As Amended Through
October 27, 1998
THE WEST COMPANY, INCORPORATED
BYLAWS
ARTICLE I
SHAREHOLDERS
Section 1. Meetings.
(a) Annual Meeting. The annual meeting of the
shareholders for the election of directors and for other business
shall be held at such time as may be fixed by the board of
directors, on the first Thursday of May in each year (or, if such
is a legal holiday, on the next following day,) or on such other
day as may be fixed by the board of directors.
(b) Special Meetings. Special Meetings of the
shareholders may be called at any time by the Chairman of the
Board, the President, or a majority of the board of directors.
(c) Place. Meetings of the shareholders shall be held
at such place as may be fixed by the board of directors.
Section 2. Notice. Written notice of the time and place of all
meetings of shareholders and of the purpose of each special
meeting of shareholders shall be given to each shareholder
entitled to vote thereat at least five days before the date of
the meeting, unless a greater period of notice is required by law
in a particular case.
Section 3. Voting. Except as otherwise provided herein, or in
the Articles of Incorporation, or by applicable law, every
shareholder shall have the right at every shareholders' meeting
to one vote for every share standing in his name on the books of
the Company which is entitled to vote at such meeting. Every
shareholder may vote either in person or by proxy. No
shareholder shall be entitled to participate in any meeting of
shareholders by means of conference telephone or similar
communications equipment unless the Board of Directors shall have
provided by resolution for such participation.
Section 4. Quorum. The presence, in person or by proxy, of the
holders of a majority of the outstanding shares of stock of the
Company entitled to vote at a meeting shall constitute a quorum.
If a quorum is not present no business shall be transacted except
to adjourn to a future time.
Section 5. Nomination of Directors.
(a) Notice Required. Nominations for election of
directors at a meeting of shareholders may be made by the Board
of Directors or by any shareholder entitled to vote for the
election of directors at such meeting; provided, however, that
such nominations made by such a shareholder shall be made by
written notice (the "Nomination Notice") of the shareholder's
intent to nominate a director at the meeting given to and
received by the Secretary of the Company in the manner and within
the time specified in this Section 5. The Nomination Notice
shall be delivered to the Secretary of the Company not less than
90 days prior to the anniversary date of the immediately
preceding meeting of shareholders called for the election of
directors; provided, however, that in the event less than 21
days' notice or prior public disclosure of the date of the
meeting is given to shareholders or made, the Nomination Notice
shall be delivered to the Secretary of the Company not later than
the earlier of (i) the seventh day following the day on which
notice of the date of the meeting was first mailed to
shareholders or such public disclosure was made, whichever occurs
first, or (ii) the fourth day prior to the meeting. In lieu of
delivery to the Secretary, the Nomination Notice may be mailed to
the Secretary by certified mail, return receipt requested, but
shall be deemed to have been given only upon actual receipt by
the Secretary.
(b) Contents of Notice. The Nomination Notice shall
be in writing and shall contain or be accompanied by:
(1) the name and address, as they appear on the
Company's books, of the shareholder giving the Nomination
Notice;
(2) a representation of the number and class of
the Company's securities that the shareholder giving the
Nomination Notice owns beneficially and that the shareholder
is the holder of record of the Company's shares and intends
to appear in person or by proxy at the meeting to nominate
the person or persons specified in the Nomination Notice;
(3) as to each proposed nominee, (i) his name,
age, business address and, if known, residence address,
(ii) his principal occupation or employment, (iii) the
number and class of the Company's securities beneficially
owned by him and (iv) such other information regarding such
nominee as would have been required to be included in a
proxy statement filed pursuant to the Securities and
Exchange Commission under the Securities Exchange Act of
1934, as amended, (or pursuant to any successor act or
regulation) had proxies been solicited with respect to such
nominee by the management or Board of Directors of the
Company;
(4) a description of all arrangements or
understandings among the shareholder giving the Nomination
Notice and each proposed nominee and any other person or
persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the
shareholder; and
(5) the consent of each proposed nominee to serve
as a director of the Company if so elected.
The Company may require any proposed nominee to furnish such
other information as may reasonably be required by the Company to
determine the eligibility of the nominee to serve as a director.
(c) Determination of Compliance. If a judge or judges
of election shall not have been appointed pursuant to these
bylaws, the chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that any nomination made at
the meeting was not made in accordance with the procedures of
this Section 5 and, in such event, the nomination shall be
disregarded. Any decision by the chairman of the meeting shall
be conclusive and binding upon all shareholders of the Company
for any purpose.
(d) Exception. The procedures of this Section 5 shall
not apply to nominations with respect to which proxies shall have
been solicited pursuant to a proxy statement filed pursuant to
Regulation 14A of the rules and regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended (or pursuant to any successor act or
regulation).
Section 6. Notice of Business at Annual Meetings.
(a) Notice Required. At an annual meeting of
shareholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (1) specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (2) otherwise properly
brought before the meeting by or at the direction of the Board of
Directors or (3) properly brought before the meeting by a
shareholder. For business relating to the election of directors
of the Company, to be properly brought before an annual meeting
by a shareholder the procedures in Section 5 of this Article II
must be complied with. If such business relates to any other
matter, the shareholder must give written notice (the "Business
Notice") of the shareholder's intent to propose business at the
annual meeting to the Secretary of the Company in the manner and
within the time specified in this Section 6. The Business Notice
shall be delivered to the Secretary of the Company not less than
90 days prior to the anniversary date of the immediately
preceding annual meeting of shareholders; provided, however, that
in the event that less than 21 days' notice or prior public
disclosure of the date of the meeting is given to shareholders or
made, the Business Notice shall be delivered to the Secretary of
the Company not later than the earlier of (i) the seventh day
following the day on which such notice of the date of the meeting
was first mailed to shareholders or such public disclosure was
made, whichever occurs first, or (ii) the fourth day prior to the
meeting. In lieu of delivering to the Secretary, the Business
Notice may be mailed to the Secretary by certified mail, return
receipt requested, but shall be deemed to have been given only
upon receipt by the Secretary.
(b) Content of Notice. The Business Notice shall be
in writing and shall contain or be accompanied by the following
as to each matter the shareholder proposes to bring before the
annual meeting: (1) a brief description of the business desired
to be brought before the annual meeting and the reasons for
conducting such business at the annual meting, (2) the name and
address, as they appear on the Company's books, of the
shareholder giving the Business Notice, (3) the number and class
of the Company's securities beneficially owned by him, and
(4) any material interest of the shareholder giving the Business
Notice in such business. Notwithstanding anything in these
bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth
in this Section 6, except that any shareholder proposal which
complies with Rule 14a-8 of the proxy rules (or any successor
provision) promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended, and is to
be included in the Company's proxy statement for an annual
meeting of shareholders shall be deemed to comply with the
requirements of this Section 6.
(c) Determination of Compliance. If a judge or judges
of election shall not have been appointed pursuant to these
bylaws, the chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that any business brought
before the meeting was not done so in accordance with the
procedures of this Section 6 and, in such event, the business
shall be disregarded. Any decision by the chairman of the
meeting shall be conclusive and binding upon all shareholders of
the Company for any purpose.
ARTICLE II
DIRECTORS
Section 1. Number and Term. Subject to the provisions of the
Articles of Incorporation and of applicable law, the board of
directors shall have the authority to (i) determine the number of
directors to constitute the board, and (ii) fix the terms of
office of the directors and classify each director in respect of
the time for which he shall hold office.
Section 2. Powers. The business of the Company shall be managed
by the board of directors which shall have all powers conferred
by applicable law and these bylaws. The board of directors shall
elect, remove or suspend officers, determine their duties and
compensations, and require security in such amounts as it may
deem proper.
Section 3. Committees. The board of directors shall establish
and maintain a Compensation Committee and an Audit Committee and
may establish such other committees as it shall deem appropriate.
Each such committee shall consist of one or more directors and
shall have such powers and duties as the board of directors shall
determine.
Section 4. Meetings.
(a) Regular Meetings. Regular meetings shall be held
at such times as the board shall designate by resolution. Notice
of regular meetings need not be given.
(b) Special Meetings. Special meetings of the board
may be called at any time by the Chairman of the Board or the
President and shall be called by him upon the written request of
one-third of the directors. Notice of the time, place and
general nature of the business to be transacted at each special
meeting shall be given to each director at least 24 hours (in the
case of notice by telephone) or two days (in the case of notice
by other means) before such meeting.
(c) Place. Meetings of the board of directors shall
be held at such place as the board may designate or as may be
designated in the notice calling the meeting.
(d) Participation. One or more directors may
participate in a meeting of the board or a committee of the board
by means of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other.
Section 5. Quorum. A majority of all the directors in office
shall constitute a quorum for the transaction of business at any
meeting and, except as provided in Article VI, the acts of a
majority of the directors present at any meeting at which a
quorum is present shall be the acts of the board of directors.
Section 6. Vacancies. Vacancies in the board of directors,
including vacancies resulting from an increase in the number of
directors, shall be filled only by a majority of the directors
then in office, though less than a quorum, and each person so
elected shall be a director to serve for the balance of the
unexpired term and until his successor is duly elected and
qualified.
Section 7. Independent Directors.
(a) Definition of Independent Director. For purposes
of these bylaws, the term "Independent Director" shall mean a
director who: (i) is not employed by the Company or its
subsidiaries (collectively, the "Company"); (ii) does not have
personal services contract(s) with the Company involving
significant payments; (iii) is not employed in an executive
capacity with a firm that does substantial business with the
Company; (iv) is not employed in an executive capacity with a
significant customer or supplier of the Company; and (v) is not a
spouse, parent, sibling or child of any person described by (i)
through (iv). Notwithstanding the foregoing, the ownership of
equity or debt securities of the Company, or derivatives thereof,
shall not by itself disqualify any person from being classified
as an Independent Director.
(b) Interpretation and Application of This Bylaw. The
board of directors shall have the exclusive right and power to
interpret and apply provisions of this bylaw, including, without
limitation, the definitions of terms used in and guidelines for
the application of this bylaw. In the case of any such
interpretation or application to a specific person which results
in such person being classified as an Independent Director, the
board of directors shall have determined that such person is
independent of management and free from any relationship that, in
the opinion of the board of directors, would interfere with such
person's exercise of independent judgment as a board member.
Each director has a duty to disclose all circumstances that may
have a bearing on his or her classification as an Independent
Director.
(c) Duties of Independent Directors. Independent
Directors shall have the following special duties and
responsibilities:
(1) to evaluate, periodically and at least
annually, the performance of the chief executive officer of
the Company, including, among other things, a determination
of the manner in which he or she is fulfilling
responsibilities to directors, shareholders, employees,
customers and other constituencies.
(2) to assure that the chief executive officer
has appropriate leadership succession plans for the Company;
and
(3) to review and monitor achievement of the
chief executive officer's long-range strategic plans for the
Company.
(d) Chairman, Independent Directors. Immediately
after adoption of this bylaw, and thereafter at the first board
meeting after each annual meeting of shareholders, the
Independent Directors shall elect from their membership one
director to be chairman, whose term shall be annual, but who may
not be elected to serve more than four annual terms in
succession. The chairman shall preside at all meetings of
Independent Directors and, in addition, shall have the following
special duties and responsibilities:
(1) to confer with the chief executive officer in
advance of each board meeting to assure that (i) the board
agenda contains those items that the Independent Directors
believe are important to their understanding and evaluation
of the Company and its affairs, and (ii) the information
provided to and presentations made to the board, and other
communications are in keeping with the board's needs and
wishes; and
(2) to be available to call meetings of the
Independent Directors whenever he or she deems appropriate,
and generally to be a focal point for Board discussion on
any subject where a board member believes the chief
executive officer would not be the appropriate person to
call such meeting.
Section 8. Limitation on Liability. A director shall not be
personally liable for monetary damages for any action taken on or
after January 27, 1987, or for the failure to take any action on
or after the date, unless (i) the director has breached or failed
to perform the duties of his office under Section 8363 of the
Pennsylvania Directors' Liability Act (Act 145 of 1986, P.L.
1458), relating to standard of care and justifiable reliance, and
(ii) the breach or failure to perform constitutes self-dealing,
willful misconduct or recklessness. The provisions of this
Section 6 shall not apply to (i) the responsibility or liability
of a director pursuant to any criminal statute, or (ii) the
liability of a director for the payment of taxes pursuant to
local, state or federal law. Any repeal or modification of any
provision of this Section 8 of Article II shall be prospective
only and shall not affect, to the detriment of any director, any
limitation on the personal liability of a director of the Company
existing at the time of such repeal or modification.
ARTICLE III
OFFICERS
Section 1. Election. At its first meeting after each annual
meeting of shareholders, the board of directors shall elect a
chairman, a president, a treasurer, a secretary, a controller and
such other officers as it deems advisable. Any two or more
offices may be held by the same person.
Section 2. Chairman. The chairman shall preside at all meetings
of the board and of the shareholders. In the absence of the
chairman, a director selected by a majority of the board shall
discharge the duties of the chairman.
Section 3. President. Except as the board of directors may
otherwise prescribe by resolution, the president shall be the
chief executive officer of the Company and shall have general
supervision over the business and operations of the Company and
may perform any act and execute any instrument or other papers
for the conduct of such business and operations.
Section 4. Other Officers. The duties and powers of the other
officers shall be those usually related to their offices or as
may be designated by the president, except as otherwise
prescribed by resolution of the board of directors.
Section 5. General. In the absence of the president, the
chairman, or any other officer or officers designated by the
board shall exercise the powers and perform the duties of the
president. The president, or any officer or employee authorized
by him, may appoint, remove or suspend agents or employees of the
Company, other than officers appointed by the Board, and may
determine their duties and compensation.
ARTICLE IV
INDEMNIFICATION
Section 1. Right to Indemnification. The Company shall
indemnify to the extent not prohibited by applicable law, any
person who was or is a party (which shall include for purposes of
this Article IV the giving of testimony or similar involvement)
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 a director, officer, employee or agent of the Company or
is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including an employee
benefit plan, against any liability, penalty, damages, excise tax
assessed with respect to an employee benefit plan, costs,
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, whether
or not the indemnified liability arises or arose from any
threatened, pending or completed action by or in the right of the
Company. The board of directors may, and on request of any such
person shall be required to, determine in each case whether
applicable law prohibits indemnification, or such determination
shall be made by independent legal counsel if the board so
directs or if the board is not empowered by law to make such
determination. If there has been a change in control (as such
term is used in Item 6(a) of Schedule 14A promulgated by the
Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended) of the Company between (1) the time of
the action or failure to act giving rise to the claim for
indemnification and (2) the time such claim is made, at the
option of the person seeking indemnification the permissibility
of indemnification shall be determined by independent legal
counsel selected jointly by the Company and the person seeking
indemnification. The fees and expenses of such counsel shall be
paid by the Company. The obligations of the Company to indemnify
a director, officer, employee or agent under this Article IV,
including the duty to advance expenses, shall be a contract
between the Company and such person, and no modification or
repeal of any provision of this Article IV shall affect, to the
detriment of the director, officer, employee or agent such
obligations of the Company in connection with a claim based on
any act or failure to act occurring before such modification or
repeal.
Section 2. Advancement of Expenses. Expenses (including
attorney's fees) incurred in defending an action, suit or
proceeding referred to in this Article IV shall be paid by the
Company in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of
the indemnified person to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Company as authorized in this Article IV or
otherwise.
Section 3. Indemnification Not Exclusive. The indemnification
and advancement of expenses provided by this Article IV shall not
be deemed exclusive of any other right to which one indemnified
may be entitled under any agreement, vote of shareholders or
otherwise, both as to action in his official capacity and as to
action in another capacity while holding that office, and shall
inure to the benefit of the heirs, executors and administrators
of any such person.
Section 4. Insurance, Security and Other Indemnification. The
board of directors shall have the power to (a) authorize the
Company to purchase and maintain, at the Company's expense,
insurance on behalf of the Company and others to the extent that
power to do so has not been restricted by applicable law, (b)
create any fund of any nature, whether or not under the control
of a trustee, or otherwise secure in any manner any of its
indemnification obligations and (c) give other indemnification to
the extent not prohibited by applicable law.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Share Certificates. Every shareholder of record
shall be entitled to a share certificate representing the shares
held by him. Every share certificate shall bear the corporate
seal and the signature (which may be a facsimile signature) of
the chairman, president or a vice president and the secretary or
an assistant secretary or treasurer of the Company.
Section 2. Transfers. Shares of stock of the Company shall be
transferable on the books of the Company only by the registered
holder or by duly authorized attorney. A transfer shall be made
only upon surrender of the share certificate.
ARTICLE VI
CERTAIN MATTERS RELATING TO
PENNSYLVANIA ACT NO. 36 OF 1990
In accordance with the provisions of Section
2571(b)(2)(i) of the Pennsylvania Associations Code, as amended,
Subchapter H, Disgorgement by Certain Controlling Shareholders
Following Attempts to Acquire Control, of Chapter 25 of the
Pennsylvania Associations Code shall not be applicable to the
Company.
ARTICLE VII
AMENDMENTS
Except as restricted by applicable law, the authority
to adopt, amend and repeal the bylaws of the Company is expressly
vested in the Board of Directors, subject to the power of the
shareholders to change such action. These bylaws may be changed
at any regular or special meeting of the board of directors by
the vote of a majority of all the directors in office.