As filed with the Securities and Exchange Commission on June 27, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
LAFAYETTE INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 11-3190678
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
140 Hinsdale Street
Brooklyn, NY 11207
(Address of Principal Executive Offices) (Zip Code)
LAFAYETTE INDUSTRIES, INC. 1993 STOCK INCENTIVE PLAN
(Full title of the plan)
Robert J. Jessen
Chairman
Lafayette Industries, Inc.
140 Hinsdale Street
Brooklyn, NY 11207
(Name and address of agent for service)
(718) 346-3099
(Telephone number, including area code, of agent for service)
With a Copy to:
Michael B. Pollack, Esquire
Reed Smith Shaw & McClay
2500 One Liberty Place
Philadelphia, PA 19103
<PAGE>
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share (1) offering price fee
Common Stock,
par value
$.01 per
share.............800,000 Shares $ 3.69 $2,952,000 $1,017.93
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(h) and (c), the proposed maximum aggregate offering
price for shares which may be issued under the 1993 Stock Incentive Plan
(the "Plan") is based on the closing price of the Common Stock as reported
on the NASDAQ Small-Cap Issues Market of the National Association of
Securities Dealers, Inc. for June 21, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (File No. 0-25384) are incorporated in this Registration
Statement by reference and made a part of this Registration Statement:
(a) The Company's latest annual report on Form 10-KSB filed pursuant
to Section 13(a) of the Securities Exchange Act of 1934, as amended (the
"1934 Act");
(b) All other reports filed by the Company pursuant to Section 13(a)
of the 1934 Act since the end of the fiscal year covered by the annual
report on Form 10-KSB referred to above; and
(c) Any description of the Common Stock which is contained in a
registration statement filed by the Company pursuant to the 1934 Act,
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act on or subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
contemporaneously or subsequently filed document which also is or is deemed to
be incorporated by reference in this Registration Statement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law specifically provides (i) that a
director or officer of a corporation may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with 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
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reason of the fact that he is or was a director, officer, employee or agent of
the corporation if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interest of the corporation, and with
respect to any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful and (ii) that a director or officer of a
corporation may be indemnified in connection with 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 against expenses (including
attorneys' fees) actually and reasonably incurred by the director or officer in
connection with the defense or settlement of such action or suit if the director
or officer 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 may be provided in respect of any claim, issue or matter as to
which the director or officer is adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which the
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, the
director or officer is fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or such other court shall deem proper. The
Delaware General Corporation Law provides that the indemnification described
above shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
In implementation of the provisions of the Delaware General Corporation
Law, the Company's Certificate of Incorporation provides that except as
prohibited by law every Director and officer of the Company shall be entitled as
of right to be indemnified by the Company against reasonable expenses and any
liability paid or incurred by such person in connection with any actual or
threatened claim, action, suit or proceeding, civil, criminal, administrative,
investigative or other, whether brought by or in the right of the Company or
otherwise, in which such person may be involved, as a party or otherwise, by
reason of being or having been a Director or officer of the Company. Such right
to indemnification does not, however, apply to certain actions brought by a
Director or officer himself. As in the case of the Delaware General Corporation
Law, the Certificate of Incorporation also contains a non-exclusivity provision.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No.
4.1 Certificate of Incorporation of the registrant, as amended,
filed herewith.
4.2 Bylaws of the registrant, as amended, filed herewith.
5.1 Opinion of Reed Smith Shaw & McClay as to the legality of
the Common Stock, filed herewith.
23.1 Consent of Reed Smith Shaw & McClay (included in Exhibit 5.1
filed herewith).
23.2 Consent of Lazar, Levine & Company LLP, filed herewith.
24.1 Power of Attorney, contained on the signature page to this
Registration Statement.
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Item 9. Undertakings.
(a) Rule 415 offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(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 (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 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; and
(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.
(b) Filings incorporating subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
----------------------
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "1933 Act") may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form S-8 and authorized this registration
statement to be signed on its behalf of the undersigned, in Brooklyn, State of
New York on the 10th day of June, 1996.
LAFAYETTE INDUSTRIES, INC.
By /s/ Robert L. Jessen
----------------------------------
Robert L. Jessen, Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert L. Jessen, Colin Halpern and Joseph H.
Rubino, and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their or his
substitutes, may lawfully do or cause to be done by virtue thereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on June 10, 1996.
/s/Robert L. Jessen Chairman, Chief Executive June 10, 1996
Robert L. Jessen Officer and Director
(Principal Executive Officer)
/s/Joseph A. Rubino President and Director June 10, 1996
Joseph A. Rubino
/s/Lloyd C. Robinson Vice President - Finance June 10, 1996
Lloyd C. Robinson and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/Colin Halpern Executive Vice President June 10, 1996
Colin Halpern and Director
/s/Lucienne Jessen Vice President and June 10, 1996
Lucienne Jessen Director
/s/Nancy E. Gillon Vice President June 10, 1996
Nancy E. Gillon Administrative,
Secretary and Director
/s/Bernard M. Goldman Director June 10, 1996
Bernard M. Goldman
/s/James L. Harvey Director June 10, 1996
James L. Harvey
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LAFAYETTE INDUSTRIES, INC.
1993 Stock Incentive Plan
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
Exhibit Sequential
No. Document Page
4.1 Certificate of Incorporation of the
registrant, as amended, filed herewith.
4.2 Bylaws of the registrant, as amended,
filed herewith.
5.1 Opinion of Reed Smith Shaw & McClay, as to
the legality of the Common Stock, filed
herewith.
23.1 Consent of Reed Smith Shaw & McClay (included
in Exhibit 5.1 filed herewith).
23.2 Consent of Lazar, Levine & Company, LLP,
independent auditors, filed herewith.
24.1 Power of Attorney, contained on the signature
page to this Registration Statement.
EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
LAFAYETTE INDUSTRIES, INC.
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 Lafayette Industries, Inc.
ARTICLE II
The registered office of the Corporation in the State of Delaware is
located at 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent. The name of the Corporation's registered agent in the State of Delaware at
such address is The Prentice-Hall Corporation System, Inc.
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.
ARTICLE IV
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 20,000,000 shares of capital stock,
with a par value of $.01 per share. The Board of Directors is hereby granted the
authority to fix by resolution the designations, voting powers, preferences and
relative participation, optional and other special rights of each class of
stock.
ARTICLE V
Election of directors need not be by ballot unless the Bylaws of the
Corporation shall so provide.
<PAGE>
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 Bylaws of the Corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to alter and repeal Bylaws made by the Directors.
ARTICLE VII
The incorporator of the Corporation is Michael B. Pollack, whose mailing
address is 2500 One Liberty Place, Philadelphia, PA 19103.
ARTICLE VIII
Personal Liability of Directors.
1. To the fullest extent that the laws of the State of Delaware, as the
same exist or may hereafter be amended, permit elimination of the personal
liability of directors, no director of this Corporation shall be personally
liable to this Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director.
2. The provisions of this Article VIII shall be deemed to be a contract
with each director of this Corporation who serves as such at any time while this
Article VIII is in effect, and each such director shall be deemed to be serving
as such in reliance on the provisions of this Article VIII. Any amendment or
repeal of this Article VIII or adoption of any Bylaw of this Corporation or
other provision of the Certificate of Incorporation of this Corporation which
has the effect of increasing director liability shall operate prospectively only
and shall not affect any action taken, or any failure to act, by a director of
this Corporation prior to such amendment, repeal, Bylaw or other provision
becoming effective.
ARTICLE IX
Indemnification of, and Advancement of
Expenses to, Directors, Officers and Others.
1. Right to Indemnification. Except as prohibited by law, every director
and officer of the Corporation shall be entitled as of right to be indemnified
by the Corporation against all expenses and liability (as those terms are
defined below in this Paragraph 1) incurred by such person in connection with
any actual or threatened claim, action, suit or proceeding, whether
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civil, criminal, administrative, investigative or other, or whether brought by
or against such person or by or in the right of the Corporation or otherwise, in
which such person may be involved, as a party or otherwise, by reason of such
person being or having been a director or officer of the Corporation or a
subsidiary of the Corporation or by reason of the fact that such person is or
was serving at the request of the Corporation as a director, officer, employee,
fiduciary or other representative of another corporation, partnership, joint
venture, trust, employee benefit plan or other entity (such claim, action, suit
or proceeding hereinafter being referred to as an "Action"); provided, however,
that no such right to indemnification shall exist with respect to an Action
brought by an indemnitee (as defined below) against the Corporation (an
"Indemnitee Action") except as provided in the last sentence of this Paragraph
1. Persons who are not directors or officers of the Corporation may be similarly
indemnified in respect of service to the Corporation or a subsidiary of the
Corporation or to another such entity at the request of the Corporation to the
extent the Board of Directors of the Corporation at any time designates any of
such persons as entitled to the benefits of this Article IX. As used in this
Article IX, "indemnitee" includes each director and officer of the Corporation
and each other person designated by the Board of Directors of the Corporation as
entitled to the benefits of this Article IX; "expenses" means all expenses
actually and reasonably incurred, including fees and expenses of counsel
selected by an indemnitee; and "liability" means all liability incurred,
including the amounts of any judgments, excise taxes, fines or penalties and any
amounts paid in settlement. An indemnitee shall be entitled to be indemnified
pursuant to this Article against expenses incurred in connection with an
Indemnitee Action if (i) the Indemnitee Action is instituted under Paragraph 3
of this Article IX and the indemnitee is successful in whole or in part in such
Indemnitee Action, (ii) the indemnitee is successful in whole or in part in
another Indemnitee Action for which expenses are claimed or (iii) the
indemnification for expenses is included in a settlement of, or is awarded by a
court in, such other Indemnitee Action.
2. Right to Advancement of Expenses. Every indemnitee shall be entitled as
of right to have the expenses of the indemnitee in defending any Action or in
bringing and pursuing any Indemnitee Action under Paragraph 3 of this Article IX
paid in advance by the Corporation prior to final disposition of the Action or
Indemnitee Action, provided that the Corporation receives a written undertaking
by or on behalf of the indemnitee to repay the amount advanced if it should
ultimately be determined that the indemnitee is not entitled to be indemnified
for the expenses.
3. Right of Indemnitee to Bring Action. If a written claim for
indemnification under Paragraph 1 of this Article IX or for advancement of
expenses under Paragraph 2 of this Article IX
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is not paid in full by the Corporation within 30 days after the claim has been
received by the Corporation, the indemnitee may at any time thereafter bring an
Indemnitee Action to recover the unpaid amount of the claim and, if successful
in whole or in part, the indemnitee shall also be entitled to be paid the
expense of bringing and pursuing such Indemnitee Action. The only defense to an
Indemnitee Action to recover on a claim for indemnification under Paragraph 1 of
this Article IX shall be that the conduct of the indemnitee was such that under
Delaware law the Corporation is prohibited from indemnifying the indemnitee for
the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel and stockholders) to have made a
determination prior to the commencement of such Indemnitee Action that
indemnification of the indemnitee is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or stockholders) that the conduct of the indemnitee was such that
indemnification is prohibited by Delaware law, shall be a defense to such
Indemnitee Action or create a presumption that the conduct of the indemnitee was
such that indemnification is prohibited by Delaware law. The only defense to an
Indemnitee Action to recover on a claim for advancement of expenses under
Paragraph 2 of this Article IX shall be failure by the indemnitee to provide the
undertaking required by Paragraph 2 of this Article IX.
4. Funding and Insurance. The Corporation may create a trust fund, grant a
security interest, cause a letter of credit to be issued or use other means
(whether or not similar to the foregoing) to ensure the payment of all sums
required to be paid by the Corporation to effect indemnification as provided in
this Article IX. The Corporation may purchase and maintain insurance to protect
itself and any indemnitee against any expenses or liability incurred by the
indemnitee in connection with any Action, whether or not the Corporation would
have the power to indemnify the indemnitee against the expenses or liability by
law or under the provisions of this Article IX.
5. Non-Exclusivity; Nature and Extent of Rights. The rights to
indemnification and advancement of expenses provided for in this Article IX
shall (i) not be deemed exclusive of any other rights, whether now existing or
hereafter created, to which any indemnitee may be entitled under any agreement,
provision in the Certificate of Incorporation or Bylaws of the Corporation, vote
of stockholders or disinterested directors or otherwise, (ii) be deemed to
create contractual rights in favor of each indemnitee who serves at any time
while this Article IX is in effect (and each such indemnitee shall be deemed to
be serving in reliance on the provisions of this Article IX), (iii) continue as
to each indemnitee who has ceased to have the status pursuant to which the
indemnitee was entitled or was designated as entitled to indemnification under
this Article IX and inure to the benefit of
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the heirs and legal representatives of each indemnitee and (iv) be applicable to
Actions commenced after this Article IX becomes effective, whether arising from
acts or omissions occurring before or after this Article IX becomes effective.
Any amendment or repeal of this Article IX or adoption of any Bylaw of this
Corporation or other provision of the Certificate of Incorporation of this
Corporation which has the effect of limiting in any way the rights to
indemnification or advancement of expenses provided for in this Article IX shall
operate prospectively only and shall not affect any action taken, or any failure
to act, by an indemnitee prior to such amendment, repeal, Bylaw or other
provision becoming effective.
6. Partial Indemnity. If an indemnitee is entitled under any provision of
this Article IX to indemnification by the Corporation for some or a portion of
the expenses or liability incurred by the indemnitee in the preparation,
investigation, defense, appeal or settlement of any Action or Indemnitee Action
but not, however, for the total amount thereof, the Corporation shall indemnify
the indemnitee for the portion of such expenses or liability to which the
indemnitee is entitled.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 21st day of
December, 1993.
/s/ Michael B. Pollack
------------------------------------
Michael B. Pollack,
Incorporator
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EXHIBIT 4.2
BYLAWS
of
LAFAYETTE INDUSTRIES, INC.
(a Delaware corporation)
Adopted: December 23, 1993
<PAGE>
Index to Bylaws
Section Page
ARTICLE I STOCKHOLDERS
1.01 Annual Meetings...............................................1
1.02 Special Meetings..............................................1
1.03 Notice of Annual and Special Meetings.........................1
1.04 Quorum .......................................................2
1.05 Voting .......................................................3
1.06 Procedure at Stockholders' Meetings...........................4
1.07 Action Without Meeting........................................4
1.08 Proxies.......................................................5
ARTICLE II DIRECTORS
2.01 Number, Election and Term of Office...........................5
2.02 Annual Meetings...............................................6
2.03 Regular Meetings..............................................6
2.04 Special Meetings..............................................6
2.05 Notice of Annual and Special Meetings.........................7
2.06 Quorum and Manner of Acting...................................7
2.07 Action Without Meeting........................................8
2.08 Participation by Conference Telephone.........................9
2.09 Resignations..................................................9
2.10 Removal of Directors..........................................9
2.11 Vacancies....................................................10
2.12 Compensation of Directors....................................10
2.13 Committees...................................................10
2.14 Personal Liability of Directors..............................11
ARTICLE III OFFICERS AND EMPLOYEES
3.01 Executive Officers...........................................12
3.02 Additional Officers; Other Agents and Employees..............12
3.03 The Chairman.................................................13
3.04 The President................................................13
3.05 The Vice Presidents..........................................14
3.06 The Secretary and Assistant Secretaries......................14
3.07 The Treasurer and Assistant Treasurers.......................15
3.08 Vacancies....................................................16
3.09 Delegation of Duties.........................................16
ARTICLE IV SHARES OF CAPITAL STOCK
4.01 Share Certificates...........................................17
4.02 Transfer of Shares...........................................18
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4.03 Transfer Agents and Registrars...............................18
4.04 Lost, Stolen, Destroyed or Mutilated Certificates............18
4.05 Regulations Relating to Shares...............................19
4.06 Holders of Record............................................19
4.07 Fixing of Record Date........................................19
ARTICLE V LOANS, NOTES, CHECKS, CONTRACTS AND OTHER INSTRUMENTS
5.01 Notes, Checks, etc...........................................21
5.02 Execution of Instruments Generally...........................21
5.03 Proxies in Respect of Stock or Other Securities
of Other Corporations........................................22
ARTICLE VI GENERAL PROVISIONS
6.01 Offices......................................................22
6.02 Corporate Seal...............................................22
6.03 Fiscal Year..................................................23
ARTICLE VII VALIDATION OF CERTAIN CONTRACTS..............................23
ARTICLE VIII AMENDMENTS...................................................24
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BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meetings. Annual meetings of the stockholders shall be
held either within or without the State of Delaware, on such date and at such
time and place as may be fixed by the Board of Directors and as set forth in the
notice of the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders may be
called at any time, for the purpose or purposes set forth in the call, by the
President, the Board of Directors or the holders of at least 30% of all the
shares of any class outstanding and entitled to vote thereat, by delivering a
written request to the Secretary. At any time, upon the written request of any
person or persons who have duly called a special meeting, it shall be the duty
of the Secretary to fix the date of the meeting, to be held not more than 75
days after receipt of the request, and to give due notice thereof. Special
meetings shall be held at such place, either within or without the State of
Delaware, and at such time and date as the Board of Directors shall determine
and as set forth in the notice of the meeting.
Section 1.03. Notice of Annual and Special Meetings. Except as otherwise
expressly required by law, notice of each
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meeting of stockholders, whether annual or special, shall be given at least 10
and not more than 60 days prior to the date on which the meeting is to be held
to each stockholder of record entitled to vote thereat by delivery of a notice
thereof to him personally or by sending a copy thereof through the mail or by
telegram, charges prepaid, to his address appearing on the records of the
Corporation. Each such notice shall specify the place, day and hour of the
meeting and, in the case of a special meeting, shall briefly state the purpose
or purposes for which the meeting is called. A written waiver of notice, signed
by the person or persons entitled to such notice, whether before or after the
date and time fixed for the meeting shall be deemed the equivalent of such
notice. Neither the business to be transacted at nor the purpose of the meeting
need be specified in a waiver of notice of such meeting.
Section 1.04. Quorum. A stockholders' meeting duly called shall not be
organized for the transaction of business unless a quorum is present. At any
meeting the presence in person or by proxy of stockholders entitled to cast at
least a majority of the votes which all stockholders are entitled to cast on the
particular matter shall constitute a quorum for the purpose of considering such
matter, except as otherwise expressly provided by law or by the Certificate of
Incorporation or Bylaws of the Corporation. The stockholders present at a duly
organized meeting can continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. If
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a meeting cannot be organized because a quorum has not attended, those present
may adjourn the meeting from time to time to such time (not more than 30 days
after the next previous adjourned meeting) and place as they may determine,
without notice other than by announcement at the meeting of the time and place
of the adjourned meeting; and in the case of any meeting called for the election
of directors, those who attend the second of such adjourned meetings, although
entitled to cast less than a majority of the votes entitled to be cast on any
matter to be considered at the meeting, shall nevertheless constitute a quorum
for the purpose of electing directors.
Section 1.05. Voting. At every meeting of stockholders, each holder of
record of issued and outstanding stock of the Corporation entitled to vote at
such meeting shall be entitled to vote in person or by proxy and, except where a
date has been fixed as the record date for the determination of stockholders
entitled to notice of or to vote at such meeting, no holder of record of a share
of stock which has been transferred on the books of the Corporation within 10
days next preceding the date of such meeting shall be entitled to notice of or
to vote at such meeting in respect of such share so transferred. Resolutions of
the stockholders shall be adopted, and any action of the stockholders at a
meeting upon any matter shall be taken and be valid, only if at least a majority
of the votes cast with respect to such resolutions or matter are cast in favor
thereof, except as otherwise expressly provided by law or by the
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Certificate of Incorporation or Bylaws of the Corporation. The Chairman of the
Board (if one has been elected and is present) shall be chairman, and the
Secretary (if present) shall act as secretary, at all meetings of the
stockholders. In the absence of the Chairman of the Board, the President shall
be chairman; and in the absence of both of them, the chairman shall be
designated by the Board of Directors or if not so designated shall be elected by
the stockholders present; and in the absence of the Secretary, an Assistant
Secretary shall act as secretary of the meeting.
Section 1.06. Procedure at Stockholders' Meetings. The organization of each
meeting of the stockholders, the order of business thereat and all matters
relating to the manner of conducting the meetings shall be determined by the
chairman of the meeting, whose decisions may be overruled only by majority vote
(which shall not be by ballot) of the stockholders present and entitled to vote
at the meeting in person or by proxy. Meetings shall be conducted in a manner
designed to accomplish the business of the meeting in a prompt and orderly
fashion and to be fair and equitable to all stockholders, but it shall not be
necessary to follow Roberts' Rules of Order or any other manual of parliamentary
procedure.
Section 1.07. Action Without Meeting. Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting,
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may be taken without a meeting, without prior notice and without a vote, 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
such written consent is delivered to the Corporation by delivery to its
registered office in 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. 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 1.08. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A proxy
acting for any stockholder shall be duly appointed by an instrument in writing
subscribed by such stockholder.
ARTICLE II
DIRECTORS
Section 2.01. Number, Election and Term of Office. The number of directors
which shall constitute the full Board of
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Directors shall be determined by resolution of the board of directors or by the
stockholders at the annual meeting. Each director shall hold office for the term
for which he is elected and thereafter until his successor is duly elected or
until his prior death, resignation or removal. Directors need not be
stockholders.
Section 2.02. Annual Meetings. Annual Meetings of the Board of Directors
shall be held each year at the same place as and immediately after the annual
meeting of stockholders, or at such other place and time as shall theretofore
have been determined by the Board. At its regular annual meeting, the Board of
Directors shall organize itself and elect the officers of the Corporation for
the ensuing year, and may transact any other business.
Section 2.03. Regular Meetings. Regular meetings of the Board of Directors
may be held at such intervals and at such time and place as shall from time to
time be determined by the Board. After there has been such determination and
notice thereof has been once given to each person then a member of the Board of
Directors, regular meetings may be held at such intervals and time and place
without further notice being given.
Section 2.04. Special Meetings. Special meetings of the Board of Directors
may be called at any time by the Board, by the Chairman of the Board, by the
President or by any two
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directors to be held on such day and at such time and place as shall be
specified by the person or persons calling the meeting.
Section 2.05. Notice of Annual and Special Meetings. Except as otherwise
expressly required by law, notice of the annual meeting of the Board of
Directors need not be given. Except as otherwise expressly required by law,
notice of every special meeting of the Board of Directors specifying the place,
date and time thereof shall be given to each director either by being mailed on
at least the third day prior to the date of the meeting or by being sent by
telegraph or given personally or by telephone at least 24 hours prior to the
time of the meeting. A written waiver of notice of a special meeting, signed by
the person or persons entitled to such notice, whether before or after the date
and time stated therein fixed for the meeting, shall be deemed the equivalent of
such notice, and attendance of a director at a meeting shall constitute a waiver
of notice of such meeting except when the director attends the meeting for the
express purpose of objecting, when he enters the meeting, to the transaction of
any business because the meeting is not lawfully called or convened.
Section 2.06. Quorum and Manner of Acting. At all meetings of the Board of
Directors, except as otherwise expressly provided by law or by the Certificate
of Incorporation or Bylaws of the Corporation, the presence of a majority of the
full Board shall be necessary and sufficient to constitute a quorum for the
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transaction of business. If a quorum is not present at any meeting, the meeting
may be adjourned from time to time by a majority of the directors present until
a quorum as aforesaid shall be present, but notice of the time and place to
which such a meeting is adjourned shall be given to any directors not present
either by being sent by telegraph or given personally or by telephone at least
eight hours prior to the date of reconvening. Resolutions of the Board of
Directors shall be adopted, and any action of the Board at a meeting upon any
matter shall be taken and be valid, only with the affirmative vote of at least a
majority of the directors present at the meeting, except as otherwise provided
herein. The Chairman of the Board (if one has been elected and is present) shall
be chairman, and the Secretary (if present) shall act as secretary, at all
meetings of the Board. In the absence of the Chairman of the Board, the
President shall be chairman, and in the absence of both of them the directors
present shall select a member of the Board of Directors to be chairman; and in
the absence of the Secretary, the chairman of the meeting shall designate any
person to act as secretary of the meeting.
Section 2.07. Action Without 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 a consent in writing, setting forth the
actions so taken, shall be signed by all members of the Board or such
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committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board or committee.
Section 2.08. Participation by Conference Telephone. Members of the Board
of Directors of the Corporation, 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
by such means shall constitute presence in person at such meeting.
Section 2.09. Resignations. A director may resign by submitting his written
resignation to the Chairman of the Board (if one has been elected) or the
Secretary. Unless otherwise specified therein, the resignation of a director
need not be accepted to make it effective and shall be effective immediately
upon its receipt by such officer or as otherwise specified therein. If the
resignation of a director specifies that it shall be effective at some time
later than receipt, until that time the resigning director shall be competent to
act on all matters before the Board of Directors, including filling the vacancy
caused by such resignation.
Section 2.10. Removal of Directors. The entire Board of Directors or any
individual director may be removed at any time for cause or without cause by the
holders of a majority of the
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shares then entitled to vote at an election of directors. The vacancy or
vacancies caused in the Board of Directors by such removal may but need not be
filled by such stockholders at the same meeting or at a special meeting of the
stockholders called for that purpose.
Section 2.11. Vacancies. Any vacancy that shall occur in the Board of
Directors by reason of death, resignation, removal, increase in the number of
directors or any other cause whatever shall, unless filled as provided in
Section 2.10 of this Article II, be filled by a majority of the then members of
the Board, whether or not a quorum, and each person so elected shall be a
director until he or his successor is elected by the stockholders at a meeting
called for the purpose of electing directors, or until his prior death,
resignation or removal.
Section 2.12. Compensation of Directors. The Corporation may allow
compensation to its directors for their services, as determined from time to
time by resolution adopted by the Board of Directors.
Section 2.13. Committees. The Board of Directors may, by resolution adopted
by a majority of the full Board, designate one or more committees consisting of
directors to have and exercise such authority of the Board in the management of
the business and affairs of the Corporation as the resolution of the Board
creating such committee may specify and as is otherwise
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permitted by law. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of
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 director to act at the
meeting in the place of such absent or disqualified member.
Section 2.14. Personal Liability of Directors.
(a) To the fullest extent that the laws of the State of Delaware, as the
same exist or may hereafter be amended, permit elimination of the personal
liability of directors, no director of this Corporation shall be personally
liable to this Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director.
(b) The provisions of this Section 2.14 shall be deemed to be a contract
with each director of this Corporation who serves as such at any time while this
Section 2.14 is in effect, and each such director shall be deemed to be serving
as such in reliance on the provisions of this Section 2.14. Any amendment or
repeal of this Section 2.14 or adoption of any Bylaw of this Corporation or
other provision of the Certificate of Incorporation of this Corporation which
has the effect of increasing director liability shall operate prospectively only
and shall not affect any action
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taken, or any failure to act, by a director of this Corporation prior to such
amendment, repeal, Bylaw or other provision becoming effective.
ARTICLE III
OFFICERS AND EMPLOYEES
Section 3.01. Executive Officers. The officers of the Corporation shall be
the President, a Secretary and a Treasurer, and may include a Chairman of the
Board and one or more Vice Presidents as the Board of Directors may from time to
time determine, all of whom shall be elected by the Board of Directors. Any two
or more offices may be held by the same person. Each officer shall hold office
until the next succeeding annual meeting of the Board of Directors and
thereafter until his successor is duly elected and qualifies, or until his
earlier death, resignation or removal.
Section 3.02. Additional Officers; Other Agents and Employees. The Board of
Directors may from time to time appoint or hire such additional officers,
assistant officers, agents, employees and independent contractors as the Board
deems advisable; and the Board or the President shall prescribe their duties,
conditions of employment and compensation. Subject to the power of the Board of
Directors, the President may employ from time to time such other agents,
employees, and independent contractors as he may deem advisable for the prompt
and orderly
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transaction of the business of the Corporation, and he may prescribe their
duties and the conditions of their employment, fix their compensation and
dismiss them, without prejudice to their contract rights, if any.
Section 3.03. The Chairman. If there shall be a Chairman of the Board, he
shall be elected from among the directors, shall preside at all meetings of the
stockholders and of the Board, shall be the chief executive officer of the
Corporation and shall have such other powers and duties as from time to time may
be prescribed by the Board. In the absence or disability of the Chairman of the
Board and the President, the powers of the Chairman of the Board may be
exercised by such member of the Board of Directors as may be designated by the
Chairman of the Board and, failing such designation or in the absence of the
person so designated, by such member of the Board of Directors as may be
designated by the President.
Section 3.04. The President. The President shall be the chief operating
officer of the Corporation. Subject to the control of the Board of Directors,
the President shall have general policy supervision of and general management
and executive powers over all the property, business, operations and affairs of
the Corporation, and shall see that the policies and programs adopted or
approved by the Board are carried out. The President shall exercise such further
powers and duties as from time to time may be prescribed in these Bylaws or by
the Board of Directors.
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If neither the President nor the Chairman of the Board is available, the duties
of the President shall be performed and his powers may be exercised by such
member of the Board of Directors as may be designated by the President and,
failing such designation or in the absence of the person so designated, by such
member of the Board of Directors as may be designated by the Chairman of the
Board.
Section 3.05. The Vice Presidents. The Vice Presidents may be given by
resolution of the Board of Directors general executive powers, subject to the
control of the President, concerning one or more or all segments of the
operations of the Corporation. The Vice Presidents shall exercise such further
powers and duties as from time to time may be prescribed in these Bylaws or by
the Board of Directors or by the President. At the request of the President or
in his absence or disability, the senior Vice President shall exercise all the
powers and duties of the President.
Section 3.06. The Secretary and Assistant Secretaries. It shall be the duty
of the Secretary (a) to keep or cause to be kept an original or duplicate record
of the proceedings of the stockholders and the Board of Directors, and a copy of
the Certificate of Incorporation and of the Bylaws; (b) to attend to the giving
of notices of the Corporation as may be required by law or these Bylaws; (c) to
be custodian of the corporate records and of the seal of the Corporation and see
that the seal is affixed to
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such documents as may be necessary or advisable; (d) to have charge of the stock
books of the Corporation, and a share register, giving the names of the
stockholders in alphabetical order, and showing their respective addresses, the
number and classes of shares held by each, the number and date of certificates
issued for the shares, and the date of cancellation of every certificate
surrendered for cancellation; and (e) to exercise all powers and duties incident
to the office of Secretary, and such other powers and duties as may be
prescribed by the Board of Directors or by the President from time to time. The
Secretary by virtue of his office shall be an Assistant Treasurer. The Assistant
Secretaries shall assist the Secretary in the performance of his duties and
shall also exercise such further powers and duties as from time to time may be
assigned to them by the Board of Directors, the President or the Secretary. At
the direction of the Secretary or in his absence or disability, an Assistant
Secretary shall perform the duties of the Secretary.
Section 3.07. The Treasurer and Assistant Treasurers. The Treasurer shall
have custody of all the funds and securities of the Corporation. He shall
collect all moneys due the Corporation and deposit such moneys to the credit of
the Corporation in such banks, trust companies, or other depositories as may
have been duly designated by the Board of Directors. He shall endorse for
collection on behalf of the Corporation, checks, notes, drafts and other
documents, and may sign and deliver receipts, vouchers and releases of liens
evidencing payments made
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to the Corporation. Subject to Section 5.01 of these Bylaws, he shall cause to
be disbursed the funds of the Corporation by payment in cash or by checks or
drafts upon the authorized depositories of the Corporation. He shall have charge
of the books and accounts of the Corporation. He shall perform all acts incident
to the office of Treasurer and such other duties as may be assigned to him by
the Board of Directors. The Treasurer by virtue of his office shall be an
Assistant Secretary. The Assistant Treasurers shall assist the Treasurer in the
performance of his duties and shall also exercise such further powers and duties
as from time to time may be assigned to them by the Board of Directors, the
President or the Treasurer. At the direction of the Treasurer or in his absence
or disability, an Assistant Treasurer shall perform the duties of the Treasurer.
Section 3.08. Vacancies. Vacancy in any office or position by reason of
death, resignation, removal, disqualification, disability or other cause, shall
be filled in the manner provided in this Article III for regular election or
appointment to such office.
Section 3.09. Delegation of Duties. The Board of Directors may in its
discretion delegate for the time being the powers and duties, or any of them, of
any officer to any other person whom it may select.
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ARTICLE IV
SHARES OF CAPITAL STOCK
Section 4.01. Share Certificates. Every holder of stock in the Corporation
shall be entitled to a certificate or certificates, to be in such form as the
Board of Directors may from time to time prescribe, signed by the Chairman of
the Board, the President or any Vice President and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary. The signatures
of such officers may be facsimiles. Each such certificate shall set forth the
name of the registered holder thereof, the number and class of shares and the
designation of the series, if any, which the certificate represents. The Board
of Directors may, if it so determines, direct that certificates for shares of
stock of the Corporation be signed by a transfer agent or registered by a
registrar or both, in which case such certificates shall not be valid until so
signed or registered.
In case any officer of the Corporation who shall have signed, or whose
facsimile signature shall have been used on, any certificate for shares of stock
of the Corporation shall cease to be such officer, whether because of death,
resignation, removal or otherwise, before such certificate shall have been
delivered by the Corporation, such certificate shall nevertheless be deemed to
have been adopted by the Corporation and may be issued and delivered as though
the person who signed such certificate or
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whose facsimile signature shall have been used thereon had not ceased to be such
officer.
Section 4.02. Transfer of Shares. Transfers of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof or by his attorney thereunto authorized by an instrument duly
executed and filed with the Corporation, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by properly
executed stock powers and evidence of the payment of all taxes imposed upon such
transfer. Except as provided in Section 4.04 of this Article IV, every
certificate surrendered for transfer shall be cancelled and no new certificate
or certificates shall be issued in exchange for any existing certificate until
such existing certificate shall have been so cancelled.
Section 4.03. Transfer Agents and Registrars. The Board of Directors may
appoint any one or more qualified banks, trust companies or other corporations
organized under any law of any state of the United States or under the laws of
the United States as agent or agents for the Corporation in the transfer of the
stock of the Corporation and likewise may appoint any one or more such qualified
banks, trust companies or other corporations as registrar or registrars of the
stock of the Corporation.
Section 4.04. Lost, Stolen, Destroyed or Mutilated Certificates. New
certificates for shares of stock may be issued
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to replace certificates lost, stolen, destroyed or mutilated upon such terms and
conditions, which may but need not include the giving of a satisfactory bond or
other indemnity, as the Board of Directors may from time to time determine.
Section 4.05. Regulations Relating to Shares. The Board of Directors shall
have power and authority to make such rules and regulations not inconsistent
with these Bylaws or with law as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of stock of the
Corporation.
Section 4.06. Holders of Record. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder and owner in
fact thereof and 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 it
shall have express or other notice thereof, except as otherwise expressly
provided by the laws of the State of Delaware.
Section 4.07. Fixing of Record Date. The Board of Directors may fix a
record date which does not precede the date on which the resolution fixing such
record date is adopted,
(a) in order to determine the stockholders entitled to notice of or to vote
at any meeting of stockholders provided such
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record date is not less than ten or more than sixty days prior to the date of
any such meeting;
(b) in order to determine the stockholders entitled to consent to corporate
action in writing without a meeting provided such record date is not more than
ten days after the date on which the resolution fixing such record date is
adopted; and
(c) in order to determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
provided such record date is not more than sixty days prior to such action.
In such case, only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to notice of, or to vote at, such meeting or
to receive payment of such dividend, or to receive such allotment of rights, or
to exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Corporation after any record date fixed as aforesaid.
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ARTICLE V
LOANS, NOTES, CHECKS,
CONTRACTS AND OTHER
INSTRUMENTS
Section 5.01. Notes, Checks, etc. All notes, drafts, acceptances, checks,
endorsements (other than for deposit) and all evidences of indebtedness of the
Corporation whatsoever shall be signed by such officers or agents and shall be
subject to such requirements as to countersignature or other conditions as the
Board of Directors from time to time may designate. Facsimile signatures on
checks may be used unless prohibited by the Board of Directors.
Section 5.02. Execution of Instruments Generally. Except as provided in
Section 5.01 of this Article V, all contracts and other instruments requiring
execution by the Corporation may be executed and delivered by the President, any
Vice President or the Treasurer, and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be
conferred by the Board of Directors upon any other person or persons. Any person
having authority to sign on behalf of the Corporation may delegate, from time to
time, by instrument in writing, all or any part of such authority to any person
or persons if authorized so to do by the Board of Directors.
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Section 5.03. Proxies in Respect of Stock or Other Securities of Other
Corporations. Unless otherwise provided by the Board of Directors, the President
may from time to time appoint an attorney or attorneys or an agent or agents of
the Corporation to exercise in the name and on behalf of the Corporation the
powers and rights which the Corporation may have as the holder of stock or other
securities in any other corporation to vote or consent in respect of such stock
or other securities, may instruct the person or persons so appointed as to the
manner of exercising such powers and rights and may execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise all such written proxies or other instruments as he may deem
necessary or proper in order that the Corporation may exercise its said powers
and rights.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Offices. The registered office of the Corporation shall be at
________________. The Corporation may have other offices, within or without the
State of Delaware, at such place or places as the Board of Directors may from
time to time determine or the business of the Corporation may require.
Section 6.02. Corporate Seal. The Board of Directors shall prescribe the
form of a suitable corporate seal, which shall
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contain the full name of the Corporation and the year and state of
incorporation. Such seal may be used by causing it or a facsimile or
reproduction thereof to be affixed to or placed upon the document to be sealed.
Section 6.03. Fiscal Year. Unless otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall be the calendar year.
ARTICLE VII
VALIDATION OF CERTAIN CONTRACTS
Section 7.01. No contract or other transaction between the Corporation and
another person shall be invalidated or otherwise adversely affected by the fact
that any one or more stockholders, directors or officers of the Corporation
(i) is pecuniarily or otherwise interested in, or is a stockholder,
director, officer, or member of, such other person, or
(ii) is a party to, or is in any other way pecuniarily or otherwise
interested in, the contract or other transaction, or
(iii) is in any way connected with any person pecuniarily or otherwise
interested in such contract or other transaction, provided the fact of such
interest shall be disclosed
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or known to the Board of Directors or the stockholders, as the case may be, and
in any action of the stockholders or of the Board authorizing or approving any
such contract or other transaction, any and every stockholder or director may be
counted in determining the existence of a quorum with like force and effect as
though he were not so interested, or were not such a stockholder, director,
member or officer, or were not such a party, or were not so connected. Such
director, stockholder or officer shall not be liable to account to the
Corporation for any profit realized by him from or through any such contract or
transaction approved or authorized as aforesaid. As used herein, the term
"person" includes a corporation, partnership, firm, association or other legal
entity.
ARTICLE VIII
AMENDMENTS
Section 8.01. These Bylaws may be amended, altered and repealed, and new
bylaws may be adopted, by the stockholders or the Board of Directors of the
Corporation at any regular or special meeting. No provision of these Bylaws
(other than Section 2.14) shall vest any property or contract right in any
stockholder.
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EXHIBIT 5.1
REED SMITH SHAW & MCCLAY
2500 ONE LIBERTY PLACE PITTSBURGH, PA
WASHINGTON, DC
FAX 215-851-1420 PHILADELPHIA, PA 19103-7301 HARRISBURG, PA
McLEAN, VA
WRITER'S DIRECT DIAL NUMBER PRINCETON, NJ
215-851-8100 NEW YORK, NY
June 25, 1996
Lafayette Industries, Inc.
140 Hinsdale Street
Brooklyn, New York 11207
RE: Registration Statement on Form S-8
1993 Stock Incentive Plan
Gentlemen:
We have acted as counsel to Lafayette Industries, Inc. (the "Company") in
connection with the above-captioned Registration Statement, relating to up to
800,000 shares of Common Stock, par value $.01 per share, of the Company (the
"Common Stock") which may be acquired by employees and the Chairman of the Board
of Directors of the Company under the Company's 1993 Stock Incentive
Compensation Plan (the "Plan"). In rendering our opinion below, we have assumed
that any previously issued shares reacquired by the Company and used under the
Plan have been duly authorized, validly issued and fully paid at the time of
their original issuance.
In connection with this opinion, we have examined, among other things:
(1) the Certificate of Incorporation of the Company, as amended to date;
(2) resolutions adopted by the Board of Directors of the Company on January
19, 1994, adopting the Plan, authorizing the issuance of up to 300,000 shares of
Common Stock thereunder; and
(3) resolutions adopted by the Board of Directors of the Company on June 1,
1995, amending the Plan to increase the number of shares of Common Stock
authorized thereunder to 800,000 and reserving 800,000 shares of Common Stock
for such purpose; and
(4) minutes of the Annual Meeting of Shareholders held on June 27, 1995
containing shareholder adoption of the Plan, as amended; and
<PAGE>
REED SMITH SHAW & MCCLAY
Lafayette Industries, Inc.
March 7, 1996
Page 2
(5) the Plan, as currently in effect.
Based upon the foregoing and upon an examination of such other documents,
corporate proceedings, statutes, decisions and questions of law as we considered
necessary in order to enable us to furnish this opinion, and subject to the
assumption set forth above, we are pleased to advise you that in our opinion:
(a) The Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Delaware; and
(b) The shares of Common Stock being registered and which may be issued by
the Company pursuant to the provisions of the Plan have been duly authorized,
and upon such issuance in accordance with the provisions of the Plan, such
shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly,
REED SMITH SHAW & McCLAY
MBP/BSK/rmd
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 25, 1996, except as to Note 9
which is dated May 10, 1996, which appears on page F-2 of Form 10-KSB for
Lafayette Industries, Inc. for the year ended December 31, 1995.
/s/ Lazar, Levine & Company LLP
----------------------------------
LAZAR, LEVINE & COMPANY LLP
New York, New York
June 24, 1996
Lazar, Levine & Company LLP
Certified Public Accountants
EXHIBIT 24.1
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Robert Jessen, Nancy Gillon and Lloyd Robinson,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, for him and in his name, place and stead,
in any and all capacities, to sign any and all further amendments (including
post-effective amendments) to the Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
/s/ ROBERT L. JESSEN
- ----------------------------------------------
ROBERT L. JESSEN
Chairman, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ JOSEPH A. RUBINO
- ----------------------------------------------
JOSEPH A. RUBINO
President and Director
/s/ LLOYD C. ROBINSON
- ----------------------------------------------
LLOYD C. ROBINSON
Vice President-Finance, and
Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ COLIN HALPERN
- ----------------------------------------------
COLIN HALPERN
Executive Vice President and Director
/s/ LUCIENNE JESSEN
- ----------------------------------------------
LUCIENNE JESSEN
Vice President and Director
/s/ NANCY E. GILLON
- ----------------------------------------------
NANCY E. GILLON
Vice President-Administrative,
Secretary and Director
- ----------------------------------------------
BERNARD M. GOLDMAN
Director
- ----------------------------------------------
JAMES L. HARVEY
Director
