings need be given.
Section 6. Special Meetings. Special meetings of the Board may be
called by the President. Special meetings shall be called by the Secretary on
the written request of any two Directors. No notice of special meetings need
be given.
Section 7. Quorum. At all meetings of the Board a majority of the total
number of Directors shall constitute a quorum for the transaction of business
and the act of a majority of the Directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by law. If a quorum shall not be present at any
meeting of the Board of Directors, the Directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
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Section 8. Organization. The Chairman of the Board, if elected, shall
act as chairman at all meetings of the Board of Directors. If a Chairman of the
Board is not elected or, if elected, is not present, the President or, in the
absence of the President, a Vice Chairman (who is also a member of the Board
and, if more than one, in the order designated by the Board of Directors or, in
the absence of such designation, in the order of their election), if any, or if
no such Vice Chairman is present, a Director chosen by a majority of the
Directors present, shall act as chairman at meetings of the Board of Directors.
Section 9. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more Directors to
constitute an Executive Committee, to serve as such, unless the resolution
designating the Executive Committee is sooner amended or rescinded by the Board
of Directors, until the next annual meeting of the Board or until their
respective successors are designated. The Board of Directors, by resolution
adopted by a majority of the whole Board, may also designate additional
Directors as alternate members of the Executive Committee to serve as members of
the Executive Committee in the place and stead of any regular member or members
thereof who may be unable to attend a meeting or otherwise unavailable to act as
a member of the Executive Committee. In the absence or disqualification of a
member and all alternate members who may serve in the place and stead of such
member, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another Director to act at the meeting in the
place of any such absent or disqualified member.
Except as expressly limited by the General Corporation Law of the State
of Delaware or the Certificate of Incorporation, the Executive Committee shall
have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation between the
meetings of the Board of Directors. The Executive Committee shall keep a record
of its acts and proceedings, which shall form a part of the records of the
Corporation in the custody of the Secretary, and all actions of the Executive
Committee shall be reported to the Board of Directors at the next meeting of the
Board.
Meetings of the Executive Committee may be called at any time by the
Chairman of the Board, the President or any two of its members. No notice of
meetings need be given. A majority of the members of the Executive Committee
shall constitute a quorum for the transaction of business and, except as
expressly limited by this section, the act of a majority of the members present
at any meeting at which there is a quorum shall be the act of the
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Executive Committee. Except as expressly provided in this Section, the Executive
Committee shall fix its own rules of procedure.
Section 10. Other Committees. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more other
committees, each such committee to consist of one or more Directors. Except as
expressly limited by the General Corporation Law of the State of Delaware or the
Certificate of Incorporation, any such committee shall have and may exercise
such powers as the Board of Directors may determine and specify in the
resolution designating such committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, also may designate one or more
additional Directors as alternate members of any such committee to replace any
absent or disqualified member at any meeting of the committee, and at any time
may change the membership of any committee or amend or rescind the resolution
designating the committee. In the absence or disqualification of a member or
alternate member of a committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another Director to act at the
meeting in the place of any such absent or disqualified member, provided that
the Director so appointed meets any qualifications stated in the resolution
designating the committee. Each committee shall keep a record of proceedings and
report the same to the Board of Directors to such extent and in such form as the
Board of Directors may require. Unless otherwise provided in the resolution
designating a committee, a majority of all of the members of any such committee
may select its Chairman, fix its rules or procedure, fix the time and place of
its meetings and specify what notice of meetings, if any, shall be given.
Section 11. Action without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 12. Attendance by Telephone. 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 any committee, 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
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participation in a meeting shall constitute presence in person at the meeting.
Section 13. Compensation. The Board of Directors shall have the
authority to fix the compensation of Directors, which may include their
expenses, if any, of attendance at each meeting of the Board of Directors or of
a committee.
ARTICLE 4.
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall he chosen
by the Board of Directors and shall be a President, a Secretary and a Treasurer.
The Board of Directors may also elect a Chairman of the Board, one or more Vice
Chairmen, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers and such other officers and agents as it shall deem
appropriate. Any number of offices may be held by the same person.
Section 2. Term of Office. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the Board of
Directors. Any vacancy occurring in any office of the Corporation required by
this Article shall be filled by the Board of Directors, and any vacancy in any
other office may be filled by the Board of Directors.
Section 3. Chairman of the Board. The Chairman of the Board, if
elected, shall preside at meetings of the stockholders and the Board of
Directors and shall have such other functions, authority and duties as may be
prescribed by the Board of Directors.
Section 4. President. The President shall be the Chief Executive
Officer of the Corporation and, as such, shall have general supervision,
direction and control of the business and affairs of the Corporation, subject to
the control of the Board of Directors, and shall have such other functions,
authority and duties as customarily appertain to the office of the chief
executive of a business corporation or as may be prescribed by the Board of
Directors. During any period when there shall not be an office of Chairman of
the Board, the President shall preside at meetings of the stockholders and the
Board of Directors.
Section 5. Vice President. The Vice President shall perform such duties
and have such powers as may from time to time
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be prescribed by the Board of Directors, the Chairman of the Board or the
President.
Section 6. Secretary. The Secretary shall keep a record of all
proceedings of the stockholders of the Corporation and of the Board of
Directors, and shall perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice, if any, of all
meetings of the stockholders and shall perform such other duties as may be
prescribed by the Board of Directors, the Chairman of the Board or the
President. The Secretary shall have custody of the corporate seal of the
Corporation and the Secretary, or in the absence of the Secretary any Assistant
Secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed it may be attested by the signature of the Secretary or
an Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the corporation and to attest such affixing
of the seal.
Section 7. Assistant Secretary. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as may from time to
time be prescribed by the Board of Directors, the Chairman of the Board, the
President or the Secretary.
Section 8. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board, the President and
the Board of Directors, at its regular meetings or when the Board of Directors
so requires, an account of all transactions as Treasurer and of the financial
condition of the Corporation. The Treasurer shall perform such other duties as
may from time to time be prescribed by the Board of Directors, the Chairman of
the Board, the President or the person, if any, who is designated by the Board
of Directors as Chief Financial Officer.
Section 9. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or in the event of the
Treasurer's
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inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as may
from time to time be prescribed by the Board of Directors, the Chairman of the
Board, the President or the Treasurer.
Section 9. Other Officers. Any officer who is elected or appointed from
time to time by the Board of Directors and whose duties are not specified in
these By-Laws shall perform such duties and have such powers as may be
prescribed from time to time by the Board of Directors, the Chairman of the
Board or the President.
ARTICLE 5.
CERTIFICATES OF STOCK
Section 1. Form. The shares of the Corporation shall be represented by
certificates; provided, however, that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation's stock shall be uncertificated shares. Certificates of stock in
the Corporation, if any, shall be signed by or in the name of the Corporation by
the 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. Where a certificate is countersigned by a transfer agent,
other than the Corporation or an employee of the Corporation, or by a registrar,
the signatures of the Chairman of the Board, the President or a Vice President
and the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary may be facsimiles. In case 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, the certificate may be issued by the Corporation with the
same effect as if such officer, transfer agent or registrar were such officer,
transfer agent or registrar at the date of its issue.
Section 2. Transfer. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate of
stock or uncertificated shares in place of any certificate therefor issued by
the Corporation to the person entitled thereto, cancel the old certificate and
record the transaction on its books.
Section 3. Replacement. In case of the loss, destruction or theft of a
certificate for any stock of the Corporation, a new
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certificate of stock or uncertificated shares in place of any certificate
therefor issued by the Corporation may be issued upon satisfactory proof of such
loss, destruction or theft and upon such terms as the Board of Directors may
prescribe. The Board of Directors may in its discretion require the owner of the
lost, destroyed or stolen certificate, or his legal representative, to give the
Corporation a bond, in such sum and in such form and with such surety or
sureties as it may direct, to indemnify the Corporation against any claim that
may be made against it with respect to a certificate alleged to have been lost,
destroyed or stolen.
ARTICLE 6.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. The Corporation shall 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 (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he 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 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 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 conduct was unlawful.
Section 2. The Corporation shall indemnify any person 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 is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and
9
<PAGE>
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he 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 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 duty to the Corporation unless and only to
the extent that the Court of Chancery 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 indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this article, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
Section 4. Any indemnification under Sections 1 and 2 of this article
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sections 1 and 2 of this article.
Such determination shall be made (1) 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 (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
Section 5. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the manner provided in Section 4 of this article upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation under this article.
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Section 6. The Corporation shall 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, (i) arising under the Employee Retirement Income Security Act of
1974 or regulations promulgated thereunder, or under any other law or regulation
of the United States or any agency or instrumentality thereof or law or
regulation of any state or political subdivision or any agency or
instrumentality of either, or under the common law of any of the foregoing,
against expenses (including attorneys' fees), judgments, fines, penalties, taxes
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding by reason of the fact that he is
or was a fiduciary, disqualified person or party in interest with respect to an
employee benefit plan covering employees of Corporation or of a subsidiary
corporation, or is or was serving in any other capacity with respect to such
plan, or has or had any obligations or duties with respect to such plan by
reason of such laws or regulations, provided that such person was or is a
director, officer, employee or agent of the Corporation, or (ii) in connection
with any matter arising under federal, state or local revenue or taxation laws
or regulations, against expenses (including attorneys' fees), judgments, fines,
penalties, taxes, amounts paid in settlement and amounts paid as penalties or
fines necessary to contest the imposition of such penalties or fines, actually
and reasonably incurred by him in connection with such action, suit or
proceeding by reason of the fact that he is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise and had responsibility for
or participated in activities relating to compliance with such revenue or
taxation laws and regulations; provided, however, that such person did not act
dishonestly or in willful or reckless violation of the provisions of the law or
regulation under which such suit or proceeding arises. Unless the Board of
Directors determines that under the circumstances then existing, it is probable
that such director, officer, employee or agent will not be entitled to be
indemnified by the Corporation under this section, expenses incurred in
defending such suit or proceeding, including the amount of any penalties or
fines necessary to be paid to contest the imposition of such penalties or fines,
shall be paid by the Corporation in advance of the final disposition of such
suit or proceeding upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Corporation under
this section.
Section 7. The indemnification provided by this article shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of
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stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 8. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not he would be entitled to indemnity against such liability under
the provisions of this article.
ARTICLE 7.
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 2. Corporate Seal. The corporate seal shall be in such form as
may be approved from time to time by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 3. Waiver of Notice. Whenever any notice is required to be
given under law or the provisions of the Certificate of Incorporation or 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 to notice.
ARTICLE 8.
AMENDMENTS
These By-Laws may be altered, amended or repealed or new By-Laws may be
adopted by the Board of Directors. The fact that the power to amend, alter,
repeal or adopt the By-Laws has been conferred upon the Board of Directors shall
not divest the stockholders of the same powers.
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EXHIBIT 3.31
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:00 PM 03/28/1994
944051413 - 2389840
CERTIFICATE OF INCORPORATION
OF
NOMA O.P., INC.
The undersigned hereby certifies as follows:
1. The name of the corporation is NOMA O.P., INC.
2. The address of the corporation's registered office in the
State of Delaware is 1209 Orange Street, Wilmington, Delaware, County of New
Castle, and the name of its registered agent at such address is The Corporation
Trust Company.
3. The purpose of the corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of stock which the corporation
shall have authority to issue is 1,000 shares of common stock with a par value
of $1.00 per share.
5. The name and mailing address of the incorporator is as
follows:
Howard L. Rosenberg
190 South LaSalle Street
Chicago, Illinois 60603
6. The following provisions are inserted for the management of
the business and for the conduct of the affairs of the corporation, and for
further definition, limitation and regulation of the powers of the corporation
and of its directors and stockholders:
(a) Election of directors need not be by ballot
unless the by-laws so provide.
(b) The Board of Directors shall have power, without
the assent or vote of the stockholders, to make, alter, amend,
change, add to, or repeal the by-laws at the corporation.
7. Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
<PAGE>
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provision of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
8. Personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
the same is in effect on the date hereof or may hereafter be amended from time
to time to further restrict the personal liability of the directors; provided,
that no amendment of said provision shall expand the personal liability of
directors over the extent permitted by such provision on the date hereof.
9. The corporation shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended from time to
time, indemnify all persons whom it may indemnify pursuant thereto.
IN WITNESS WHEREOF, the undersigned has signed this
certificate on March 28, 1994.
HOWARD L. ROSENBERG
---------------------------------------
Howard L. Rosenberg
Sole Incorporator
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<PAGE>
EXHIBIT 3.32
BY-LAWS
OF
NOMA O.P., INC.
ARTICLE I.
OFFICES
Section 1. The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation may also
have offices at such other places both within and 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. Time and Place of Meetings. All meetings of the stockholders for
the election of directors or for any other purpose shall be held at such time
and place, within or without the State of Delaware, as shall be designated by
the Board of Directors. In the absence of a designation of a place for any such
meeting by the Board of Directors, each such meeting shall be held at the
principal office of the Corporation.
Section 2. Annual Meetings. An annual meeting of stockholders shall be held
for the purpose of electing directors and transacting such other business as may
properly be brought before the meeting. The date of the annual meeting shall be
determined by the Board of Directors.
Section 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by the Certificate of
Incorporation or by law, may be called by the President and shall be called by
the Secretary at the direction of a majority of the Board of Directors, or at
the request in writing delivered to the President or the Secretary of the
Corporation of Stockholders owning a majority in amount of the entire capital
stock of the Corporation issued and outstanding and entitled to vote.
Section 4. Notice of Meetings. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall be given not
less than ten nor more than sixty days before the date of the meeting, to each
stockholder entitled
<PAGE>
to vote at such meeting. The notice of any special meeting of stockholders shall
state the purpose or purposes for which the meeting is called. [Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice. Neither the business to be transacted at, nor the
purpose of, an annual or special meeting of stockholders need be specified in
any written waiver of notice.]
Section 5. Quorum; Adjournments. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise required by
[these By-laws,] the Certificate of Incorporation or the Delaware General
Corporation Law as from time to time in effect (the "Delaware Law"). If a quorum
is not represented, the holders of the stock present in person or represented by
proxy at the meeting and entitled to vote thereat shall have power, by the
affirmative vote of the holders of a majority of such stock, to adjourn the
meeting to another time and/or place, without notice other than announcement at
the meeting, except as hereinafter provided, until a quorum shall be present or
represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. Withdrawal of stockholders from any meeting
shall not cause the failure of a duly constituted quorum as such meeting.
Section 6. Voting. (a) At all meetings of the stockholders, each
stockholder shall be entitled to vote, in person, or by proxy appointed in an
instrument in writing subscribed by the stockholder or otherwise appointed in
accordance with Section 212 of the Delaware Law, each share of voting stock
owned by such stockholder of record on the record date for the meeting. Each
stockholder shall be entitled to one vote for each share of voting stock held by
such stockholder, unless otherwise provided in the Delaware Law or the
Certificate of Incorporation.
(b) When a quorum is present at any meeting, the affirmative vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy and voting shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of law 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.
Any stockholder who is in attendance at a meeting of stockholders either in
person or by proxy, but who abstains from the vote on any matter, shall not be
deemed present
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or represented at such meeting for purposes of the preceding sentence with
respect to such vote, but shall be deemed present or represented at such meeting
for all other purposes.
Section 7. Informal Action by Stockholders. Any action required to be taken
at a meeting of the stockholders, or any other action which may be taken at a
meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed and controlled by or under the direction of its Board of
Directors, which may exercise all such powers of, and do all such acts and
things as may be done by, the Corporation and do all such lawful acts and things
as are not by law 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, Qualification and Tenure. The Board of Directors of the
Corporation shall consist of not less than one (1) member and not more than five
(5) members. Within the limit above specified, the number of directors shall be
determined from time to time by resolution of the Board of Directors. The number
of directors initially shall be fixed at __ (_). The directors shall be elected
at the annual meeting of the stockholders, except as provided in the
Certificate of Incorporation or Section 3 of this Article, and each director
elected shall hold office until his or her successor is elected and qualified
or until his or her earlier death, termination, resignation or removal from
office. Directors need not be stockholders.
Section 3. Vacancies and Newly-Created Directorships. Vacancies and newly
created directorships resulting from any increase in the number of directors may
be filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director, and each director so chosen shall hold
office until his or her successor is elected and qualified or until his or her
earlier death, termination resignation, retirement, disqualification or removal
from office. If there are,
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<PAGE>
no directors in office, then an election of directors may be held in the manner
provided by law.
Section 4. Place of Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. Meetings. The Board of Directors shall hold a regular meeting,
to be known as the annual meeting, immediately following each annual meeting of
the stockholders. Other regular meetings of the Board of Directors shall be held
at such time and place as shall from time to time be determined by the Board. No
notice of regular meetings need be given, other than by announcement at the
immediately preceding regular meeting. Special meetings of the Board may be
called by the President or by the Secretary on the written request of a majority
of the Board of Directors. Notice of any special meeting of the Board shall be
given at least two days prior thereto, either in writing, or telephonically if
confirmed promptly in writing, to each director at the address shown for such
director on the records of the Corporation.
Section 6. Waiver of Notice; Business and Purpose. Notice of any meeting of
the Board of Directors may be waived in writing signed by the person or persons
entitled to such notice either before or after the time of the meeting. The
attendance of a director at any meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened and at the beginning of the meeting records such
objection with the person acting as secretary of the meeting and does not
thereafter vote on any action taken at 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 the notice or waiver of notice of such meeting, unless
specifically required by the Delaware Law.
Section 7. Quorum and Manner of Acting. At all meetings of the Board of
Directors a majority of the total number of directors shall constitute a quorum
for the transaction of business. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. 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 the Delaware Law or by the
Certificate of Incorporation. Withdrawal of directors from any meeting shall not
cause the failure of a duly constituted quorum at such meeting. A director who
is in attendance at a meeting of the Board of Directors but who abstains from
the vote on any matter
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<PAGE>
shall not be deemed present at such meeting for purposes of the preceding
sentence with respect to such vote, but shall be deemed present at such meeting
for all other purposes.
Section 8. Organization. The Chairman of the Board, if elected, shall act
as chairman at all meetings of the Board of Directors. If the Chairman of the
Board is not elected or, if elected, is not present, the Vice Chairman, if any,
or if no such Vice Chairman is present, a director chosen by a majority of the
directors present, shall act as chairman at such meeting of the Board of
Directors.
Section 9. Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate one or more directors to constitute
an Executive Committee. The Board of Directors, by resolution adopted by a
majority of the whole Board, may create one or more other committees and appoint
one or more directors to serve on such committee or committees. Each director
appointed to serve on any such committee shall serve, unless the resolution
designating the respective committee is sooner amended or rescinded by the Board
of Directors, until the next annual meeting of the Board or until their
respective successors are designated. The Board of Directors, by resolution
adopted by a majority of the whole Board, may also designate additional
directors as alternate members of any committee to serve as members of such
committee in the place and stead of any regular member or members thereof who
may be unable to attend a meeting or otherwise unavailable to act as a member of
such committee. In the absence or disqualification of a member and all alternate
members designated to serve in the place and stead of such member, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another director to act at the meeting in the place and stead of such absent or
disqualified member.
The Executive Committee shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation between the meetings of the Board of Directors, and
any other committee may exercise the power and authority of the Board of
Directors to the extent specified by the resolution establishing such committee,
or the Certificate of Incorporation or these By-laws; provided, however, that no
committee may take any action that is expressly required by the Delaware Law or
the Certificate of Incorporation or these By-laws to be taken by the Board of
Directors and not by a committee thereof. Each committee shall keep a record of
its acts and proceedings, which shall form a part of the records of the
Corporation in the custody of the Secretary, and all actions of each committee
shall be reported to the Board of Directors at the next meeting of the Board.
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<PAGE>
Meetings of committees may be called at any time by the Chairman of the
Board, if any, the President or the chairman of the respective committee. A
majority of the members of the committee shall constitute a quorum for the
transaction of business and, except as expressly limited by this section, the
act of a majority of the members present at any meeting at which there is a
quorum shall be the act of such committee. Except as expressly provided in this
section or in the resolution designating the committee, a majority of the
members of any such committee may select its chairman, fix its rules of
procedure, fix the time and place of its meetings and specify what notice of
meetings, if any, shall be given.
Section 10. Action without Meeting. Unless otherwise specifically
prohibited by the Certificate of Incorporation or these By-laws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or such committee, as the case may be, execute a consent
thereto in writing setting forth the action so taken, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
Section 11. Attendance by Telephone. Members of the Board of Directors, or
any committee thereof, may participate in and act at any meeting of the Board of
Directors, or such committee, as the case may be, through the use of a
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in such
meeting shall constitute attendance and presence in person at the meeting of the
person or persons so participating.
Section 12. Compensation. By resolution of the Board of Directors,
irrespective of any personal interest of any of the members, the directors may
be paid their reasonable expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a fixed sum of attendance at meetings or a
stated salary as directors. These payments shall not preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV.
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a President, one or more Vice
Presidents, a Secretary and a Treasurer. The Board of Directors may also elect a
Chairman of the Board, a Vice Chairman, one or more Assistant Secretaries and
Assistant Treasurers and such other officers and agents as it may
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<PAGE>
deem appropriate. Any number of offices may be held by the same person.
Section 2. Term of Office. The officers of the Corporation shall be elected
at the annual meeting of the Board of Directors and shall hold office until
their successors are elected and qualified, or until their earlier death,
termination, resignation or removal from office. Any officer or agent of the
Corporation may be removed at any time by the Board of Directors, with or
without cause. Any vacancy in any office because of death, resignation,
termination, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 3. Chairman of the Board. The Chairman of the Board, when and if
elected, shall be the chief executive officer of the Corporation and, as such,
shall have general supervision, direction and control of the business and
affairs of the Corporation, subject to the control of the Board of Directors,
shall preside at meetings of the Board of Directors and of stockholders and
shall have such other functions, authority and duties as customarily appertain
to the office of the chief executive of a business corporation or as may be
prescribed by the Board of Directors. The Chairman of the Board, if any, shall
be a member of the Board of Directors of the Corporation.
Section 4. Vice Chairman. The Vice Chairman, if any, in the absence of the
Chairman or in the event of the Chairman's inability or refusal to act, shall
have the authority to perform the duties of the Chairman and such other duties
as may from time to time be prescribed by the Board of Directors or the Chairman
of the Board. The Vice Chairman, if any, shall be a member of the Board of
Directors of the Corporation.
Section 5. President. During any period when there shall be an office of
Chairman of the Board, the President shall be the chief operating officer of the
Corporation and shall have such functions, authority and duties as may be
prescribed by the Board of Directors or the Chairman of the Board. During any
period when there shall not be an office of Chairman of the Board, the President
shall be the chief executive officer of the Corporation, and, as such, shall
have the functions, authority and duties provided for the Chairman of the Board
when there is an office of Chairman of the Board.
Section 6. Vice President. Each Vice President shall perform such duties
and have such other powers as may from time to time be prescribed by the Board
of Directors, the Chairman of the Board or the President.
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<PAGE>
Section 7. Secretary. The Secretary shall: (a) keep a record of all
proceedings of the stockholders, the Board of Directors and any committees
thereof in one of more books provided for that purpose; (b) give, or cause to be
given, all notices that are required by law or these By-laws to be given by the
Secretary; (c) be custodian of the corporate records and, if the Corporation has
a corporate seal, of the seal of the Corporation; (d) have authority to affix
the seal of the Corporation to all instruments the execution of which requires
such seal and to attest such affixing of the seal; (e) keep a register of the
post office address of each stockholder which shall be furnished to the
Secretary by such stockholder; (f) sign, with the Chairman or the Vice Chairman,
if any, or President or any Vice President, or any other officer thereunto
authorized by the Board of Directors, any certificates for shares of the
Corporation, or any deeds, mortgages, bonds, contracts or other instruments
which the Board of Directors has authorized to be executed by the signature of
more than one officer; (g) have general charge of the stock transfer books of
the Corporation; (h) have authority to certify as true and correct, copies of
the By-laws, or resolutions of the stockholders, the Board of Directors and
committees thereof, and of other documents of the Corporation; and (i) in
general, perform the duties incident to the office of secretary and such other
duties as from time to time may be prescribed by the Board of Directors, the
Chairman of the Board or the President. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest such affixing of the seal.
Section 8. Assistant Secretary. The Assistant Secretary, or if there shall
be more than one, each Assistant Secretary in the absence of the Secretary or in
the event of the Secretary's inability or refusal to act, shall have the
authority to perform the duties of the Secretary, subject to such limitations
thereon as may be imposed by the Board of Directors, and such other duties as
may from time to time be prescribed by the Board of Directors, the Chairman of
the Board, the President or the Secretary.
Section 9. Treasurer. The Treasurer shall be the principal accounting and
financial officer of the Corporation. The Treasurer shall: (a) have charge of
and be responsible for the maintenance of adequate books of account for the
Corporation; (b) have charge and custody of all funds and securities of the
Corporation, and be responsible therefor and for the receipt and disbursement
thereof; and (c) perform the duties incident to the office of treasurer and such
other duties as may from time to time be prescribed by the Board of Directors,
the Chairman of the Board or the President. The Treasurer may sign with the
Chairman or the Vice Chairman, if any, or the President, or any Vice President,
or any other officer thereunto authorized by the Board of Directors,
certificates for shares of the Corporation. If required by the
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<PAGE>
Board of Directors, the Treasurer shall give a bond for the faithful discharge
of his or her duties in such sum and with such surety or sureties as the Board
of Directors may determine.
Section 10. Assistant Treasurer. The Assistant Treasurer, or if there shall
be more than one, each Assistant Treasurer, in the absence of the Treasurer or
in the event of the Treasurer's inability or refusal to act, shall have the
authority to perform the duties of the Treasurer, subject to such limitations
thereon as may be imposed by the Board of Directors, and such other duties as
may from time to time be prescribed by the Board of Directors, the Chairman of
the Board, the President or the Treasurer.
Section 11. Other Officers and Agents. Any officer or agent who is elected
or appointed from time to time by the Board of Directors and whose duties are
not specified in these By-laws shall perform such duties and have such powers as
may from time to time be prescribed by the Board of Directors, the Chairman of
the Board or the President.
ARTICLE V.
CERTIFICATES OF STOCK AND THEIR TRANSFER
Section 1. Form. The shares of the Corporation shall be represented by
certificates; provided, however, the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation's stock shall be uncertificated shares. Each certificate for
shares shall be consecutively numbered or otherwise identified. Certificates of
stock in the Corporation, shall be signed by or in the name of the Corporation
by the 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. Where a certificate is countersigned by a transfer agent,
other than the Corporation or an employee of the Corporation, or by a registrar,
the signatures of one or more officers of the Corporation may be facsimiles. In
case 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, the
certificate may be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were such officer, transfer agent or
registrar at the date of its issue.
Section 2. Transfer. Upon surrender to the Corporation of the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued by
the
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<PAGE>
Corporation to the person entitled thereto, cancel the old certificate and
record the transaction in its stock transfer books.
Section 3. Replacement. In case of the loss, destruction, mutilation or
theft of a certificate for any stock of the Corporation, a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued by
the Corporation may be issued upon the surrender of the mutilated certificate
or, in the case of loss, destruction or theft of a certificate, upon
satisfactory proof of such loss, destruction or theft and upon such terms as the
Board of Directors may prescribe. The Board of Directors may in its discretion
require the owner of the lost, destroyed or stolen certificate, or his legal
representative, to give the Corporation a bond, in such sum and in such form and
with such surety or sureties as it may direct, to indemnify the Corporation
against any claim that may be made against it with respect to the certificate
alleged to have been lost, destroyed or stolen.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. Third Party Actions. The Corporation shall 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, including all appeals (other than an action,
suit or proceeding by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer, of the Corporation (and the
Corporation, in the discretion of the Board of Directors, may so indemnify a
person 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 in any other
capacity for or on behalf of the Corporation), against expenses (including
attorneys' fees), judgments, decrees, fines, penalties, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner which 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 conduct was unlawful; provided, however, the
Corporation shall be required to indemnify an officer or director in connection
with an action, suit or proceeding initiated by such person only if such action,
suit or proceeding was authorized by the Board of Directors. 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 or
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<PAGE>
in a manner which 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 reasonable cause to believe that his conduct was unlawful.
Section 2. Actions By or in the Right of the Corporation. The Corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action or suit, including all
appeals, by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director or officer of the
Corporation (and the Corporation, in the discretion of the Board of Directors,
may so indemnify a person 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
in any other capacity for or on behalf of the Corporation), against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
finally adjudged to be liable for negligence or misconduct in the performance of
his duty to the Corporation unless and only to the extent that the court in
which such action or suit was brought, or any other court of competent
jurisdiction, 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 indemnity for such expenses as such court
shall deem proper. Notwithstanding the foregoing, the Corporation shall be
required to indemnify an officer or director in connection with an action, suit
or proceeding initiated by such person only if such action, suit or proceeding
was authorized by the Board of Directors.
Section 3. Indemnity if Successful. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 1
or 2 of this Article, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. Standard of Conduct. Except in a situation governed by Section 3
of this Article, any indemnification under Section 1 or 2 of this Article
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or 2, as applicable, of
this Article. Such determination shall
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<PAGE>
be made (i) by a majority vote of directors acting at a meeting at which a
quorum consisting of directors who were not parties to such action, suit or
proceeding is present, or (ii) if such a quorum is not obtainable, or even if
obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders. The determination
required by clauses (i) and (ii) of this Section 4 may in either event be made
by written consent of the majority required by each clause.
Section 5. Expenses. Expenses (including attorneys' fees) of each officer
and director hereunder indemnified actually and reasonably incurred in defending
any civil, criminal, administrative or investigative action, suit or proceeding
or threat thereof shall be paid by the Corporation in advance of the 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 that he is not entitled to be indemnified by the Corporation as
authorized in this Article. Such expenses (including attorneys' fees) incurred
by employees and agents may be so paid upon the receipt of the aforesaid
undertaking and such terms and conditions, if any, as the Board of Detectors
deems appropriate.
Section 6. Nonexclusivity. The indemnification and advancement of expenses
provided by, or granted pursuant to, other Sections of this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement expenses may now or hereafter be entitled under any law, by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
Section 7. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of the Delaware Law.
Section 8. Definitions. 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 the power and authority to indemnify any or all of its directors,
officers, employees and agents, so that any person who
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<PAGE>
was a director, officer, employee or agent of such constituent corporation, or
was serving at the request of such constituent corporation in any other
capacity, shall stand in the same position under the provisions of this Article
with respect to the resulting or surviving corporation as such person would have
had with respect to such constituent corporation if its separate existence had
continued as such corporation was constituted immediately prior to such merger.
For purposes of this Article, references to "other capacities" shall
include serving as a trustee or agent for any employee benefit plan; references
to "fines" shall include any excise taxes assessed on a person with respect to
an employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries. A person who acted in good faith and in a
manner he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article.
Section 9. Severability. If any provision hereof is invalid or
unenforceable in any jurisdiction, the other provisions hereof shall remain in
full force and effect in such jurisdiction, and the remaining provisions hereof
shall be liberally construed to effectuate the provisions hereof, and the
invalidity of any provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other jurisdiction.
Section 10. Amendment. The right to indemnification conferred by this
Article shall be deemed to be a contract between the Corporation and each person
referred therein until amended or repealed, but no amendment to or repeal of
these provisions shall apply to or have any effect on the right to
indemnification of any person with respect to any liability or alleged liability
of such person for or with respect to any act or omission of such person
occurring prior to such amendment or repeal.
ARTICLE VII.
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed
from time to time by resolution of the Board of Directors.
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<PAGE>
Section 2. Corporation Seal. The corporate seal, if any, of the Corporation
shall be in such form as may be approved from time to time by the Board of
Directors. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
Section 3. Notices and Mailing. Except as otherwise provided in the Act,
the Articles of Incorporation or these By-laws, all notices required to be given
by any provision of these By-laws shall be deemed to have been given (i) when
received, if given in person, (ii) on the date of acknowledgment of receipt, if
sent by telex, facsimile or other wire transmission, (iii) one day after
delivery, properly addressed, to a reputable courier for same day or overnight
delivery or (iv) three days after being deposited, properly addressed, in the
U.S. Mail, certified or registered mail, postage prepaid.
Section 4. Waiver of Notice. Whenever any notice is required to be given
under the Delaware Law or the provisions of the Certificate of Incorporation or
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 to notice.
Section 5. Interpretation. In these By-laws, unless a clear contrary
intention appears, the singular number includes the plural number and vice
versa, and reference to either gender includes the other gender.
ARTICLE VIII.
AMENDMENTS
These By-laws may be altered, amended or repealed or new By-laws may be
adopted by the Board of Directors. The fact that the power to amend, alter,
repeal or adopt the By-laws has been conferred upon the Board of Directors shall
not divest the stockholders of the same powers.
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<PAGE>
EXHIBIT 3.33
[illegible] [illegible]
- ----------- -------------
Examiner Name Approved
C [ ] 8
P [X] -------------
M [X] P.C.
RA [X]
The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASS 02108
ARTICLES OF ORGANIZATION
(Under G.L., Ch. 156B)
Incorporators
NAME POST OFFICE ADDRESS
Include given name in full in case of natural persons; in case of a corporation
give state of incorporation.
Kevin M. Carome c/o Ropes & Gray
225 Franklin Street
Boston, Massachusetts 02110
The above-named incorporator(s) do hereby associate (themselves) with
the intention of forming a corporation under the provisions of General Laws,
Chapter 156B and hereby state(s):
1. The name by which the corporation shall be known is:
Electronic Interconnect Systems, Inc.
2. The purpose for which the corporation is formed is as follows:
(a) To engage in the business of manufacturing, marketing and
distributing electrical and electronic wire and wiring devices.
(b) To carry on any manufacturing, mercantile, selling, management,
service or other business, operation or activity which may be
lawfully carried on by a corporation organized under the
Business Corporation Law of The Commonwealth of Massachusetts,
whether or not related to those referred to in the foregoing
paragraph.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 X 11 sheets of
paper leaving a left hand margin of at least 1 inch for binding. Additions to
more than one article may be continued on a single sheet so long as each article
requiring each such addition is clearly indicated.
<PAGE>
3. The total number of shares and the par value if any, of each class
of stock within the corporation is authorized as follows
---------------------------------------------------------------------------
WITHOUT PAR VALUE WITH PAR VALUE
----------------------------------------------------------
CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR AMOUNT
VAL.
---------------------------------------------------------------------------
Preferred $
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Common 300,000 $1.00 300,000
---------------------------------------------------------------------------
*4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting
powers, qualifications, special or relative rights or privileges as
to each class thereof and any series now established:
None.
*5. The restrictions, if any, imposed by the Articles of Organization
upon the transfer of shares of stock of any class are as follows:
None.
*6. Other lawful provisions, if any, for the conduct and regulation of
business and affairs of the corporation, for its voluntary
dissolution or for omitting, defining, or regulating the powers of
the corporation, or of its directors or stockholders, or of any
class of stockholders:
See attached pages 6A, 6B, 6C and 6D attached hereto and
incorporated herein by reference.
*If there are no provisions state "None"
<PAGE>
Article 6
- -----------------------
Other Lawful Provisions
(a) The corporation may carry on any business, operation or activity
referred to in Article 2 to the same extent as might an individual, whether as
principal, agent, contractor or otherwise, and either alone or in conjunction or
a joint venture or other arrangement with any corporation, association, trust,
firm or individual.
(b) The corporation may carry on any business, operation or activity
through a wholly or partly owned subsidiary.
(c) The corporation may be a partner in any business enterprise which
it would have power to conduct by itself.
(d) The directors may make, amend or repeal the bylaws in whole or in
part, except with respect to any provision thereof which by law or the bylaws
requires action by the stockholders.
(e) Meetings of the stockholders may be held anywhere in the United
States.
(f) No stockholder shall have any right to examine any property or any
books, accounts or other writings of the corporation if there is reasonable
ground for belief that such examination will for any reason be adverse to the
interests of the corporation, and a vote of the directors refusing permission to
make such examination and setting forth that in the opinion of the directors
such examination would be adverse to the interests of the corporation shall be
prima facie evidence that such examination would be adverse to the interests of
the corporation. Every such examination shall be subject to such reasonable
regulations as the directors may establish in regard thereto.
(g) The directors may specify the manner in which the accounts of the
corporation shall be kept and may determine what constitutes net earnings,
profits and surplus, what amounts, if any, shall be reserved for any corporate
purpose, and what amounts, if any, shall be declared as dividends. Unless the
board of directors otherwise specifies, the excess of the consideration for any
share of its capital stock with par value issued by it over such par value shall
be paid-in surplus. The board of directors may allocate to capital stock less
than all of the consideration for any share of its capital stock without par
value issued by it, in which case the balance of such consideration shall be
paid-in surplus. All surplus shall be available for any corporate purpose,
including the payment of dividends.
6-A
<PAGE>
(h) The purchase or other acquisition or retention by the corporation
of shares of its own capital stock shall not be deemed a reduction of its
capital stock. Upon any reduction of capital or capital stock, no stockholder
shall have any right to demand any distribution from the corporation, except as
and to the extent that the stockholders shall have provided at the time of
authorizing such reduction.
(i) The directors shall have the power to fix from time to time their
compensation. No person shall be disqualified from holding any office by reason
of any interest. In the absence of fraud, any director, officer or stockholder
of this corporation individually, or any individual having any interest in any
concern which is a stockholder of this corporation, or any concern in which any
of such directors, officers, stockholders or individuals has any interest, may
be a party to, or may be pecuniarily or otherwise interested in, any contract,
transaction or other act of this corporation, and
(1) such contract, transaction or act shall not be in any way
invalidated or otherwise affected by that fact;
(2) no such director, officer, stockholder or individual shall be
liable to account to this corporation for any profit or benefit
realized through any such contract, transaction or act; and
(3) any such director of this corporation may be counted in
determining the existence of a quorum at any meeting of the
directors or of any committee thereof which shall authorize any
such contract, transaction or act, and may vote to authorize the
same;
provided, however, that any contract, transaction or act in which any director
or officer of this corporation is so interested individually or as a director,
officer, trustee or member of any concern which is not a subsidiary or affiliate
of this corporation, or in which any directors or officers are so interested as
holders, collectively, of a majority of shares of capital stock or other
beneficial interest at the time outstanding in any concern which is not a
subsidiary or affiliate of this corporation, shall be duly authorized or
ratified by a majority of the directors who are not so interested, to whom the
nature of such interest has been disclosed and who have made any findings
required by law;
6-B
<PAGE>
the term "interest" including personal interest and interest as a
director, officer, stockholder, shareholder, trustee, member or
beneficiary of any concern;
the term "concern" meaning any corporation, association, trust,
partnership, firm, person or other entity other than this corporation;
and
the phrase "subsidiary or affiliate" meaning a concern in which a
majority of the directors, trustees, partners or controlling persons is
elected or appointed by the directors of this corporation, or is
constituted of the directors or officers of this corporation.
To the extent permitted by law, the authorizing or ratifying vote of the holders
of a majority of the shares of each class of the capital stock of this
corporation outstanding and entitled to vote for directors at any annual meeting
or a special meeting duly called for the purpose (whether such vote is passed
before or after judgment rendered in a suit with respect to such contract,
transaction or act) shall validate any contract, transaction or act of this
corporation, or of the board of directors or any committee thereof, with regard
to all stockholders of this corporation, whether or not of record at the time of
such vote, and with regard to all creditors and other claimants under this
corporation; provided, however, that
A. with respect to the authorization or ratification of contracts,
transactions or acts in which any of the directors, officers or
stockholders of this corporation have an interest, the nature of
such contracts, transactions or acts and the interest of any
director, officer or stockholder therein shall be summarized in
the notice of any such annual or special meeting, or in a
statement or letter accompanying such notice, and shall be fully
disclosed at any such meeting;
B. the stockholders so voting shall have made any findings required
by law;
C. stockholders so interested may vote at any such meeting except to
the extent otherwise provided by law; and
D. any failure of the stockholders to authorize or ratify such
contract, transaction or act shall not be deemed in any way to
invalidate the same or to deprive this corporation, its
directors, officers
6-C
<PAGE>
or employees of its or their right to proceed with such contract,
transaction or act.
No contract, transaction or act shall be avoided by reason of any provision of
this paragraph (i) which should be valid but for such provision or provisions.
(j) The corporation shall have all powers granted to corporations by
the laws of The Commonwealth of Massachusetts, provided that no such power shall
include any activity inconsistent with the Business Corporation Law or the
general laws of said Commonwealth.
6-D
<PAGE>
7 By-laws of the corporation have been duly adopted and the initial
directors, president, treasurer and clerk, whose names are set out
below, have been duly elected.
8 The effective date of organization of the corporation shall be the
date of filing with the Secretary of the Commonwealth or if later
date is desired, specify date, (not more than 10 days after the
date of filing.)
9 The following information shall not for any purpose be treated as
a permanent part of the Articles of Organization of the
corporation.
a. The post office address of the initial principal office of the
corporation of Massachusetts is:
c/o C.T. Corporation System
2 Oliver Street
Boston, Massachusetts 02109
b. The name, residence, and post office address of each of the
initial directors and following officers of the corporation are
as follows:
<TABLE>
<CAPTION>
NAME RESIDENCE POST OFFICE ADDRESS
<S> <C> <C>
President: Fred G. Berlet 35 Parkwood Drive
Tillsonburg, Ontario N4G287 same
Treasurer: Louis O'Brien 68 Parkwood Drive
Tillsonburg, Ontario N4G2C2 same
Clerk: Kathryn A. Cronin 1078 Avenue Road
Toronto, Ontario M5N2C9 same
Director: James D. Fleck 20 Wilket Road
Willowdale, Ontario M2LIN6 same
</TABLE>
c. The date initially adopted on which the corporation's fiscal
year ends is:
January 31 of each year.
d. The date initially fixed in the by-laws for the annual meeting
of stockholders of the corporation is:
Third Monday in April of each year.
e. The name and business address or the resident agent, if any, of
the corporation is:
C.T. Corporation System
2 Oliver Street
Boston, Massachusetts 02109
IN WITNESS WHEREOF and under the penalties of perjury the INCORPORATOR(S)
sign(s) these Articles of Organization this 27th day of March 1984.
KEVIN M. CAROME
--------------------------------------
Kevin M. Carome, sole incorporator
The signature of each incorporator which is not a natural person must be an
individual who shall show the capacity in which he acts and by signing shall
represent under the penalties of prejury that he is duly authorized on its
behalf to sign these Articles of Organization.
<PAGE>
[STAMP ILLEGIBLE]
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
GENERAL LAWS, CHAPTER 156B, SECTION 12
=======================================
I hereby certify that, upon an examination of the within-written
articles of organization, duly submitted to me, it appears that the provisions
of the General Laws relative to the organization of corporations have been
complied with, and I hereby approve said articles; and the filing fee in the
amount of $150.00 having been paid, said articles are deemed to have been filed
with me this 28th day of March 1984.
Effective date
MICHAEL JOSEPH CONNOLLY
----------------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
PHOTO COPY OF ARTICLES OF ORGANIZATION TO BE SENT
TO BE FILLED IN BY CORPORATION
TO:
Kevin M. Carome
c/o Ropes & Gray
225 Franklin Street
Boston, Massachusetts 02110
Telephone: (617) 423-6100
FILING FEE 1/20 of 1% of the total amount of the authorized capital stock with
par value, and one cent a share for all authorized shares without par value, but
not less than $125. General Laws, Chapter 156B Shares of stock with a par value
less than one dollar shall be deemed to have par value of one dollar per share.
A TRUE COPY ATTEST
WILLIAM FRANCIS GALVIN
----------------------------------
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
Date 11/16/99 Clerk [illegible]
Copy Mailed
<PAGE>
EXHIBIT 3.34
BY LAWS
of
ELECTRONIC INTERCONNECT SYSTEMS, INC.
Section 1. ARTICLES OF ORGANIZATION
The name and purposes of the corporation shall be as set forth in the
articles of organization. These bylaws, the powers of the corporation and of its
directors and stockholders, or of any class of stockholders if there shall be
more than one class of stock, and all matters concerning the conduct and
regulation of the business and affairs of the corporation shall be subject to
such provisions in regard thereto, if any, as are set forth in the articles of
organization as from time to time in effect.
Section 2. STOCKHOLDERS
2.1. Annual Meeting. The annual meeting of the stockholders shall be
held at 10:00 A.M. on the third Monday in April in each year, unless a different
hour is fixed by the president or the directors. If that day be a legal holiday
at the place where the meeting is to be held, the meeting shall be held on the
next succeeding day not a legal holiday at such place. Purposes for which an
annual meeting is to be held, additional to those prescribed by law, by the
articles of organization or by these bylaws, may be specified by the president
or by the directors.
2.2. Special Meeting in Place of Annual Meeting. If no annual meeting
has been held in accordance with the foregoing provisions, a special meeting of
the stockholders may be held in place thereof, and any action taken at such
special meeting shall have the same force and effect as if taken at the annual
meeting, and in such case all references in these bylaws to the annual meeting
of the stockholders shall be deemed to refer to such special meeting. Any such
special meeting shall be called as provided in Section 2.3.
2.3. Special Meetings. A special meeting of the stockholders may be
called at any time by the president or by the directors. Each call of a meeting
shall state the place, date, hour and purposes of the meeting.
<PAGE>
2.4. Place of Meetings. All meetings of the stockholders shall be held
at the principal office of the corporation in Massachusetts or, to the extent
permitted by the articles of organization, at such other place within the United
States as shall be fixed by the president or the directors. Any adjourned
session of any meeting of the stockholders shall be held at the same city or
town as the session, or within Massachusetts, in either case at the place
designated in the vote of adjournment.
2.5. Notice of Meetings. A written notice of each meeting of
stockholders, stating the place, date and hour and the purposes of the meeting,
shall be given at least seven days before the meeting to each stockholder
entitled to vote thereat and to each stockholder who, by law, by the articles of
organization or by these bylaws, is entitled to notice, by leaving such notice
with him or at his residence or usual place of business, or by mailing it,
postage prepaid, addressed to such stockholder at his address as it appears in
the records of the corporation. Such notice shall be given by the clerk or an
assistant clerk or by an officer designated by the directors. Whenever notice of
a meeting is required to be given to a stockholder under any provision of the
Business Corporation Law of the Commonwealth of Massachusetts or of the articles
of organization or these bylaws, a written waiver thereof, executed before or
after the meeting by such stockholder or his attorney thereunto authorized and
filed with the records of the meeting, shall be deemed equivalent to such
notice.
2.6. Quorum of Stockholders. At any meeting of the stockholders, a
quorum shall consist of a majority in interest of all stock issued and
outstanding and entitled to vote at the meeting, except when a larger quorum is
required by law, by the articles of organization or by these bylaws. Stock owned
directly or indirectly by the corporation, if any, shall not be deemed
outstanding for this purpose. Any meeting may be adjourned from time to time by
a majority of the votes properly cast upon the question, whether or not a quorum
is present, and the meeting may be held as adjourned without further notice.
2.7. Action by Vote. When a quorum is present at any meeting, a
plurality of the votes properly cast for election to any office shall elect to
such office, and a majority of the votes properly cast upon any question other
than an election to an office shall decide the question, except when a larger
vote is required by law, by the articles of organization or by these bylaws. No
ballot shall be required for any election unless requested by a stockholder
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<PAGE>
present or represented at the meeting and entitled to vote in the
election.
2.8. Voting. Stockholders entitled to vote shall have one vote for each
share of stock entitled to vote held by them of record according to the records
of the corporation, unless otherwise provided by the articles of organization.
The corporation shall not, directly or indirectly, vote any share of its own
stock.
2.9. Action by Writing. Any action required or permitted to be taken at
any meeting of the stockholders may be taken without a meeting if all
stockholders entitled to vote on the matter consent to the action in writing and
the written consents are filed with the records of the meetings of stockholders.
Such consents shall be treated for all purposes as a vote at a meeting.
2.10. Proxies. To the extent permitted by law, stockholders entitled to
vote may vote either in person or by proxy. No proxy dated more than six months
before the meeting named therein shall be valid. Unless otherwise specifically
limited by their terms, such proxies shall entitle the holders thereof to vote
at any adjournment of such meeting but shall not be valid after the final
adjournment of such meeting.
Section 3. BOARD OF DIRECTORS
3.1. Number. At the annual meeting of stockholders such stockholders as
have the right to vote for the election of directors shall fix the number of
directors at not less than three nor more than five directors and shall elect
the number of directors so fixed; provided, however, that the number of
directors shall be fixed at not less than two whenever there shall be only two
stockholders and not less than one whenever there shall be only one stockholder.
The number of directors may be increased at any time or from time to time either
by the stockholders or by the directors by vote of a majority of the directors
then in office. The number of directors may be decreased to any number permitted
by law at any time or from time to time either by the stockholders or by the
directors by a vote of a majority of the directors then in office, but only to
eliminate vacancies existing by reason of the death, resignation, removal or
disqualification of one or more directors. No director need be a stockholder.
3.2. Tenure. Except as otherwise provided by law, by the
articles of organization or by these bylaws, each director shall
hold office until the next annual meeting of
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the stockholders and until his successor is duly elected and qualified, or until
he sooner dies, resigns, is removed or becomes disqualified.
3.3. Powers. Except as reserved to the stockholders by law, by the
articles of organization or by these bylaws, the business of the corporation
shall be managed by the directors who shall have and may exercise all the powers
of the corporation. In particular, and without limiting the generality of the
foregoing, the directors may at any time issue all or from time to time any part
of the unissued capital stock of the corporation from time to time authorized
under the articles of organization and may determine, subject to any
requirements of law, the consideration for which stock is to be issued and the
manner of allocating such consideration between capital and surplus.
3.4. Committees. The directors may, by vote of a majority of the
directors then in office, elect from their number an executive committee and
other committees and delegate to any such committee or committees some or all of
the powers of the directors except those which by law, by the articles of
organization or by these bylaws they are prohibited from delegating. Except as
the directors may otherwise determine, any such committee may make rules for the
conduct of its business, but unless otherwise provided by the directors or such
rules, its business shall be conducted as nearly as may be in the same manner as
is provided by these bylaws for the conduct of business by the directors.
3.5. Regular Meetings. Regular meetings of the directors may be held
without call or notice at such places and at such times as the directors may
from time to time determine, provided that reasonable notice of the first
regular meeting following any such determination shall be given to absent
directors. A regular meeting of the directors may be held without call or notice
immediately after and at the same place as the annual meeting of the
stockholders.
3.6. Special Meetings. Special meetings of the directors may be held at
any time and at any place designated in the call of the meeting, when called by
the chairman of the board, if any, the president or the treasurer or by two or
more directors, reasonable notice thereof being given to each director by the
secretary or an assistant secretary, or, if there be none by the clerk or an
assistant clerk, or by the officer or one of the directors calling the meeting.
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<PAGE>
3.7. Notice. It shall be sufficient notice to a director to send notice
by mail at least forty-eight hours or by telegram at least twenty-four hours
before the meeting addressed to him at his usual or last known business or
residence address or to give notice to him in person or by telephone at least
twenty-four hours before the meeting. Notice of a meeting need not be given to
any director if a written waiver of notice, executed by him before or after the
meeting, is filed with the records of the meeting, or to any director who
attends the meeting without protesting prior thereto or at its commencement the
lack of notice to him. Neither notice of a meeting nor a waiver of a notice need
specify the purposes of the meeting.
3.8. Quorum. At any meeting of the directors a majority of the
directors then in office shall constitute a quorum. Any meeting may be adjourned
from time to time by a majority of the votes cast upon the question, whether or
not a quorum is present, and the meeting may be held as adjourned without
further notice.
3.9. Action by Vote. When a quorum is present at any meeting, a
majority of the directors present may take any action, except when a larger vote
is required by law, by the articles of organization or by these bylaws.
3.10. Action by Writing. Unless the articles of organization otherwise
provide, any action required or permitted to be taken at any meeting of the
directors may be taken without a meeting if all the directors consent to the
action in writing and the written consents are filed with the records of the
meetings of the directors. Such consents shall be treated for all purposes as a
vote taken at a meeting.
3.11. Presence Through Communications Equipment. Unless otherwise
provided by law or the articles of organization, members of the board of
directors may participate in a meeting of such board by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting.
Section 4. OFFICERS AND AGENTS
4.1. Enumeration; Qualification. The officers of the corporation shall
be a president, a treasurer, a clerk, and such other officers, if any, as the
incorporators at their initial meeting, or the directors from time to time, may
in their discretion elect or appoint. The corporation may also
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<PAGE>
have such agents, if any, as the incorporators at their initial meeting, or the
directors from time to time, may in their discretion appoint. Any officer may be
but none need be a director or stockholder. The clerk shall be a resident of
Massachusetts unless the corporation has a resident agent appointed for the
purpose of service of process. Any two or more offices may be held by the same
person. Any officer may be required by the directors to give bond for the
faithful performance of his duties to the corporation in such amount and with
such sureties as the directors may determine.
4.2. Powers. Subject to law, to the articles of organization and to the
other provisions of these bylaws, each officer shall have, in addition to the
duties and powers herein set forth, such duties and powers as are commonly
incident to his office and such duties and powers as the directors may from time
to time designate.
4.3. Election. The president, the treasurer and the clerk shall be
elected annually by the directors at their first meeting following the annual
meeting of the stockholders. Other officers, if any, may be elected or appointed
by the board of directors at said meeting or at any other time.
4.4. Tenure. Except as otherwise provided by law or by the articles of
organization or by these bylaws, the president, the treasurer and the clerk
shall hold office until the first meeting of the directors following the next
annual meeting of the stockholders and until their respective successors are
chosen and qualified, and each other officer shall hold office until the first
meeting of the directors following the next annual meeting of the stockholders
unless a shorter period shall have been specified by the terms of his election
or appointment, or in each case until he sooner dies, resigns, is removed or
becomes disqualified. Each agent shall retain his authority at the pleasure of
the directors.
4.5. Chief Executive Officer. The chief executive officer of the
corporation shall be the chairman of the board, if any, the president or such
other officer as is designated by the directors and shall, subject to the
control of the directors, have general charge and supervision of the business of
the corporation and, except as the directors shall otherwise determine, preside
at all meetings of the stockholders and of the directors. If no such designation
is made, the president shall be the chief executive officer.
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<PAGE>
4.6. Chairman of the Board. If a chairman of the board of directors is
elected, he shall have the duties and powers specified in these bylaws and shall
have such other duties and powers as may be determined by the directors.
4.7. President and Vice Presidents. The president shall have the duties
and powers specified in these bylaws and shall have such other duties and powers
as may be determined by the directors.
Any vice presidents shall have such duties and powers as shall be
designated from time to time by the directors.
4.8. Treasurer and Assistant Treasurers. Except as the directors shall
otherwise determine, the treasurer shall be the chief financial and accounting
officer of the corporation and shall be in charge of its funds and valuable
papers, books of account and accounting records, and shall have such other
duties and powers as may be designated from time to time by the directors.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the directors.
4.9. Clerk and Assistant Clerks. The clerk shall record all proceedings
of the stockholders in a book or series of books to be kept therefor, which book
or books shall be kept at the principal office of the corporation or at the
office of its transfer agent or of its clerk and shall be open at all reasonable
times to the inspection of any stockholder. In the absence of the clerk from any
meeting of stockholders, an assistant clerk, or if there be none or he is
absent, a temporary clerk chosen at the meeting, shall record the proceedings
thereof in the aforesaid book. Unless a transfer agent has been appointed the
clerk shall keep or cause to be kept the stock and transfer records of the
corporation, which shall contain the names and record addresses of all
stockholders and the amount of stock held by each. If no secretary is elected,
the clerk shall keep a true record of the proceedings of all meetings of the
directors and in his absence from any such meeting an assistant clerk, or if
there be none or he is absent, a temporary clerk chosen at the meeting, shall
record the proceedings thereof.
Any assistant clerks shall have such other duties and powers as shall
be designated from time to time by the directors.
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<PAGE>
4.10. Secretary and Assistant Secretaries. If a secretary is elected,
he shall keep a true record of the proceedings of all meetings of the directors
and in his absence from any such meeting an assistant secretary, or if there be
none or he is absent, a temporary secretary chosen at the meeting, shall record
the proceedings thereof.
Any assistant secretaries shall have such other duties and powers as
shall be designated from time to time by the directors.
Section 5. RESIGNATIONS AND REMOVALS
Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board, if any, the president, the
treasurer or the clerk or to a meeting of the directors. Such resignation shall
be effective upon receipt unless specified to be effective at some other time. A
director (including persons elected by directors to fill vacancies in the board)
may be removed from office (a) with or without cause by the vote of the holders
of a majority of the shares issued and outstanding and entitled to vote in the
election of directors, provided that the directors of a class elected by a
particular class of stockholders may be removed only by the vote of the holders
of a majority of the shares of such class, or (b) with cause by the vote of a
majority of the directors then in office. The directors may remove any officer
elected by them with or without cause by the vote of a majority of the directors
then in office. A director or officer may be removed for cause only after
reasonable notice and opportunity to be heard before the body proposing to
remove him. No director or officer resigning, and (except where a right to
receive compensation shall be expressly provided in a duly authorized written
agreement with the corporation) no director or officer removed, shall have any
right to any compensation as such director or officer for any period following
his resignation or removal, or any right to damages on account of such removal,
whether his compensation be by the month or by the year or otherwise; unless in
the case of a resignation, the directors, or in the case of a removal, the body
acting on the removal, shall in their or its discretion provide for
compensation.
Section 6. VACANCIES
Any vacancy in the board of directors, including a vacancy resulting
from the enlargement of the board, may be filled by the stockholders or, in the
absence of stockholder action, by the directors by vote of a majority of the
directors then in office. If the office of the president or
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<PAGE>
the treasurer or the clerk becomes vacant, the directors may elect a successor.
If the office of any other officer becomes vacant, the directors may elect or
appoint a successor by vote of a majority of the directors present. Each such
successor shall hold office for the unexpired term, and in the case of the
president, the treasurer and the clerk, until his successor is chosen and
qualified, or in each case until he sooner dies, resigns, is removed or becomes
disqualified. The directors shall have and may exercise all their powers
notwithstanding the existence of one or more vacancies in their number.
Section 7. CAPITAL STOCK
7.1. Number and Par Value. The total number of shares and the par
value, if any, of each class of stock which the corporation is authorized to
issue shall be as stated in the articles of organization.
7.2. Stock Certificates. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
be prescribed from time to time by the directors. Such certificate shall be
signed by the president or a vice president and by the treasurer or an assistant
treasurer. Such signatures may be facsimiles if the certificate is signed by a
transfer agent, or by a registrar, other than a director, officer or employee of
the corporation. In case any officer who has signed or whose facsimile signature
has been placed on such certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer at the time of its issue.
7.3. Loss of Certificates. In the case of the alleged loss or
destruction or the mutilation of a certificate of stock, a duplicate certificate
may be issued in place thereof, upon such conditions as the directors may
prescribe.
Section 8. TRANSFER OF SHARES OF STOCK
8.1. Transfer on Books. Subject to the restrictions, if any, stated or
noted on the stock certificates, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent of
the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
directors
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<PAGE>
or the transfer agent of the corporation may reasonably require. Except as may
be otherwise required by law, by the articles of organization or by these
bylaws, the corporation shall be entitled to treat the record holder of stock as
shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to receive notice and to vote with respect
thereto, regardless of any transfer, pledge or other disposition of such stock
until the shares have been transferred on the books of the corporation in
accordance with the requirements of these bylaws.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
8.2. Record Date and Closing Transfer Books. The directors may fix in
advance a time, which shall not be more than sixty days before the date of any
meeting of stockholders or the date for the payment of any dividend or making of
any distribution to stockholders or the last day on which the consent or dissent
of stockholders may be effectively expressed for any purpose, as the record date
for determining the stockholders having the right to notice of and to vote at
such meeting and any adjournment thereof or the right to receive such dividend
or distribution or the right to give such consent or dissent, and in such case
only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the corporation after the
record date; or without fixing such record date the directors may for any of
such purposes close the transfer books for all or any part of such period. If no
record date is fixed and the transfer books are not closed:
(1) The record date for determining stockholders having the right to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the date next preceding the day on which notice is given.
(2) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
acts with respect thereto.
Section 9. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the extent legally permissible, indemnify
each of its directors and officers (including persons who serve at its request
as directors, officers or trustees of another organization in which it has any
interest, as a shareholder, creditor or otherwise)
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<PAGE>
against all liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees, reasonably
incurred by him in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, in which he may be involved
or with which he may be threatened, while in office or thereafter, by reason of
his being or having been such a director or officer, except with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interests of the corporation; provided, however, that as to any matter disposed
of by a compromise payment by such director or officer, pursuant to a consent
decree or otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless such compromise shall be approved as in the
best interests of the corporation, after notice that it involves such
indemnification: (a) by a disinterested majority of the directors then in
office; or (b) by a majority of the disinterested directors then in office,
provided that there has been obtained an opinion in writing of independent legal
counsel to the effect that such director or officer appears to have acted in
good faith in the reasonable belief that his action was in the best interests of
the corporation; or (c) by the holders of a majority of the outstanding stock at
the time entitled to vote for directors, voting as a single class, exclusive of
any stock owned by any interested director or officer. Expenses, including
counsel fees, reasonably incurred by any director or officer in connection with
the defense or disposition of any such action, suit or other proceeding may be
paid from time to time by the corporation in advance of the final disposition
thereof upon receipt of an undertaking by such director or officer to repay the
amounts so paid to the corporation if it is ultimately determined that
indemnification for such expenses is not authorized under this section. The
right of indemnification hereby provided shall not be exclusive of or affect any
other rights to which any director or officer may be entitled. As used in this
section, the terms "director" and "officer" include their respective heirs,
executors and administrators, and an "interested" director or officer is one
against whom in such capacity the proceedings in question or another proceeding
on the same or similar grounds is then pending. Nothing contained in this
section shall affect any rights to indemnification to which corporate personnel
other than directors and officers may be entitled by contract or otherwise under
law.
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Section 10. CORPORATE SEAL
The seal of the corporation shall, subject to alteration by the
directors, consist of a flat-faced circular die with the word "Massachusetts",
together with the name of the corporation and the year of its organization, cut
or engraved thereon.
Section 11. EXECUTION OF PAPERS
Except as the directors may generally or in particular cases authorize
the execution thereof in some other manner, all deeds, leases, transfers,
contracts, bonds, notes, checks, drafts and other obligations made, accepted or
endorsed by the corporation shall be signed by the president or by one of the
vice presidents or by the treasurer.
Section 12. FISCAL YEAR
The fiscal year of the corporation shall end on December 31.
Section 13. AMENDMENTS
These bylaws may be altered, amended or repealed at any annual or
special meeting of the stockholders called for the purpose, of which the notice
shall specify the subject matter of the proposed alteration, amendment or repeal
or the sections to be affected thereby, by vote of the stockholders. These
bylaws may also be altered, amended or repealed by vote of a majority of the
directors then in office, except that the directors shall not take any action
which provides for indemnification of directors nor any action to amend this
Section 13, and except that the directors shall not take any action unless
permitted by law.
Any bylaw so altered, amended or repealed by the directors may be
further altered or amended or reinstated by the stockholders in the above
manner.
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<PAGE>
ELECTRONIC INTERCONNECT SYSTEMS, INC.
-------------------------------------
Action by Written Consent of Directors
in Lieu of Special Meeting of Directors
---------------------------------------
Adopted: April 4, 1986
The undersigned, being all the Directors of Electronic Interconnect
Systems, Inc., hereby consent to the following actions and adopt the following
votes in lieu of a special meeting of directors.
Amendments to By-Laws
- ---------------------
VOTED: That Section 10 of the By-Laws of the Corporation
entitled "Corporate Seal" be deleted and the following
substituted therefor:
"The seal of the Corporation shall, subject to alteration by
the directors, consist of a flat-faced circular die with the
name of the Corporation cut or engraved thereon."
VOTED: That Section 11 of the By-Laws of the Corporation
entitled "Execution of Papers" be deleted and the
following substituted therefor:
"Except as the directors may generally or in particular cases
authorize the execution thereof in some other manner, all
deeds, leases, transfers, contracts, bonds, notes, checks,
drafts and other obligations made, accepted or endorsed by the
Corporation shall be signed by any two together of the
directors or officers of the Corporation."
VOTED: That Section 12 of the By-Laws of the Corporation
entitled "Fiscal Year" be deleted and the following
substituted therefor:
"The fiscal year of the Corporation shall end on
January 31st."
<PAGE>
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This writing shall be filed with the records of the meetings of the
Directors of this Corporation and shall be treated for all purposes as votes
taken at a meeting.
Frederick G. Berlet
-------------------------
Frederick G. Berlet
James D. Fleck
-------------------------
James D. Fleck
Daniel C. Mucci
-------------------------
Daniel C. Mucci
<PAGE>
EXHIBIT 3.35
CERTIFICATE OF INCORPORATION
OF
Defiance Kinematics Inc.
* * * * *
1. The name of the corporation is Defiance Kinematics Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal
in and deal with goods, wares and merchandise and personal property of every
class and description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating to
or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital stock,
or any voting trust certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private, or by the
government of the United States of America or by any foreign government or by
any state, territory, province, municipality or other political subdivision or
by any governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
To borrow or raise money for any of the purposes of the corporation
and, from time to time without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes,
(DEL. - 42 -9/25/96) -1-
<PAGE>
drafts, bills of exchange, warrants, bonds, debentures and other negotiable or
non-negotiable instruments and evidences of indebtedness, and to secure the
payment of any thereof and of the interest thereon by mortgage upon or pledge,
conveyance or assignment in trust of the whole or any part of the property of
the corporation, whether at the time owned or thereafter acquired, and to sell,
pledge or otherwise dispose of such bonds or other obligations of the
corporation for its corporate purposes.
To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, or any interest therein,
wherever situated, and to sell, convey, lease, exchange, transfer or otherwise
dispose of, or mortgage or pledge, all or any of the corporation's property and
assets, or any interest therein, wherever situated.
In general, to possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or by any other law of
Delaware or by this Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business or purposes
of the corporation.
The business and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in this
Certificate of Incorporation, but the business and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent business
and purposes.
4. The total number of shares of stock which the corporation shall have
authority to issue is: One Hundred(100); all of such shares shall be without par
value.
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
M.C. Kinnamon 1209 Orange Street, Wilmington, DE 19801
The name and mailing address of each person who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
NAME MAILING ADDRESS
---- ---------------
John L. Healy 45 William Street, Suite 300, Wellesley, MA 02481
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
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<PAGE>
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
To designate one or more committees, each committee to consist of one
or more of the directors of the corporation. 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. The by-laws may provide
that 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 of directors 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 of directors or in the by-laws of the corporation, shall
have and may exercise all the powers and authority of the board of directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers 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 Delaware General
Corporation Law to be submitted to stockholders for approval or (ii) adopting,
amending or repealing any by-law of the corporation.
When and as authorized by the stockholders in accordance with law, to
sell, lease or exchange all or substantially all of the property and assets of
the corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole or
in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its board of directors
shall deem expedient and for the best interests of the corporation.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application or trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or
(DEL. - 42 -9/25/96) -3-
<PAGE>
class of stockholders of this corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
9. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
10. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this Certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this Twenty-Eighth
day of June, 1999.
M.C. Kinnamon
---------------------------
M.C. Kinnamon
(DEL. - 42 -9/25/96) -4-
<PAGE>
EXHIBIT 3.36
CERTIFICATE OF INCORPORATION
OF
HN INVESTMENT HOLDINGS INC.
* * * * *
1. The name of the corporation is HN Investment Holdings Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is One Thousand (1,000) and the par value of each of such
shares is One Dollar and No Cents ($1.00) amounting in the aggregate to One
Thousand Dollars and No Cents ($1,000.00).
5. The board of directors is authorized to make, alter or repeal the
by-laws of the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the sole incorporator is:
E. L. Kinsler
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
8. The corporation shall indemnify its officers, directors, employees
and agents to the extent permitted by the General Corporation Law of Delaware.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 27th day of August, 1998.
E. L. Kinsler
---------------------------
Sole Incorporator
E. L. Kinsler
<PAGE>
EXHIBIT 3.37
HN INVESTMENT HOLDINGS INC.
(A Delaware Corporation)
BY-LAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
STOCKHOLDERS
Page
----
<S> <C> <C>
Section 1. Annual Meetings .............................................................. 1
Section 2. Special Meetings ............................................................. 1
Section 3. Notice of Meetings; Waiver ................................................... 2
Section 4. Quorum ....................................................................... 2
Section 5. Voting........................................................................ 3
Section 6. Voting by Ballot ............................................................. 3
Section 7. Adjournment .................................................................. 3
Section 8. Proxies ...................................................................... 3
Section 9. Organization; Procedure ...................................................... 4
Section 10. Inspectors of Election ...................................................... 4
Section 11. Consent of Stockholders in Lieu
of Meeting ................................................................. 5
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers ............................................................... 5
Section 2. Number ....................................................................... 5
Section 3. Election and Term of Directors ............................................... 5
Section 4. Regular Meetings ............................................................. 6
Section 5. Special Meetings; Notice ..................................................... 6
Section 6. Quorum; Voting................................................................ 6
Section 7. Adjournment .................................................................. 7
Section 8. Action without a Meeting ................................................... 7
Section 9. Regulations; Manner of Acting ................................................ 7
Section 10. Action by Telephonic Communications .......................................... 7
Section 11. Resignations ................................................................. 7
Section 12. Removal of Directors ......................................................... 8
Section 13. Vacancies and Newly Created
Directorships .............................................................. 8
Section 14. Compensation.................................................................. 8
Section 15. Reliance on Accounts and Reports, etc ........................................ 8
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Page
----
<S> <C> <C>
Section 1. How Constituted ............................................................. 9
Section 2. Powers ...................................................................... 9
Section 3. Proceedings .................................................................10
Section 4. Quorum and Manner of Acting .................................................10
Section 5. Resignations ................................................................10
Section 6. Removal .....................................................................10
Section 7. Vacancies ...................................................................10
ARTICLE IV
OFFICERS
Section 1. Number ......................................................................11
Section 2. Election ....................................................................11
Section 3. Salaries ...................................................................11
Section 4. Removal and Resignation, Vacancies ..........................................11
Section 5. Authority and Duties of Officers.............................................11
Section 6. The Chairman ................................................................12
Section 7. The President ...............................................................12
Section 8. The Vice Presidents .........................................................12
Section 9. The Secretary ...............................................................12
Section 10. The Treasurer................................................................14
Section 11. Additional officers .........................................................15
Section 12. Security ....................................................................15
ARTICLE V
CAPITAL STOCK
Section 1. Certificates of Stock .......................................................15
Section 2. Partly Paid Shares ..........................................................15
Section 3. Facsimile Signatures, etc ...................................................16
Section 4. Lost, Stolen or Destroyed Certificates ......................................16
Section 5. Transfers of Stock ..........................................................16
Section 6. Record Date .................................................................16
Section 7. Registered Stockholders .....................................................17
Section 8. Transfer Agent and Registrar ................................................17
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VI
INDEMNIFICATION
Page
----
<S> <C> <C>
Section 1. Indemnification of Directors,
Officers, etc. ............................................................ 17
ARTICLE VII
OFFICES
Section 1. Registered Office ........................................................... 18
Section 2. Other Offices ............................................................... 18
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends ................................................................... 18
Section 2. Reserves .................................................................... 19
Section 3. Execution of Instruments .................................................... 19
Section 4. Deposits .................................................................... 19
Section 5. Checks, Drafts, etc. ........................................................ 19
Section 6. Sale, Transfer, etc., of Securities ......................................... 19
Section 7. Voting as Stockholder ....................................................... 19
Section 8. Fiscal Year ................................................................. 20
Section 9. Seal ........................................................................ 20
Section 10. Books and Records; Inspection ............................................... 20
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 1. Amendment ................................................................... 20
ARTICLE X
INAPPLICABILITY OF SECTION 203
Section 1. Delaware General Corporation Law
Section 203 .............................................................. 20
</TABLE>
(iii)
<PAGE>
HN INVESTMENT HOLDINGS INC.
B Y - L A W S
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meetings. The annual meeting of the stockholders of
the Corporation for the election of Directors and the transaction of such other
business as may properly come before such meeting shall be held on the date and
at the time fixed, from time to time, by the directors, provided, that, the
first annual meeting shall be held on a date within thirteen months after the
organization of the Corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the proceeding annual
meeting. [Sections 211(a), (b)]*
Section 2. Special Meetings. Special meetings of the stockholders may
be called at any time by the Chairman or the President (or, in their absence or
disability, by any Vice President), or by the Board of Directors. A special
meeting shall be called by the Chairman or the President (or, in their absence
or disability, by any Vice President), or by the Secretary, immediately upon
receipt of a written request by stockholders holding in the aggregate not less
than 10% of the outstanding shares of the Corporation at the time entitled to
vote at any meeting of the stockholders. If such officers shall fail to call
such meeting within 20 days after receipt of such request, any stockholder
executing such request may call such meeting. Special meetings of the
stockholders shall be held at such places, within or without the State of
Delaware, as shall be specified in the respective notices or waivers of notice
thereof. [Section 211(d)]
- --------------------
* Citations are to the General Corporation Law of Delaware and are inserted for
reference only and do not constitute a part of the By-Laws.
<PAGE>
Section 3. Notice of Meetings; Waiver. The Secretary or any Assistant
Secretary shall cause written notice of the place, date and hour of each meeting
of the stockholders, and, in the case of a special meeting, the purpose or
purposes for which such meeting is called, to be given personally or by mail,
not less than ten nor more than sixty days before the date of such meeting, to
each stockholder of record entitled to vote at such meeting. Such further notice
shall be given as may be required by law.
If such notice is mailed, it shall be deemed to have been given to a
stockholder when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address as it appears on the record of stockholders of
the Corporation, or, if he shall have filed with the Secretary of the
Corporation a written request that notices to him be mailed to some other
address, then directed to him at such other address.
No notice of any meeting of stockholders need be given to any
stockholder who submits a signed waiver of notice, whether before or after such
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice. The attendance of any stockholder at a meeting of stockholders
shall constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
Except as set forth in Article 1, Section 7 of these By-Laws, notice of
any adjourned meeting of the stockholders of the Corporation need not be given.
[Sections 222, 229]
Section 4. Quorum. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares of stock entitled to vote at any meeting
shall constitute a quorum for the transaction of business at such meeting. When
a quorum is once present to organize a meeting, it is not broken by the
subsequent withdrawal of any stockholders.
Section 5. Voting. Every holder of record of shares entitled to vote at
a meeting of stockholders shall be entitled to one vote for each share standing
in his name on the books of the Corporation on the record date fixed pursuant to
Article 5, Section 6 of these By-Laws. Except as otherwise required by law or by
the Certificate of Incorporation, the vote of a majority of the shares
represented
<PAGE>
at any meeting of which a quorum is present shall be sufficient for the
transaction of any business at such meeting. [Section 216]
Section 6. Voting by Ballot. No vote of the stockholders need be taken
by written ballot, unless otherwise required by statute. Any vote which need not
be taken by ballot may be conducted in any manner approved by the meeting.
Section 7. Adjournment. If a quorum is not present at any meeting of
the stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present,
without notice other than announcement at any such meeting of the place, date
and hour to which such meeting is adjourned. However, if the adjournment is for
more than thirty days, or if after the adjournment the Board of Directors fixes
a new record date for the adjourned meeting pursuant to Article 5, Section 6 of
these By-Laws, a notice of the adjourned meeting, conforming to the requirements
of Article 1, Section 3 hereof, shall be given to each stockholder of record
entitled to vote at such meeting. At any adjourned meeting at which a quorum is
present, any business may be transacted that might have been transacted on the
original date of the meeting. [Section 222(c)]
Section 8. Proxies. Any stockholder entitled to vote at any meeting of
the stockholders or to express consent to or dissent from corporate action
without a meeting may, by a written instrument signed by such stockholder or his
attorney-in-fact, authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy shall
be revocable at the pleasure of the stockholder executing it, except in those
cases where applicable law provides that a proxy shall be irrevocable. [Section
212(b), (c)]
Section 9. Organization; Procedure. At every meeting of stockholders
the presiding officer shall be the Chairman or in his absence the President, or
in their absence a Vice President designated by the Board of Directors, or in
the absence of such officers, a presiding officer chosen by a majority of the
stockholders present in person or by proxy. The Secretary or, in his absence, an
Assistant Secretary or, in his absence, an appointee of the presiding officer
shall act as Secretary of the meeting. The order of business and all other
matters of procedure at every meeting of stockholders may be determined by such
presiding officer.
<PAGE>
Section 10. Inspectors of Election. In advance of any meeting of
stockholders, the Board of Directors may appoint one or more Inspectors to act
at such meeting or any adjournment thereof. If Inspectors are not so appointed,
the person presiding at such meeting may, and on the request of any stockholder
entitled to vote at such meeting shall, appoint one or more Inspectors. In the
event any person so appointed fails to appear or act, such vacancy may be filled
by the Board in advance of such meeting or at such meeting by the person
presiding thereat. Each Inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
Inspector at such meeting with strict impartiality and according to the best of
his ability. At any meeting of stockholders for which Inspectors shall have been
appointed, such Inspectors 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 validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all shareholders. On request of the person
presiding at the meeting or any stockholder entitled to vote thereat, the
Inspectors shall make a report in writing of any challenge, 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 and of the vote as certified by them.
Section 11. Consent of Stockholders in Lieu of Meeting. Whenever the
vote of stockholders at a meeting thereof is required or permitted to be taken
for or in connection with any corporate action, by law, by the Certificate of
Incorporation or by these By-Laws, the meeting and vote of stockholders may be
dispensed with if the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
upon shall consent in writing to such corporate action being taken and such
written consent(s) shall be delivered to the Corporation at its registered
office in Delaware, its principal place of business or to an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be effective if made by hand or by certified or registered mail, return
receipt requested. [Section 228]
<PAGE>
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. Except as may be provided by law, by the
Certificate of Incorporation or by these By-Laws, the property, affairs and
business of the Corporation shall be managed by the Board of Directors and the
Board may exercise all powers of the Corporation. [Section 141(a)]
Section 2. Number. The Board of Directors shall consist of two
Directors or such other number of Directors as may be determined from time to
time by the Board. In no event, however, shall the number of Directors be less
than one or greater than twelve. [section 141(b)]
Section 3. Election and Term of Directors. Except as otherwise provided
in Article 2, Section 12 of these By-Laws, the Directors shall be elected at
each annual meeting of the stockholders to hold office until the next annual
meeting of stockholders. Each Director shall hold office until the expiration of
the term for which he is elected and until his successor has been elected and
has qualified, or until his earlier death, resignation or removal. If the annual
meeting for the election of Directors is not held on the date designated
therefor, the Directors shall cause the meeting to be held as soon thereafter as
convenient. At each meeting of the stockholders for the election of Directors,
at which a quorum is present, the Directors shall be elected by a plurality of
votes cast by the holders of shares entitled to vote in such election. [Sections
141(b), 211(b), 216]
Section 4. Regular Meetings. The Board of Directors shall meet for the
purpose of electing officers and for the transaction of such other business as
may come before the meeting, immediately following adjournment of the annual
meeting of stockholders at the place of such annual meeting. Notice of such
meeting of the Board need not be given. The Board from time to time may provide
for the holding of other regular meetings and fix the place (which may be within
or without the State of Delaware) and the date and hour of such meetings. Notice
of such regular meetings need not be given, except that if the Board shall fix
or change the time or place of any such regular meetings, notice of such action
shall be mailed promptly, or sent by telegram, radio or cable, to each Director
who shall not have been present at the meeting at which such action was taken,
addressed to him at his usual place of business or
<PAGE>
delivered to him personally. Notice of such action need not be given to any
Director who attends the first regular meeting after such action is taken
without protesting the lack of notice to him, prior to or at the commencement of
such meeting, or to any Director who submits a signed waiver of notice, whether
before or after such meeting. [Section 141(g)]
Section 5. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman or the President or, in
their absence or disability, by any Vice President, at such place (within or
without the State of Delaware) as may be specified in the respective notices or
waivers of notice of such meetings. At least two days before the day on which a
special meeting is to be held, notice of the meeting stating the time and place
thereof shall be mailed, or sent by telegram, radio or cable to each Director,
addressed to him at his usual place of business, or delivered to him personally.
Notice of any special meeting need not be given to any Director who attends such
meeting without protesting the lack of notice to him, prior to or at the
commencement of such meeting, or to any Director who submits a signed waiver of
notice, whether before or after such meeting, and any business may be transacted
thereat. No notice need be given of any adjourned meeting, unless the time and
place of the adjourned meeting are not announced at the time of adjournment, in
which case notice conforming to the requirements of this section shall be given
to each Director. [Section 141(g)]
Section 6. Quorum; Voting. At all meetings of the Board of Directors
the presence of a majority of the total number of Directors (but in no event
less than one-third of the total number of Directors) shall constitute a quorum
for the transaction of business. Except as otherwise required by law, the vote
of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors. [Section 141(b)]
Section 7. Adjournment. A majority of the Directors present, whether or
not a quorum is present, may adjourn any meeting to another time and place.
Notice of the adjourned meeting shall be given to the extent required by Article
2, Section 5 of these By-Laws.
Section 8. Action without 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 such
Committee, as the case may be, consent thereto in writing,
<PAGE>
and such writing or writings are filed with the minutes of proceedings of the
Board or such Committee. [Section 141(f)]
Section 9. Regulations; Manner of Acting. To the extent consistent with
law, the Certificate of Incorporation and these By-Laws, the Board of Directors
may adopt such rules and regulations for the conduct of meetings of the Board
and for the management of the property, affairs and business of the Corporation
as the Board may deem appropriate. The Directors shall act only as a Board, and
the individual Directors shall have no power as such.
Section 10. Action by Telephonic Communications. Members of the Board
of Directors, or any Committee designated by the Board, may participate in a
meeting of the Board or Committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting pursuant to this
provision shall be deemed to constitute presence in person at such meeting.
Section 11. Resignations. Any Director may resign at any time by
delivering a written notice of resignation signed by such Director to the
Chairman, the President, a Vice President, the Secretary or any Assistant
Secretary. Unless otherwise specified therein, such resignation shall take
effect upon delivery. [Section 141(b)]
Section 12. Removal of Directors. Any or all of the Directors may be
removed at any time, either with or without cause, by vote of the stockholders
or, for cause, by resolution of a majority of the Directors then in office. Any
vacancy in the Board, caused by any removal of a Director by vote of the
stockholders, may be filled by the stockholders entitled to vote for the
election of the Director so removed. If such stockholders do not fill such
vacancy at the meeting at which such removal was effected (or in the written
instrument effecting such removal, if such removal was effected by consent
without a meeting) such vacancy may be filled in the manner provided in Article
2, Section 13 hereof. [Section 141(b)]
Section 13. Vacancies and Newly Created Directorships. Subject to the
provisions of Article 2, Section 12 hereof, any newly created Directorship
resulting from an increase in the number of Directors and any vacancy occurring
in the Board of Directors for any reason (including without limitation the
removal of a Director without cause) may be filled by vote of a majority of the
Directors then in office, although less than a quorum exists. A Director elected
to fill a vacancy shall be elected to hold office
<PAGE>
for the unexpired term of his predecessor. Any such newly created Directorship
and any such vacancy may also be filled at any time by vote of the stockholders.
Section 14. Compensation. The amount, if any, which each Director shall
be entitled to receive as compensation for his services as such shall be fixed
from time to time by the Board of Directors.
Section 15. Reliance on Accounts and Reports, etc. Any Director shall,
in the performance of his duties, be fully protected in relying in good faith
upon the books of account or reports made to the Corporation by any of its
officers, or by an independent certified public accountant, or by an appraiser
selected with reasonable care by the Board or by any Committee designated by the
Board, or in relying in good faith upon other records of the Corporation.
[Section 141(e)]
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 1. How Constituted. The Board of Directors, by resolution or
resolutions adopted by a majority of the whole Board, may designate from among
the Directors an Executive Committee and/or one or more other Committees, each
such Committee to consist of such number of Directors, not less than two, as
from time to time may be fixed by resolution or resolutions similarly adopted.
The Board, by resolution or resolutions similarly adopted, may designate one or
more Directors as alternate members of any such Committee, who may replace any
absent or disqualified member or members at any meeting of such Committee.
Thereafter members (and alternate members, if any) of each such Committee may be
designated annually, by resolution similarly adopted at the meeting of the Board
of Directors immediately following the annual meeting of stockholders. Any such
Committee may be abolished and/or redesignated from time to time by resolution
or resolutions similarly adopted. Each member (and each alternate member) of any
such Committee shall hold office until his successor shall have been designated
or until he shall cease to be a Director, or until his death, resignation or
removal. (Section 141(c)]
Section 2. Powers. During the intervals between the meetings of the
Board of Directors, unless otherwise provided from time to time by resolution or
resolutions adopted by a majority of the whole Board, the Executive Committee
shall have and may exercise all powers of the Board in the management of the
property, affairs and business of the Corporation, but shall not have power or
<PAGE>
authority in reference to amending the Certificate of Incorporation (except that
a Committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board, fix the
designations and any of the preferences or rights of such shares or fix the
number of shares of any series of stock or authorize the increase or decrease of
the shares of any series), 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. Each other such Committee shall have
and may exercise such powers of the Board as may be provided by resolution or
resolutions similarly adopted. The Executive Committee shall have, and any such
other Committee may be granted by resolution or resolutions similarly adopted,
power to authorize the seal of the Corporation to be affixed to any or all
papers which may require it. [Section 141(c)]
Section 3. Proceedings. Any such Committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such date and time and upon such notice, if any, as such Committee shall
determine from time to time. Such Committee shall keep a record of its
proceedings and shall report any such proceedings to the Board of Directors at
the first meeting of the Board following any such proceedings.
Section 4. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution designating any such Committee, at all meetings of
any such Committee the presence of members (or alternate members) constituting a
majority of the total authorized membership of such Committee, but in no event
less than two, shall constitute a quorum for the transaction of business. The
act of the majority of the members (or alternate members) present at any meeting
at which a quorum is present, but in no event less than two, shall be the act of
such Committee. Any action required or permitted to be taken at any meeting of
any such Committee may be taken without a meeting, if all members of such
Committee (and such alternates as may be required to replace any disqualified
members) shall consent to such action in writing and such writing or writings
are filed with the minutes of the proceedings of the Committee. The members (or
alternate members of any such Committee) shall act only as a Committee, and the
individual members (or alternate members) of such Committee shall have no power
as such. [Section 141(c)]
Section 5. Resignations. Any member (and any alternate member) of any
such Committee may resign at any
<PAGE>
time by delivering a written notice of resignation signed by such member to the
Board of Directors. Such resignation shall take effect upon acceptance thereof
by resolution adopted by a majority of the whole Board.
Section 6. Removal. Any member (and any alternate member) of any such
Committee may be removed at any time, with or without cause, by resolution
adopted by a majority of the whole Board.
Section 7. Vacancies. If any vacancy shall occur in any such Committee,
by reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, if they are
at least two in number, and any such vacancy may be filled by resolution adopted
by a majority of the whole Board of Directors.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by
the Board of Directors and shall be a Chairman, a President (and chief executive
officer), a Vice President, a Secretary and a Treasurer. The Board of Directors
may also elect additional Vice Presidents, and one or more Assistant Secretaries
and Assistant Treasurers, all in such numbers as the Board of Directors may
determine. Any two or more offices may be held by the same person, except the
offices of President and Secretary. No officer need be a Director of the
Corporation. [Section 142(a), (b)]
Section 2. Election. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board at the
first meeting of the Board following each annual meeting of stockholders, and
shall be elected to hold office until the first meeting of the Board following
the next annual meeting of stockholders. Each officer shall hold office for the
term for which he is elected and until his successor has been elected and has
qualified, or until his earlier resignation or removal. [Section 142(a), (b)]
Section 3. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed from time to time by the Board of Directors.
Section 4. Removal and Resignation, Vacancies. Any officer may be
removed at any time by the Board of Directors with or without cause. Any officer
may resign at any time by delivering a written notice of resignation
<PAGE>
signed by such officer to the Board. Unless otherwise specified therein such
resignation shall take effect upon delivery. Any vacancy occurring in any office
of the Corporation by death, resignation, removal or otherwise, shall be filled
by the Board. [Section 142(a), (e)]
Section 5. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law.
Section 6. The Chairman. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and directors and shall have such
other powers and duties as may from time to time be assigned by the Board.
Section 7. The President. The President shall have the following powers
and duties:
(a) He shall be the chief executive officer of the Corporation,
and, subject to the directions of the Board of Directors,
shall have general charge of the business and affairs of the
Corporation and general supervision over its officers,
employees and agents.
(b) Subject to the directions of the Board of Directors, he shall
exercise all powers and perform all duties incident to the
office of a president of a corporation, and shall exercise
such other powers and perform such other duties as from time
to time may be assigned to him by the Board.
(c) In the absence of the Chairman of the Board, the President
shall preside at all meetings of stockholders and directors.
Section 8. The Vice Presidents. Each Vice President shall exercise such
powers and perform such duties as from time to time may be assigned to him by
the Board of Directors or the President. At the request of the President or in
his absence or disability, the Vice President designated by the Board of
Directors or if no such designation shall have been made, then the Vice
President designated by the President shall perform all the duties of the
President and, when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Any Vice President may sign (unless the
Chairman, the President or another Vice President shall have signed),
certificates
<PAGE>
representing shares of the Corporation the issuance of which shall have been
authorized by the Board.
Section 9. The Secretary. The Secretary shall have the following powers
and duties:
(a) He shall keep or cause to be kept a record of all the
proceedings of the meetings of the stockholders and of the
Board of Directors in books provided for.that purpose.
(b) He shall cause all notices to be duly given in accordance with
the provisions of these By-Laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a
resolution of the Board of Directors, he shall furnish a copy
of such resolution to the members of such Committee.
(d) He shall be the custodian of the records and of the seal of
the Corporation and cause such seal (or a facsimile thereof)
to be affixed to all certificates representing shares of the
Corporation prior to the issuance thereof and to all
instruments the execution of which on behalf of the
Corporation under its seal shall have been duly authorized in
accordance with these By-Laws, and when so affixed he may
attest the same.
(e) He shall properly maintain and file all books, reports,
statements, certificates and all other documents and records
required by law, the Certificate of Incorporation or these
By-Laws.
(f) He shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be
kept in such manner as to show at any time the number of
shares of stock of the Corporation of each class issued and
outstanding, the names (alphabetically arranged) and the
addresses of the holders of record of such shares, the number
of shares held by each holder and the date as of which each
became such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant Treasurer or
Assistant Secretary shall have signed) certificates
representing shares of the Corporation the issuance of
<PAGE>
which shall have been authorized by the Board of Directors.
(h) He shall perform, in general, all duties incident to the
office of Secretary and such other duties as may be given to
him by these By-Laws or as may be assigned to him from time to
time by the Board of Directors or the President.
Section 10. The Treasurer. The Treasurer shall have the following
powers and duties:
(a) He shall have charge and supervision over and be responsible
for the moneys, securities, receipts and disbursements of the
Corporation.
(b) He shall cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of
the Corporation in such banks or trust companies or with such
bankers or other depositories as shall be selected in
accordance with Article 8, Section 5 of these By-Laws.
(c) He shall cause the moneys of the Corporation to be disbursed
by checks or drafts (signed as provided in Article 8, Section
6 of these By-Laws) upon the authorized depositories of the
Corporation and cause to be taken and preserved proper
vouchers for all moneys disbursed.
(d) He shall render to the Board of Directors or the President,
whenever requested, a statement of the financial condition of
the Corporation and of all his transactions as Treasurer, and
render a full financial report at the annual meeting of the
stockholders, if called upon to do so.
(e) He shall be empowered from time to time to require from all
officers or agents of the Corporation reports or statements
giving such information as he may desire with respect to any
and all financial transactions of the Corporation.
(f) He may sign (unless an Assistant Treasurer or the Secretary or
an Assistant Secretary shall have signed) certificates
representing stock
<PAGE>
of the Corporation the issuance of which shall have been
authorized by the Board of Directors.
(g) He shall perform all duties incident to the office of
Treasurer, and such other duties as from time to time may be
assigned to him by the Board of Directors or the President.
Section 11. Additional Officers. The Board of Directors may appoint
such other officers and agents as it may deem appropriate and such other
officers and agents shall hold their offices for such terms and shall exercise
such powers and perform such duties as may be determined from time to time by
the Board. [Section 142(b)]
Section 12. Security. The Board of Directors may require any officer or
agent of the Corporation to provide security for the faithful performance of his
duties, in such amount and of such character as may be determined from time to
time by the Board. [Section 142(c)]
ARTICLE V
CAPITAL STOCK
Section 1. Certificates of Stock. Every stockholder shall be entitled
to have a certificate signed by, or in the name of the Corporation by the
Chairman, the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying the
number of shares owned by him in the Corporation. Such certificate shall be in
such form as the Board of Directors may determine, to the extent consistent with
applicable provisions of law, the Certificate of Incorporation and these
By-Laws. [Section 158]
Section 2. Partly Paid Shares. In the event any certificate shall be
issued to represent partly paid shares which are subject to call for the
remainder of the consideration to be paid therefore, such certificate shall
state (upon its face or back) the total amount of the consideration to be paid
therefor and the amount of such consideration paid thereon to date. [Section
156]
Section 3. Facsimile Signatures, etc. If such certificate is
countersigned by a transfer agent other than the Corporation or its employee, or
by a registrar other than the Corporation or its employee, any other signature
on the certificate may be a facsimile. In the event that any
<PAGE>
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, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue. [Section 158]
Section 4. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of an affidavit of,the owner or
owners of such certificate, setting forth such allegation. The Board may require
the owner of such lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of any such new
certificate. [Section 167]
Section 5. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate representing shares, duly
endorsed or accompanied by appropriate evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate, and record the transaction
upon its books. Subject to the provisions of the Certificate of Incorporation
and these By-Laws, the Board of Directors may prescribe such additional rules
and regulations as it may deem appropriate relating to the issue, transfer and
registration of shares of the Corporation.
Section 6. Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting, provided,
however, that the Board may fix a new record date for the adjourned meeting.
[Section 213(a), (c)]
<PAGE>
Section 7. Registered Stockholders. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interest.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer, both the transferor
and transferee request the Corporation to do so. [Section 159]
Section 8. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any of such agents
or registrars.
ARTICLE VI
INDEMNIFICATION
Section 1. Indemnification of Directors, Officers, etc. Any person who
was or is party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was at any time since the
inception of the Corporation a Director, officer, employee or agent of the
Corporation, or is or was at any time since the inception of the Corporation
serving at the request of the Corporation as a Director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall be indemnified by the Corporation to the full extent permitted
by Subsections (a) through (i) of Section 145 of the General Corporation Law of
the State of Delaware (or any similar provision or provisions of applicable law
at the time in effect). The foregoing right of indemnification shall in no way
be exclusive of any other rights of indemnification to which any such Director,
officer, employee or agent may be entitled under any agreement, vote of
stockholders or disinterested Directors or otherwise.
<PAGE>
ARTICLE VII
OFFICES
Section 1. Registered Office. The principal office or place of business
of the Corporation in the State of Delaware shall be located at 32 Loockerman
Street, Suite L-100, Dover, Delaware, 19909.
Section 2. Other Offices. The Corporation may maintain offices or
places of business at such other locations within or without the State of
Delaware as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Subject to any applicable provisions of law and
the Certificate of Incorporation, dividends upon the shares of the Corporation
may be declared by the Board of Directors at any regular or special meeting of
the Board and any such dividend may be paid in cash, property, or shares of the
Corporation. [Section 173]
Section 2. Reserves. There may be set apart from time to time out of
any funds of the Corporation available for dividends such reserve or reserves as
the Board of Directors may deem appropriate, and the Board of Directors may
similarly modify or abolish any such reserve or reserves. [Section 171]
Section 3. Execution of Instruments. Subject to the approval of the
Board of Directors, the Chairman, the President, or any Vice President may enter
into any contract or execute and deliver any instruments in the name and on
behalf of the Corporation. The Board may authorize any other officer or agent to
enter into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. Any such authorization may be general or limited to
specific contracts or instruments.
Section 4. Deposits. Any funds of the Corporation may be deposited from
time to time in such banks, trust companies or other depositories as may be
determined by the Board of Directors, or by such officers or agents as may be
authorized by the Board to make such determination.
<PAGE>
Section 5. Checks, Drafts, etc. All notes, drafts, bills of exchange,
acceptances, checks, endorsements and other evidences of indebtedness of the
Corporation, and its orders for the payment of money shall be signed by such
officer or officers or such agent or agents of the Corporation, and in such
manner, as the Board of Directors from time to time may determine.
Section 6. Sale, Transfer, etc. of Securities. To the extent authorized
by the Board of Directors, the Chairman, the President, or any Vice President
together with the Secretary or Treasurer or an Assistant Secretary or Assistant
Treasurer may sell, transfer, endorse, and assign any shares of stock, bonds or
other securities owned by or held in the name of the Corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal,
any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
Section 7. Voting as Stockholder. Unless otherwise determined by
resolution of the Board of Directors, the President, or any Vice President shall
have full power and authority on behalf of the Corporation to attend any meeting
of stockholders of any Corporation in which the Corporation may hold stock, and
to act, vote (or execute proxies to vote) and exercise in person or by proxy all
other rights, powers and privileges incident to the ownership of such stock.
Such officers acting on behalf of the Corporation shall have full power and
authority to execute any instrument expressing consent to or dissent from any
action of any such corporation without a meeting. The Board of Directors may by
resolution from time to time confer such power and authority upon any other
person or persons.
Section 8. Fiscal Year. Unless otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall commence on the first day of
January in each calendar year and terminate on the 31st day of December.
Section 9. Seal. The seal of the Corporation shall be circular in form
and shall contain the name of the Corporation, the year of incorporation and the
words "Corporate Seal Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed, affixed or reproduced, or in any other lawful
manner.
Section 10. Books and Records; Inspection. Except to the extent
otherwise required by law, the books and records of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the Board of Directors.
<PAGE>
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 1. Amendment. These By-Laws may be amended, altered or repealed
by the Corporation's stockholders or by the Board of Directors, provided that
the Board of Directors shall not have the power to classify directors for
election for staggered terms. [Section 109(a)]
ARTICLE X
INAPPLICABILITY OF SECTION 203*
Section 1. The corporation expressly elects not to be governed by
Section 203 of the Delaware General Corporation Law.
- --------------------
* To be effective, this provision must be adopted by affirmative vote or
consent of stockholders holding a majority of the shares entitled to
vote, shall become effective twelve months after the adoption of such
provision and shall not apply to any business combination between the
Corporation and any person who became an interested stockholder of the
Corporation or prior to such adoption.
<PAGE>
Exhibit 3.38
ENDORSED - FILED
in the office of the
Secretary of State
of the State of California
AUG 12 1999
BILL JONES, Secretary of State
ARTICLES OF INCORPORATION
OF
PPI HOLDINGS, INC.
ONE: The name of this corporation is PPI Holdings, Inc.
TWO: The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust
company business, or the practice of a profession permitted to be
incorporated by the California Corporations Code.
THREE: The name and address in this state of this corporation's initial agent
for service of process is:
Leif Syrstad
2340 Bert Drive
Hollister, California 95023-2510
FOUR: The total number of shares which this corporation is authorized to issue
is one million (1,000,000).
FIVE: The liabilities of directors of this corporation for monetary damages
shall be eliminated to the fullest extent permissible under California
law.
SIX: This corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the Corporations Code) for breach of duty to
this corporation and its stockholders through bylaw provisions or
through agreements with the agents, or both, in excess of the
indemnification otherwise permitted by Section 317 of the Corporations
Code, subject to the limits on such excess indemnification set forth in
Section 204 of the Corporations Code.
[SEAL OF]
Dated: August 11, 1999 OFFICE OF THE
SECRETARY OF STATE
SCOTT A. MORGAN
------------------------------------
SCOTT A. MORGAN, Incorporator
<PAGE>
Exhibit 3.39
BYLAWS
OF
PPI HOLDINGS, INC.
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
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<S> <C>
ARTICLE I. BUSINESS OFFICES ............................................. 1
Section 1. Principal Executive Office....................... 1
Section 2. Other Offices.................................... 1
ARTICLE II. SHAREHOLDERS
Section 1. Time of Annual Meetings.......................... 1
Section 2. Call of Special Meetings......................... 1
Section 3. Place of Annual and Special Meetings............. 1
Section 4. Time and Manner of Giving Notice of Annual
and Special Meetings........................... 1
Section 5. Business to be Conducted; Contents of Notice..... 2
Section 6. Quorum........................................... 2
Section 7. Shareholder Action by Written Consent in Lieu
of Meeting..................................... 2
Section 8. Waiver of Notice................................. 3
Section 9. Inspectors of Election........................... 3
Section 10. Voting Procedure................................. 3
Section 11. Cumulative Voting for Election of Directors...... 4
Section 12. Record Dates and Closing of Stock Books.......... 4
ARTICLE III. BOARD OF DIRECTORS.......................................... 5
Section 1. Powers........................................... 5
Section 2. Number, Tenure and Qualifications................ 5
Section 3. Regular Meetings................................. 5
Section 4. Special Meetings; Call and Notice................ 5
Section 5. Place of Special Meetings........................ 6
Section 6. Participation by Telephone....................... 6
Section 7. Quorum .......................................... 6
Section 8. Action at Meeting................................ 6
Section 9. Waiver of Notice................................. 6
Section 10. Action by Written Consent Without Meeting ....... 6
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 11. Removal.......................................... 6
Section 12. Resignations..................................... 7
Section 13. Vacancies........................................ 7
Section 14. Compensation..................................... 7
Section 15. Committees; Limitations on Powers................ 7
ARTICLE IV. OFFICERS...................................................... 8
Section 1. Titles and Term.................................. 8
Section 2. Inability to Act................................. 8
Section 3. Removal.......................................... 8
Section 4. Vacancies........................................ 8
Section 5. Chairman of the Board............................ 8
Section 6. President........................................ 8
Section 7. Vice Presidents.................................. 8
Section 8. Secretary........................................ 9
Section 9. Treasurer........................................ 9
Section 10. Chief Financial Officer.......................... 9
Section 11. Assistant Officers............................... 9
Section 12. Salaries......................................... 9
Section 13. Officers Holding More Than One Office............ 9
ARTICLE V. MISCELLANEOUS.................................................. 10
Section 1. Certificates..................................... 1O
Section 2. Representation of Shares in Other Corporations... 10
Section 3. Annual Report to Shareholders.................... 10
Section 4. Indemnification; Advance of Litigation Expenses;
Insurance..................................... 10
Section 5. Amendments....................................... 11
CERTIFICATE OF ADOPTON OF BYLAWS.......................................... 11
</TABLE>
-ii-
<PAGE>
BYLAWS
OF
PPI HOLDINGS, INC.
ARTICLE I. BUSINESS OFFICES
Section 1. Principal Executive Office. The principal executive office of
the corporation shall be located at 2340 Bert Drive, in the City of Hollister,
County of San Benito, State of California.
Section 2. Other Offices. The corporation may also have offices at such
other places as the Board of Directors may from time to time designate, or as
the business of the corporation may require.
ARTICLE II. SHAREHOLDERS
Section 1. Time of Annual Meetings. The annual meeting of the
shareholders of the corporation shall be held each year on a date and at a time
fixed by the President of the corporation each year, provided that the President
may select a different date and/or time from year to year, and provided further
that an annual meeting of the shareholders will be held no more than fifteen
(15) months after the immediately prior annual meeting of the shareholders.
Section 2. Call of Special Meetings. A special meeting of the
shareholders may be called at any time by the Chairman of the Board, the
President, the Board of Directors, or by one or more shareholders entitled to
cast not less than ten percent (10%) of the votes at such meeting. Such meeting
may be called for any purpose whatsoever.
Section 3. Place of Annual and Special Meetings. All annual and special
meetings of the shareholders shall be held at the principal executive office of
the corporation unless otherwise prescribed by statute or designated by the
person or persons calling the meeting; provided, however, that, whether or not
such designation is made in the notice of meeting, any annual or special
meeting may be held at any place designated by written consent of all the
persons entitled to vote thereat, which written consent may be given either
before or after the meeting.
Section 4. Time and Manner of Giving Notice of Annual and Special
Meetings. Written notice of all annual and special meetings of the shareholders
of the corporation shall be given to each shareholder entitled to vote, either
personally or by first-class mail or other means of written communication
(which, wherever used in these Bylaws, includes, without limitation, facsimile
and telegraphic communication), charges prepaid, addressed to the shareholder at
his address appearing on the books of the corporation or given by the
shareholder to the corporation for the purpose of notice. Notice of any such
meeting of shareholders shall be sent to each shareholder entitled thereto not
less than ten (10) nor more than sixty (60) days before the
-1-
<PAGE>
meeting. Notice of any adjourned meeting need not be given if the time and place
thereof are announced at the meeting at which the adjournment is taken, unless a
meeting is adjourned for more than forty-five (45) days or if, after the
adjournment, a new record date is fixed for the adjourned meeting.
Section 5. Business to be Conducted; Contents of Notice. At each annual
meeting of the shareholders, directors shall be elected to hold office until the
next annual meeting, and such other business shall be transacted as may properly
come before the meeting.
The notice of an annual or special meeting of the shareholders shall
state (i) the place, date and hour of the meeting, (ii) if directors are to be
elected, the names of the nominees which management intends, at the time of the
mailing of the notice, to present for election, and (iii) such other matters, if
any, as may be expressly required by statute, including action on a contract or
other transaction with an interested director, amendment of the Articles of
Incorporation, reorganization or voluntary dissolution of the corporation, or
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any. The notice of an annual meeting shall also
state those other matters, if any, which the Board of Directors, at the time of
the mailing of the notice, intends to present for action by the shareholders.
The notice of a special meeting shall state the general nature of the business
to be transacted, whether or not included in any of the foregoing categories,
and no other business may be transacted.
Section 6. Quorum. The presence, in person or by proxy, of the persons
entitled to vote a majority of the shares entitled to vote at any meeting
constitutes a quorum for the transaction of business. The shareholders present
at a meeting duly called or held at which a quorum is initially present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum, but any action taken (other
than adjournment) must be approved by at least a majority of the shares required
to constitute a quorum.
In the absence of a quorum, any meeting of shareholders may be adjourned
from time to time by the vote of a majority of the shares represented at the
meeting, but no other business may be transacted unless a quorum was initially
present, as provided above in this Section.
Section 7. Shareholder Action by Written Consent in Lieu of Meeting. Any
action which may be taken at any meeting of shareholders may be taken without a
meeting and without notice, except as hereinafter set forth in this Section, if
a consent in writing, setting forth the action so taken, is signed by the
holders of outstanding shares having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted; provided, however,
that
(a) directors may not be elected by written consent (other than to fill
a vacancy not filled by the directors) except by unanimous written consent of
all shares entitled to vote for the election of directors; and
(b) if the consents of less than all shareholders entitled to vote have
been solicited in writing, and if less than all the shareholders have consented
in writing, then (i) if the consent was solicited with respect to a matter
described in Section 603(b)(1) of the California Corporations Code, at least ten
(10) days' advance notice shall be given to all the shareholders
-2-
<PAGE>
before the consummation of the action authorized by such approval, and (ii) if
the consent was solicited with respect to any other action, prompt notice shall
be given to all the shareholders after the taking of such action.
Any written consent may be revoked by a writing received by the
corporation prior to, but not after, the time that written consents of the
number of shares required to authorize the proposed action have been filed with
the Secretary of the corporation.
Section 8. Waiver of Notice. The transactions of any meeting of
shareholders, either annual or special, however called and noticed, and whenever
held, shall be as valid as though had at a meeting duly held after regular call
and notice, if a quorum be present either in person or by proxy, and if, either
before or after the meeting, each of the persons entitled to vote, not present
in person or by proxy, signs a written waiver of notice, or a consent to the
holding of the meeting, or an approval of the Minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate records or made
a part of the Minutes of the meeting.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of shareholders need be specified in any written
waiver of notice, consent to the holding of the meeting or approval of the
Minutes thereof, except as otherwise provided in Section 601 (e) of the
California Corporations Code or in the Articles of Incorporation or in these
Bylaws.
Section 9. Inspectors of Election. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons, other than
nominees for office, as inspectors of election to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, or if any
persons so appointed fail to appear or refuse to act, the chairman of any such
meeting may, and on the request of any shareholder or his proxy shall, make such
appointment at the meeting. The number of inspectors shall be either one or
three. If appointed at a meeting on the request of one or more shareholders or
proxies, the majority of shares represented in person or by proxy shall
determine whether one or three inspectors are to be appointed. The duties of
inspectors shall be as prescribed by Section 707 of the California Corporations
Code.
Section 10. Voting Procedure. The voting at all meetings of
shareholders, including the voting for directors, need not be by written ballot,
unless voting by written ballot is demanded by any shareholder at the meeting
before the voting begins. Upon such demand, the voting shall be by written
ballot, and each ballot shall state the name of the shareholder voting and the
number of shares voted by such shareholder. If such ballot be cast by a proxy,
it shall also state the name of such proxy.
Every shareholder having the right to vote shall be entitled to vote in
person, or by proxy appointed in a writing subscribed by such shareholder. No
proxy shall be valid after the expiration of eleven (11) months from the date
thereof unless otherwise provided in the proxy, or unless the writing states
that it is irrevocable and is held by a person specified in Section 705(e) of
the California Corporations Code, in which event it is irrevocable for the
period specified in said writing.
-3-
<PAGE>
Section 11. Cumulative Voting for Election of Directors. Every
shareholder shall have the right to cumulate his votes in the election of
directors (that is, he may give one candidate an aggregate number of votes equal
to the number of directors to be elected multiplied by the number of votes to
which the shareholder's shares are entitled, or he may distribute his aggregate
number of votes among two or more of the candidates in such proportions as he
wishes) if: (a) the candidate for whom he proposes to vote cumulatively has
been placed in nomination prior to the voting; and (b) one or more shareholders
has given notice at the meeting, prior to the voting, of his intent to cumulate
his votes. The candidates receiving the highest number of votes of the shares
entitled to be voted for them, up to the number of directors to be elected by
such shares, shall be elected.
Section 12. Record Dates and Closing of Stock Books. The Board of
Directors may fix a time in the future as a record date for the determination of
the shareholders entitled to notice of and to vote at any meeting of
shareholders or entitled to receive payment of any dividend or distribution, or
any allotment of rights, or to exercise rights in respect to any other lawful
action. The record date so fixed shall not be more than sixty (60) nor less than
ten (10) days prior to the date of the meeting or event for the purposes of
which it is fixed. When a record date is so fixed, then, subject to the
provisions of the California Corporations Code, only shareholders of record at
the close of business on that date are entitled to notice of and to vote at the
meeting or to receive the dividend, distribution, or allotment of rights, or to
exercise the rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date.
If no record date is so fixed, then the record date:
(a) for determining shareholders entitled to notice of or to vote at a
meeting of shareholders shall be at the close of business on the business day
next preceding the day notice is given or, if notice is waived or not given, at
the close of business on the business day next preceding the day on which the
meeting is held;
(b) for determining shareholders entitled to give consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors has been taken, shall be the day on which the first written consent is
given; and
(c) 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, or the 60th day prior to the date of such other
action, whichever is later.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned meeting.
The Board of Directors shall fix a new record date if the meeting is adjourned
for more than forty-five (45) days.
The Board of Directors may close the books of the corporation against
transfers of shares during the whole or any part of a period of not more than
sixty (60) days prior to the date of a shareholders meeting, the date when the
right to any dividend, distribution or allotment of rights vests, or the
effective date of any change, conversion or exchange of shares.
-4-
<PAGE>
ARTICLE III. BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by, or under the direction
of, the Board of Directors, subject to any limitations in the Articles of
Incorporation or these Bylaws and subject to any provision of the California
Corporations Code requiring shareholder authorization or approval for a
particular action. The Board of Directors may delegate the management of the
day-to-day operation of the business of the corporation to a management company
or other person, provided that the business and affairs of the corporation shall
be managed, and all corporate powers shall be exercised, under the ultimate
direction of the Board of Directors.
Section 2. Number, Tenure and Qualifications. The authorized number of
directors of the corporation shall be one (1) until changed by amendment of the
Bylaws approved by the shareholders.
If the number of directors is, or at any time becomes, five (5) or more,
then an amendment reducing the authorized number of directors to a number less
than five (5) cannot be adopted if the votes cast against its adoption at a
meeting, or the shares not consenting in the case of an action by written
consent, are equal to more than sixteen and two-thirds percent (16-2/3%) of the
outstanding shares entitled to vote.
Directors shall hold office until the next annual meeting of
shareholders and until their respective successors are elected. If any such
annual meeting is not held, or if the directors are not elected thereat, the
directors may be elected at any special meeting of shareholders held for that
purpose. Directors need not be shareholders.
Section 3. Regular Meetings. A regular organizational meeting of the
Board of Directors shall be held annually without notice immediately after, and
at the same place as, the annual meeting of shareholders. The Board of Directors
may provide for other regular meetings from time to time by resolution.
Section 4. Special Meetings; Call and Notice. Special meetings of the
Board of Directors may be called at any time by the Chairman of the Board, or
the President or any Vice President, or the Secretary or any two (2) directors
if there is then in office more than one (1) director. Written notice of the
time and place of all special meetings of the Board of Directors shall be
delivered personally or by telephone or telegraph to each director at least
forty-eight (48) hours before the meeting, or sent to each director by
first-class mail, postage prepaid, at least four (4) days before the meeting.
Notice of any meeting of the Board of Directors need not be given to any
director who waives notice in accordance with Section 9 of this Article III, or
who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. A notice, or waiver of
notice, need not specify the purpose of any regular or special meeting of the
Board of Directors.
Section 5. Place of Special Meetings. Special meetings of the Board of
Directors may be held at any place within or without the State of California
which has been designated in the notice of meeting, or if not stated in the
notice, at the principal executive office of the corporation or any place
designated by a resolution duly adopted by the Board of Directors.
-5-
<PAGE>
Section 6. Participation by Telephone. Members of the Board of Directors
may participate in a meeting through the use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear one another.
Section 7. Quorum. A quorum at all meetings of the Board of Directors
shall be a majority of the authorized number of directors. In the absence of a
quorum, a majority of the directors present may adjourn any meeting to another
time and place. If a meeting is adjourned for more than twenty-four (24) hours,
notice of any adjournment to another time or place shall be given prior to the
time of the adjourned meeting to the directors who were not present at the time
of adjournment.
Section 8. Action at Meeting. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum is
present is the act of the Board of Directors. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting.
Section 9. Waiver of Notice. The transactions of any meeting of the
Board of Directors, however called and noticed or wherever held, are as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding the meeting, or
an approval of the Minutes thereof. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the Minutes of the
meeting.
Section 10. Action by Written Consent Without Meeting. Any action
required or permitted to be taken by the Board of Directors may be taken without
a meeting, if all members of the Board of Directors individually or collectively
consent in writing to such action. Such written consent or consents shall be
filed with the Minutes of the proceedings of the Board of Directors. Such action
by written consent shall have the same force and effect as a unanimous vote of
such directors.
Section 11. Removal. The Board of Directors may declare vacant the
office of a director who has been declared of unsound mind by an order of court
or who has been convicted of a felony.
The entire Board of Directors or any individual director may be removed
from office, without cause, by the affirmative vote or written consent of
shareholders holding a majority of the outstanding shares entitled to vote at an
election of directors; provided, however, that unless the entire Board of
Directors is removed, no individual director may be removed when the votes cast
against removal, or not consenting in writing to such removal, would be
sufficient to elect such director if voted cumulatively at an election at which
the same total number of votes were cast (or, if such action is taken by written
consent, if all shares entitled to vote were voted) and the entire number of
directors authorized at the time of the director's most recent election were
then being elected.
-6-
<PAGE>
No reduction of the authorized number of directors shall have the effect
of removing any director prior to the expiration of his term of office.
A director may not be removed, prior to the expiration of his term of
office, except by court order or as provided in this Section.
Section 12. Resignations. Any director may resign, effective upon giving
written notice to the Chairman of the Board, the President, the Secretary, or
the Board of Directors of the corporation, unless the notice specifies a later
time for the effectiveness of such resignation. If the resignation is effective
at a future time, a successor may be elected to take office when the resignation
becomes effective.
Section 13. Vacancies. Except for a vacancy created by the removal of a
director (which removal shall include, for the purposes of this Section, the
declaration of a vacancy in accordance with the first paragraph of Section 11 of
this Article III), all vacancies in the Board of Directors, whether caused by
resignation, death, or otherwise, may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, and each
director so elected shall hold office until his successor is elected at an
annual or special meeting of the shareholders. Vacancies created by the removal
of a director may be filled only by approval of the shareholders, by the vote
provided in Section 305 of the California Corporations Code. The shareholders
may elect a director at any time to fill any vacancy not filled by the
directors. Any such election by written consent, other than to fill a vacancy
created by removal, shall require the consent of a majority of the outstanding
shares entitled to vote.
Section 14. Compensation. The Board of Directors shall from time to time
determine whether a salary shall be paid to directors for their services as
such, and, by resolution of the Board, a fixed sum and expenses of attendance,
if any, may be allowed for attendance at each regular or special meeting of the
Board of Directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation and expenses for attending committee meetings.
Section 15. Committees; Limitations on Powers. The Board of Directors
may, by resolution adopted by a majority of the authorized number of directors,
designate an executive committee or one or more other committees, each
consisting of two (2) or more directors, to serve at the pleasure of the Board
of Directors. The appointment of members or alternate members of a committee
shall require the vote of a majority of the authorized number of directors. Any
such committee, to the extent provided in the resolution of the Board of
Directors, shall have all the authority of the Board of Directors in the
management of the business and affairs of the corporation, except with respect
to (a) the approval of any action which also requires action by the
shareholders, (b) the filling of vacancies on the Board of Directors or any
committee, (c) the fixing of compensation of directors for serving on the Board
of Directors or a committee, (d) the adoption, amendment or repeal of the
Bylaws, (e) the amendment or repeal of any resolution of the Board of Directors
which, by its express terms, is not so amendable or repealable, (f) a
distribution to shareholders, except at a rate or in a periodic amount or within
a price range determined by the Board of Directors, and (g) the appointment of
other committees of the Board of Directors or the members thereof.
-7-
<PAGE>
ARTICLE IV. OFFICERS
Section 1. Titles and Term. The officers of the corporation shall be a
Chairman of the Board or a President, or both, a Secretary, and a Chief
Financial Officer. In addition, the Board of Directors may appoint such other
officers (which term shall include, without limitation, Vice Presidents and
assistant officers) as the directors may deem expedient for the proper conduct
of the business of the corporation. All officers shall be chosen by the Board of
Directors and serve at the pleasure of the Board of Directors, subject to the
rights, if any, of an officer under any contract of employment. Any officer may
resign at any time, upon written notice to the corporation, without prejudice to
the rights, if any, of the corporation under any contract to which the officer
is a party.
Section 2. Inability to Act. In the absence or inability to act of any
officer of the corporation and of any person authorized to act in his place, the
Board of Directors may, from time to time, delegate the powers or duties of such
officer to any person it selects.
Section 3. Removal. Any officer chosen by the Board of Directors may be
removed at any time, with or without cause, by the unanimous written consent of
the directors then in office or the affirmative vote of a majority of the
directors present at any meeting lawfully held at which a quorum is present.
Section 4. Vacancies. A vacancy in any office may be filled by the Board
of Directors for the unexpired portion of the term, if any.
Section 5. Chairman of the Board. The Chairman of the Board, if such
office is filled by the Board of Directors, shall, if present, preside at all
meetings of shareholders and the Board of Directors and shall perform all such
other duties as are incident to such office or are properly required by the
Board of Directors.
If the directors do not fill the office of President, the Chairman of
the Board shall also have the duties of President.
Section 6. President The President shall be the general manager and
chief executive officer of the corporation, subject to the control of the Board
of Directors. As such, he shall, in the absence of the Chairman of the Board or
if such office is not filled, preside at all meetings of shareholders and
perform the other duties of Chairman of the Board; shall, if a member, preside
at all meetings of the Board of Directors; shall have general supervision of the
affairs of the corporation; shall make reports to the Board of Directors and
shareholders; and shall perform all such other duties as are incident to such
office or are properly required by the Board of Directors.
Section 7. Vice Presidents. In the absence of the President, or in the
event of such offcer's death, disability or refusal to act, the Vice President,
if such office is filled by the Board of Directors, or in the event there be
more than one Vice President, the Vice Presidents in the order designated at the
time of their selection, or in the absence of any such designation, then in the
chronological order of their selection, shall perform the duties of President,
and when so acting, shall have all the powers of, and be subject to all
restrictions upon, the President. Each Vice
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<PAGE>
President shall also have such other powers and discharge such other duties as
may be assigned from time to time by the Board of Directors.
Section 8. Secretary. The Secretary shall see that notices for all
meetings are given in accordance with the provisions of these Bylaws and as
required by law, shall keep Minutes of all meetings, shall have charge of the
seal, if any, and the corporate books, and shall make such reports and perform
such other duties as are incident to such office, or are properly required by
the Board of Directors.
Section 9. Treasurer. The Treasurer shall have responsibility for
custody of all moneys and securities of the corporation and shall keep or
provide for the keeping of regular books of account. Such officer shall be
responsible for disbursement of the funds of the corporation in payment of the
just demands against the corporation, or as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Board of Directors, from time to time, as may be required of such officer,
an account of all transactions as Treasurer and of the financial condition of
the corporation. Such officer shall perform all duties incident to such office
or which are properly required by the Board of Directors. If at any time there
is no person who has been designated as the Chief Financial Officer, but there
is a person who has been designated as the Treasurer, then the Treasurer shall
be deemed to be the Chief Financial Officer.
Section 10. Chief Financial Officer. The Chief Financial Officer shall,
under the direction of the Board of Directors and the President, have primary
responsibility for financial planning for the corporation, for monitoring the
implementation and progress of the financial plans of the corporation, and for
reporting thereon to the Board of Directors and the President. If at any time
there is no person who has been designated as the Treasurer, but there is a
person who has been designated as the Chief Financial Officer, then the Chief
Financial Officer shall be deemed to be the Treasurer.
Section 11. Assistant Officers. Assistant officers, in the order
designated at the time of their selection, or in the absence of any such
designation, in the chronological order of their selection, shall, in the
absence or disability of the officers to whom they are assistants, or in the
event of such officers' refusal to act, perform the duties of such officers, and
when so acting, shall have all the powers of, and be subject to all restrictions
upon, such officers. Each assistant officer shall also exercise such powers and
discharge such duties as may be assigned from time to time by the Board of
Directors.
Section 12. Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors, and no officer shall be prevented from
receiving such salary by reason of the fact that such officer is also a director
of the corporation.
Section 13. Officers Holding More Than One Office. Any two or
more offices may be held by the same person.
-9-
<PAGE>
ARTICLE V. MISCELLANEOUS
Section 1. Certificates. Certificates of stock shall be issued in
numerical order and each shareholder shall be entitled to a certificate signed
in the name of the corporation by the Chairman of the Board, the President, or a
Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Secretary, or an Assistant Secretary, certifying to the number
and the class or series of shares owned by such shareholder. Any or all of the
signatures on the certificate may be facsimile. Prior to due presentment for
registration of transfer in the stock transfer book of the corporation, the
registered owner shall be treated as the person exclusively entitled to vote, to
receive notifications, and otherwise to exercise all the rights and powers of an
owner, except as expressly provided otherwise by the laws of the State of
California.
Section 2. Representation of Shares in Other Corporations. Shares of
other corporations standing in the name of this corporation may be voted or
represented and all incidents thereto may be exercised on behalf of this
corporation by the Chairman of the Board, the President, any Vice President, the
Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary.
Section 3. Annual Report to Shareholders. So long as this corporation
shall have fewer than one hundred holders of record of its shares (determined as
provided in Section 605 of the California Corporations Code), the requirement to
cause an annual report to be sent to the shareholders within one hundred twenty
(120) days after the close of the fiscal year and at least fifteen (15) days
prior to the annual meeting of the shareholders, as provided in Section 1501 of
said Code, is expressly waived pursuant to said Section 1501.
Section 4. Indemnification; Advance of Litigation Expenses; Insurance.
The corporation shall, to the maximum extent permitted by law, indemnify each of
its agents against all expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with all threatened, pending or
completed actions or proceedings, including civil, criminal, administrative,
arbitration and investigative actions and proceedings, including any appeal
therein, which arise by reason of the fact that any such person is or was an
agent of the corporation. For purposes of this Section, an "agent" of the
corporation includes, without limitation, any person who is or was a director,
officer, employee or other agent of the corporation, or who is or was serving at
the request of the corporation as a director, officer, employee, trustee,
partner (general or limited), or agent of another domestic or foreign
corporation, partnership, joint venture, trust or other enterprise.
The corporation shall, to the maximum extent permitted by law, advance
to each of its agents expenses incurred in defending any proceeding of the type
referred to in the first sentence of this Section, prior to the final
disposition of such proceeding, upon receipt of an undertaking by or on behalf
of the agent to repay such amount unless it shall be determined ultimately that
the agent is entitled to be indemnified as authorized in this Section.
The corporation shall have the power to purchase and maintain insurance
on behalf of any "agent" against any liability asserted against or incurred by
the agent in such capacity
-10-
<PAGE>
or arising out of the agent's status as such whether or not the corporation
would be permitted by law to indemnify the agent against such liability.
Section 5. Amendments. Bylaws may be adopted, amended, or repealed by
the vote or the written consent of the shareholders entitled to exercise a
majority of the voting power of the corporation. Subject to the right of
shareholders to adopt, amend, or repeal bylaws, the Bylaws may be adopted,
amended, or repealed by the Board of Directors, provided, however, that a bylaw
or amendment thereof changing the authorized number of directors may be adopted
by the Board of Directors only if these Bylaws permit an indefinite number of
directors and the bylaw or amendment thereof adopted by the Board of Directors
changes the authorized number of directors within the limits specified in these
Bylaws.
Whenever an amendment or new bylaw is adopted, the text of such amended
or new bylaw shall be entered in the minute book copy of the Bylaws, in the
appropriate place, with a notation as to the manner and effective date of such
amendment or adoption. If any bylaw is repealed, the fact of such repeal,
including a notation as to the manner and effective date of such repeal, shall
be entered at the appropriate place in the minute book copy of the Bylaws.
*******
CERTIFICATE OF ADOPTION OF BYLAWS
I, the undersigned, the duly elected and acting Secretary of PPI
Holdings, Inc., a California corporation, do hereby certify that the foregoing
Bylaws were adopted as the Bylaws of said corporation by the Sole Incorporator
of said corporation as of August 12, 1999.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of said corporation as of August 30, 1999.
LEIF SYRSTAD
-----------------------
Leif Syrstad, Secretary
(Seal)
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<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 1 to Registration Statement
No. 333-91171 of GenTek Inc. of our report dated February 11, 1999
(March 18, 1999 as to Notes 1 and 3 and July 12, 1999 as to Note 18),
appearing in the Prospectus, which is a part of such Registration
Statement, and to the reference to us under the headings "Selected
Financial Data" and "Experts" in such Prospectus.
/s/ DELOITTE & TOUCHE LLP
Parsippany, New Jersey
December 3, 1999
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1
to Registration Statement No. 333-91171 of GenTek Inc. on Form S-4
of our report dated February 19, 1999 (except for Note 17 which is as of
March 12, 1999), appearing in the Form 10, filed by GenTek, Inc., for each
of the years in the three year period ended December 31, 1998, and to the
reference to us under the heading "Experts" in such Prospectus, which is part
of such Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Chartered Accountants
Toronto, Ontario
December 3, 1999
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1
to Registration Statement No. 333-91171 of GenTek, Inc. on Form S-4
of our report dated October 20, 1999, included in the Current Report on
Form 8-K, filed November 3, 1999 by GenTek, Inc., for the years then
ended December 31, 1998 and 1997, and to the reference to us under the
heading "Experts" in the Prospectus, which is part of such Registration
Statement.
/s/ DELOITTE & TOUCHE GmbH
Berlin/Duesseldorf, Germany
December 3, 1999
<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
--------------------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
<TABLE>
<S> <C> <C>
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601 36-4046888
(Address of principal executive offices) (Zip Code) I.R.S. Employer Identification No.
</TABLE>
John W. Cole
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Telephone (312) 228-9418
(Name. address and telephone number of agent for service)
GENTEK INC.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Delaware 02-0505547
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Liberty Lane 03842
Hampton, New Hampshire (Zip Code)
(Address of Principal Executive Offices
</TABLE>
Debt Securities
$200,000,000 11% Senior Subordinated Notes due 2009
================================================================================
<PAGE>
FORM T-1
ITEM 1. GENERAL INFORMATION. Furnish the following information as to the
Trustee.
a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Washington, D.C.
b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
Trustee, describe each such affiliation.
None
Items 3-15 Not applicable because, to the best of Trustee's knowledge, the
Trustee is not a trustee under any other indenture under which any
other securities or certificates of interest or participation in any
other securities of the obligor are outstanding and there is not,
nor has there been, a default with respect to securities issued
under this indenture.
Item 16. LIST OF EXHIBITS: List below all exhibits filed as apart of this
statement of eligibility and qualification.
1. A copy of the Articles of Association of the Trustee now in effect,
incorporated herein by reference to Exhibit l of Form T-1,
Registration No. 333-18235.*
2. A copy of the certificate of authority of the Trustee to commence
business, incorporated herein by reference to Exhibit 2 of Form T-1,
Registration No. 333-18235.*
3. A copy of the certificate of authority of the Trustee to exercise
corporate trust powers, incorporated herein by reference to Exhibit
3 of Form T-1, Registration No. 333-18235.*
4. A copy of the existing bylaws of the Trustee, as now in effect,
incorporated herein by reference to Exhibit 4 of Form T-1,
Registration No. 333-18235.*
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6
of Form T-1, Registration No. 333-18235.*.
7. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority, filed herewith.
8. Not applicable.
9. Not applicable.
2
* See* at top of page 3
<PAGE>
* Exhibits thus designated are incorporated herein by reference to
Exhibits bearing identical numbers in Item 16 of the Form T-1 filed by the
Trustee with the Securities and Exchange Commission with the specific
references noted.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
Trustee, U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Chicago, State of Illinois on the 1st day of December, 1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ K. WENDY KUMAR
---------------------------------
Vice President and Assistant Secretary
3
<PAGE>
Exhibit 7
U.S. BANK TRUST NATIONAL ASSOCIATION
STATEMENT OF FINANCIAL CONDITION
AS OF 6/30/99
($000's)
<TABLE>
<CAPTION>
6/30/99
-----------
<S> <C>
ASSETS
Cash and Due From Depository Institutions $ 61,703
Federal Reserve Stock 3,732
Fixed Assets 67
Intangible Assets 42,764
Other Assets 3,046
-----------
TOTAL ASSETS $111,311
LIABILITIES
Other Liabilities 1,899
-----------
TOTAL LIABILITIES $ 1,899
EQUITY
Common and Preferred Stock 1,000
Surplus 106,712
Undivided Profits 1,699
Net unrealized holdin gains on available for sale securities 1
-----------
TOTAL EQUITY CAPITAL 109,412
TOTAL LIABILITIES AND EQUITY CAPITAL $111,311
</TABLE>
- --------------------------------------------------------------------------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By: /s/ K. Wendy Kumar
---------------------------
Vice President
Date: December 1, 1999
4
<PAGE>
LETTER OF TRANSMITTAL
GENTEK INC.
OFFER TO EXCHANGE ALL OUTSTANDING
11% SENIOR SUBORDINATED NOTES DUE 2009
FOR
11% SENIOR SUBORDINATED NOTES DUE 2009
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS, DATED DECEMBER 3, 1999
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
JANUARY 12, 2000 UNLESS EXTENDED (THE 'EXPIRATION DATE'). TENDERS MAY BE
WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
Delivery To: U.S. BANK TRUST NATIONAL ASSOCIATION, EXCHANGE AGENT
<TABLE>
<S> <C>
By Mail, Hand Delivery or Overnight Carrier: For Information Call:
U.S. Trust Bank National Association (800) 934-6802
180 East 5th Street
St. Paul, Minnesota 55101 Facsimile Transmission Number:
Attention: Specialized Finance (651) 244-1537
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET
FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX BELOW
The undersigned acknowledges that he, she or it has received and reviewed
this Letter of Transmittal (the 'Letter') and the Prospectus, dated December 3,
1999 (the 'Prospectus'), of GenTek Inc., a corporation organized under the laws
of the State of Delaware (the 'Company' or the 'Issuer'), relating to its offer
to exchange up to $200,000,000 aggregate principal amount of its 11% Senior
Subordinated Notes Due 2009 (the 'New Notes'), which have been registered under
the Securities Act of 1933, as amended (the 'Securities Act') and which are
fully and unconditionally guaranteed by certain of its subsidiaries as described
in the Prospectus, for a like principal amount of its issued and outstanding 11%
Senior Subordinated Notes Due 2009 (the 'Old Notes') from the registered holders
thereof (the 'Holders'). The Prospectus and this Letter of Transmittal (this
'Letter') together constitute the Company's offer to exchange (the 'Exchange
Offer') its New Notes for a like principal amount of its Old Notes from the
Holders.
For each Old Note accepted for exchange, the Holder of such Old Note will
receive a New Note having a principal amount equal to that of the surrendered
Old Note. The New Notes will bear interest from the most recent date to which
interest has been paid on the Old Notes or, if no interest has been paid on the
Old Notes, from August 9, 1999. Accordingly, registered holders of New Notes on
the relevant record date for the first interest payment date following the
consummation of the Exchange Offer will receive interest accruing from the most
recent date to which interest has been paid or, if no interest has been paid,
from August 9, 1999. Old Notes accepted for exchange will cease to accrue
interest from and after the date of consummation of the Exchange Offer. Holders
of Old Notes whose Old Notes are accepted for exchange will not receive any
payment in respect of accrued interest on such Old Notes.
This Letter is to be completed by a Holder of Old Notes either if
certificates are to be forwarded herewith or if a tender of certificates for Old
Notes, if available, is to be made by book-entry transfer to the account
maintained by the Exchange Agent at DTC (the 'Book-Entry Transfer Facility')
pursuant to the procedures set forth in 'The Exchange Offer -- Book-Entry
Transfer' section of the Prospectus. Holders of Old Notes whose certificates are
not immediately available, or who are unable to deliver their certificates or
confirmation of the book-entry tender of their Old Notes into the Exchange
Agent's account at the Book-Entry Transfer Facility (a 'Book-Entry
Confirmation') and all other documents required by this Letter
<PAGE>
to the Exchange Agent on or prior to the Expiration Date, must tender their Old
Notes according to the guaranteed delivery procedures set forth in 'The Exchange
Offer -- Guaranteed Delivery Procedures' section of the Prospectus. See
Instruction 1. Delivery of documents to the Book-Entry Transfer Facility does
not constitute delivery to the Exchange Agent.
Holders of Old Notes that are tendering by book-entry transfer to the
Exchange Agent's account at DTC can execute the tender through the DTC Automated
Tender Offer Program ('ATOP') for which the transaction will be eligible. DTC
participants should transmit their acceptance to DTC which will verify the
acceptance and execute a book-entry delivery to the Exchange Agent's account at
DTC. DTC will then send an Agent's Message (as defined in the Prospectus) to the
Exchange Agent for its acceptance. DTC participants may also accept the Exchange
Offer by submitting a notice of guaranteed delivery through ATOP.
List below the Old Notes to which this Letter relates. If the space
provided below is inadequate, the certificate numbers and principal amount of
Old Notes should be listed on a separate signed schedule affixed hereto.
<TABLE>
<CAPTION>
DESCRIPTION OF OLD NOTES 1 2 3
AGGREGATE
PRINCIPAL PRINCIPAL
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) (PLEASE FILL CERTIFICATE AMOUNT OF AMOUNT
IN, IF BLANK) NUMBER(S)* OLD NOTE(S) TENDERED**
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
---------------------------------------
---------------------------------------
---------------------------------------
TOTAL
</TABLE>
* Need not be completed if Old Notes are being tendered by book-entry
transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have
tendered ALL of the Old Notes represented by the Old Notes indicated in
column 2. See Instruction 2. Old Notes tendered hereby must be in
denominations of principal amount of $1,000 and any integral multiple
thereof. See Instruction 1.
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution _________________________________________
Account Number ________________________________________Transaction Code
Number ________________________________________________________________
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s) _______________________________________
Window Ticket Number (if any) _________________________________________
Date of Execution of Notice of Guaranteed Delivery ____________________
Name of Institution Which Guaranteed Delivery _________________________
If Delivered by Book-Entry Transfer, Complete the Following:
Account Number ________________________________________Transaction Code
Number ________________________________________________________________
2
<PAGE>
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER ENTITLED, PURSUANT TO THE TERMS
OF THE REGISTRATION RIGHTS AGREEMENT REFERRED TO IN THE PROSPECTUS, TO
RECEIVE, AND WISH TO RECEIVE, 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO WITHIN 90 DAYS
AFTER THE EXPIRATION DATE.
Name: __________________________________________________________________________
Address: _______________________________________________________________________
_______________________________________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that
it it is not engaged in, and does not intend to engage in, a distribution of New
Notes. If the undersigned is a broker-dealer that will receive New Notes for its
own account in exchange for Old Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges and
represents that it will deliver a prospectus meeting the requirements of the
Securities Act, in connection with any resale of such New Notes; however, by so
acknowledging and representing and by delivering such a prospectus the
undersigned will not be deemed to admit that it is an 'underwriter' within the
meaning of the Securities Act. If the undersigned is a broker-dealer that will
receive New Notes, it represents that the Old Notes to be exchanged for the New
Notes were acquired as a result of market-making activities or other trading
activities. In addition, such broker-dealer represents that it is not acting on
behalf of any person who could not truthfully make the foregoing
representations.
3
<PAGE>
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of Old
Notes indicated above. Subject to, and effective upon, the acceptance for
exchange of the Old Notes tendered hereby, the undersigned hereby sells, assigns
and transfers to, or upon the order of, the Company all right, title and
interest in and to such Old Notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent as the undersigned's true and lawful agent and attorney-in-fact with
respect to such tendered Old Notes, with full power of substitution, among other
things, to cause the Old Notes to be assigned, transferred and exchanged. The
undersigned hereby represents and warrants that the undersigned has full power
and authority to tender, sell, assign and transfer the Old Notes, and to acquire
New Notes issuable upon the exchange of such tendered Old Notes, and that, when
such Old Notes are accepted for exchange, the Company will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim when the same are accepted
by the Company. The undersigned hereby further represents and warrants that any
New Notes acquired in exchange for Old Notes tendered hereby will have been
acquired in the ordinary course of business of the person receiving such New
Notes, whether or not such person is the undersigned, that neither the Holder of
such Old Notes nor any such other person is participating in, intends to
participate in or has an arrangement or understanding with any person to
participate in the distribution (within the meaning of the Securities Act) of
Old Notes or New Notes, that neither the Holder of such Old Notes nor any such
other person is an 'affiliate,' as defined in Rule 405 under the Securities Act,
of the Company, and that neither the Holder of such Old Notes nor such other
person is acting on behalf of any person who could not truthfully make the
foregoing representations and warranties.
The undersigned acknowledges that this Exchange Offer is being made in
reliance on interpretations by the staff of the Securities and Exchange
Commission (the 'SEC'), as set forth in no-action letters issued to third
parties, that the New Notes issued pursuant to the Exchange Offer in exchange
for the Old Notes may be offered for resale, resold and otherwise transferred by
Holders thereof (other than any such Holder that is a broker-dealer or an
'affiliate' of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such Holder's business, at the time of commencement of
the Exchange Offer such Holder has no arrangement or understanding with any
person to participate in a distribution of such New Notes, and such Holder is
not engaged in, and does not intend to engage in, a distribution of such New
Notes. However, the SEC has not considered the Exchange Offer in the context of
a no-action letter and there can be no assurance that the staff of the SEC would
make a similar determination with respect to the Exchange Offer as in other
circumstances. If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of New Notes and has no arrangement or understanding to participate
in a distribution of New Notes. If the undersigned is a broker-dealer that will
receive New Notes for its own account in exchange for Old Notes, it represents
that the Old Notes to be exchanged for the New Notes were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of such New Notes; however, by so acknowledging
and by delivering a prospectus meeting the requirements of the Securities Act,
the undersigned will not be deemed to admit that it is an 'underwriter' within
the meaning of the Securities Act.
The SEC has taken the position that such broker-dealers may fulfill their
prospectus delivery requirements with respect to the New Notes (other than a
resale of New Notes received in exchange for an unsold allotment from the
original sale of the Old Notes) with the Prospectus. The Prospectus, as it may
be amended or supplemented from time to time, may be used by certain
broker-dealers (as specified in the Registration Rights Agreement referenced in
the Prospectus) ('Participating Broker-Dealers') for a period of time, starting
on the Expiration Date and ending on the close of business 90 days after the
Expiration Date in connection with the sale or transfer of such New Notes. The
Company has agreed that, for such period of time, it will make the Prospectus
(as it may be amended or supplemented) available to such a broker-dealer which
elects to exchange Old Notes, acquired for its own account as a result of market
making or other trading activities, for New Notes pursuant to the Exchange Offer
for use in connection with any resale of such New Notes. By accepting the
Exchange Offer, each broker-dealer that receives New Notes pursuant to the
Exchange Offer acknowledges and agrees to notify the Company prior to using the
Prospectus in connection with the sale or transfer of New Notes and that, upon
receipt of notice from the Company of the happening of any event which makes any
statement in the Prospectus untrue in any material respect or which requires the
making of any changes in the Prospectus in order to make the statements therein
(in light of the circumstances under which they were made) not misleading, such
broker-dealer will suspend use of the Prospectus until
4
<PAGE>
(i) the Company has amended or supplemented the Prospectus to correct such
misstatement or omission and (ii) either the Company has furnished copies of the
amended or supplemented Prospectus to such broker-dealer or, if the Company has
not otherwise agreed to furnish such copies and declines to do so after such
broker-dealer so requests, such broker-dealer has obtained a copy of such
amended or supplemented Prospectus as filed with the SEC. Except as described
above, the Prospectus may not be used for or in connection with an offer to
resell, a resale or any other retransfer of New Notes. A broker-dealer that
acquired Old Notes in a transaction other than as part of its market-making
activities or other trading activities will not be able to participate in the
Exchange Offer.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Notes tendered hereby. All authority
conferred or agreed to be conferred in this Letter and every obligation of the
undersigned hereunder shall be binding upon the successors, assigns, heirs,
executors, administrators, trustees in bankruptcy and legal representatives of
the undersigned and shall not be affected by, and shall survive, the death or
incapacity of the undersigned. This tender may be withdrawn only in accordance
with the procedures set forth in 'The Exchange Offer -- Withdrawal of Tenders'
section of the Prospectus.
Unless otherwise indicated herein in the box entitled 'Special Issuance
Instructions' below, please deliver the New Notes (and, if applicable,
substitute certificates representing Old Notes for any Old Notes not exchanged)
in the name of the undersigned or, in the case of a book-entry delivery of Old
Notes, please credit the account indicated above maintained at the Book-Entry
Transfer Facility. Similarly, unless otherwise indicated under the box entitled
'Special Delivery Instructions' below, please send the New Notes (and, if
applicable, substitute certificates representing Old Notes for any Old Notes not
exchanged) to the undersigned at the address shown above in the box entitled
'Description of Old Notes.'
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED 'DESCRIPTION OF OLD NOTES'
ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS
SET FORTH IN SUCH BOX ABOVE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX BELOW.
5
<PAGE>
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SIGNATURE(S) OF OWNER
Dated:----------------------------------- ,----
Area Code and Telephone Number:-------------------------------------------
If a Holder is tendering an Old Note, this Letter must be
signed by the registered Holder(s) as the name(s) appear(s)
on the certificate(s) for the Old Note or by any person(s)
authorized to become registered Holder(s) by endorsements
and documents transmitted herewith. If signature is by a
trustee, executor, administrator, guardian, officer or other
person acting in a fiduciary or representative capacity,
please set forth full title. See Instruction 3.
Name(s)-------------------------------------------------------------------
- ------------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Capacity:-----------------------------------------------------------------
Address:------------------------------------------------------------------
- ------------------------------------------------------------------------------
SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 3)
Signature(s) Guaranteed by
an Eligible Institution:
------------------------------------------------------
(AUTHORIZED SIGNATURE)
- ------------------------------------------------------------------------------
(TITLE)
- ------------------------------------------------------------------------------
(NAME AND FIRM)
Dated:---------------------------- , -------------
PLEASE COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9 HEREIN.
SEE INSTRUCTION 5.
6
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3, 4 AND 6)
To be completed ONLY if certificates for Old
Notes not exchanged and/or New Notes are to
be issued in the name of and sent to someone
other than the person or persons whose
signature(s) appear(s) on this Letter above,
or if Old Notes delivered by book-entry
transfer which are not accepted for exchange
are to be turned by credit to an account
maintained at the Book-Entry Transfer
Facility other than the account indicated
above.
Issue: New Notes and/or Old Notes to:
Name(s)------------------------------------
(PLEASE TYPE OR PRINT)
- --------------------------------------------
(PLEASE TYPE OR PRINT)
Address ------------------------------------
- --------------------------------------------
(ZIP CODE)
(Complete Substitute Form W-9)
[ ] Credit unexchanged Old Notes delivered
by book-entry transfer to the Book-Entry
Transfer Facility account set forth
below.
- ----------------------------------------------
(BOOK-ENTRY TRANSFER FACILITY
ACCOUNT NUMBER, IF APPLICABLE)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3, 4 AND 6)
To be completed ONLY if certificates for Old
Notes not exchanged and/or New Notes are to
be sent to someone other than the person or
persons whose signature(s) appear(s) on this
Letter above or to such person or persons at
an address other than shown in the box
entitled 'Description of Old Notes' on this
Letter above.
Mail: New Notes and/or Old Notes to:
Name(s)------------------------------
(PLEASE TYPE OR PRINT)
- ---------------------------------------
(PLEASE TYPE OR PRINT)
Address--------------------------------
- ----------------------------------------
(ZIP CODE)
IMPORTANT: UNLESS GUARANTEED DELIVERY
PROCEDURES ARE COMPLIED WITH, THIS LETTER OR
A FACSIMILE HEREOF (TOGETHER WITH THE
CERTIFICATES FOR OLD NOTES OR A BOOK-ENTRY
CONFIRMATION AND ALL OTHER REQUIRED
DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE
AGENT PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
7
<PAGE>
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER FOR THE
11% SENIOR SUBORDINATED NOTES DUE 2009
OF GENTEK INC. IN EXCHANGE FOR THE
11% SENIOR SUBORDINATED NOTES DUE 2009
OF GENTEK INC., WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
1. DELIVERY OF THIS LETTER AND NOTES; GUARANTEED DELIVERY PROCEDURES.
This Letter is to be completed by Holders of Old Notes either if
certificates are to be forwarded herewith or if tenders are to be made pursuant
to the procedures for delivery by book-entry transfer set forth in 'The Exchange
Offer -- Book-Entry Transfer' section of the Prospectus. Certificates for all
physically tendered Old Notes, or Book-Entry Confirmation, as the case may be,
as well as a properly completed and duly executed Letter (or manually signed
facsimile hereof) and any other documents required by this Letter, must be
received by the Exchange Agent at the address set forth herein on or prior to
the Expiration Date, or the tendering Holder must comply with the guaranteed
delivery procedures set forth below. Old Notes tendered hereby must be in
denominations of principal amount of $1,000 and any integral multiple thereof.
Holders whose certificates for Old Notes are not immediately available or
who cannot deliver their certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date, or who cannot complete the
procedure for book entry transfer on a timely basis, may tender their Old Notes
pursuant to the guaranteed delivery procedures set forth in 'The Exchange
Offer -- Guaranteed Delivery Procedures' section of the Prospectus. Pursuant to
such procedures, (i) such tender must be made through an Eligible Institution,
(ii) prior to 5:00 P.M., New York City time, on the Expiration Date, the
Exchange Agent must receive from such Eligible Institution a properly completed
and duly executed Letter (or a facsimile thereof) and Notice of Guaranteed
Delivery, substantially in the form provided by the Company (by facsimile
transmission, mail or hand delivery), setting forth the name and address of the
Holder of Old Notes and the amount of Old Notes tendered, stating that the
tender is being made thereby and guaranteeing that within three New York Stock
Exchange ('NYSE') trading days after the date of execution of the Notice of
Guaranteed Delivery, the certificates for all physically-tendered Old Notes, in
proper form for transfer, or a Book-Entry Confirmation, as the case may be, and
any other documents required by this Letter will be deposited by the Eligible
Institution with the Exchange Agent, and (iii) the certificates for all
physically-tendered Old Notes, in proper form for transfer, or a Book-Entry
Confirmation, as the case may be, and all other documents required by this
Letter, are received by the Exchange Agent within three NYSE trading days after
the date of execution of the Notice of Guaranteed Delivery.
The method of delivery of this Letter, the Old Notes and all other required
documents, including delivery through DTC and any acceptance of an Agent's
Message delivered through ATOP, is at the election and risk of the tendering
Holders, but the delivery will be deemed made only when actually received or
confirmed by the Exchange Agent. If Old Notes are sent by mail, it is suggested
that the mailing be registered mail, properly insured, with return receipt
requested, made sufficiently in advance of the Expiration Date to permit
delivery to the Exchange Agent prior to 5:00 P.M., New York City time, on the
Expiration Date.
See 'The Exchange Offer' section of the Prospectus.
2. PARTIAL TENDERS (NOT APPLICABLE TO NOTEHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER).
If less than all of the Old Notes evidenced by a submitted certificate are
to be tendered, the tendering Holder(s) should fill in the aggregate principal
amount of Old Notes to be tendered in the box above entitled 'Description of Old
Notes -- Principal Amount Tendered.' A reissued certificate representing the
balance of nontendered Old Notes will be sent to such tendering Holder, unless
otherwise provided in the appropriate box on this Letter, promptly after the
Expiration Date. All of the Old Notes delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
3. SIGNATURES ON THIS LETTER; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF
SIGNATURES.
If this Letter is signed by the registered Holder of the Old Notes tendered
hereby, the signature must correspond exactly with the name as written on the
face of the certificates without any change whatsoever.
If any tendered Old Notes are owned of record by two or more joint owners,
all of such owners must sign this Letter.
8
<PAGE>
If any tendered Old Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
copies of this Letter as there are different registrations of certificates.
When this Letter is signed by the registered Holder or Holders of the Old
Notes specified herein and tendered hereby, no endorsements of certificates or
separate bond powers are required. If, however, the New Notes are to be issued,
or any untendered Old Notes are to be reissued, to a person other than the
registered Holder, then endorsements of any certificates transmitted hereby or
separate bond powers are required. Signatures on such certificate(s) must be
guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered Holder or
Holders of any certificate(s) specified herein, such certificate(s) must be
endorsed or accompanied by appropriate bond powers, in either case signed
exactly as the name or names of the registered Holder or Holders appear(s) on
the certificate(s) and signatures on such certificate(s) must be guaranteed by
an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of their authority to so act must be
submitted.
Endorsements on certificates for Old Notes or signatures on bond powers
required by this Instruction 3 must be guaranteed by any member firm of a
registered National Securities Exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an 'eligible guarantor institution' within
the meaning of Rule 17ad-15 under the Securities Exchange Act of 1934, as
amended (each an 'Eligible Institution').
Signatures on this letter need not be guaranteed by an Eligible
Institution, provided the Old Notes are tendered: (i) by a registered holder of
Old Notes (which term, for purposes of the exchange offer, includes any
participant in the Book-Entry Transfer Facility system whose name appears on a
security position listing as the holder of such Old Notes) who has not completed
the box entitled 'Special Issuance Instructions' or 'Special Delivery
Instructions' in this Letter, or (ii) for the account of an Eligible
Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering Holders of Old Notes should indicate in the applicable box the
name and address to which New Notes issued pursuant to the Exchange Offer and or
substitute certificates evidencing Old Notes not exchanged are to be issued or
sent, if different from the name or address of the person signing this Letter.
In the case of issuance in a different name, the employer identification or
social security number of the person named must also be indicated. Holders
tendering Old Notes by book-entry transfer may request that Old Notes not
exchanged be credited to such account maintained at the Book-Entry Transfer
Facility as such Holder may designate hereon. If no such instructions are given,
such Old Notes not exchanged will be returned to the name and address of the
person signing this Letter.
5. TAXPAYER IDENTIFICATION NUMBER.
Federal income tax law generally requires that a tendering Holder whose Old
Notes are accepted for exchange must provide the Company (as payor), or the
Paying Agent designated by the Company to act on its behalf, with such Holder's
correct Taxpayer Identification Number ('TIN') on Substitute Form W-9 below,
which in the case of a tendering Holder who is an individual, is his or her
social security number. If the Company is not provided with the current TIN or
an adequate basis for an exemption from backup withholding, such tendering
Holder may be subject to a $50 penalty imposed by the Internal Revenue Service.
In addition, delivery to such tendering Holder of New Notes may result in backup
withholding in an amount equal to 31% of all reportable payments made after the
exchange. If withholding results in an overpayment of taxes, a refund may be
obtained.
Exempt Holders of Old Notes (including, among others, all corporations and
certain foreign individual) are not subject to these backup withholding and
reporting requirements. See the enclosed Guidelines of Certification of Taxpayer
Identification Number on Substitute Form W-9 (the 'W-9 Guidelines') for
additional instructions.
To prevent backup withholding, each tendering Holder of Old Notes must
provide its correct TIN by completing the Substitute Form W-9 set forth below,
certifying, under penalties of perjury, that the TIN provided is correct (or
that such Holder is awaiting a TIN) and that (i) the Holder is exempt from
backup withholding, or (ii) the Holder has not been notified by the Internal
Revenue Service that such Holder is subject to backup withholding as a result of
a failure to report
9
<PAGE>
all interest or dividends or (iii) the Internal Revenue Service has notified the
Holder that such Holder is no longer subject to backup withholding. If the
tendering Holder of Old Notes is a nonresident alien or foreign entity not
subject to backup withholding, such Holder must give the Exchange Agent a
completed Form W-8, Certificate of Foreign Status. This form may be obtained
from the Exchange Agent. If the Old Notes are in more than one name or are not
in the name of the actual owner, such Holder should consult the W-9 Guidelines
for information on which TIN to report. If such Holder does not have a TIN, such
Holder should consult the W-9 Guidelines for instructions on applying for a TIN,
check the box in Part 2 of the Substitute Form W-9 and write 'applied for' in
lieu of its TIN. Note: Checking this box and writing 'applied for' on the form
means that such Holder has already applied for a TIN or that such Holder intends
to apply for one in the near future. If such Holder does not provide its TIN to
the Issuer within 60 days, backup withholding will begin and continue until such
Holder furnishes its TIN to the Issuer.
6. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the transfer
of Old Notes to it or its order pursuant to the Exchange Offer. If, however, New
Notes and/or substitute Old Notes not exchanged are to be delivered to, or are
to be registered or issued in the name of, any person other than the registered
Holder of the Old Notes tendered hereby, or if tendered Old Notes are registered
in the name of any person other than the person signing this Letter, or if a
transfer tax is imposed for any reason other than the transfer of Old Notes to
the Company or its order pursuant to the Exchange Offer, the amount of any such
transfer taxes (whether imposed on the registered Holder or any other persons)
will be payable by the tendering Holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted herewith, the amount of such
transfer taxes will be billed directly to such tendering Holder.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes specified in this letter.
7. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive satisfaction of any or all
conditions enumerated in the Prospectus.
8. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering Holders of Old Notes, by execution of this Letter, shall
waive any right to receive notice of the acceptance of their Old Notes for
exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of Old
Notes nor shall any of them incur any liability for failure to give any such
notice.
9. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES.
Any Holder whose Old Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address indicated above for further
instructions.
10. WITHDRAWAL RIGHTS.
Tenders of Old Notes of a series may be withdrawn at any time prior to
5:00 P.M., New York City time, on the Expiration Date with respect to such
series.
For a withdrawal of a tender of Old Notes to be effective, a written notice
of withdrawal must be received by the Exchange Agent at the address set forth
above prior to 5:00 P.M., New York City time, on the Expiration Date with
respect to such series. Any such notice of withdrawal must (i) specify the name
of the person having tendered the Old Notes to be withdrawn (the 'Depositor'),
(ii) identify the Old Notes to be withdrawn (including the principal amount of
such Old Notes), (iii) in the case of Old Notes tendered by book-entry transfer,
specify the number of the account at the Book-Entry Transfer Facility from which
the Old Notes were tendered and specify the name and number of the account at
the Book-Entry Transfer Facility to be credited with the withdrawn Old Notes and
otherwise comply with the procedures of such facility, (iv) contain a statement
that such Holder is withdrawing its election to have such Old Notes exchanged,
(v) be signed by the Holder in the same manner as the original signature on the
Letter by which such Old Notes were tendered (including any required signature
guarantees) or be accompanied by documents of transfer to have the Trustee with
respect to the Old Notes register the transfer of such Old Notes in the name of
the person withdrawing the tender and (vi) specify
10
<PAGE>
the name in which such Old Notes are registered, if different from that of the
Depositor. All questions as to the validity, form and eligibility (including
time of receipt) of such notices will be determined by the Company, whose
determination shall be final and binding on all parties. Any Old Notes so
withdrawn will be deemed not to have been validly tendered for exchange for
purposes of the Exchange Offer and no New Notes will be issued with respect
thereto unless the Old Notes so withdrawn are validly retendered. Any Old Notes
that have been tendered for exchange but which are not exchanged for any reason
will be returned to the tendering Holder thereof without cost to such Holder
(or, in the case of Old Notes tendered by book-entry transfer into the Exchange
Agent's account at the Book-Entry Transfer Facility pursuant to the book-entry
transfer procedures set forth in 'The Exchange Offer -- Book-Entry Transfer'
section of the Prospectus, such Old Notes will be credited to an account
maintained with the Book-Entry Transfer Facility for the Old Notes) as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Old Notes may be retendered by following the
procedures described above at any time on or prior to 5:00 P.M., New York City
time, on the Expiration Date with respect to such series of Old Notes.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter, and requests for Notices of
Guaranteed Delivery and other related documents may be directed to the Exchange
Agent, at the address and telephone number indicated above.
11
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 5)
PAYOR'S NAME: U.S. BANK TRUST NATIONAL ASSOCIATION, AS PAYING AGENT
<TABLE>
<S> <C> <C>
PART 1. PLEASE PROVIDE YOUR TIN IN TIN:---------------------
THE BOX AT RIGHT AND CERTIFY BY Social Security Number
SIGNING AND DATING BELOW. or
Employer Identification Number
PART 2. TIN Applied for: [ ]
CERTIFICATION: -- Under the penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me).
(2) I am not subject to backup withholding either because: (a) I am
exempt from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (the 'IRS') that I am subject to backup
withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer subject
to backup withholding, and
(3) any other information provided on this form is true and correct.
SIGNATURE------------------------- DATE------------- ,
You must cross out item (2) of the above certification if you have been
notified by the IRS that you are subject to backup withholding because of
underreporting of interest or dividends on your tax return and you have
not been notified by the IRS that you are no longer subject to backup
withholding.
SUBSTITUTE
FORM W-9
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
PAYOR'S REQUEST FOR
TAXPAYER IDENTIFICATION
NUMBER ('TIN') AND
CERTIFICATION
</TABLE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either
(a) I have mailed or delivered an application to receive a
taxpayer identification number to the appropriate Internal
Revenue Service Center or Social Security Administration
Office or (b) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a
taxpayer identification number by the time of the exchange,
31 percent of all reportable payments made to me thereafter
will be withheld until I provide a number.
SIGNATURE--------------------------------- DATE-------------------------
NOTE: FAILURE TO COMPLETE THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF
ANY PAYMENTS MADE TO YOU PURSUANT TO THE TENDER OFFER AND/OR THE SOLICITATION.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
12
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
GENTEK INC.
11% SENIOR SUBORDINATED NOTES DUE 2009
This form or one substantially equivalent hereto must be used to accept the
Exchange Offer of GenTek Inc. (the 'Issuer' or the 'Company') made pursuant to
the Prospectus, dated December 3, 1999 (the 'Prospectus'), if certificates (as
applicable) for outstanding 11% Senior Subordinated Notes Due 2009 (the 'Old
Notes') of the Issuer are not immediately available or if the procedure for
book-entry transfer cannot be completed on a timely basis or time will not
permit all required documents to reach U.S. Bank Trust National Association, as
exchange agent (the 'Exchange Agent') prior to 5:00 p.m., New York City time, on
the Expiration Date of the Exchange Offer. Such form may be delivered or
transmitted by facsimile transmission, mail or hand delivery to the Exchange
Agent as set forth below. In addition, in order to utilize the guaranteed
delivery procedure to tender Old Notes pursuant to the Exchange Offer, a
completed, signed and dated Letter of Transmittal (or facsimile thereof)
relating to the tender for exchange of Old Notes (the 'Letter of Transmittal')
must also be received by the Exchange Agent prior to 5:00 p.m., New York City
time, on the Expiration Date. Capitalized terms not defined herein are defined
in the Prospectus or the Letter of Transmittal.
Delivery To: U.S. BANK TRUST NATIONAL ASSOCIATION, EXCHANGE AGENT
<TABLE>
<S> <C>
By Mail, Hand Delivery or Overnight Carrier: For Information Call:
U.S. Bank Trust National Association (800) 934-6802
180 East 5th Street
St. Paul, Minnesota 55101 Facsimile Transmission Number:
Attention: Specialized Finance (651) 244-1537
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AT SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<PAGE>
Ladies and Gentlemen:
Upon the terms and conditions set forth in the Prospectus and the
accompanying Letter of Transmittal, the undersigned hereby tenders to the
Company the principal amount of Old Notes set forth below pursuant to the
guaranteed delivery procedure described in 'The Exchange Offer -- Guaranteed
Delivery Procedures' section of the Prospectus.
<TABLE>
<CAPTION>
Certificate Number(s)
(if known) of Existing
Notes or Account Aggregate Principal
Number at the Book- Aggregate Principal Amount Tendered
Entry Transfer Facility Amount Represented (if less than all)*
<S> <C> <C>
- ----------------------------- ----------------------------- -----------------------------
- ----------------------------- ----------------------------- -----------------------------
- ----------------------------- ----------------------------- -----------------------------
- ----------------------------- ----------------------------- -----------------------------
</TABLE>
* Unless otherwise indicated, the Holder will be deemed to have tendered the
full aggregate principal amount represented by such Old Notes.
ALL AUTHORITY HEREIN CONFERRED OR AGREED TO BE CONFERRED SHALL SURVIVE THE DEATH
OR INCAPACITY OF THE UNDERSIGNED AND EVERY OBLIGATION OF THE UNDERSIGNED
HEREUNDER SHALL BE BINDING UPON THE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS
AND ASSIGNS OF THE UNDERSIGNED.
PLEASE SIGN HERE
<TABLE>
<S> <C> <C>
------------------------------------------------- --------------
X Signature(s) of Owner(s) or Authorized Signatory Date
Area Code and Telephone Number:-----------------
</TABLE>
Must be signed by the Holder(s) of Old Notes as their name(s) appear(s) on
certificates for Old Notes or on a security position listing, or by person(s)
authorized to become registered Holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s): -------------------------------------------------------------
Capacity: -------------------------------------------------------------
Address(es): -------------------------------------------------------------
2
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc., a commercial bank or
trust company having an office or correspondent in the United States or an
'eligible guarantor institution' within the meaning of Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, hereby guarantees that the
certificates representing the principal amount of Old Notes tendered hereby in
proper form for transfer, or timely confirmation of the book-entry transfer of
such Old Notes into the Exchange Agent's account at The Depository Trust Company
pursuant to the procedures set forth in 'The Exchange Offer -- Guaranteed
Delivery Procedures' section of the Prospectus, together with any required
signature guarantee and any other documents required by the Letter of
Transmittal, will be received by the Exchange Agent at the address set forth
above, no later than three New York Stock Exchange trading days after the date
of execution of this Notice of Guaranteed Delivery.
__________________________________________________
Name of Firm
__________________________________________________
Address
__________________________________________________
(Zip Code)
Area Code and Tel. No.: __________________________
__________________________________________________
Authorized Signature
__________________________________________________
Title
Name: ____________________________________________
(Please Type or Print)
Dated: ___________________________________________
NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM. CERTIFICATES FOR
OLD NOTES SHOULD BE SENT ONLY WITH A COPY OF YOUR PREVIOUSLY EXECUTED
LETTER OF TRANSMITTAL.
3
<PAGE>
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. Delivery of this Notice of Guaranteed Delivery. A properly completed and
duly executed copy of this Notice of Guaranteed Delivery and any other documents
required by this Notice of Guaranteed Delivery must be received by the Exchange
Agent at its address set forth herein prior to 5:00 p.m., New York City time, on
the Expiration Date. The method of delivery of this Notice of Guaranteed
Delivery and any other required documents to the Exchange Agent is at the
election and risk of the Holder and the delivery will be deemed made only when
actually received by the Exchange Agent. If delivery is by mail, registered or
certified mail properly insured, with return receipt requested, is recommended.
In all cases sufficient time should be allowed to assure timely delivery. For a
description of the guaranteed delivery procedure, see Instruction 1 of the
Letter of Transmittal.
2. Signatures of this Notice of Guaranteed Delivery. If this Notice of
Guaranteed Delivery is signed by the registered Holder(s) of the Old Notes
referred to herein, the signature must correspond with the name(s) written on
the face of the Old Notes without alteration, enlargement, or any change
whatsoever. If this Notice of Guaranteed Delivery is signed by a participant of
the Book-Entry Transfer Facility whose name appears on a security position
listing as the owner of Old Notes, the signature must correspond with the name
shown on the security position listing as the owner of the Old Notes.
If this Notice of Guaranteed Delivery is signed by a person other than the
registered Holder(s) of any Old Notes listed or a participant of the Book-Entry
Transfer Facility, this Notice of Guaranteed Delivery must be accompanied by
appropriate bond powers, signed as the name of the registered Holder(s) appears
on the Old Notes or signed as the name of the participant shown on the
Book-Entry Transfer Facility's security position listing.
If this Notice of Guaranteed Delivery is signed by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation, or other
person acting in a fiduciary or representative capacity, such person should so
indicate when signing.
3. Requests for Assistance or Additional Copies. Questions and requests for
assistance and requests for additional copies of the Prospectus may be directed
to the Exchange Agent at the address specified in the Prospectus. Holders may
also contact their broker, dealer, commercial bank, trust company, or other
nominee for assistance concerning the Exchange Offer.
4
