<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 7, 1996
REGISTRATION NO. 333-04613
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
XIONICS DOCUMENT TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 5008 04-3186685
(I.R.S. EMPLOYER IDENTIFICATION
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL NO.)
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER)
</TABLE>
70 BLANCHARD ROAD
BURLINGTON, MA 01803
(617) 229-7000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
ROBERT E. GILKES
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
XIONICS DOCUMENT TECHNOLOGIES, INC.
70 BLANCHARD ROAD
BURLINGTON, MA 01803
(617) 229-7000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C> <C>
MICHAEL P. O'BRIEN, ESQ. CAROLYN E. RAMM, ESQ. PAUL V. ROGERS, ESQ.
BINGHAM, DANA & GOULD LLP XIONICS DOCUMENT TECHNOLOGIES, INC. HALE AND DORR
150 FEDERAL STREET 70 BLANCHARD ROAD 60 STATE STREET
BOSTON, MA 02110 BURLINGTON, MA 01803 BOSTON, MA 02109
(617) 951-8000 (617) 229-7000 (617) 526-6000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement is declared effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / __________________
If this form is a post-effective amendment filed pursuant to Rule 462(b)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / / __________________
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
- ------------------------------------------------------------------------------------------------------------
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE(3)
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value per
share................................. 2,875,000 $12.00 $34,500,000 $11,896.55
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
<FN>
(1) Includes 375,000 shares which the Underwriters have the option to purchase
solely to cover over-allotments, if any.
(2) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(a) under the Securities Act.
(3) Previously delivered in connection with the initial filing of this
Registration Statement on May 28, 1996.
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
Expenses of the Registrant in connection with the issuance and distribution
of the securities being registered, other than the underwriting discount, are
estimated as follows:
<S> <C>
SEC Registration Fee.............................................. $ 11,897
NASD Fees......................................................... $ 3,950
Nasdaq National Market Listing Fees............................... $ 42,577
Printing and Engraving Expenses................................... $ *
Legal Fees and Expenses........................................... $ *
Accountants' Fees and Expenses.................................... $ *
Expenses of Qualification Under State Securities Laws, Including
Attorneys' Fees................................................. $ 20,000
Transfer Agent and Registrar's Fees............................... $ *
Miscellaneous Costs............................................... $ *
--------
Total........................................................... $800,000
========
<FN>
- ---------------
* To be provided by amendment.
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
The Amended and Restated Certificate of Incorporation of the Company and
the Amended and Restated By-Laws of the Company, copies of which are filed
herein as Exhibits 3.1 and 3.2, provide for indemnification of officers and
directors of the Company and certain other persons against liabilities and
expenses incurred by any of them in certain stated proceedings and under certain
stated conditions.
The Company intends to maintain insurance for the benefit of its directors
and officers insuring such persons against certain liabilities, including
liabilities under the securities laws.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
On June 30, 1993, in connection with the reorganization of the Registrant,
the Registrant entered into a Stock Purchase and Exchange Agreement dated as of
such date (the "Agreement") with certain of the stockholders of Xionics
International Holdings, Ltd ("Xionics International"). Pursuant to the terms of
this Agreement, the Registrant issued shares of its capital stock to the
following stockholders for the consideration described herein. The Registrant
issued 1,773,009 shares of Class A Convertible Preferred Stock and 1,311,276
shares of Class B Redeemable Preferred Stock to Hambro International Venture
Fund II ("HIVF II"). In consideration for such shares, HIVF II exchanged 288,384
common shares and 827,117 preference shares of Xionics International, and agreed
to cancel $1,797,831.92 in certain indebtedness of Xionics International to HIVF
II. Under the Agreement, the Registrant also issued 363,146 shares of Class A
Convertible Preferred Stock and 268,525 shares of Class B Redeemable Preferred
Stock to Hambro International Venture Fund Offshore II ("HIVFO II"). HIVFO II
exchanged 59,066 common shares and 169,409 preference shares of Xionics
International, and agreed to cancel $368,231.52 in certain indebtedness of
Xionics International to HIVFO II. The Registrant also issued 524,284 shares of
Class A Common Stock, 86,622 shares of Class A Convertible Preferred Stock and
288,026 shares of Class B Redeemable Preferred Stock to Monument Trust Company
("MTC"). Pursuant to the terms of the Agreement, MTC exchanged 416,735 common
shares and 195,833 preference shares of Xionics
II-1
<PAGE> 3
International, and agreed to cancel indebtedness in the amount of $374,635.58 of
Xionics International to MTC. Pursuant to the Agreement, the Registrant also
issued 17,045 shares of Common Stock to Peter Santeusanio, 69,626 shares of
Common Stock to Ian Richardson and 1,268 shares of Common Stock to Keith Miller
in exchange for an equal number of common shares of Xionics International held
by each individual.
On June 30, 1993, the Registrant issued 504,292 shares of Common Stock to
Peter Santeusanio pursuant to a restricted stock purchase agreement between the
Registrant and Mr. Santeusanio for an aggregate consideration of $5,043.
On June 30, 1993, the Registrant issued 200,778 shares of Common Stock to
Ian Richardson for an aggregate consideration of $2,008.
On November 9, 1994, the Registrant issued 1,184,695 shares of Class A
Convertible Preferred Stock to Phoenix Technologies Ltd. ("Phoenix") for an
aggregate consideration of $750,000 in cash and certain assets of Phoenix having
an approximate value of $2,300,000.
On August 25, 1995, the Registrant entered into a Class C Preferred Stock
Purchase Agreement with certain of its existing stockholders and certain new
investors (the "Class C Preferred Stock Financing") pursuant to which the
Registrant issued shares of its Class C Redeemable Convertible Preferred Stock.
The Registrant issued 653,707 shares of Class C Redeemable Convertible Preferred
Stock to Phoenix for an aggregate consideration consisting of $1,900,000,
consisting of the cancellation of indebtedness of the Registrant to Phoenix in
that amount. The Registrant also issued 766,078 shares of Class C Redeemable
Convertible Preferred Stock to HIVF II for an aggregate consideration of
$2,261,605, consisting of $415,000 cash, and the surrender for cancellation of
shares of Class B Redeemable Preferred Stock and promissory notes of the
Registrant having an aggregate value of $1,811,605. The Registrant also issued
161,934 shares of Class C Redeemable Convertible Preferred Stock to HIVFO II for
an aggregate consideration of $456,053, consisting of $85,000 in cash and the
surrender for cancellation of shares of Class B Redeemable Preferred Stock and
promissory notes of the Registrant having a value of $371,053. Under the Class C
Preferred Stock Financing, the Registrant also issued 122,585 shares of Class C
Redeemable Convertible Preferred Stock to MTC for an aggregate consideration of
$356,923, consisting of the surrender of shares of Class B Redeemable Preferred
Stock of the Registrant with a value of $356,293. The Registrant issued 516,085
shares of Class C Redeemable Convertible Preferred Stock to Mytech Funds, L.P.
for an aggregate consideration of $1,500,000 in cash. The Registrant also issued
344,056 shares of Class C Redeemable Convertible Preferred Stock to PUSH
Incorporated for an aggregate consideration of $1,000,000 in cash, and 68,811
shares of Class C Redeemable Convertible Preferred Stock to ADD Venture
Associates, L.P. and 34,406 shares of Class C Redeemable Convertible Preferred
Stock to ADD Venture Associates II, L.P. for an aggregate consideration of
$200,000 and $100,000, respectively, in cash.
On September 29, 1995, the Registrant issued 10,000 shares of Common Stock
to John Pearce for an aggregate consideration of $2,000, in cash.
On November 7, 1995, the Registrant issued 29,630 shares of Common Stock to
Karl Marks in exchange for 25% of the equity of HiBRIC Technology Gesellschaft
fur Mikroelectronic mbH, subsequently renamed Xionics Document Technologies
GmbH.
On December 22, 1995, the Registrant issued 1,000,000 shares of Class D
Preferred Stock to Adobe Systems Incorporated for an aggregate consideration of
$4,500,000 in cash.
On May 9, 1996, the Registrant issued 116,979 shares of Class C Redeemable
Convertible Preferred Stock to Phoenix pursuant to an option granted to Phoenix
by the Registrant in connection with the Class C Preferred Stock Financing.
The Registrant has, from time to time, issued an aggregate of 161,390
shares of restricted Common Stock to various former employees and former
directors upon the exercise of options granted pursuant to the Company's 1993
Stock Option Plan and 1995 Stock Option Plan for an aggregate consideration of
$32,030 at an exercise price of $0.20 per share.
II-2
<PAGE> 4
No underwriters were involved in the foregoing sales of securities. Such
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relative to sales by an
issuer not involving any public offering or the rules and regulations
thereunder, or, in the case of certain restricted shares, options to purchase
Common Stock and shares issuable upon the exercise of such options, Rule 701 of
the Act. All of the foregoing securities are deemed restricted securities for
purposes of the Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
(a) The following is a list of exhibits filed as a part of this
registration statement:
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------ -----------------------
<C> <S>
1.1 Form of Underwriting Agreement by and among Registrant, the Selling Stockholder and
the Underwriters (to be filed by amendment).
3.1 Form of Amended and Restated Certificate of Incorporation of the Registrant.
3.2 Form of Amended and Restated By-Laws of Registrant.
4.1 Specimen Certificate for Shares of the Registrant's Common Stock, $.01 par value
(to be filed by amendment).
5.1 Opinion of Bingham, Dana & Gould LLP with respect to the legality of the shares
being registered (to be filed by amendment).
10.1 1996 Stock Option Plan and related form of stock option agreement (previously
filed).
10.2 1995 Stock Option Plan and related form of stock option agreement (previously
filed).
10.3 1993 Stock Option Plan and related form of stock option agreement (previously
filed).
10.4 1996 Directors' Stock Option Plan (to be filed by amendment).
10.5 1996 Employee Stock Purchase Plan (to be filed by amendment).
10.6 Class C Preferred Stock Purchase Agreement dated August 25, 1995 (previously
filed).
10.7 Second Amended and Restated Shareholder Agreement, dated December 22, 1995
(previously filed).
10.8 Credit Agreement, dated September 25, 1995, between the Company and Fleet Bank of
Massachusetts, N.A. (previously filed).
10.9 Asset Purchase Agreement by and between Phoenix Technologies Ltd. and Xionics
International Holdings, Inc., dated September 30, 1994 (previously filed).
10.10 Computer Technology License Agreement between Phoenix Technologies Ltd. and
Hewlett-Packard Company for PhoenixPage Software Products dated September 30, 1994
as amended (including amended and restated Amendment No. 1 between the Registrant
and Hewlett-Packard, effective as of March 8, 1996).*
10.11 Lease by and between the Registrant and E & F Realty Associates Limited Partnership
of Property at One Twenty Eight Corporate Center, 70 Blanchard Road, Burlington,
Massachusetts, dated November 29, 1994, including First Amendment to Lease, dated
August 9, 1995 (previously filed).
10.12 Adobe Repurchase Agreement (together with related General Release Agreements),
dated May 17, 1996 (previously filed).
10.13 Stock Option Agreement between the Company and Robert E. Gilkes (previously filed).
10.14 Consulting Services Agreement between the Company and Thomas A. St. Germain
(previously filed).
10.15 Severance Agreement between the Company and Peter M. Santeusanio (previously
filed).
10.16 Form of Invention and Nondisclosure Agreement (previously filed).
10.17 Amended and Restated Registration Rights Agreement (previously filed).
11.1 Computation of Per Share Earnings (previously filed).
21.1 Subsidiaries of Registrant (previously filed).
23.1 Consent of Arthur Andersen LLP (previously filed).
23.2 Consent of Bingham, Dana & Gould LLP, counsel to Registrant (to be included in
Exhibit 5.1).
24.1 Power of Attorney (included in signature page to Registration Statement) as
originally filed.
<FN>
- ---------------
* Confidential treatment to be requested for certain portions of this exhibit.
</TABLE>
II-3
<PAGE> 5
<TABLE>
(b) Financial Statement Schedules
<CAPTION>
SCHEDULE NO. DESCRIPTION
------------ -----------
<S> <C>
Schedule II Valuation and Qualifying Accounts
</TABLE>
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended ("Securities Act") may be permitted to directors, officers
and controlling persons of the registrant pursuant to the provisions described
in Item 14 hereof, 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) To provide the Underwriters at the closing specified in the
Underwriting Agreement certificates in such denominations and registered in
such names as required by the Underwriters to permit prompt delivery to
each purchaser.
(2) That for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or Rule 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective.
(3) That for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Burlington, Commonwealth of Massachusetts, on this th day of June, 1996.
Xionics Document Technologies, Inc.
By: /s/ Gerard T. Feeney
-------------------------------
Gerard T. Feeney
Vice President, Chief Financial
Officer
and Treasurer
POWER OF ATTORNEY AND SIGNATURES
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert E. Gilkes* President and Chief Executive June 7, 1996
- ---------------------------------------- Officer; Director (principal
Robert E. Gilkes executive officer)
/s/ Richard A. D'Amore* Director June 7, 1996
- ----------------------------------------
Richard A. D'Amore
Director
- ----------------------------------------
Ronald D. Fisher
/s/ David R. Skok* Director June 7, 1996
- ----------------------------------------
David R. Skok
/s/ Paul R. Low* Director June 7, 1996
- ----------------------------------------
Paul R. Low
/s/ Thomas A. St. Germain* Director June 7, 1996
- ----------------------------------------
Thomas A. St. Germain
/s/ Gerard T. Feeney Vice President-Finance, Chief June 7, 1996
- ---------------------------------------- Financial Officer, Treasurer
Gerard T. Feeney (principal financial and accounting
officer)
</TABLE>
*By
/s/ Gerard T. Feeney
-----------------------------
GERARD T. FEENEY
AS ATTORNEY-IN-FACT
II-5
<PAGE> 7
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS ON SCHEDULE
TO XIONICS DOCUMENT TECHNOLOGIES, INC. AND SUBSIDIARIES
We have audited, in accordance with generally accepted auditing standards,
the consolidated balance sheets of Xionics Document Technologies, Inc. and
subsidiaries as of June 30, 1995 and March 31, 1996 and the related statements
of operations, redeemable preferred stock and stockholders' equity (deficit) and
cash flows for the years ended June 30, 1994 and 1995 and the nine months ended
March 31, 1996, included in this Registration Statement, and have issued our
report thereon dated May 17, 1996. Our audits were made for the purpose of
forming an opinion on the basic financial statements taken as a whole. The
schedule listed in S-2 is the responsibility of the Company's management and is
presented for the purposes of complying with the Securities and Exchange
Commission's rules and is not part of the basic financial statements. This
schedule has been subjected to the auditing procedures applied in our audits of
the basic financial statements and, in our opinion, fairly states in all
material respects, the financial data required to be set forth therein in
relation to the basic financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
May 17, 1996
S-1
<PAGE> 8
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED JUNE 30, 1994, 1995 AND FOR THE NINE MONTHS ENDED MARCH 31,
1996
<TABLE>
<CAPTION>
BALANCE,
BEGINNING OF CHARGED BALANCE,
ALLOWANCE FOR DOUBTFUL ACCOUNTS YEAR TO EXPENSE WRITE-OFFS END OF YEAR
- --------------------------------------------- ------------ ---------- ---------- -----------
<S> <C> <C> <C> <C>
Year ended June 30, 1994..................... $136,000 $25,000 $ (4,000) $157,000
Year ended June 30, 1995..................... 157,000 63,000 (16,000) 204,000
Nine Months ended March 31, 1996............. 204,000 -- (39,000) 165,000
</TABLE>
S-2
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT PAGE
- ------ ----------------------- ----
<C> <S> <C>
1.1 Form of Underwriting Agreement by and among Registrant, the Selling
Stockholder and the Underwriters (to be filed by amendment).
3.1 Form of Amended and Restated Certificate of Incorporation of the Registrant.
3.2 Form of Amended and Restated By-Laws of Registrant.
4.1 Specimen Certificate for Shares of the Registrant's Common Stock, $.01 par
value (to be filed by amendment).
5.1 Opinion of Bingham, Dana & Gould LLP with respect to the legality of the
shares being registered (to be filed by amendment).
10.1 1996 Stock Option Plan and related form of stock option agreement (previously
filed).
10.2 1995 Stock Option Plan and related form of stock option agreement (previously
filed).
10.3 1993 Stock Option Plan and related form of stock option agreement (previously
filed).
10.4 1996 Directors' Stock Option Plan (to be filed by amendment).
10.5 1996 Employee Stock Purchase Plan (to be filed by amendment).
10.6 Class C Preferred Stock Purchase Agreement dated August 25, 1995 (previously
filed).
10.7 Second Amended and Restated Shareholder Agreement, dated December 22, 1995
(previously filed).
10.8 Credit Agreement, dated September 25, 1995, between the Company and Fleet
Bank of Massachusetts, N.A. (previously filed).
10.9 Asset Purchase Agreement by and between Phoenix Technologies Ltd. and Xionics
International Holdings, Inc., dated September 30, 1994 (previously filed).
10.10 Computer Technology License Agreement between Phoenix Technologies Ltd. and
Hewlett-Packard Company for PhoenixPage Software Products dated September 30,
1994 as amended (including amended and restated Amendment No. 1 between the
Registrant and Hewlett-Packard, effective as of March 8, 1996).*
10.11 Lease by and between the Registrant and E & F Realty Associates Limited
Partnership of Property at One Twenty Eight Corporate Center, 70 Blanchard
Road, Burlington, Massachusetts, dated November 29, 1994, including First
Amendment to Lease, dated August 9, 1995 (previously filed).
10.12 Adobe Repurchase Agreement (together with related General Release
Agreements), dated May 17, 1996 (previously filed).
10.13 Stock Option Agreement between the Company and Robert E. Gilkes (previously
filed).
10.14 Consulting Services Agreement between the Company and Thomas A. St. Germain
(previously filed).
10.15 Severance Agreement between the Company and Peter M. Santeusanio (previously
filed).
10.16 Form of Invention and Nondisclosure Agreement (previously filed).
10.17 Amended and Restated Registration Rights Agreement (previously filed).
11.1 Computation of Per Share Earnings (previously filed).
21.1 Subsidiaries of Registrant (previously filed).
23.1 Consent of Arthur Andersen LLP (previously filed).
23.2 Consent of Bingham, Dana & Gould LLP, counsel to Registrant (to be included
in Exhibit 5.1).
24.1 Power of Attorney (included in signature page to Registration Statement) as
originally filed.
<FN>
- ---------------
* Confidential treatment to be requested for certain portions of this exhibit.
</TABLE>
<PAGE> 1
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
XIONICS DOCUMENT TECHNOLOGIES, INC.
Incorporated pursuant to a Certificate of
Incorporation filed with the Secretary of State
of the State of Delaware on December 30, 1992
-----------------------------------------------
XIONICS DOCUMENT TECHNOLOGIES, INC. (the "Corporation"), a Delaware
corporation, hereby certifies that this Amended and Restated Certificate of
Incorporation has been duly adopted in accordance with the provisions of
Sections 228, 242, and 245 of the General Corporation Law of the State of
Delaware:
FIRST: The name of the corporation is Xionics Document Technologies, Inc.
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name of the Corporation's registered agent is Corporation Service Company
The address of the Corporation's principal office in The Commonwealth of
Massachusetts is 70 Blanchard Road, Burlington, Massachusetts, 01803.
THIRD: The purposes of the Corporation are to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of all classes of capital stock that the
Corporation shall have authority to issue is 50,000,000, consisting solely of:
40,000,000 shares of common stock, $.01 par value per share ("COMMON
STOCK"); and
10,000,000 shares of Preferred Stock, $.01 par value per share ("PREFERRED
STOCK").
<PAGE> 2
- 2 -
A. PREFERRED STOCK.
---------------
The shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to establish and
designate the different series, and to fix and determine the voting powers,
designations, preferences, and relative, participating, optional or other
special rights, if any, and qualifications, limitations, and restrictions
thereof, if any, as shall be stated or expressed in a resolution or resolutions
of the Board of Directors providing for the issue of such series of Preferred
Stock, which powers, preferences, rights, qualifications, limitations and
restrictions need not be uniform among series, and may include, without
limitation:
(a) the distinctive serial designation and the number of shares
constituting the series;
(b) the dividend rate or rates on share of the series, whether
dividends are cumulative and, if so, from which date, the payment date or
dates for dividends on shares of the series, and the participating or other
special rights, if any, with respect to dividends;
(c) the voting powers, full or limited, if any, of shares of the
series;
(d) whether shares of the series are redeemable and, if so, the price
or prices at which, and the terms and conditions on which, the shares may
be redeemed;
(e) the amount or amounts payable upon the shares in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation prior to any payment or distribution of the assets of the
Corporation to any class or series of stock of the Corporation ranking
junior to the shares of the series;
(f) whether the shares of the series are entitled to the benefit of a
sinking or retirement fund to be applied to the purchase or redemption of
shares of the series and, if so entitled, the amount of the fund and the
manner of its application, including the price or prices at which the
shares may be redeemed or purchased through the application of the fund;
(g) whether the shares are convertible into, or exchangeable for,
shares of any other class or classes or of any
<PAGE> 3
- 3 -
other series of the same or any other class or classes of capital stock of
the Corporation and, if so convertible or exchangeable, the conversion
price or prices, or the rates of exchange, and the adjustments thereof, if
any, at which the conversion or exchange may be made, and any other terms
and conditions of the conversion or exchange; and
(h) any other preferences, privileges and powers, and relative
participating, optional or other special rights, qualifications,
limitations or restrictions, as the Board of Directors may deem advisable
and as are not inconsistent with the provisions of this Amended and
Restated Certificate of Incorporation or applicable law.
Any of the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of any such series of Preferred
Stock may be made dependent upon facts ascertainable outside the resolution or
resolutions providing for the issue of such series adopted by the Board of
Directors, provided that the manner in which such facts shall operate upon the
voting powers, designations, preferences, rights and qualifications, limitations
or restrictions of such series is clearly and expressly set forth in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors.
Different series of Preferred Stock shall not be construed to constitute
different classes of shares for the purposes of voting by classes unless
expressly so provided in such resolution or resolutions. No resolution, vote or
consent of the holders of the capital stock of the Corporation shall be required
in connection with the creation or issuance of any shares of any series of
Preferred Stock authorized by and complying with the conditions of this Amended
and Restated Certificate of Incorporation, the right to any such resolution,
vote, or consent being expressly waived by all present and future holders of the
capital stock of the Corporation.
B. COMMON STOCK.
------------
1. Dividends
---------
The holders of record of shares of Common Stock shall be entitled to
receive such dividends as may be declared by the Board of Directors from time to
time out of any funds of the Corporation at the time legally available for the
payment of dividends, subject to the dividend rights of outstanding shares of
the Corporation's Preferred Stock.
<PAGE> 4
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2. Liquidation
-----------
In the event of any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, the holders of record of shares
of Common Stock shall be entitled to receive PRO RATA the assets of the
Corporation available for distribution, after the holders of outstanding shares
of Preferred Stock shall have received such payment or distribution from the
assets of the Corporation as they shall be entitled to receive.
The merger or consolidation of the Corporation into or with any other
corporation, the merger of any other corporation into it, or the sale or lease
of all or substantially all of the assets of the Corporation shall not be deemed
to be a liquidation, dissolution, or winding up of the Corporation for the
purposes of this Section B(2).
3. Voting Rights
-------------
Except as otherwise expressly provided by law, and subject to any voting
rights that may be granted by the Board of Directors to holders of any class or
series of Preferred Stock, all the voting power of the Corporation shall be
vested, as to all matters requiring stockholder approval, in the Common Stock.
Each holder of record of a share or shares of Common Stock shall have the right
to one vote per share.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for defining
and regulating the powers of the Corporation and its directors and stockholders
and are in furtherance and not in limitation of the powers conferred upon the
Corporation by statute:
(a) The size of the Board of Directors shall be fixed by the Board of
Directors from time to time, but in no event shall there be less than three
(3) directors, and in no event shall any amendment decreasing the number of
directors have the effect of shortening the term of any incumbent director.
(b) From and after the closing (or first closing) of the Corporation's
initial public offering of Common Stock pursuant to an effective
registration statement ("IPO CLOSING") the Board of Directors shall be
divided into three classes of directors, such classes to be as nearly equal
in number of directors as possible, having staggered three-year terms of
office, the term of office of the directors of the first
<PAGE> 5
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such class ("Class I") to expire as of the first annual meeting of the
Corporation's stockholders following the IPO Closing, those of the second
class ("Class II") to expire as of the second annual meeting of the
Corporation's stockholders following the IPO Closing, and those of the
third class ("Class III") to expire as of the third annual meeting of the
Corporation's stockholders following the IPO Closing, such that at each
annual meeting of stockholders after the IPO Closing, nominees will stand
for election to succeed those directors whose terms are to expire as of
such meeting. Any director serving as such pursuant to this paragraph (b)
of Article FIFTH may be removed only for cause pursuant to the vote of the
holders of a majority of the shares of the Corporation's stock entitled to
vote for the election of directors. Those directors in office immediately
prior to the IPO Closing shall be allocated among Class I, Class II and
Class III as determined by a resolution or resolutions of the Board of
Directors, which may have been adopted prior to the effectiveness of this
Amended and Restated Certificate of Incorporation.
(c) The Board of Directors shall have the power and authority: (1) to
adopt, amend or repeal by-laws of the Corporation, subject only to such
limitations, if any, as may be from time to time imposed by other
provisions of this Certificate, by law, or by the By-Laws; and (2) to the
fullest extent permitted or not prohibited by law, and without the consent
of or other action by the stockholders, to authorize or create mortgages,
pledges or other liens or encumbrances upon any or all of the assets, real,
personal or mixed, and franchises of the Corporation, including
after-acquired property, and to exercise all of the powers of the
Corporation in connection therewith. In case of any vacancy on the Board of
Directors, the vacancies shall be filled by the directors at the time
having voting power, as may be prescribed herein and in the By-Laws.
Directors need not be stockholders of the Corporation. The election of
directors need not be by written ballot.
SIXTH: No director of the Corporation shall be personally liable to the
Corporation or to any of its stockholders for monetary damages for breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability; PROVIDED, HOWEVER, that to the extent required from time to time by
applicable law, this Article Sixth shall not eliminate or limit the liability of
a director, to the extent such liability is provided by applicable law, (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
Title 8 of the Delaware Code, or (iv) for any transactions from which the
<PAGE> 6
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director derived an improper personal benefit. No amendment to or repeal of this
Article Sixth shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to the effective date of such amendment or repeal.
SEVENTH: Each person who was or is made a party or is threatened to be made
a party to or is otherwise involved in any action, suit or proceeding, by reason
of being or having been a director or officer of the Corporation or serving or
having served at the request of the Corporation as a director, trustee, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan, whether the basis of such proceeding is alleged action or failure to act
in an official capacity as a director, trustee, officer, employee or agent or in
any other capacity while serving as a director, trustee, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended, against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such person in connection
therewith, as further provided in the By-Laws.
EIGHTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the Company
and its stockholders or any class or series of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under
the provisions of Section 391 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for the Corporation under the provisions of Section 279 of Title 8 of
the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class or series of stockholders of the
Corporation, as the case may be, to be summoned in such a manner as the said
court directs. If a majority of the number representing three-fourths (3/4ths)
in value of the creditors or class of creditors, and/or of the stockholders or
class or series of stockholders of the Corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization of the Corporation
as a consequence of such compromise or arrangement, the compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all creditors or class
of creditors, and/or stockholders or class or series of
<PAGE> 7
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stockholders of the Corporation, as the case may be, and also on the
Corporation.
NINTH: The Board of Directors, when considering a tender offer or merger or
acquisition proposal, may take into account factors in addition to potential
short-term economic benefits to stockholders of the Corporation, including
without limitation (A) comparison of the proposed consideration to be received
by stockholders in relation to the then current market price of the
Corporation's capital stock, the estimated current value of the Corporation in a
freely negotiated transaction, and the estimated future value of the Corporation
as an independent entity and (B) the impact of such a transaction on the
employees, suppliers, and customers of the Corporation and its effect on the
communities in which the Corporation operates.
TENTH: Effective from and after the IPO Closing, any action required or
permitted to be taken by the stockholders of the Corporation may be taken only
at a duly called annual or special meeting of the stockholders, and not by
written consent in lieu of such a meeting, and special meetings of stockholders
may be called only by the Chairman of the Board of Directors, the President, or
a majority of the Board of Directors.
ELEVENTH: Effective from and after the IPO Closing, the affirmative vote of
the holders of at least sixty-six and two thirds percent (66 2/3%) of the
outstanding voting stock of the Corporation (in addition to any separate class
vote that may in the future be required pursuant to the terms of any outstanding
Preferred Stock) shall be required to amend or repeal any of the provisions of
this Amended and Restated Certificate of Incorporation, to amend, adopt or
repeal the Company's By-Laws (without, however, limiting the power and authority
of the Board of Directors to amend, adopt or repeal By-Laws), or to reduce the
numbers of authorized shares of Common Stock or Preferred Stock.
Executed on , 1996.
-----------------
XIONICS DOCUMENT TECHNOLOGIES, INC.
By:
-------------------------------
Title:
----------------------------
<PAGE> 1
Exhibit 3.2
XIONICS DOCUMENT TECHNOLOGIES, INC.
AMENDED AND RESTATED BY-LAWS
<PAGE> 2
AMENDED AND RESTATED
--------------------
BY-LAWS OF
----------
XIONICS DOCUMENT TECHNOLOGIES, INC.
-----------------------------------
TABLE OF CONTENTS
-----------------
Article I - General
Section 1.1. Offices ................................................
Section 1.2. Seal ...................................................
Section 1.3. Fiscal Year ............................................
Article II - Stockholders
Section 2.1. Place of Meetings ......................................
Section 2.2. Annual Meeting .........................................
Section 2.3. Special Meeting ........................................
Section 2.4. Notice of Meeting ......................................
Section 2.5. Quorum and Adjournment .................................
Section 2.6. Right to Vote; Proxies .................................
Section 2.7. Voting .................................................
Section 2.8. Notice of Stockholder Business and Nominations .........
Section 2.9. Stockholders' List .....................................
Section 2.10. No Stockholder Action by Written Consent ...............
Section 2.11. Inspectors .............................................
Article III - Directors
Section 3.1. General Powers .........................................
Section 3.2. Qualifications of Directors ............................
Section 3.3. Number of Directors; Vacancies .........................
Section 3.4. Resignation ............................................
Section 3.5. Removal ................................................
Section 3.6. Place of Meetings and Books ............................
Section 3.7. Executive Committee ....................................
Section 3.8. Other Committees .......................................
Section 3.9. Powers Denied to Committees ............................
Section 3.10. Substitute Committee Member ............................
Section 3.11. Compensation of Directors ..............................
Section 3.12. Regular Meetings .......................................
Section 3.13. Special Meetings .......................................
<PAGE> 3
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Section 3.14. Quorum .................................................
Section 3.15. Telephonic Participation in Meetings ...................
Section 3.16. Action by Consent ......................................
Article IV - Officers
Section 4.1. Selection; Statutory Officers ..........................
Section 4.2. Time of Election .......................................
Section 4.3. Additional Officers ....................................
Section 4.4. Terms of Office ........................................
Section 4.5. Compensation of Officers ...............................
Section 4.6. Chairman of the Board ..................................
Section 4.7. President ..............................................
Section 4.8. Vice-President .........................................
Section 4.9. Chief Financial Officer ................................
Section 4.10. Treasurer ..............................................
Section 4.11. Secretary ..............................................
Section 4.12. Assistant Secretary ....................................
Section 4.13. Assistant Treasurer ....................................
Section 4.14. Subordinate Officers ...................................
Section 4.15. Removal ................................................
Section 4.16. Vacancies ..............................................
Article V - Stock Certificates and Transfers
Section 5.1. Stock Certificates .....................................
Section 5.2. Lost, Stolen or Destroyed Certificates .................
Section 5.3. Dividends ..............................................
Article VI - Miscellaneous Management Provisions
Section 6.1. Checks, Drafts and Notes ...............................
Section 6.2. Notices ................................................
Section 6.3. Conflict of Interest ...................................
Section 6.4. Voting of Securities owned by this Corporation .........
Section 6.5. Inspection of Books ....................................
Section 6.6. Minute Book ............................................
Article VII - Indemnification
Section 7.1. Right to Indemnification ...............................
Section 7.2. Right of Indemnitee to Bring Suit ......................
Section 7.3. Non-Exclusivity of Rights ..............................
Section 7.4. Insurance ..............................................
<PAGE> 4
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Section 7.5. Indemnification of Employees and Agents of the
Corporation ............................................
Article VIII - Amendments..................................................
Section 8.1. Amendments .............................................
<PAGE> 5
AMENDED AND RESTATED
--------------------
BY-LAWS OF
----------
XIONICS DOCUMENT TECHNOLOGIES, INC.
-----------------------------------
ARTICLE I - GENERAL
-------
1.1. OFFICES. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware. The Corporation may also have offices
at such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
1.2. SEAL. The seal of the Corporation shall be in the form of a circle and
shall have inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Delaware".
1.3. FISCAL YEAR. The fiscal year of the Corporation shall be the period
from July 1 through June 30.
ARTICLE II - STOCKHOLDERS
------------
2.1. PLACE OF MEETINGS. All meetings of the stockholders shall be held at
the office of the Corporation in Burlington, Massachusetts except such meetings
as the Board of Directors expressly determine shall be held elsewhere, in which
case meetings may be held upon notice as hereinafter provided at such other
place or places within or without the State of Delaware as the Board of
Directors shall have determined and as shall be stated in such notice.
2.2. ANNUAL MEETING. The annual meeting of stockholders of the Corporation
shall be held on such date and at such place and time as may be fixed by
resolution of the Board of Directors and stated in the notice of the meeting, at
which they shall elect such members of the Board of Directors as are standing
for election at such meeting, as determined by the Corporation's Amended and
Restated Certificate of Incorporation, as it may be further amended or amended
and restated from time to time ("CERTIFICATE OF INCORPORATION") and shall
transact such other business as may properly be brought before the meeting
(except as otherwise provided in these by-laws).
<PAGE> 6
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2.3. SPECIAL MEETING. Subject to the rights of the holders of any series of
stock having a preference over the Common Stock of the Corporation as to
dividends upon liquidation ("Preferred Stock") with respect to such series of
Preferred Stock, special meetings of the stockholders for any purpose or
purposes may only be called by the Chairman of the Board of Directors, the
President, or a majority of the total number of directors which the Corporation
would have if there were no vacancies (the "Whole Board"). Only such business
shall be conducted at a special meeting as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting.
2.4. NOTICE OF MEETING. Written notice of any meeting of the stockholders
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more
than sixty (60) days before the date of the meeting. Notice need not be given to
any stockholder who submits a written waiver of notice signed by him before or
after the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice. Any previously scheduled meeting of
the stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be canceled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
2.5. QUORUM AND ADJOURNMENT. At all meetings of the stockholders the
holders of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
requisite for the transaction of business except as otherwise provided by law,
by the Certificate of Incorporation or by these by-laws. The Chairman of the
meeting may adjourn the meeting from time to time, whether or not there is such
a quorum. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting, at which the requisite amount of
voting stock shall be represented, any business may be transacted which might
have been transacted if the meeting had been held as originally called. The
stockholders present at a duly called
<PAGE> 7
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meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
2.6. RIGHT TO VOTE; PROXIES. Each holder of a share or shares of capital
stock of the Corporation having the right to vote at any meeting shall be
entitled to one vote for each such share of stock held by him. Any stockholder
entitled to vote at any meeting of stockholders may vote either in person or by
proxy, but no proxy which is dated more than three (3) years prior to the
meeting at which it is offered shall confer the right to vote thereat unless the
proxy provides that it shall be effective for a longer period. A proxy may be
granted by a writing executed by the stockholder or his authorized officer,
director, employee or agent or by transmission or authorization of transmission
of a telegram, cablegram, or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy solicitation firm,
proxy support service organization or like agent duly authorized by the person
who will be the holder of the proxy to receive such transmission, subject to the
conditions set forth in Section 212 of the Delaware General Corporation Law, as
it may be amended from time to time (the "Delaware GCL").
2.7. VOTING. At all meetings of stockholders, except as otherwise expressly
provided for by statute, the Certificate of Incorporation or these by-laws, (i)
in all matters other than the election of directors, the affirmative vote of a
majority of shares present in person or represented by proxy at the meeting and
entitled to vote on such matter shall be the act of the stockholders and (ii)
directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors. Except as otherwise expressly provided by law, the
Certificate of Incorporation or these by-laws, at all meetings of stockholders
the voting shall be by voice vote, but any stockholder qualified to vote on the
matter in question may demand a stock vote, by shares of stock, upon such
question, whereupon such stock vote shall be taken by ballot, each of which
shall state the name of the stockholder voting and the number of shares voted by
him, and, if such ballot be cast by a proxy, it shall also state the name of the
proxy.
2.8. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS. (i) Nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who
<PAGE> 8
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was a stockholder of record at the time of giving notice provided for in this
By-Law, who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this By-Law.
(ii) For nominations for the Board of Directors or for other business to be
properly brought by a stockholder before a meeting of stockholders, the
stockholder must first have given timely written notice thereof to the Secretary
of the Company. To be timely, a notice of nominations or other business to be
brought before an annual meeting of stockholders must be delivered to the
Secretary not less than 120 and not more than 150 days prior to the first
anniversary of the date of the Company's proxy statement delivered to
stockholders in connection with the preceding year's annual meeting, or if the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary, or if no proxy statement was delivered to stockholders
by the Company in connection with the preceding year's annual meeting, such
notice must be delivered not earlier than 90 days prior to such annual meeting
and not later than the later of (a) 60 days prior to the annual meeting or (b)
10 days following the date on which public announcement of the date of such
annual meeting is first made by the Company. With respect to special meetings of
stockholders, such notice must be delivered to the Secretary not more than 90
days prior to such meeting and not later than the later of (1) 60 days prior to
such meeting or (2) 10 days following the date on which public announcement of
the date of such meeting is first made by the Company. Such notice must contain
(A) the name and address of the stockholder delivering the notice (B) a
statement with respect to the amount of the Company's stock beneficially and/or
legally owned by such stockholder, (C) the nature of any such beneficial
ownership of such stock, the beneficial ownership of any such stock legally held
by such stockholder but beneficially owned by one or more others, and the length
of time for which all such stock has been beneficially and/or legally owned by
such stockholder, (D) information about each nominee for election as a director
substantially equivalent to that which would be required in a proxy statement
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Securities and Exchange Commission thereunder,
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected) and/or (E) a description
of the proposed business to be brought before the meeting, as the case may be,
and the reason for conducting such business at the meeting, and any material
interest in such business of such stockholder and the beneficial owner, if any,
on whose behalf the proposal is made.
<PAGE> 9
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2.9. STOCKHOLDERS' LIST. A complete list of the stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order and showing
the address of each stockholder, and the number of shares registered in the name
of each stockholder, shall be prepared by the Secretary and filed either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held, at least 10 days before such meeting, and shall
at all times during the usual hours for business, and during the whole time of
said election, be open to the examination of any stockholder for a purpose
germane to the meeting.
2.10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT. From and after the closing
(or first closing) of the initial registered public offering of securities of
the Company (the "IPO Closing"), unless otherwise provided in the Certificate of
Incorporation, and subject to the rights of the holders of Preferred Stock with
respect to such series of Preferred Stock, any action required or permitted to
be taken by the stockholders of the Corporation must be effected at an annual or
special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders.
2.11. INSPECTORS. The Board of Directors by resolutions shall appoint one
or more inspectors, which inspector or inspectors may include individuals who
serve the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives, to act as the meeting of
stockholders and make a written report thereof. One or more persons may be
designated as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate has been appointed to act or is able to act at a
meeting of stockholders, the Chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting the date and
time of the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting
ARTICLE III - DIRECTORS
3.1. GENERAL POWERS. In addition to the powers and authority expressly
conferred upon them by these by-laws, the board may exercise all such powers of
the Corporation and do all such lawful acts and things
<PAGE> 10
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as are not by statute or by the Certificate of Incorporation or by these by-laws
directed or required to be exercised or done by the stockholders.
3.2. QUALIFICATIONS OF DIRECTORS. A director need not be a stockholder, a
citizen of the United States, or a resident of the State of Delaware.
3.3. NUMBER OF DIRECTORS; VACANCIES.
------------------------------
(a) Until the IPO Closing: The size of the Board of Directors shall be
fixed from time to time pursuant to a resolution adopted by a majority of the
Whole Board of Directors or by the stockholders. The Board of Directors shall
hold office until the annual meeting of stockholders and until their successors
are elected and qualified or until their earlier resignation or removal. Any
director may resign at any time upon written notice to the corporation. Except
as the General Corporation Law of Delaware may otherwise require, in the interim
between annual meetings of stockholders or of special meetings of stockholders
called for the election of directors and/or for the removal of one or more
directors and for the filling of any vacancy in that connection, any vacancies
in the Board of Directors, including unfilled vacancies resulting from the
removal of directors for cause or without cause, may be filled by the vote of a
majority of the remaining directors then in office, although less than a quorum,
or by the sole remaining director, or by the stockholders.
(b) Effective from and after the IPO Closing: The number of directors
constituting the full Board of Directors shall be fixed from time to time
exclusively pursuant to a resolution adopted by a majority of the Whole Board of
Directors. The Board of Directors shall be divided into three classes of
directors, such classes to be as nearly equal in number of directors as
possible, having staggered three-year terms of office, the term of office of the
directors of the first such class to expire as of the first annual meeting of
the Corporation's stockholders following the IPO Closing, those of the second
class to expire as of the second annual meeting of the Corporation's
stockholders following the IPO Closing, and those of the third class as of the
third annual meeting of the Corporation's stockholders following the IPO
Closing, such that at each annual meeting of stockholders after such IPO
Closing, nominees will stand for election for three-year terms to succeed those
directors whose terms are to expire as of such meeting. Members of the Board of
Directors shall hold office until the annual meeting of stockholders at which
their respective successors are elected and qualified or until their earlier
death, incapacity, resignation, or removal. Except as the General Corporation
Law of Delaware may otherwise require, in the interim between annual meetings
<PAGE> 11
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of stockholders or special meetings of stockholders called for the election
of directors and/or for the removal of one or more directors and for the filling
of any vacancy in that connection, any vacancies or new directorships in the
Board of Directors, including unfilled vacancies or new directorships resulting
from the removal of directors for cause or any increase in the number of
directors, may be filled only by the vote of a majority of the remaining
directors then in office.
3.4. RESIGNATION. Any director of this Corporation may resign at any time
by giving written notice to the Chairman of the Board, if any, the President or
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, at the time of receipt if no time is specified therein and at
the time of acceptance if the effectiveness of such resignation is conditioned
upon its acceptance. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
3.5. REMOVAL. Except as may otherwise be provided by the General
Corporation Law of Delaware or the Corporation's Certificate of Incorporation,
as amended and in effect from time to time, prior to the IPO Closing, any
director or the entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote at an election
of directors. Effective from and after the IPO Closing, subject to the rights of
the holders of any series of Preferred Stock with respect to such series of
Preferred Stock, any director or the entire Board of Directors may be removed
from office at any time, but only for cause and only by the affirmative vote of
the holders of a majority of the then-outstanding shares entitled to vote
thereon, voting together as a class.
3.6. PLACE OF MEETINGS AND BOOKS. The Board of Directors may hold their
meetings and keep the books of the Corporation outside The Commonwealth of
Massachusetts, at such places as they may from time to time determine.
3.7. EXECUTIVE COMMITTEE. There may be an executive committee of one or
more directors designated by resolution passed by a majority of the whole board.
The act of a majority of the members of such committee shall be the act of the
committee. Said committee may meet at stated times or on notice to all by any of
their own number, and shall have and may exercise those powers of the Board of
Directors in the management of the business affairs of the Company as are
provided by law and may authorize the seal of the Corporation to be affixed to
all
<PAGE> 12
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papers which may require it. Vacancies in the membership of the committee shall
be filled by the Board of Directors at a regular meeting or at a special meeting
called for that purpose.
3.8. OTHER COMMITTEES. The Board of Directors may also designate one or
more committees in addition to the executive committee, by resolution or
resolutions passed by a majority of the whole board; such committee or
committees shall consist of one or more directors of the Corporation, and to the
extent provided in the resolution or resolutions designating them, shall have
and may exercise specific powers of the Board of Directors in the management of
the business and affairs of the Corporation to the extent permitted by statute
and shall have power to authorize the seal of the Corporation to be affixed to
all papers which may require it. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors.
3.9. POWERS DENIED TO COMMITTEES. Committees of the Board of Directors
shall not, in any event, have any power or authority to amend the Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares adopted by the
Board of Directors as provided in Section 151(a) of the Delaware GCL, fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any series),
adopt an agreement of merger or consolidation, recommend to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution or to amend the by-laws of the
Corporation. Further, no committee of the Board of Directors shall have the
power or authority to declare a dividend, to authorize the issuance of stock or
to adopt a certificate of ownership and merger pursuant to Section 253 of the
Delaware GCL, unless the resolution or resolutions designating such committee
expressly so provides.
3.10. SUBSTITUTE COMMITTEE MEMBER. In the absence or on the
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of such
<PAGE> 13
- 9 -
absent or disqualified member. Any committee shall keep regular minutes of its
proceedings and report the same to the board as may be required by the board.
3.11. COMPENSATION OF DIRECTORS. The Board of Directors shall have the
power to fix the compensation of directors and members of committees of the
Board. The directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors and/or a stated annual fee (some or all
of which may be paid in the form of capital stock of the Corporation) as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
3.12. REGULAR MEETINGS. A regular meeting of the Board of Directors shall
be held without other notice than this By-Law, immediately after, and at the
same place as, the Annual Meeting of Stockholders. The Board of Directors may,
by resolutions, provide the time and place for the holding of additional regular
meetings without other notice than such resolution. Such regular meetings shall
be held at such place within or without the State of Delaware as shall be fixed
by the Board.
3.13. SPECIAL MEETINGS. Special meetings of the board may be called by the
Chairman of the Board, if any, or the President, on two (2) days notice to each
director, or such shorter period of time before the meeting as will nonetheless
be sufficient for the convenient assembly of the directors so notified; special
meetings shall be called by the Secretary in like manner and on like notice, on
the written request of two or more directors.
3.14. QUORUM. At all meetings of the Board of Directors, a majority of the
total number of directors shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically permitted or
provided by statute, or by the Certificate of Incorporation, or by these
By-Laws. If at any meeting of the board there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
until a quorum is obtained, and no further notice thereof need be given other
than by announcement at said meeting which shall be so adjourned.
<PAGE> 14
- 10 -
3.15. TELEPHONIC PARTICIPATION IN MEETINGS. Members of the Board of
Directors or any committee designated by such board may participate in a meeting
of the board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
3.16. ACTION BY CONSENT. Unless otherwise restricted by the Certificate of
Incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if written consent thereto is signed by all members of the
board or of such committee as the case may be and such written consent is filed
with the minutes of proceedings of the board or committee.
ARTICLE IV - OFFICERS
--------
4.1. SELECTION; STATUTORY OFFICERS. The officers of the Corporation shall
be chosen by the Board of Directors. There shall be a President, a Secretary and
a Treasurer, and there may be a Chairman of the Board of Directors, one or more
Vice Presidents, one or more Assistant Secretaries, and one or more Assistant
Treasurers, as the Board of Directors may elect. Any number of offices may be
held by the same person, unless the Certificate of Incorporation or these
By-Laws otherwise provide.
4.2. TIME OF ELECTION. The officers above named shall be chosen by the
Board of Directors at its first meeting after each annual meeting of
stockholders. None of said officers need be a director.
4.3. ADDITIONAL OFFICERS. The board may appoint such other officers and
agents as it shall deem necessary, who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
4.4. TERMS OF OFFICE. The officers of the Company shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
stockholders may be removed at any time by the affirmative vote of a majority of
the stockholders. Any vacancy occurring in any office of the Corporation shall
be filled by the Board of Directors.
4.5. COMPENSATION OF OFFICERS. The Board of Directors (or a duly appointed
committee of the Board of Directors) shall have power to fix the compensation of
all officers of the Corporation.
<PAGE> 15
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4.6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any, otherwise
the President, if a director, or such other director as the Board may choose,
shall preside at all meetings of the Board of Directors and of the stockholders
of the Corporation. In the absence of the President, or in the event of the
President's inability or refusal to act, the Chairman of the Board shall perform
the duties and exercise the powers of the President until such vacancy shall be
filled in the manner prescribed by these By-Laws or by law. The Chairman of the
Board shall have such other powers and perform such other duties as may from
time to time be prescribed by the Board of Directors or these By-Laws.
4.7. PRESIDENT. Unless the Board of Directors otherwise determines, the
President shall be the chief executive officer and head of the Corporation.
Unless there is a Chairman of the Board, the President shall preside at all
meetings of directors and stockholders. Under the supervision of the Board of
Directors and of the executive committee, the President shall have the general
control and management of its business and affairs, subject, however, to the
right of the Board of Directors and of the executive committee to confer any
specific power, except such as may be by statute exclusively conferred on the
President, upon any other officer or officers of the Corporation. The President
shall perform and do all acts and things incident to the position of President
and such other duties as may be assigned to him from time to time by the Board
of Directors or the executive committee.
4.8. VICE-PRESIDENTS. The Vice-Presidents shall perform such of the duties
of the President on behalf of the Corporation as may be respectively assigned to
them from time to time by the Board of Directors or by the executive committee
or by the President. The Board of Directors or the executive committee may
designate one of the Vice-Presidents as the Executive Vice-President, and in the
absence or inability of the President to act, such Executive Vice-President
shall have and possess all of the powers and discharge all of the duties of the
President, subject to the control of the board and of the executive committee.
4.9. CHIEF FINANCIAL OFFICER. The Chief Financial Officer (if any) shall be
a Vice President and act in an executive financial capacity. He shall assist the
Chairman of the Board and the President in the general supervision of the
Corporations financial policies and affairs.
4.10. TREASURER. The Treasurer shall have the care and custody of all the
funds and securities of the Corporation which may come into his hands as
Treasurer, and the power and authority to endorse checks, drafts and other
instruments for the payment of money for deposit or collection
<PAGE> 16
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when necessary or proper and to deposit the same to the credit of the
Corporation in such bank or banks or depository as the Board of Directors or the
executive committee, or the officers or agents to whom the Board of Directors or
the executive committee may delegate such authority, may designate, and he may
endorse all commercial documents requiring endorsements for or on behalf of the
Corporation. He may sign all receipts and vouchers for the payments made to the
Corporation. He shall render an account of his transactions to the Board of
Directors or to the executive committee as often as the board or the committee
shall require the same. He shall enter regularly in the books to be kept by him
for that purpose full and adequate account of all moneys received and paid by
him on account of the Corporation. He shall perform all acts incident to the
position of Treasurer, subject to the control of the Board of Directors and of
the executive committee. He shall when requested, pursuant to vote of the Board
of Directors or the executive committee, give a bond to the Corporation
conditioned for the faithful performance of his duties, the expense of which
bond shall be borne by the Corporation.
4.11. SECRETARY. The Secretary shall keep the minutes of all meetings of
the Board of Directors and of the stockholders; and shall attend to the giving
and serving of all notices of the Corporation. Except as otherwise ordered by
the Board of Directors or the executive committee, the Secretary shall attest
the seal of the Corporation upon all contracts and instruments executed under
such seal and shall affix the seal of the Corporation thereto and to all
certificates of shares of capital stock of the Corporation. The Secretary shall
have charge of the stock certificate book, transfer book and stock ledger, and
such other books and papers as the Board of Directors or the executive committee
may direct. He shall, in general, perform all the duties of Secretary, subject
to the control of the Board of Directors and of the executive committee.
4.12. ASSISTANT SECRETARY. The Assistant Secretary, or if there be more
than one, the assistant secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
4.13. ASSISTANT TREASURER. The Assistant Treasurer, or if there shall be
more than one, the Assistant Treasurers in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the
<PAGE> 17
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powers of the Treasurer and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
4.14. SUBORDINATE OFFICERS. The Board of Directors may select such
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority, and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
4.15. REMOVAL. Any officer elected, or agent appointed, by the Board of
Directors may be removed by the affirmative vote of a majority of the whole
Board whenever, in their judgment, the best interests of the Corporation would
be served thereby. Any officer or agent appointed by the Chairman of the Board
or the President may be removed by him whenever, in his judgment, the best
interests of the Corporation would be served thereby. No elected officer shall
have any contractual rights against the Corporation for compensation by virtue
of such election beyond the date of the election of his successor, his death,
his resignation or his removal, whichever event shall first occur, except as
otherwise provided in an employment contract or under an employee deferred
compensation plan.
4.16. VACANCIES. A newly created elected office and a vacancy in any
elected office because of death, resignation or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by the Chairman of the
Board or the President because of death, resignation, or removal may be filled
by the Chairman of the Board or the President.
ARTICLE V - STOCK CERTIFICATES AND TRANSFERS
--------------------------------
5.1. STOCK CERTIFICATES. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Company by, the
President or a Vice-President and the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
Any of or all the signatures on the certificate may be facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued,
<PAGE> 18
-14-
it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Upon surrender to the Corporation or the transfer agent of the Corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
5.2. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Corporation
may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or certificates,
or his legal representative, to advertise the same in such manner as it shall
require and/or to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
5.3. DIVIDENDS.
---------
(a) POWER TO DECLARE. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, in promissory notes or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation and the laws of Delaware.
(b) RESERVES. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE> 19
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ARTICLE VI - MISCELLANEOUS MANAGEMENT PROVISIONS
-----------------------------------
6.1. CHECKS, DRAFTS AND NOTES. All checks, drafts or orders for the payment
of money, and all notes and acceptances of the Corporation shall be signed by
such officer or officers, agent or agents as the Board of Directors may
designate.
6.2. NOTICES.
-------
(a) Whenever, under the provisions of these By-Laws, notice is required to
be given to any stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such stockholder,
at his address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail with postage thereon
prepaid. Notice may also be given personally.
(b) Whenever any notice is required to be given under the provisions of the
statutes or of the Certificate of Incorporation of the Corporation of the
Corporation or of these by-laws, a written waiver of notice, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein or the meeting or action to which such notice relates, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
6.3. CONFLICT OF INTEREST. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the board of or committee thereof which
authorized the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (i) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee and the board or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
of the Corporation entitled to
<PAGE> 20
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vote thereon, and the contract or transaction as specifically approved in good
faith by vote of such stockholders; or (iii) the contract or transaction is fair
as to the Corporation as of the time it is authorized, approved or ratified, by
the Board of Directors, a committee or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
6.4. VOTING OF SECURITIES OWNED BY THIS CORPORATION. Subject always to the
specific directions of the Board of Directors, (i) any shares or other
securities issued by any other Corporation and owned or controlled by this
Corporation may be voted in person at any meeting of security holders of such
other corporation by the President of this Corporation if he is present at such
meeting, or in his absence by the Treasurer of this Corporation if he is present
at such meeting, and (ii) whenever, in the judgment of the President, it is
desirable for this Corporation to execute a proxy or written consent in respect
to any shares or other securities issued by any other Corporation and owned by
this Corporation, such proxy or consent shall be executed in the name of this
Corporation by the President, without the necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer, provided that if the President is unable to
execute such proxy or consent by reason of sickness, absence from the United
States or other similar cause, the Treasurer may execute such proxy or consent.
Any person or persons designated in the manner above stated as the proxy or
proxies of this Corporation shall have full right, power and authority to vote
the shares or other securities issued by such other corporation and owned by
this Corporation the same as such shares or other securities might be voted by
this Corporation.
6.5. INSPECTION OF BOOKS. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
6.6. MINUTE BOOK. The original, or attested copies, of the Certificate of
Incorporation, By-Laws and records of all meetings of incorporators and
stockholders, and the stock and transfer records, which shall contain the names
of all stockholders and the record address and the amount of stock held by each,
shall be kept at the principal office of the Corporation or at an office of its
transfer agent or of the Secretary or any Assistant Secretary or of its resident
agent or of its legal counsel. Such copies and records need not all be kept in
the same office. They shall be available at all reasonable times to the
inspection of any stockholder for
<PAGE> 21
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any proper purpose but not to secure a list of stockholders or other information
for the purpose of selling the same or information or copies thereof or of using
the same for a purpose other than in the interest of the applicant, or a
stockholder, relative to the affairs of the Corporation.
ARTICLE VII - INDEMNIFICATION
---------------
7.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of being or having been a director or officer of the
Corporation or serving or having served at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (an "Indemnitee"), whether the basis of such
proceeding is alleged action or failure to act in an official capacity as a
director, trustee, officer, employee or agent or in any other capacity while
serving as a director, trustee, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than permitted
prior thereto) (as used in this Article VII, the "Delaware Law"), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Indemnitee in connection therewith and such indemnification
shall continue as to an Indemnitee who has ceased to be a director, trustee,
officer, employee or agent and shall inure to the benefit of the Indemnitee's
heirs, executors and administrators; provided, however, that, except as provided
in Section 7.2 hereof with respect to Proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such Indemnitee in
connection with a Proceeding (or part thereof) initiated by such Indemnitee only
if such Proceeding (or part thereof) was authorized by the board of directors of
the Corporation. The right to indemnification conferred in this Article VII
shall be a contract right and shall include the right to be paid by the
Corporation the expenses (including attorneys' fees) incurred in defending any
such Proceeding in advance of its final disposition (an "Advancement of
Expenses"); provided, however, that, if the Delaware Law so requires, an
Advancement of Expenses incurred by an Indemnitee shall be made only upon
delivery to the Corporation of an undertaking (an "Undertaking"), by or on
behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision
<PAGE> 22
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from which there is no further right to appeal (a "Final Adjudication") that
such Indemnitee is not entitled to be indemnified for such expenses under this
Article VII or otherwise.
7.2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 7.1
hereof is not paid in full by the Corporation within sixty days after a written
claim has been received by the Corporation, except in the case of a claim for
an Advancement of Expenses, in which case the applicable period shall be twenty
days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole
or in part in any such suit, or in a suit brought by the Corporation to recover
an Advancement of Expenses pursuant to the terms of an Undertaking, the
Indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the Indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the Indemnitee
to enforce a right to an Advancement of Expenses) it shall be a defense that,
and (ii) in any suit by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking the Corporation shall be entitled to
recover such expenses upon a Final Adjudication that, the Indemnitee has not
met the applicable standard of conduct set forth in the Delaware Law. Neither
the failure of the Corporation (including its board of directors, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is proper in
the circumstances because the Indemnitee has met the applicable standard of
conduct set forth in the Delaware Law, nor an actual determination by the
Corporation (including its board of directors, independent legal counsel, or
its stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or by the Corporation to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses, under this
Article VII or otherwise shall be on the Corporation.
7.3. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
Advancement of Expenses conferred in this Article 7 shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Corporation's Certificate of Incorporation,
<PAGE> 23
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By-Law, agreement, vote of stockholders or disinterested directors or otherwise.
7.4. INSURANCE. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under this Article VII or under the Delaware Law.
7.5. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
Corporation may, to the extent authorized from time to time by the board of
directors, grant rights to indemnification, and to the Advancement of Expenses,
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article VII with respect to the indemnification and
Advancement of Expenses of directors and officers of the Corporation.
ARTICLE VIII - AMENDMENTS
----------
8.1. AMENDMENTS. Subject always to any limitations imposed by the
Corporation's Certificate of Incorporation, these By-Laws may be altered,
amended, or repealed, or new By-Laws may be adopted, only by (i) the affirmative
vote of the holders of at least sixty-six and two-thirds (66 2/3%) of the
outstanding voting stock of the Corporation (in addition to any separate class
vote that may be required pursuant to the terms of any then outstanding
preferred stock of the Corporation), or (ii) by resolution of the Board of
Directors duly adopted by not less than a majority of the directors then
constituting the full Board of Directors.
<PAGE> 1
Exhibit 10.10
ORIGINAL
***********************************************************
COMPUTER TECHNOLOGY LICENSE AGREEMENT
BETWEEN
PHOENIX TECHNOLOGIES LTD.
AND
HEWLETT-PACKARD COMPANY
FOR
PHOENIXPAGE[Trademark] SOFTWARE PRODUCTS
DATED
SEPTEMBER 30,1994
***********************************************************
<PAGE> 2
This COMPUTER TECHNOLOGY LICENSE AGREEMENT is entered into and made
effective as of this 30th, day of September, 1994 by and between Phoenix
Technologies Ltd., a Delaware corporation, having its principal place of
business at 846 University Avenue, Norwood, Massachusetts 02062, ("PHOENIX") and
Hewlett-Packard Company, a California corporation, having its principal place
of business at 3000 Hanover Street, Palo Alto, California ("LICENSEE"). PHOENIX
and LICENSEE are sometimes hereinafter referred to as, "the Parties".
WITNESSETH
----------
WHEREAS, PHOENIX designs, develops, markets and licenses proprietary
standards-support software products for Original Equipment Manufacturers (OEMs)
including PhoenixPage[Tademark], a modular page printer and operating
architecture, ROM BIOS (Read Only Memory-Basic Input Output System) and related
system software for personal computers, and
WHEREAS, these PHOENIX products help OEMs respond to market
opportunities and create innovative, differentiated products that comply with
market standards, and
WHEREAS, LICENSEE is an Original Equipment Manufacturer ("OEM") of
laser printers and desires to license certain PHOENIX software products for use
with its laser printers, and
WHEREAS, the Parties desire to enter into an agreement to define the
terms and conditions upon which LICENSEE will license certain software products
from PHOENIX.
NOW THEREFORE, for and in consideration of the premises and mutual
covenants contained herein, the Parties hereto agree as follows.
1. DEFINITIONS
As used in this Agreement, the following are defined terms:
(a) PROGRAMS mean:
The subset of the PhoenixPage computer programs suitable for execution
from read-only memory or random access memory in object code format
which are described in Exhibit A hereto, any object code versions of
the Source Programs created by LICENSEE.
(b) SOURCE PROGRAMS mean:
The subset of the unmodified, standard PhoenixPage computer programs,
in source code format that are fully described in Exhibit A hereto.
(c) SPECIFICATIONS mean:
PHOENIX's published documentation and technical specifications for the
Programs as set forth in Exhibit A.
(d) LICENSEE'S DEVICES mean:
Electrophotographic printing apparatus manufactured by LICENSEE and
designated by any trademark of LICENSEE or LICENSEE's OEM customers.
(e) LICENSE FEES mean:
The license fee due PHOENIX for the Programs made by LICENSEE, as
described in Exhibit B, hereto.
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<PAGE> 3
(f) FEES mean:
Any other fees, (including minimum license fees, Source Code Disclosure
fees, Maintenance Fees, and non-recurring engineering and expense
fees), charges or expenses as described in Exhibits A and B, hereto.
(g) OEM CUSTOMER means:
A company authorized by LICENSEE to market, sell, and distribute
LICENSEE's Devices and which will be marketed, distributed and sold
under its own trademarks or tradenames.
(h) DERIVATIVE WORKS mean:
The Source Programs modified by LICENSEE for reproduction in object
code form pursuant to the restrictions stated in Section 2 below, and
Exhibit A of this Agreement.
(i) INCLUDED JURISDICTIONS means:
The United States, Canada, Japan, and the member states of the European
Union.
2. GRANT OF LICENSE
(A) GRANT Subject to the terms and conditions of this Agreement,
PHOENIX grants to LICENSEE, effective upon full payment of all amounts due upon
the execution of this Agreement, the following non-exclusive, perpetual,
non-transferable, worldwide licenses:
(i) A license to use, manufacture, distribute and sublicense
copies of the Programs only in conjunction with LICENSEE's Devices and for no
other purpose whatsoever.
(ii) Subject to LICENSEE's obligations under Section 12
hereof, a license to create derivative works by modifying the Source Programs
solely as necessary to enable the same to function in LICENSEE's Devices,
provided that:
(a) LICENSEE may create, reproduce or distribute any
derivative work, provided LICENSEE remains obligated to pay PHOENIX the License
Fees for distribution, as described in exhibit B, for the underlying PHOENIX
Program; and
(b) LICENSEE may use, manufacture, distribute and sublicense
assembled or compiled object code copies of such modified Source Programs only
in conjunction with LICENSEE's Devices and for no other purpose whatsoever.
(iii) A license to authorize one or more sublicensees to
distribute to end users copies of the Programs in conjunction with LICENSEE's
Devices. In no event may LICENSEE permit sublicensees to modify, reproduce,
distribute or sublicense any of the Programs except as provided for above.
LICENSEE shall not include in any form of sublicense for the use of any of the
Programs any provision or language which in any way contradicts any of the terms
and conditions of this Agreement.
(B) SUBLICENSE OF COPIES OF THE PROGRAMS LICENSEE may sublicense the
use of one (1) copy of the Programs for use with each of LICENSEE's Devices.
Neither LICENSEE nor any of LICENSEE's sublicensees (for the purpose of this
Section 2 sublicensees shall mean any third party including but not limited to
OEM Customers, who have obtained a valid sublicense to the PHOENIX Programs from
LICENSEE hereunder) shall include in any form of sublicense agreement for the
use of any of the Programs any provision or language which in any way
contradicts any of the terms and conditions of this Agreement.
(c) RESTRICTIONS LICENSEE has no right and agrees not to modify any
deliverables supplied by PHOENIX hereunder other than the Source Programs, the
Programs, and the documentation as described in Exhibit A. LICENSEE acknowledges
that the Source Programs are trade secrets of PHOENIX. LICENSEE may disclose the
Programs to a company involved in the
2
<PAGE> 4
manufacture, assembly, or other production of LICENSEE's Devices so that company
can attach a ROM containing the Programs into LICENSEE's Devices.
3. DELIVERY AND ACCEPTANCE
(a) LICENSEE shall evaluate the Source Programs and Specifications and
shall submit a written notice of acceptance or rejection, for each item, to
PHOENIX within sixty (60) days after receipt thereof. Such acceptance or
rejection shall be based solely on whether the item received by LICENSEE meets
the requirements of the applicable acceptance criteria. IF LICENSEE fails to so
notify PHOENIX during such period, then those items shall be deemed as accepted.
(b) LICENSEE will develop an acceptance definition to be included in
Exhibit A, that is agreed to by PHOENIX. This will form the basis of the
acceptance criteria tests. Such tests will be run by LICENSEE and will be used
to measure functionality.
(c) In the event of a rejection by LICENSEE pursuant to the terms of
subpart (a) hereof, an analysis will be mutually performed to establish
responsibility for corrective action. LICENSEE will be liable only for actions
needed due to LICENSEE's custom requirements. There will be no charge to
LICENSEE for actions due to PHOENIX error. Any authorized rework activity will
be accomplished within a time period mutually agreed upon prior to start of such
rework.
(d) In the event that Source Programs or Specifications delivered by
PHOENIX to LICENSEE hereunder shall not meet the acceptance criteria for reasons
that are mutually determined to be caused by PHOENIX's design, then PHOENIX will
attempt to revise the design at no additional cost to LICENSEE for Source
Programs and Specifications.
(e) In the event that the Source Programs delivered to LICENSEE meet
the acceptance criteria but fail to be usable in the intended environment due to
unanticipated anomalous behavior such as unacceptable print quality or
performance, then LICENSEE shall notify PHOENIX of such failure, specifying the
anomalous behavior, and formulate a mutually acceptable corrective plan. This
includes evaluation of potential alternative design approaches. In the event
that the cause(s) of the unacceptable behavior cannot be determined or the
parties do not agree upon a mutually acceptable plan to correct the cause(s) of
the unacceptable anomalous behavior, either party in its sole judgement may
terminate this Agreement and such termination will be construed as though it is
for mutual convenience of PHOENIX and LICENSEE. Such termination shall terminate
all license rights and any further payment obligations.
4. PRICE AND PAYMENTS
(a) PRICE In consideration of the license granted by this Agreement,
LICENSEE agrees to pay PHOENIX the License Fees for the Programs, other Fees
stated in Exhibit B to this Agreement for the Source Programs, and NRE Fees at
the times stated in that Exhibit. All such Fees are net of all taxes other than
those based on PHOENIX's net income, duties, licenses, fees, excises or tariffs
whether otherwise imposed on PHOENIX or LICENSEE in regard to the licensing,
use, export, or import of the Programs or the Source Programs, all of which
shall be for LICENSEE's account and which LICENSEE shall pay on behalf of
PHOENIX for each unit of the Programs sublicensed, transferred, or otherwise
disposed of by LICENSEE. LICENSEE shall not withhold or pay any tax to a foreign
government for Non-Recurring Engineering Fees payable to PHOENIX or for any
Non-Recurring Engineering Services portion of this Agreement or any amendment to
this Agreement. Initial payments due upon contract signing are non-refundable.
In the event that any amounts payable under this Agreement are not paid by
LICENSEE when due, LICENSEE shall also pay a finance charge at the rate of one
and one half percent (1 1/2%), or the highest lawful rate (whichever is less),
per month on any unpaid balance.
(b) EXPENSES LICENSEE will reimburse PHOENIX for all reasonable out
of pocket expenses when necessary in the performance of any Non-Recurring
Engineering work required hereunder. These expenses include, without limitation,
air travel, hotels and meals when traveling to and from LICENSEE's facilities,
surface transportation, shipping expenses, long distance telephone charges and
printing and reproduction of drawings, manuals and supporting documentation. All
expense items shall be approved in advance and in writing by LICENSEE. Out of
pocket expenses will be invoiced to LICENSEE monthly and shall be paid on a net
Thirty (30) day basis, after approval by LICENSEE.
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<PAGE> 5
5. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES
(a) LIMITED WARRANTY AND REMEDIES PHOENIX warrants and represents to
LICENSEE that it has full power and authority to enter into this Agreement and
grant the licenses described herein.
(b) PHOENIX warrants that the Source Programs or Programs, as delivered
by PHOENIX to LICENSEE hereunder will for a period of Ninety (90) days after
first shipment by PHOENIX of any of the Source Programs or Programs, perform in
accordance with the Specifications. PHOENIX will, at its own expense, use good
faith efforts to promptly correct any errors reported by the LICENSEE in the
Source Programs that cause them not to perform in accordance with the
Specifications ("Errors") provided that (i) such Errors are reported to PHOENIX
within the Ninety (90) day warranty period and (ii) PHOENIX is able to reproduce
the Error either on its own or with hardware and software furnished by LICENSEE
that is necessary to duplicate the Error at PHOENIX's premises. If PHOENIX is
unable to reproduce the Error, then LICENSEE's alleged Error report shall be
treated as a "Feature Enhancement Request" and PHOENIX will deliver a time and
material quotation to LICENSEE in a timely fashion.
THIS SECTION 5 SETS FORTH LICENSEE'S SOLE AND EXCLUSIVE REMEDIES FOR THE
PERFORMANCE OR NONPERFORMANCE OF THE SOURCE PROGRAMS OR PROGRAMS AND FOR ANY
WARRANTY CLAIM WITH RESPECT TO THE SOURCE PROGRAMS. THE WARRANTY ABOVE SHALL
BECOME NULL AND VOID WITH RESPECT TO ANY SOURCE PROGRAMS THAT HAVE BEEN MODIFIED
IN ANY WAY BY LICENSEE OR ITS AGENTS, WHETHER OR NOT SUCH MODIFICATIONS WERE
PERMITTED HEREUNDER.
(C) DISCLAIMER OF ALL OTHER WARRANTIES. PHOENIX MAKES NO WARRANTIES,
EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOURCE PROGRAMS OTHER THAN THE
ONE EXPRESSLY SET FORTH IN THIS SECTION 5, AND PHOENIX EXPRESSLY DISCLAIMS ANY
SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. SUPPORT
Support for the Source Programs will be provided on a Time and
Materials basis at the NRE rate described in exhibit B.
7. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
INFRINGEMENT. PHOENIX represents that the Source Programs do not
infringe any Included Jurisdictions copyright, trade secret, or patent issued as
of the effective date of this Agreement.
8. LIMITED INDEMNITY
(a) CLAIMS OFF INTELLECTUAL PROPERTY INFRINGEMENT. PHOENIX shall, at
its expense, defend and indemnify LICENSEE against any claim filed against
LICENSEE in any of the Included Jurisdictions that the Source Programs or
Programs infringe any patent or copyright of a third party alleging that PHOENIX
does not have sufficient right, title and interest in the Source Programs, as
delivered to LICENSEE hereunder, to grant to LICENSEE the rights granted
hereunder, provided that:
(i) LICENSEE notifies PHOENIX promptly in writing of the
action (and all prior claims relating to such action) and PHOENIX has sole
control of the defense and all negotiations for its settlement or compromise.
(ii) LICENSEE provides PHOENIX with the authority, information
and assistance that PHOENIX reasonably requires to defend the claim, for which
LICENSEE shall bear its own internal overhead and staff expenses.
In the event that any Source Program becomes, or in PHOENIX's
opinion is likely to become, the subject of a claim of infringement of a
copyright or patent, PHOENIX at its option may either secure the LICENSEE's
right to continue using the Source Program, replace or modify the Source Program
to make it non-infringing, or if neither of the foregoing alternatives is
reasonably available to LICENSOR, discontinue the license to the Source Program
upon one months written notice, and repay a portion of the License Fees
previously paid hereunder in accordance with section 9 below.
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<PAGE> 6
(b) EXCLUSIONS. The obligations of Section 8(a) shall not apply (i) to
any claim to the extent it is based upon modification of the Source Programs
other than by PHOENIX, with or without authorization, or combination of the
Programs with non-PHOENIX hardware or software, if the claim would have been
avoided if the Programs had not been modified or combined, (ii) to any claim
arising from the use, copying, sublicensing or other disposition of the Source
Programs outside the Included Jurisdictions, or that is brought outside the
Included Jurisdictions.
9. REFUND IN THE EVENT OF INJUNCTION
If LICENSEE is permanently enjoined by a court of competent
jurisdiction within the Included Jurisdictions from exercising its rights under
this Agreement due to a patent or copyright infringement final judgment against
PHOENIX, then LICENSEE may at its option elect to terminate this Agreement upon
written notice to PHOENIX. If LICENSEE elects to terminate this Agreement, it
shall take the actions required under Section 14 below, and upon completion of
all such actions, LICENSEE shall be entitled to receive a refund of a portion
of the License Fees, calculated as follows:
a) If such injunction is issued prior to First Customer Shipment (as defined
below), the amount of the refund shall be 100% of the License Fees paid through
the date of the injunction.
b) If such injunction is issued during the three year period, beginning with
First Customer Shipment, the amount of the refund shall be prorated, and
decrease monthly such that if the injunction is issued in month "n" the refund
shall be [(36-n)/36] of the License Fees paid through the date of the
injunction, where n is the number of months after First Customer Shipment in
which the injunction is first issued.
c) If such injunction is issued after the three years following First
Customer Shipment, LICENSEE shall receive no refund.
"First Customer Shipment" refers to the date that LICENSEE first ships
Licensee's Devices in conjunction with the Programs, or March 1, 1996,
whichever is sooner. Upon termination of this Agreement under this section 9,
no further monthly payments of License Fees shall be due to Phoenix under
Exhibit B, but no amounts previously paid by LICENSEE shall be refundable
except as specified in this Section 9.
10. LICENSEE'S TECHNICAL EVALUATION AND RESPONSIBILITY FOR PATENT LICENSES
(a) TECHNICAL EVALUATION. LICENSEE represents to PHOENIX that it
ordinarily deals in goods and services of a nature similar to the Source
Programs and has the experience and technical competence to evaluate, and is
assuming all responsibility for evaluating, the Source Programs and for
determining its own needs and those of its customers and sublicensees, and is
not relying on the judgment or recommendation of PHOENIX in making such
evaluation or determination.
(b) NO PATENT LICENSES. PHOENIX does not, by virtue of this Agreement,
convey any third party patent licenses whatsoever. LICENSEE is responsible for
determining its own needs with respect to obtaining licenses for any patents of
third parties which are required for the lawful shipment of LICENSEE's Devices
incorporating the Programs and LICENSEE is responsible for obtaining any and
all such lawfully required patent license agreements from such third parties.
11. LIMITATION OF DAMAGES
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
REASON OTHER THAN AS EXPRESSLY SET FORTH HEREIN. REGARDLESS WHETHER ANY REMEDY
SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL EITHER PARTY
BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PHOENIX'S TOTAL
LIABILITY UNDER THIS AGREEMENT FOR ALL CAUSES OF ACTION ON A CUMULATIVE BASIS
EXCEED THE PAYMENTS ACTUALLY MADE TO PHOENIX UNDER THIS AGREEMENT.
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<PAGE> 7
15. EFFECT OF TERMINATION
Within Ten (10) days after any notice of exercise of termination rights
provided herein, or within Ten (10) days of any actual termination hereunder,
whichever is earlier, LICENSEE shall return to PHOENIX, and shall certify
through one of its officers that it has returned to PHOENIX, all originals,
copies and abstracts of the Programs, the Source Programs, and all versions
thereof within LICENSEE's possession or under its control and shall not retain
any copies thereof. Except as otherwise provided for in Section 13 above
pertaining to the Source Programs, all additional provisions in this Agreement
regarding confidentiality and the non-disclosure of confidential information
shall survive the termination of this Agreement for a period of Ten (10) years.
The termination of this Agreement shall not affect any sublicenses already
granted to LICENSEE's customers. The termination of this Agreement for reasons
other than those stated in 14(1) or 3(e) shall not affect the licenses granted
per this AGREEMENT.
16. PUBLICITY AND RELATED MATTERS
Unless required by law, or with LICENSEE's prior approval, PHOENIX
shall not publicly announce this Agreement, or that LICENSEE has licensed the
Source Programs. The Parties will not voluntarily disclose any of the terms and
conditions of this Agreement, either publicly or privately, to any third parties
other than their business, financial and legal advisors, or as required by law.
17. EXPORT CONTROLS
LICENSEE shall not, nor shall LICENSEE permit any sublicensee or other
OEM Customer reseller of the Programs to export the Programs, directly or
indirectly, to any foreign country in violation of any United States statute or
regulation in effect at the time of export, including but not limited to the
regulations of the International Trade Administration of the United States
Department of Commerce, 15 C.F.R. Parts 370, 379, 386 and 399. If PHOENIX is
unable lawfully to perform any substantial obligation of this Agreement without
obtaining an export license or other approval by the United States Government or
other governmental authority having jurisdiction, it shall promptly apply for
such approval or license. If such license or approval is not granted within One
Hundred and Eighty (180) days of the date of this Agreement, LICENSEE shall have
the option to terminate this Agreement. If this Agreement is terminated pursuant
to this Section, LICENSEE shall take the actions required under Section 15, and
upon completion of all such actions, PHOENIX shall return to LICENSEE all
amounts paid under this Agreement. In no event shall PHOENIX be liable or
obligated to LICENSEE for any failure to obtain any necessary license or
approval, or for any delay in obtaining any necessary license or approval,
otherwise than as provided in this Section.
18. TRADEMARKS AND RELATED MATTERS
The Parties will not use the company name, trademarks, servicemarks, or
tradenames of each other except as permitted in this Agreement.
19. NOTICES
All notices, or other documents required to be given under this
Agreement shall be in writing and shall be delivered personally; or by mailing
(within the U.S.), by certified, (and by outside the U.S. by air mail); or by
telegraph, telex, cable or other electronic means with a copy by letter mailed
as provided above. Notices shall be addressed to the address set forth at the
beginning of this Agreement or to such other address as may be designated from
time to time by notice given in the manner provided by this Section. Notices to
PHOENIX shall be designated attention: President, with a copy sent by the same
means at the same time to the same address attention: General Counsel. Notices
to LICENSEE shall be designated Attention: Legal Department. Notices delivered
personally shall be deemed given as of the date delivered. Notices delivered by
telegraph, telex, cable or other electronic means shall be deemed given as of
the date sent, provided that the letter confirming such notice shall have been
mailed on the same date. Mailed notices shall be deemed given as of the date
received as shown on the return receipt or the fifth day following the date of
mailing to all parties to whom such notices are directed, whichever is earlier.
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<PAGE> 8
20. GENERAL
(a) GOVERNING LAW This Agreement is made and delivered in Massachusetts
and shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, excluding any rule or principle of the conflict
of laws that might otherwise refer the interpretation or construction of this
Agreement to the law of any other jurisdiction.
(b) ASSIGNMENT This Agreement may not be assigned by LICENSEE without
the advanced written consent of PHOENIX in its sole discretion, and any attempt
to assign without such consent shall be void. PHOENIX may assign all of
Phoenix's rights and obligations under this Agreement to Xionics, and may
redirect LICENSEE's payments, to any third party. Such assignment shall in no
way diminish PHOENIX's obligations to LICENSEE under this Agreement. Any such
assignment shall be subject to any defenses of LICENSEE against PHOENIX with
regard to payment of amounts due hereunder. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective heirs, legal representatives, successors and permitted assigns.
(c) HEADINGS are inserted for convenience of reference only and do not
form a part of this Agreement.
(d) ENTIRE AGREEMENT This Agreement sets forth the entire agreement and
understanding of the Parties on the subject matter hereof and supersedes all
prior and contemporaneous written and/or oral agreements, arrangements,
communications and understandings relating to the subject matter hereof other
than any agreements of non-disclosure or confidentiality relating to the Source
Programs or PHOENIX's business. Neither Party has entered into this Agreement by
reason of or in reliance on any representations of fact or opinion which are not
expressly set forth herein.
(e) COUNTERPARTS This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which are
one instrument. Any facsimile or other similar deliveries of signed copies of
this Agreement will be operative, but the Parties will also receive this
Agreement in signed form.
(f) AMENDMENT AND WAIVER This Agreement may be amended, modified,
superseded or canceled, and any of the terms hereof may be waived, only by a
written instrument executed by authorized officers of each Party hereto or, in
the case of waiver, by the Party or Parties waiving compliance. Any delay or
failure of a Party to require performance of any requirement hereof shall in no
way affect its rights at a later time to enforce the same. No waiver of any
condition or of the breach of any term in this Agreement, whether by conduct or
otherwise, shall be deemed to be or construed as a further or continuing waiver
of any other term of this Agreement.
(g) SEVERABILITY If any provision of this Agreement is held to be
unenforceable, unlawful, or invalid by any court of competent jurisdiction, it
shall be deemed modified to eliminate the invalid portion(s) and, as so
modified, shall be deemed a part of this Agreement as though originally
included. The remaining provisions of this Agreement shall not be affected by
such modification(s) and shall remain in full force and effect.
(h) RELATIONSHIP OF THE PARTIES No third party to this Agreement
(including any employee of subsidiary of any Party) shall have any rights under
this Agreement. Nothing in this Agreement shall constitute the Parties to be
partners or joint venturers with, or agents or employees of, each other. The
Parties are independent contractors, and neither Party shall have any right or
power to create any obligation or responsibility on behalf of the other Party.
(i) ADDITIONAL PERFORMANCE Each Party will execute and deliver such
additional documents and perform such additional acts as may be necessary to
carry out and perform all of the terms and conditions of this Agreement.
(j) INJUNCTIVE RELIEF LICENSEE agrees that the unauthorized disclosure
of trade secrets and proprietary information of PHOENIX will result in
irreparable harm to PHOENIX, the damages for which cannot be ascertained or
compensated by monetary awards; and that, on this basis, PHOENIX shall be
entitled to seek and obtain whatever injunctive or temporary or immediate relief
is available in the courts of the state or country of incorporation of LICENSEE.
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<PAGE> 9
(k) CONFIDENTIALITY Each party acknowledges that in order to accomplish
its obligations under this agreement, it may be necessary to disclose
information, that it deems confidential and/or proprietary, to the other party,
and each of the parties wishes to maintain the confidential nature of all
information provided to the other party pursuant to this agreement, and agrees
that any such disclosure shall be made subject to the Confidential Disclosure
Agreement dated June 7, 1994 and incorporated herein.
(1) AUTHORITY The persons executing this Agreement represent that they
each have requisite corporate authority to do so which is not subject to any
further ratification or approval whatsoever.
(m) CHOICE OF LANGUAGE The original version of this Agreement has been
written in English. LICENSEE waives any right that it may have under the laws of
any jurisdiction to have this Agreement written in any language other than
English.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as
of the day and year first above written.
PHOENIX TECHNOLOGIES LTD LICENSEE
By: /s/ Robert R. Langer By: /s/ Steve Simpson
-------------------------- ----------------------
Name: Robert R. Langer Name: Steve Simpson
------------------------- ---------------------
Title: V.P. Title: General Manager
------------------------- --------------------
Date: 9-30-94 Date: Sept. 30, 1994
------------------------- --------------------
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September 30, 1994
EXHIBIT A
---------
Statement of Work and Deliverables
All PHOENIX deliverables are fully specified in this exhibit A.
1. STANDARD SOURCE CODE DELIVERABLES
1.1 SOURCE CODE
The source programs to be delivered to LICENSEE will include, but are not
limited to the following source files:
blkalloc.c cltrap.c mgfill.c
cache.c clx.c mgsfx.c
chkmem.c device.c mgstroke.c
clbitmap.c fffill.c paint.c
cldecomp.c fixmath.c pathop.c
cllist.c gstate.c pdiinit.c
clpair.c matrix.c pmem.c
clprecli.c mgbcurve.c pstate.c
cltfill.c mgcapjn.c
gs.h gstate.h ts.h
arch.h matrix.h tsport.h
blkalloc.h memalloc.h util.h
cacherec.h mg.h dev.gh
cl.h om.h devclip.gh
cmpr.h paper.h em.gh
d-pm.h pdi.h font.gh
dbg.h pdiimage.h hi.gh
dbgport.h pile.h pdiport.gh
device.h pmath.h pstile.gh
es.h ps.h ts.gh
fffill.h pstile.h univ.gh
fixmath.h real.h ylines.gh
The source code will be delivered to LICENSEE on a media format that is mutually
agreed to between LICENSEE and PHOENIX.
1.2 SPECIFICATIONS
PHOENIX will provide LICENSEE with the following information and documentation:
a) Latest porting Guide for PhoenixPage PS/PLI.
<PAGE> 11
b) Review, edit and enhance interface document authored by Steve
Claiborne and Burr Poppenga.
c) Flow chart for data flow through PHOENIX code. Specific requirements
to be mutually agreed to by PHOENIX and LICENSEE.
d) Tutorials with topics to be mutually agreed to by PHOENIX and
LICENSEE.
e) Additional documentation as required by LICENSEE and mutually
agreed to by PHOENIX and LICENSEE.
1.3 TESTS
PHOENIX will develop a test mechanism for the certification of code drops. It is
desireable, but not required, that this test mechanism run in LICENSEE's
simulator and emulator environments. It is expected that this test mechanism
will be in place for an initial code drop on November 14, 1994, and will be used
for the certification of all subsequent code drops.
In addition PHOENIX will provide the following information to LICENSEE:
a) Analysis of what portions of the PDI are exercised by current
PHOENIX tests.
b) Identify those PDI functions that may not be adequately tested.
c) Enhance the test mechanism to exercise those PDI functions
identified in (b) above.
d) Defect log for Source Code listed in 1.1 above.
The above information will be provided prior to the initial code drop on
November 14, 1994.
2. ACCEPTANCE CRITERIA
Acceptance of the Source Code defined in section 1.1 of this Exhibit A, will
require the following modifications to be made:
(a) ANSI coding standards:
(i) Only 1 function prototype per function (no duplicate copies).
(ii) All static functions must have prototypes in their .c source
files.
(iii) All non-static functions must have prototypes in a header
file so they can be shared.
(iv) The same prototype must verify the function definition and
the function reference.
(b) Elimination of all warnings generated by compiling the source
files using an Intel IC960 version 4.0v333 compiler, as provided
by LICENSEE. LICENSEE will provide PHOENIX with a list of the
exitsting warnings found during the evaluation of the code
delivered on or about June 22, 1994.
(c) Support for 16.16 fixed point representation (16 bits of integer
and 16 bits of fraction.
<PAGE> 12
(d) Modification of raster operators (ROPs) to include but not
limited to:
(i) Joining of trapezoids.
(ii) Modification of line-joins.
(iii) Modification of rounding of rectangle fills.
(iv) Elimination of overlapping scan lines between trapezoids.
(v) Implementation of pixel touched, pixel center fill rules.
This may require the modification of math routines to enable
rounding of fixed point variables instead of truncation. All
decomposition of objects into polygons, trapezoids, x-lines and
y-lines must carry appropriate resolution and accuracy.
These modifications should be completed on or before December 12, 1994.
3. PRODUCT SUPPORT
3.1 RESPONSE TO DEFECT REPORTS
Upon receipt of defect report(s) PHOENIX will take the following actions:
a) Within one business day PHOENIX will verify receipt of defect
report, and provide LICENSEE with the expected course of action.
b) Within an additional two business days, PHOENIX will provide
LICENSEE with a detailed plan for the correction of the defect,
and if possible with the correction to the defect.
c) If the defect cannot be fixed within the first three business
days, then PHOENIX and LICENSEE will mutually agree upon the best
way to resolve the defect.
3.2 PERFORMANCE TUNING
It is expected that a PHOENIX engineer will be assigned to work on performance
tuning. This work will require approximately one month, working on-site in
Boise, and is currently scheduled for February 1995.
3.3 COMMUNICATION
In order to maintain optimal communication between PHOENIX and LICENSEE, PHOENIX
personnel involved in providing the Product Support and code modifications
described above, will be available to participate in weekly conference calls,
and monthly project meetings, for the duration of the project. Daily
communication, if required, will be handled through phone conversations and/or
electronic mail.
If PHOENIX engineers are required to travel to LICENSEE's facilities, all travel
expenses will be paid by LICENSEE.
<PAGE> 13
September 30, 1994
EXHIBIT B
---------
Fees
Upon signing of this agreement, the following technology access and licensing
fees will commence for the technology described in exhibit A.
$3.225M "source code access fee" payable in the following installments:
(i) $300K non-refundable, payable upon contract signing (Sept. 94)
- net 60 days
(ii) $1.125M, payable in 15 monthly installments of $75K/month
beginning November 1, 1994 and ending January 1, 1996.
(iii) $1.8M, payable in 18 monthly installments $100K/month beginning
February 1, 1996 and ending July 1, 1997.
Notes:
1. Monthly payments in listed above may be stopped at any time should HP decide
to terminate the contract. Payments made up to the point of termination will not
be refundable, other than as stated in this contract.
2. LICENSEE shall have the option to extend the LICENSES contained herein to
include additional non-electrophotographic devices. Such option shall require a
mutually agreed upon additional fee which shall be proportional to the exisiting
fee structure, based upon projected unit sales of such additional devices.
<PAGE> 14
[LOGO]
XIONICS
AMENDED AND RESTATED
AMENDMENT NO. 1
TO COMPUTER TECHNOLOGY LICENSE AGREEMENT
BETWEEN
XIONICS DOCUMENT TECHNOLOGIES, INC. AND HEWLETT-PACKARD COMPANY
Amendment No. 1 to Computer Technology License Agreement, entered into by and
between Xionics Document Technologies, Inc., a Delaware corporation ("XIONICS"
herein) as successor in interest to Phoenix Technologies Ltd., a Delaware
corporation ("PHOENIX"), and Hewlett-Packard Company, a California corporation
("LICENSEE") and made effective as of March 8, 1996, is hereby amended and
restated in its entirety to read as follows.
This Amendment No. 1 to Computer Technology License Agreement, dated as of March
8, 1996 (the "Amendment"), is entered into by and between Xionics Document
Technologies, Inc., a Delaware corporation ("XIONICS" herein) as successor in
interest to Phoenix Technologies Ltd., a Delaware corporation ("PHOENIX"), and
Hewlett-Packard Company, a California corporation ("LICENSEE"), and is made with
reference to the following facts and circumstances:
A. On September 30, 1994, PHOENIX and LICENSEE entered into an agreement
entitled "Computer Technology License Agreement" (the "Prior Agreement"),
pursuant to which PHOENIX licensed computer software programs to LICENSEE.
B. On or about November 8, 1994, XIONICS acquired all of the assets of
PHOENIX's PhoenixPage Division, and thus succeeded to the interests of PHOENIX
under the Prior Agreement.
C. LICENSEE would like to obtain additional computer technology from
XIONICS, and accordingly the parties desire to amend the Prior Agreement in the
manner set forth below.
NOW, THEREFORE, in consideration of the promises and covenants hereinafter set
forth, XIONICS and LICENSEE agree as follows:
I. LICENSE OF PHOENIXPAGE SOURCE CODE.
(a) Subject to each and every term and condition of this Amendment, XIONICS
grants to, LICENSEE a non-exclusive, perpetual, and worldwide license to use
and modify the source code of the PhoenixPage * Compatible Language Interpreter
('*') and the PhoenixPage * Compatible Language Interpreter with * Compatible
Extensions ('*') (as respectively described in Exhibit A-1 and Exhibit A-2 to
this Amendment, which collectively are referred to as "Exhibit A"), subject to
Sections 2. and 12. of the Prior Agreement, and to use, manufacture,
distribute, and sublicense the object code of * (collectively, the "Programs")
solely to owners or users of LICENSEE's Devices.
* CONFIDENTIAL TREATMENT IS REQUESTED.
<PAGE> 15
(b) For purposes of this Amendment No. 1 only, the definition of
"LICENSEE'S Devices" set forth at Section 1.(d) of the Prior Agreement is
amended as follows.
(i) With respect to * "LICENSEE's Devices" shall mean (A) color and
monochrome electrophotographic printers, and (b) color and monochrome
inkjet printers including multifunction devices and wide format devices,
but otherwise specifically excluding Licensee's inkjet technology-based
single function printers.
(ii) With respect to * "LICENSEE's Devices" shall mean color and
monochrome electrophotographic printers.
(c) The scope of the license granted in subsection (a) above is expressly
limited to LICENSEE's Devices as defined in subsection (b) above. However,
LICENSEE shall have the option to extend that license to include additional
non-electrophotographic devices. This option will require a mutually agreed-upon
additional fee, to be proportional to the fee structure set forth in Exhibit B
to this Amendment, based upon projected unit sales of the additional devices.
(d) The right to receive new generations of the Programs or new versions of
the Programs incorporating substantial new or enhanced functionality is not
included in the license granted in subsection (a) above. However, should such
new generations or new versions of the Programs become available from XIONICS,
XIONICS agrees that it will license them to LICENSEE for a mutually agreed-upon
additional fee to be negotiated in good faith between the parties.
*
(f) XIONICS hereby grants to LICENSEE a non-exclusive, perpetual and
worldwide license to use, reproduce, sublicense and distribute any and all
XIONICS-developed code that has been incorporated in LICENSEE's graphic engine
code; provided, that such license applies only to the use of such code for
display purposes in a host-based viewer. Such license shall be royalty-free so
long as LICENSEE has met its payment obligations to date under Exhibit B hereto
and does not make a separate charge to its customers for this technology. If
LICENSEE does make such a charge for this technology XIONICS shall be entitled
to a mutually acceptable royalty for the XIONICS code incorporated therein.
LICENSEE agrees that it shall negotiate with XIONICS in good faith to establish
such a royalty prior to charging its customers for such technology.
2. LICENSE FEE.
(a) In consideration of the license granted in Section 1.(a) above,
LICENSEE agrees to pay XIONICS a comprehensive License Fee, in the amount and on
the payment schedule set forth in Exhibit B to this Amendment. Such License Fee
shall include disclosure of the Programs' source code and all of the engineering
services referred to in Sections 4.(a) and (b) below, as described in more
detail in Exhibit A hereto. *
* CONFIDENTIAL TREATMENT IS REQUESTED.
2
<PAGE> 16
(b) The comprehensive License Fee does not include the following costs and
expenses. XIONICS shall invoice LICENSEE for these costs and expenses when and
as they are incurred, and LICENSEE shall pay such invoices in accordance with
their terms.
(i) The cost of hardware to be used in the project described in
Exhibit A and maintenance expenses of such hardware, which hardware shall
be provided by LICENSEE, subject to LICENSEE's standard hardware loan
agreement, and maintained by XIONICS at LICENSEE's expense;
(ii) Royalties that become due to third parties as the result of
inclusion of third-party intellectual property in the Programs or in
LICENSEE's Devices; and
(iii) The cost of the supplemental support staff described in Section
4.(c) below.
(c) The parties intend that they shall each bear an equal share of the
total out-of-pocket travel and living expenses incurred in the performance of
this Amendment. Accordingly, the parties shall use all reasonable efforts to
balance meetings and other joint activities between their respective sites, so
as to equalize their travel and living expenses of attending such meetings and
activities to the extent practicable.
(d) With respect to royalties on third-party intellectual property,
LICENSEE shall have the option either to sublicense such intellectual property
through XIONICS or to license it direct from the owners thereof. If LICENSEE
elects to sublicense such intellectual property through XIONICS it shall
reimburse XIONICS for XIONICS' direct cost per unit of securing the licenses in
question. If LICENSEE elects to license such intellectual property direct from
its owners, it shall indemnify XIONICS and hold it harmless against any claims
for royalties from such owners based on LICENSEE's shipment of devices
containing the intellectual property in question.
3. ACCEPTANCE.
LICENSEE's acceptance of the Program modifications prepared pursuant to
Exhibit A to this Amendment shall be based on the Acceptance Criteria set forth
therein, and shall be in accordance with the provisions of Section 3. of the
Prior Agreement.
4. SUPPORT.
XIONICS agrees to provide engineering support for LICENSEE's implementation
of the Programs as follows:
(a) For the implementation of * XIONICS shall make available to LICENSEE
the dedicated services of up to ten (10) support staff members (which number may
include engineering, project management and quality assurance personnel in a mix
determined by LICENSEE's project requirements at any given time) for a period of
three (3) years from the project commencement date shown in Exhibit A hereto.
The cost of such services is included in the comprehensive License Fee set forth
in Exhibit B hereto.
(b) For the implementation of * XIONICS shall make available to LICENSEE
the dedicated services of one (1) support staff member for a period of one (1)
year from the project
* CONFIDENTIAL TREATMENT IS REQUESTED.
3
<PAGE> 17
commencement date shown in Exhibit A hereto. The cost of such services is also
included in the comprehensive License Fee set forth in Exhibit B hereto.
(c) At LICENSEE's request, XIONICS shall provide supplemental support as
follows. All such supplemental support shall be purchased by LICENSEE in
increments of one (1) person-year. LICENSEE will use its best efforts to give
XIONICS at least three (3) months' notice of any request for such supplemental
support.
(i) Up to four (4) additional support staff members, over and above
the first eleven (11), shall be made available at the rate of Two Hundred
Fifty Thousand Dollars ($250,000.00 U.S.) per person-year.
(ii) Up to four (4) additional support staff members, over and above
the first fifteen (15), shall be made available at the rate of Three
Hundred Fifty Thousand Dollars ($350,000.00 U.S.) per person-year.
(iii) Up to ten (10) additional support staff members, over and above
the first nineteen (19), shall be made available at the rate of Four
Hundred Fifty Thousand Dollars ($450,000.00 U.S.) per person-year.
5. OWNERSHIP OF MODIFICATIONS
(a) All modifications to the Programs that are developed by LICENSEE,
including enhancements and bug fixes, shall be and remain the sole and exclusive
property of LICENSEE, notwithstanding XIONICS' ownership of the Programs
themselves. For each such modification, LICENSEE shall determine whether it
wishes to permit XIONICS to include that modification in the core source code of
XIONICS' Program, and shall notify XIONICS accordingly. If XIONICS agrees to
incorporate such a modification in its core Program, LICENSEE shall promptly
deliver the source code of the modification to XIONICS and thereupon shall be
deemed to have granted XIONICS a perpetual, worldwide, nonexclusive, fully-paid
license to use, reproduce, sublicense and distribute such modification as part
of its core Program.
(b) All modifications to the Programs that are developed by XIONICS shall
be and remain the sole and exclusive property of XIONICS, subject to the license
rights granted to LICENSEE in Section 1.(a) above.
(c) All modifications to the Programs that are jointly developed by XIONICS
and LICENSEE shall be jointly owned without accounting. The project management
of both parties shall mutually determine which modifications are the property of
LICENSEE, which are the property of XIONICS, and which are jointly owned. In the
event that either party applies for a patent on a joint modification, it shall
apply in the names of both parties.
(d) Nothing in this Amendment shall preclude XIONICS from independently
developing modifications to its core Programs which have the same or similar
functionality as LICENSEE's modifications.
4
<PAGE> 18
6. RIGHT OF FIRST REFUSAL.
XIONICS shall not enter into any transaction or series of related
transactions that would constitute a Control Transaction (as defined below) or
act pursuant to an agreement, arrangement or understanding with XIONICS'
shareholders to the same effect with any person or entity unless it complies
with the procedure set forth below. XIONICS shall give notice to LICENSEE (the
"First Refusal Notice") at least 30 days prior to agreeing to enter into any
Control Transaction and shall give LICENSEE the first opportunity to enter into
such Control Transaction with XIONICS (the "Right of First Refusal") in the
manner specified below.
(a) NOTICE. The First Refusal Notice shall specify the identity of the
potential acquirors (the "Acquirors"), the assets of XIONICS proposed to be
sold, licensed, leased, exchanged or otherwise disposed of and the proposed
price to be paid therefor (in the case of a sale, license, lease, exchange or
other disposition of assets), the proposed consideration (in the case of a
merger, consolidation or other reorganization), the proposed price to be paid
for XIONICS' securities (in the case of an issuance by XIONICS of its
securities), the proposed terms of payment and the time within which XIONICS
proposes to enter into an agreement to consummate such Control Transaction, and
all other material terms and conditions upon which XIONICS proposes to enter
into the Control Transaction (the "First Refusal Terms"). Such notice shall
include a representation of XIONICS to the effect that the material provisions
of such transaction have been approved by a majority of XIONICS' Board of
Directors, that XIONICS believes that the terms and conditions described in the
First Refusal Terms are fair, that to the best knowledge of XIONICS each
Acquiror is prepared to consummate the proposed Control Transaction and has
sufficient financing to consummate the proposed Control Transaction on the First
Refusal Terms, and that XIONICS has a good faith intention to enter into the
Control Transaction on the First Refusal Terms.
(b) OFFER TO LICENSEE. The First Refusal Notice shall constitute an
irrevocable offer to LICENSEE to enter into such Control Transaction with
XIONICS on the First Refusal Terms or terms specified by LICENSEE which include
cash to the same extent as the First Refusal Terms and in other respects are
economically equivalent to the First Refusal Terms ("LICENSEE's Equivalent
Terms"). The Right of First Refusal shall be exercisable by notice from LICENSEE
to XIONICS within thirty (30) days after receipt by LICENSEE of the First
Refusal Notice. Such notice from LICENSEE shall specify LICENSEE's' Equivalent
Terms, if any.
(c) WAIVER OF THE RIGHT OF FIRST REFUSAL. XIONICS may request that LICENSEE
waive its right to receive a First Refusal Notice and its Right of First Refusal
with respect to a potential Control Transaction with a named Acquiror or
Acquirors, irrespective of whether the material terms of such a transaction have
been negotiated with the Acquiror or Acquirors, or approved by XIONICS' Board or
Directors or shareholders, at the time the waiver is requested. If LICENSEE does
so waive these rights with respect to such Acquiror or Acquirors, XIONICS shall
have no obligation to disclose to LICENSEE the terms of any potential Control
Transaction with such Acquiror or Acquirors, or to offer LICENSEE the
opportunity to enter into such Control Transaction with XIONICS.
(d) EXERCISE OF THE RIGHT OF FIRST REFUSAL. If LICENSEE exercises the Right
of First Refusal, then XIONICS shall enter into such Control Transaction with
LICENSEE on the First Refusal Terms or, if such terms are specified by LICENSEE,
on LICENSEE's Equivalent Terms. XIONICS shall use its best efforts to cause any
required approval of its shareholders for such Control Transaction with LICENSEE
to be obtained as soon as practicable, and in that connection the Board of
Directors shall recommend that such shareholders vote in favor of such approval
and XIONICS shall use its best
5
<PAGE> 19
efforts to direct the voting of all shares for which XIONICS' management or
Board of Directors holds proxies or is otherwise entitled to vote in favor of
such approval. The closing of such Control Transaction shall take place as soon
as practicable after XIONICS and LICENSEE have obtained or made all consents,
approvals, orders, licenses, permits and authorizations of, and registrations,
declarations and filings with, any governmental authority or other person or
entity required to be obtained or made in connection with the consummation of
such Control Transaction.
(e) LICENSEE ELECTION NOT TO EXERCISE RIGHT OF FIRST REFUSAL. If LICENSEE
does not exercise the Right of First Refusal with respect to any Control
Transaction, XIONICS shall be entitled, within three (3) months following the
expiration of the period for exercise of the Right of First Refusal, to
consummate such Control Transaction with any of the designated Acquirors upon
terms and conditions in the aggregate not more favorable to the Acquiror than
the First Refusal Terms.
(f) TIME LIMIT. All of XIONICS' obligations and LICENSEE's rights under
this Section 6. shall expire, and be of no further force and effect, upon the
first anniversary of the effective date of a registration statement describing
an initial public offering of XIONICS' capital stock or September 30, 1998,
whichever is earlier (the "Expiration Date"); provided, that LICENSEE shall
remain entitled to exercise its Right of First Refusal, in the manner provided
in subsection (d) above, with respect to any First Refusal Notice given to
LICENSEE by XIONICS within the thirty (30) days immediately preceding the
Expiration Date.
(g) "CONTROL TRANSACTION". For purposes of this Section 6., "Control
Transaction" shall mean (i) a merger, consolidation or other reorganization of
XIONICS with any other person or entity, excluding any merger, reincorporation,
recapitalization or similar transaction which would result in the holders of
voting securities immediately prior thereto continuing to beneficially own more
than 80% of the total voting power of the surviving corporation immediately
thereafter, (ii) a sale, license, lease, exchange or other disposition (whether
in one transaction or a series of transactions) of more than 10% of XIONICS'
assets (except in the ordinary course of business, consistent with XIONICS' past
practice or the pledge of assets in connection with bona fide loans), (iii) any
disposition of XIONICS' intellectual property (including the grant of exclusive
licenses), (iv) the acquisition by any person, entity or group other than
XIONICS or LICENSEE, directly or indirectly, of voting securities representing
25% or more of the actual voting power of XIONICS, excluding an acquisition
pursuant to a sale of voting securities in an underwritten, bona fide public
offering, or (v) any share exchange, extraordinary dividend, acquisition,
disposition or recapitalization (or series of related transactions of such
nature) (other than a merger or consolidation), pursuant to which the holders of
voting securities of XIONICS immediately prior thereto continue to own
beneficially voting securities representing less than 50% of the actual voting
power of XIONICS (or any successor entity) immediately thereafter.
7. INCORPORATION OF ALL PROVISIONS OF PRIOR AGREEMENT.
Sections 1.(a), 1.(d), 1.(g), 4.(b) and 6. of the Prior Agreement, and
Exhibits A and B thereto, are expressly not incorporated herein. Except for
those provisions, and except as the remaining provisions of the Prior Agreement
are modified herein, this Amendment is subject to each and every provision of
the Prior Agreement, each of which is incorporated herein by reference.
6
<PAGE> 20
8. ENTIRE AGREEMENT.
This Amendment sets forth the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and/or written agreements, communications, and
understandings relating thereto. Neither party has entered into this Amendment
by reason of or in reliance on any representations of fact or opinion which are
not expressly set forth herein. Except as expressly set forth herein, the Prior
Agreement, and each and every provision thereof, shall remain in full force and
effect.
IN WITNESS WHEREOF, XIONICS and LICENSEE have executed this Amended and
Restated Amendment No. I effective as of the day and year first above written.
XIONICS DOCUMENT TECHNOLOGIES, INC. HEWLETT-PACKARD COMPANY
By: /s/ Rosemary E. Grande By: /s/ Rich Raimondi
----------------------------- --------------------------
Name: Rosemary E. Grande Name: Rich Raimondi
---------------------------- -----------------------
Title: VP Product Development Title: Gen Mg/BLD
--------------------------- -----------------------
Date of Signing: March 8th, 1996 Date of Signing: 3/9/96
----------------- -------------
7
<PAGE> 21
EXHIBIT A
TO AMENDMENT NO. 1 TO COMPUTER TECHNOLOGY LICENSE AGREEMENT
BETWEEN
XIONICS DOCUMENT TECHNOLOGIES, INC. AND HEWLETT-PACKARD COMPANY
8
<PAGE> 22
Rev. 3/1/96
*********************************************
EXHIBIT A-1
STATEMENT OF DELIVERABLES
(REV 3/1/96)
********************************************
EXHIBIT A-1
Page 2 through Page 8
CONTAIN CONFIDENTIAL MATERIALS WHICH HAVE
BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
<PAGE> 23
Rev. 2/23/96
*****************************************
EXHIBIT A-2
STATEMENT OF DELIVERABLES
(REV 2/23/96)
*****************************************
EXHIBIT A-2
Page 2 through Page 4
CONTAIN CONFIDENTIAL MATERIALS WHICH HAVE
BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
<PAGE> 24
EXHIBIT B
TO AMENDMENT NO. 1 TO COMPUTER TECHNOLOGY LICENSE AGREEMENT
BETWEEN
XIONICS DOCUMENT TECHNOLOGIES, INC. AND HEWLETT-PACKARD COMPANY
LICENSE FEES*
-------------
PhoenixPage * Compatible Language Interpreter and PhoenixPage * Compatible
Language Interpreter with * Compatible Extensions:
Payment Date Amount Due
- --------------------------------------------------------------------------------
Execution of Amendment No. 1 $ *
* "Beta" milestone** (est. 9/2/96)[Dagger] *
* unctionality Complete (est. 12/2/96)[Dagger] *
April 15, 1997[Double Dagger] *
Fifteenth day of each of next * months *
TOTAL *
* All license fees are net of third-party royalties.
** All milestones are defined in the detailed Project Plan attached to Exhibit A
to this Amendment.
[Dagger] LICENSEE agrees that payments tied to milestones will not be delayed if
the milestone dates are not met for reasons not attributable to XIONICS.
[Double Dagger]Monthly payments will not begin until* functionality is complete.
* CONFIDENTIAL TREATMENT IS REQUESTED.
9
