As Amended and Restated
December 13, 1994
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.
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Section 5. Nomination of Directors.
-----------------------------------
(b) 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 60 days nor more than 90 days prior to such meeting of the 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
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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
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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 60 days nor more than 90 days prior to such meeting; 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 meeting, (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
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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
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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,
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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:
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(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.
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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
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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.
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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
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at any regular or special meeting of the board of directors by
the vote of a majority of all the directors in office.
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