As filed with the Securities and Exchange
Commission on December 1, 1999.
File No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
ePlus Inc.
(Exact Name of Issuer as Specified in its Charter)
Delaware 54-1817218
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
400 Herndon Parkway, Suite B
Reston, Virginia 20170
(703) 834-5710
(Address, including zip code, and telephone number
of Principal Executive Offices)
MLC Holdings, Inc. 1998 Long-Term Incentive Plan
MLC Holdings, Inc. 1997 Employee Stock Purchase Plan
and
Various Employee Stock Options
(Full Title of the Plans)
Phillip G. Norton
Chairman, President and Chief Executive Officer
ePLUS INC.
400 Herndon Parkway, Suite B
Reston, Virginia 20170
(703) 834-5710
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
Per Unit Offering Price
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
<S> <C> <C> <C> <C>
Common Stock 145,000 (1) $8.75 $1,268,750 $335
par value $0.01 per share
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
Common Stock 15,000 (2) $11.50 $172,500 $46
par value $0.01 per share
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
Common Stock 5,000 (3) $10.75 $53,750 $14
par value $0.01 per share
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
Common Stock 100,000 (4) $6.40 $640,000 $169
par value $0.01 per share
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
Common Stock 4,000,000 (5) $ 9.50 (6) $38,000,000 $10,032
par value $0.01 per share
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
TOTAL 4,265,000 $40,135,000 $10,596
- ------------------------------------- ----------------------- ------------------------- -------------------------- -----------------
(1) Includes 15,000 and 130,000 stock options, respectively, issued on
September 1, 1996 to Bruce M. Bowen and Phillip G. Norton at $8.75 per
share.
(2) Includes 15,000 stock options issued on February 5, 1998 to Bruce M. Bowen
at $11.50 per share.
(3) Includes 2,500 and 2,500 stock options, respectively, issued on January 1,
1997 to Marcella C. Dillworth and Stephanie G. Dutton at $10.75 per share.
(4) Includes 100,000 stock options issued on September 1, 1996 to Kleyton L.
Parkhurst at $6.40 per share.
(5) Includes 4,000,000 shares of stock that may be issued upon the grant or
exercise of awards under the MLC Holdings, Inc. 1998 Long-Term Incentive
Plan or the MLC Holdings, Inc. 1997 Employee Stock Purchase Plan.
(6) Estimated solely for the purpose of determining the registration fee under
Rule 457(c), based on the average of the high and low prices of the Common
Stock on November 24, 1999, as reported on the Nasdaq National Market.
</TABLE>
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<PAGE>
PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT
- ------- ----------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission by ePlus Inc., formerly known as MLC Holdings, Inc. (the
"Registrant"), are incorporated by reference into this Registration Statement
and are deemed to be a part hereof from the date of the filing of such
documents:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1999.
(2) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since March 31, 1999.
(3) The description of Common Stock contained in the Registrant's
Registration Statement filed under Section 12 of the Exchange Act, including all
amendments or reports filed for the purpose of updating such description.
(4) All other documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities that remain
unsold.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Ninth of the Certificate of Incorporation of the Registrant
provides: " No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided, however, that the foregoing shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit."
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<PAGE>
Article Tenth of the Certificate of Incorporation of the Registrant
provides: "The Corporation shall indemnify, in the manner and to the fullest
extent permitted by the Delaware General Corporation Law (and in the case of any
amendment thereto, to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), any person
(or the estate of any person) who is or was a party to, or is threatened to be
made a party to, any threatened, pending or completed action, suit or
proceeding, whether or not by or in the right of the Corporation, and whether
civil, criminal, administrative, investigative or otherwise, by reason of the
fact that such person is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan. The Corporation may,
to the fullest extent permitted by the Delaware General Corporation Law,
purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against such person. To the fullest extent
permitted by the Delaware General Corporation Law, the indemnification provided
herein may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement and any such expenses may be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the person seeking indemnification
to repay such amounts if it is ultimately determined that he or she is not
entitled to be indemnified. The indemnification provided herein shall not be
deemed to limit the right of the Corporation to indemnify any other person for
any such expenses to the fullest extent permitted by the Delaware General
Corporation Law, nor shall it be deemed exclusive of any other rights to which
any person seeking indemnification from the Corporation may be entitled under
any agreement, the Corporation's Bylaws, vote of stockholders or disinterested
directors, or otherwise, both as to action in such person's official capacity
and as to action in another capacity while holding such office. The Corporation
may, but only to the extent that the Board of Directors may (but shall not be
obligated to) authorize from time to time, 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 Tenth as they apply to the
indemnification and advancement of expenses of directors and officers of the
Corporation."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as
follows:
Exhibit Number Description
-------------- -----------
4.1 MLC Holdings, Inc. 1998 Long-Term Incentive Plan
(incorporated by reference to the indicated exhibit
filed as part of the Registrant's Quarterly Reort on
Form 10-Q filed on November 12, 1998)
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<PAGE>
4.2 MLC Holdings, Inc. 1997 Employee Stock Purchase Plan
(incorporated by reference to the indicated exhibit
filed as part of the Registrant's Quarterly Report on
Form 10-Q filed on November 14, 1997)
4.3 Certificate of Incorporation and Amendments
4.4 Bylaws and Amendments
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (contained in Part II at page II-6)
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities being offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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<PAGE>
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the Registrant's Articles of Incorporation
or Bylaws, 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 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 Act and
will be governed by the final adjudication of such issue.
(signatures on following page)
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Fairfax, Commonwealth of Virginia, on November 30,
1999.
ePLUS INC.
(Registrant)
By: /s/Phillip G. Norton
-------------------------------
Phillip G. Norton
Chairman, President and
Chief Executive Officer
KNOW BY ALL MEN BY THESE PRESENT that each person whose signature
appears below constitutes and appoints Phillip G. Norton or Bruce M. Bowen and
either of them (with full power in each to act alone), as true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorney-in-fact, or their
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of this 30th day of November, 1999.
Signature Capacity Date
--------- -------- ----
/s/ Phillip G. Norton Chairman of the Board, President November 30, 1999
- -----------------------
Phillip G. Norton and Chief Executive Officer
(Principal Executive Officer)
/s/ Steven J. Mencarini Senior Vice President November 30, 1999
- ------------------------
Steven J. Mencarini and Chief Financial Officer
(Principal Financial and
Accounting Officer)
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<PAGE>
/s/ Bruce M. Bowen Director November 30, 1999
- ---------------------------
Bruce M. Bowen
/s/ C. Thomas Faulders, III Director November 30, 1999
- ---------------------------
C. Thomas Faulders, III
/s/ Terrence O'Donnell Director November 30, 1999
- ---------------------------
Terrence O'Donnell
/s/ Carl J. Rickertsen Director November 30, 1999
- ---------------------------
Carl J. Rickertsen
/s/ Dr. Paul G. Stern Director November 30, 1999
- ---------------------------
Dr. Paul G. Stern
-8-
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
-------------- -----------
4.1 MLC Holdings, Inc. 1998 Long-Term Incentive Plan
(incorporated by reference to the indicated exhibit
filed as part of the Registrant's Quarterly Reort on
Form 10-Q filed on November 12, 1998)
4.2 MLC Holdings, Inc. 1997 Employee Stock Purchase Plan
(incorporated by reference to the indicated exhibit
filed as part of the Registrant's Quarterly Report on
Form 10-Q filed on November 14, 1997)
4.3 Certificate of Incorporation and Amendments
4.4 Bylaws and Amendments
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (contained in Part II at page II-6)
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<PAGE>
EXHIBIT 4.1
MLC Holdings, Inc.
1998 LONG-TERM INCENTIVE PLAN
Incorporated by reference to the indicated exhibit filed as part of the
Registrant's Quarterly Report on Form 10-Q filed on November 12, 1998.
<PAGE>
EXHIBIT 4.2
MLC Holdings, Inc.
1997 EMPLOYEE STOCK PURCHASE PLAN
Incorporated by reference to the indicated exhibit filed as part of the
Registrant's Quarterly Report on Form 10-Q filed on November 14, 1997.
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF INCORPORATION
OF
MLC HOLDINGS, INC.
The undersigned, a natural parson, for the purpose of organizing MLC
Holdings, Inc. (the "Corporation") for conducting the business and promoting the
purposes hereinafter elated, under the provisions and subject to the
requirements of the laws off the State of Delaware (particularly Chapter X,
Title 8 of the Delaware Code, as amended, and referred to as the "Delaware
General corporation Law), hereby certifies that:
FIRST
The name of the Corporation is:
MLC HOLDINGS, INC.
SECOND
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road. City of Wilmington, county of New Castle and the
name of the Corporation's registered agent in the State of Delaware is
Corporation Service Company.
THIRD
The purpose of the Corporation is to engage in any lawful act or activity
for which Corporations may be organized under the Delaware General Corporation
Law.
FOURTH
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is twelve million (12,000,000) shares consisting
of ten million (10,000,000!) shares of common stock having a par value of $.01
per share (the "Common Stock") and two million (2,000,000) shares of preferred
stock having a par Value of $.01 per share (the "Preferred Stock').
The Board of Directors of the Corporation is authorized subject to
limitations prescribed by law, to provide by resolution or resolutions for the
issuance of shares of the Preferred Stock as S class or in series, and, by
filing a certificate of designations, pursuant to the Delaware Caners1
corporation Law, setting forth a copy of such resolution or resolutions to
establish from time to time the number of shares to be included ID each such
series and to fix the designation, powers, preferences and rights of the shares
of the class or of each such series and the qualifications, limitations, and
restrictions thereof. The authority of the Board of Directors
1 of 5
<PAGE>
with respect to the class or each series shall include, but not be limited to,
determination of the following
a) the number of shares constituting any series and the distinctive
designation of that series;
b) the dividend rate of the shares of the class or of any series, whether
dividends shall be cumulative, and if so, from which date or dates, and the
relative rights of priority, if any of payment of dividends on shares of the
class or of that series;
c) whether the class or any series shall have voting rights, in addition to
the voting rights provided by law, and if so, the terms of such voting rights;
d) whether the class or any series shall have conversion privileges and, if
so, the terms and conditions of conversion, including provision for adjustment
of the conversion rate in such events as the Board of Directors shall determine;
e) whether or not the shares of the class or of any series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the dace or dace upon or after which they shall be redeemable and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
f) whether the class or any series shall have a sinking fund for the
redemption or purchase of shares of the class or of that series, and if so, the
terms and amount of such sinking fund;
g) the rights of the shares of the class or of any series in the event of
voluntary or involuntary dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of the class or of
that series; and
h) any other powers, preferences, rights, qualifications, limitations and
restrictions of the class or of that series.
All rights accruing to the outstanding shares of the Corporation not
expressly provided for to the contrary herein or in any certificate of
designation shall be vested exclusively in the Common Stock.
2 of 5
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FIFTH
The name and mailing address of the Incorporator are as follows:
Benton Burroughs, Jr.
Hazel & Thomas, P.C.
3110 Fairview Park Drive
Suite 1400
Falls Church, Virginia 22042
SIXTH
The Incorporator shall appoint the initial directors of the Corporation
after filing of this Certificate of Incorporation. The terms of the initial
directors shall be determined by the Incorporator and thereafter by the Board of
Directors, with one class designated elected for a one year term, the Second
class designated as elected for a two year term and the third class designated
as elected for a three year term. At the first annual meeting of the
stockholders of the Corporation, and at each subsequent annual meeting, the
successors of the class of directors whose term expires at that meeting shall be
elected to hold office for a term expiring at the annual meeting9 of
stockholders held in the third year following the year of their election.
SEVENTH
The corporation is to have perpetual existence.
EIGHTH
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is
expressly authorized to make, alter, or repeal the Bylaws of the Corporation.
NINTH
No person shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director; provided
however, that the foregoing shall not eliminate or limit the liability of a
director (I) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit
3 of 5
<PAGE>
TENTH
The Corporation shall indemnify, in the manner and to the fullest extent
permitted by the Delaware General Corporation Law (and in the case of any
amendment thereto, to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), any person
(or the estate of any person) who is or was a party to, or is threatened to be
made a party to, any threatened, pending or completed action, suit or
proceeding, whether or not by or in the right of the Corporation, and whether
civil, criminal, administrative, investigative or otherwise, by reason of the
fact that such person is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan. The Corporation may,
to the fullest extent permitted by the Delaware General Corporation Law,
purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against such person. To the fullest extent
permitted by the Delaware General Corporation Law, the indemnification provided
herein may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement and any such expenses may be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the person seeking indemnification
to repay such amounts if it is ultimately determined that he or she is not
entitled to be indemnified. The indemnification provided herein shall not be
deemed to limit the right of the Corporation to indemnify any other person for
any such expenses to the fullest extent permitted by the Delaware General
Corporation Law, nor shall it be deemed exclusive of any other rights to which
any person seeking indemnification from the Corporation's Bylaws, vote of
stockholders or disinterested directors, or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office. The Corporation may, but only to the extent that the Board of
Directors may, but only to the extent that the Board of Directors may (but shall
not be obligated to) authorize from time to time, grant rights to
indemnification and to the advancement of expenses to any employee or gent of
the Corporation to the fullest extent of the provisions of this Article Tenth as
they apply to the indemnification and advancement of expenses of directors and
officers of the Corporation.
4 of 5
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ELEVENTH
From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the state of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article Eleventh.
The effective date of this Certificate of Incorporation, and the date upon
which the existence of the Corporation shall commence, shall be the date upon
which the Secretary of the State of the state of Delaware endorses the word
"Filed" on the Certificate.
I, the undersigned, being the Incorporator of the above mentioned
Corporation, do make this Certificate of Incorporation, hereby declaring and
certifying that this is my act and the fasts stated herein are true, and
accordingly have hereunto set my hand upon this 27th day of August, 1996.
/s/Benton Burroughs, Jr.
---------------------
Benton Burroughs, Jr.
Incorporator
5 of 5
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CERTIFICATE OF INCORPORATION OF
MLC HOLDINGS, INC. AS AMENDED
Pursuant to Section 242 of the Delaware General Corporation Law, MLC
Holdings, Inc., a Delaware corporation (the "Corporation"), hereby certifies as
follows:
1. The Corporation's name is "MLC Holdings, Inc."
2. The Corporation's certificate of incorporation hereby is amended by
striking out existing Article "FOURTH" thereof and replacing it with the
following new Article "FOURTH":
"FOURTH"
The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is twenty-seven
million (27,000,000) shares consisting of twenty-five million
(25,000,000) shares common stock having a par value of $.01 per
share (the "Common Stock") and two million (2,000,000) shares
preferred stock having a par value of $.01 per share (the
"Preferred Stock").
The Board of Directors of the Corporation is authorized, subject
to limitations prescribed by law, to provide by resolution or
resolutions for the issuance of shares of the Preferred Stock as
a class or in series, and, by filing a certificate of
designations, pursuant to the Delaware General Corporation Law,
setting forth a copy of such resolution or resolutions to
establish from time to time the number of shares to be included
in each such series and to fix the designation, powers,
preferences and rights of the shares of the class or of each such
series and the qualifications, limitations, and restrictions
thereof. The authority of the Board of Directors with respect to
the class or each series shall include; but not be limited to,
determination of the following:
a) the number of shares constituting any series and the
distinctive designation of that series;
b) the dividend rate of the shares of the class or of any series,
whether dividends shall be cumulative, and if so, from which date or
dates, and the relative rights of priority, if any payment of
dividends on shares of the class or of the that series;
c) whether the class or any series shall have voting rights, in
addition in addition to the voting rights provided by law, and if so,
the terms of such voting rights;
d) whether the class or any series shall have conversion
privileges and, if so, the terms and conditions of conversion,
including provision for adjustment of the conversion rate in such
events as the Board of Directors shall determine;
e) whether or not the shares of the class or of any series shall
be redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they shall
be redeemable and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
f) whether the class or any series shall have a sinking fund for
the redemption or purchase of shares of the class or of that series,
and if so, the terms and amount of such sinking fund;
g) the rights of the shares of the class or of any series in the
event of voluntary or involuntary dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment
of shares of the class or of that series; and
h) any other powers, preferences, rights, qualifications,
limitations and restrictions of the class or of that series.
All rights accruing to the outstanding shares of the Corporation
not expressly provided for to the contrary herein or in any certificate
of designation shall be vested exclusively in the Common Stock."
3. The foregoing amendment was duly adopted in accordance with Section
242 of the Delaware Corporation Law, by resolution of the Corporation's board of
directors setting forth set amendment and declaring its advisability, and by the
vote in favor of said amendment of a majority of the Corporation's stockholders
entitled to vote at the Corporation's annual meeting of its stockholders.
DATED: September 30, 1999 MLC HOLDINGS, INC.
By:/s/Kleyton L. Parkhurst
--------------------------
Kleyton L. Parkhurst
Secretary
<PAGE>
EXHIBIT 4.4
Amended and Restated Bylaw of the Registrant
MLC HOLDINGS, INC.
A DELAWARE CORPORATION
BYLAWS
ARTICLE I: OFFICES.
SECTION 1.1 Registered Office. The registered office of MLC HOLDINGS,
INC. (the "Corporation") shall be at Corporation Service Company, 1013 Centre
Road, City of Wilmington, County of New Castle, State of Delaware, and the name
of the registered agent in charge thereof shall be the Corporation Service
Company.
SECTION 1.2 Principal Office. The principal office for the transaction
of the business of the Corporation shall be at such place as the Board of
Directors of the Corporation (the "Board") may determine. The Board is hereby
granted full power and authority to change said principal office from one
location to another.
SECTION 1.3 Other Offices. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board may from time to time determine or as the business of the
Corporation may require.
ARTICLE II: MEETINGS OF STOCKHOLDERS
SECTION 2.1 Place of Meetings. All annual meetings of stockholders and
all other meetings of stockholders shall be held either at the principal office
of the Corporation or at any other place within or without the State of Delaware
that may be designated by the Board pursuant to authority hereinafter granted to
the Board.
SECTION 2.2 Annual Meetings. Annual meetings of stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time and place and on such date as the Board shall determine by resolution.
SECTION 2.3 Special Meetings. A special meeting of the stockholders for
the transaction of any proper business may be called at any time exclusively by
the Board, the Chairman of the Board, the President or the Executive Vice
President.
SECTION 2.4 Notice of Meetings. Except as otherwise required by law,
notice of each meeting of stockholders, whether annual or special, shall be
given not less than 10 days nor more than 60 days before the date of the meeting
to each stockholder &record entitled to vote at such meeting by delivering a
typewritten or printed notice thereof to such stockholder personally, or by
depositing such notice in the United States mail, in a postage prepaid envelope,
directed to such stockholder at such stockholder's post office address furnished
by such stockholder to the Secretary of the Corporation for such purpose, or, if
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such stockholder shall not have furnished an address to the Secretary for such
purpose, then at such stockholder's post office address last known to the
Secretary, or by transmitting a notice thereof to such stockholder at such
address by telegraph, cable, wireless or facsimile. Except as otherwise
expressly required by law, no publication of any notice of a meeting of
stockholders shall be required. Every notice of a meeting of stockholders shall
state the place, date and hour of the meeting and, in the case of a special
meeting, shall also state the purpose for which the meeting is called. Notice of
any meeting of stockholders shall not be required to be given to any stockholder
to whom notice may be omitted pursuant to applicable Delaware law or who shall
have waived such notice, and such notice shall be deemed waived by any
stockholder who shall attend such meeting in person or by proxy, except a
stockholder who shall attend such 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. Except as otherwise expressly
required by law, notice of any adjourned meeting of stockholders need not be
given if the time and place thereof are announced at the meeting at which the
adjournment is taken.
SECTION 2.5 Quorum. Except as otherwise required by law, the holders of
record of a majority in voting interest of the shares of stock of the
Corporation entitled to be voted thereat, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of
stockholders of the Corporation or any adjournment thereof. Subject to the
requirement of a larger percentage vote, if any, contained in the Certificate of
Incorporation, these Bylaws or by statute, the stockholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding any withdrawal of stockholders that may leave
less than a quorum remaining, if any action taken (other than adjournment) is
approved by the vote of at least a majority in voting interest of the shares
required to constitute a quorum. In the absence of a quorum at any meeting or
any adjournment thereof, a majority in voting interest of the stockholders
present in person or by proxy and entitled to vote thereat or, in the absence
therefrom of all the stockholders, any officer entitled to preside at, or to act
as secretary of, such meeting may adjourn such meeting from time to time. At any
such adjourned meeting at which a quorum is present, any business may be
transacted that might have been transacted at the meeting as originally called.
SECTION 2.6 Voting.
(Al) Each stockholder shall, at each meeting of stockholders, be
entitled to vote in person or by proxy each share of the stock of the
Corporation that has voting rights on the matter in question and that shall have
been held by such stockholder and registered in such stockholder's name on the
books of the Corporation:
(i) on the date fixed pursuant to Section 6.5 of these Bylaws as the
record date for the determination of stockholders entitled to notice of and to
vote at such meeting; or
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(ii) if no such record date shall have been so fixed, then (a) at the
close of business on the day next preceding the day upon which notice of the
meeting shall be given or (b) if notice of the meeting shall be waived, at the
close of business on the day next preceding the day upon which the meeting shall
be held.
(B) Shares of its own stock belonging to the Corporation or to another
corporation, ifa majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
Corporation, shall neither he entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity shall
be entitled to vote such stock. Persons whose stock is pledged shall be entitled
to vote, unless in the transfer by the pledgor on the books of the Corporation
the pledgor shall have expressly empowered the pledgee to vote thereon, in which
case only the pledgee, or the pledgee's proxy, may represent such stock and vote
thereon. Stock having voting power standing of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or with respect to
which two or more persons have the same fiduciary relationship, shall be voted
in accordance with the provisions of the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended (the "Delaware General
Corporation Law").
(C) Subject to the provisions of the Corporation's Certificate of
Incorporation, any such voting rights may be exercised by the stockholder
entitled thereto in person or by such stockholder's proxy appointed by an
instrument in writing, subscribed by such stockholder or by such stockholders
attorney thereunto authorized and delivered to the secretary of the meeting. The
attendance at any meeting of a stockholder who may theretofore have given a
proxy shall not have the effect of revoking the same unless such stockholder
shall in writing so notify the secretary of the meeting prior to the voting of
the proxy, At any meeting of stockholders at which a quorum is present, all
matters, except as otherwise provided in the Certificate of Incorporation, in
these Bylaws or by law, shall be decided by the vote of a majority in voting
interest of the stockholders present in person or by proxy and entitled to vote
thereat and thereon. The vote at any meeting of stockholders on any question
need not be by ballot, unless so directed by the chairman of the meeting. On a
vote by ballot, each ballot shall be signed by the stockholder voting, or by
such stockholder's proxy, if there by such proxy, and it shall state the number
of shares voted.
SECTION 2.7 Judges. Prior to each meeting of stockholders, the Chairman
of such meeting shall appoint a judge or judges to act with respect to such
vote. Each judge so appointed shall first subscribe an oath faithfully to
execute the duties of a judge at such meeting with strict impartiality and
according to the best of such judge's ability. Such judges shall decide upon the
qualification of the voters and shall certify and report the number of shares
represented at the meeting and entitled to vote on such question, determine the
number of votes entitled to be cast by each share, shall conduct and accept the
votes, when the voting is completed, ascertain and report the number of shares
voted respectively for and against the question, and determine, and retain for a
reasonable period a record of the disposition of, any challenge made to any
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determination made by such judges. Reports of judges shall be in writing and
subscribed and delivered by them to the Secretary of the Corporation. The judges
need not be stockholders of the Corporation, and any officer of the Corporation
may be a judge on any question other than a vote for or against a proposal in
which such officer shall have a material interest. The judges may appoint or
retain other persons or entities to assist the judges in the performance of the
duties of the judges.
SECTION 2.8 Advance Notice of Stockholder Proposals and Stockholder Nominations.
(A) At any meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) by or at the
direction of the Board or (ii) by any stockholder of the Corporation who
complies with the notice procedures set forth in this Section 2.8(A). For
business to be properly brought before any meeting of the stockholders by a
stockholder, the stockholder must have given notice thereof in writing to the
Secretary of the Corporation not less than 90 days in advance of such meeting
or, if later, the seventh day following the first public announcement of the
date of such meeting. A stockholder's notice to the Secretary shall set forth as
to each matter the stockholder proposes to bring before the meeting (1) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (2) the name and address,
as they appear on the Corporation's books, of the stockholder proposing such
business, (3) the class and number of shares of the Corporation that are
beneficially owned by the stockholder, and (4) any material interest of the
stockholder in such business. In addition, the stockholder making such proposal
shall promptly provide any other information reasonably requested by the
Corporation. Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at any meeting of the stockholders except in
accordance with the procedures set forth in this Section 2.8. The Chairman of
any such meeting shall direct that any business not properly brought before the
meeting shall not be considered.
(B) Nominations for the election of directors may be made by the Board
or by any stockholder entitled to vote in the election of directors; provided,
however, that a stockholder may nominate a person for election as a director at
a meeting only if written notice of such stockholder's intent to make such
nomination has been given to the Secretary of the Corporation not later than 90
days in advance of such meeting or, if later, the seventh day following the
first public announcement of the date of such meeting. Each such notice shall
set forth: (i) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (ii) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting and nominate the person or persons specified in the notice; (iii) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (iv) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the United States Securities and Exchange
Commission had the nominee been nominated, or intended to be nominated, by the
Board; and (v) the consent of each nominee to
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serve as a director of the Corporation if so elected, In addition, the
stockholder making such nomination shall promptly provide any other information
reasonably requested by the Corporation. No person shall be eligible for
election as a director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 2.803). The Chairman of any meeting of
stockholders shall direct that any nomination not made in accordance with these
procedures be disregarded.
SECTION 2.9 Action Without Meeting. Any action required to be taken at
any annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may,
if such action has been approved by the Board of Directors, be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
ARTICLE III: BOARD OF DIRECTORS
SECTION 3.1 General Powers. Subject to any requirements in the
Certificate of Incorporation, these Bylaws, and of the Delaware General
Corporation Law as to action which must be authorized or approved by the
stockholders, any and all corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be under the
direction of, the Board to the fullest extent permitted by law. Without limiting
the generality of the foregoing, it is hereby expressly declared that the Board
shall have the following powers, to wit:
(A) to select and remove all the officers, agents and employees of the
Corporation, prescribe such powers and duties for them as may not be
inconsistent with law, the Certificate of Incorporation or these Bylaws, fix
their compensation, and require from them security for faithful service;
(B) to conduct, manage and control the affairs and business of the
Corporation, and to make such rules and regulations therefor not inconsistent
with law, the Certificate of Incorporation or these Bylaws, as it may deem best;
(C) to change the location of the registered office of the Corporation
in Section 1.1 hereof, to change the principal office and the principal office
for the transaction of the business of the Corporation from one location to
another as provided in Section 1.2 hereof; to fix and locate from time to time
one or more subsidiary offices of the Corporation within or without the State of
Delaware as provided in Section 1.3 hereof, to designate any place within or
without the State of Delaware for the holding of any meeting or meetings of
stockholders; and to adopt, make and use a corporate seal, and to prescribe the
forms of certificates of stock, and to alter the form of such
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seal and of such certificates from time to time, and in its judgment as it may
deem best, provided such seal and such certificate shall at all times comply
with the provisions of law;
(D) to authorize the issuance of shares of stock of the Corporation
from time to time, upon such terms and for such considerations as may be lawful;
(E) to borrow money and incur indebtedness for the purposes of the
Corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust and
securities therefor;
(F) to fill vacancies on the Board as provided in Section 3.5 hereof
and
(G) by resolution adopted by a majority of the whole Board to designate
an executive and other committees of the Board, each consisting of one or more
directors, to serve at the pleasure of the Board, and to prescribe the manner in
which proceedings of such committee or committees shall be conducted.
SECTION 3.2 Number and Term of Office.
(A) Until this Section 3.2 is amended by a resolution duly adopted by
the Board or by the stockholders of the Corporation, the number of directors
constituting the entire Board shall be five (5) members. Directors need not be
stockholders. Each of the directors of the corporation shall hold office until
his successor shall have been duly elected and shall qualify or until he shall
resign or shall have been removed in the manner hereinafter provided.
(B) The Board shall be divided into three classes: Class I comprised of
one (1) member, Class II comprised of two (2) members and Class III comprised of
two (2) members. Such classes shall be as nearly equal in number of directors as
possible with the term of office of one class expiring each year. At the annual
meeting of stockholders in 1996, the Class I director shall be elected to hold
office for a term ending at the next succeeding annual meeting of stockholders,
the Class II director shall be elected to hold office for a term ending at the
second succeeding annual meeting of stockholders and directors of Class III
shall be elected to hold office for a term ending at the third succeeding annual
meeting of stockholders. Subject to the following, at each annual meeting of
stockholders, the successors to the class of directors whose term shall then
expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting of stockholders.
(C) During any period when the holders of preferred stuck or any one or
more series thereof, voting as a class, shall be entitled to elect a specified
number of directors by reason of dividend arrearages or other contingencies
giving them the right to do so, then and during such time as such right
continues (1) the then otherwise authorized number of directors shall be
increased by such specified number of directors, and the holders of the
preferred stock or such series thereof, voting as a class, shall be entitled to
elect the additional directors as provided for
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pursuant to the provisions of such preferred stock or series; (2) the additional
directors shall be members of those respective classes of directors in which
vacancies are created as a result of such increase in the authorized number of
directors; and (3) each such additional director shall serve until the annual
meeting at which the term of office of his class shall expire and until his
successor shall be elected and shall qualify, or until his right to hold such
office terminates pursuant to the provisions of such preferred stock or series,
whichever occurs earlier. Whenever the holders of such preferred stock or series
thereof are divested of such rights to elect a specified number of directors,
voting as a class, pursuant to the provisions of such preferred stock or series,
the terms of office of all directors elected by the holders of such preferred
stock or series, voting as a class pursuant to such provisions, or elected to
fill any vacancies resulting from the death, resignation or removal of directors
so elected by the holders of such preferred stock or series, shall forthwith
terminate and the authorized number of directors shall be reduced accordingly.
SECTION 3.3 Election of Directors. The directors shall be elected by
the stockholders of the Corporation, and at each election, the persons receiving
the greater number of votes, up to the number of directors then to be elected,
shall be the persons then elected. The election of directors is subject to any
provision contained in the Certificate of Incorporation relating thereto,
including any provision regarding the rights of holders of preferred stock to
elect directors.
SECTION 3.4 Resignations. Any director of the Corporation may resign at
any time by giving written notice to the Board or to the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time is not specified, it shall take effect immediately upon
receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.5 Vacancies. Except as otherwise provided in the Certificate
of Incorporation, any vacancy in the Board, whether because of death,
resignation, disqualification, an increase in the number of directors, removal,
or any other cause, shall be filled by vote of the majority of the remaining
directors, although less than a quorum. Increases in the number of directors
shall be filled in accordance with the rule that each class of directors shall
he as nearly equal in number of directors as possible. Notwithstanding such
rule, in the event of any change in the authorized number of directors each
director then continuing to serve as such will nevertheless continue as a
director of the class of which he is a member, until the expiration of his
current term or his earlier death, resignation or removal. If any newly created
directorship or vacancy on the Board of Directors, consistent with the rule that
the three classes shall be as nearly equal in number of directors as possible,
may be allocated to one or two or more classes, the Board of Directors shall
allocate it to that of the available class whose term of office is due to expire
at the earliest date following such allocation. When the Board of Directors
fills a vacancy, the director chosen to fill that vacancy shall be of the same
class as the director he succeeds and shall hold office until such director's
successor shall have been elected and shall qualify or until such director shall
resign or shall have been removed. No reduction of the authorized number of
directors shall have the effect of removing any director prior to the expiration
of such director's term of office.
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SECTION 3.6 Place of Meeting. The Board or any committee thereof may
hold any of its meetings at such place or places within or without the
Commonwealth of Virginia as the Board or such committee may from time to time by
resolution designate or as shall be designated by the person or persons calling
the meeting or in the notice or a waiver of notice of any such meeting.
Directors may participate in any regular or special meeting of the Board or any
committee thereof by means of conference telephone or similar communications
equipment pursuant to which all persons participating in the meeting of the
Board or such committee can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 3.7 Regular Meetings. Regular meetings of the Board may be held
at such times as the Board shall from time to time by resolution determine. If
any day fixed for a regular meeting shall be a legal holiday at the place where
the meeting is to be held, then the meeting shall be held at the same hour and
place on the next succeeding business day not a legal holiday. Except as
provided by law, notice of regular meetings need not be given.
SECTION 3.8 Special Meetings. Special meetings of the Board for any
purpose or purposes shall be called at any time by the Chairman of the Board or,
if the Chairman of the Board is absent or unable or refuses to act, by the Chief
Executive Officer, the President or the Executive Vice President, and may also
be called by any two members of the Board. Except as otherwise provided by law
or by these Bylaws, written notice of the time and place of special meetings
shall be delivered personally or by facsimile to each director, or sent to each
director by mail or by other form of written communication, charges prepaid,
addressed to such director at such director's address as it is shown upon the
records of the Corporation, or, if it is not so shown on such records and is not
readily ascertainable, at the place in which the meetings of the directors are
regularly held. In case such notice is mailed or telegraphed, it shall be
deposited in the United States mail or delivered to the telegraph company in the
County in which the principal office for the transaction of the business of the
Corporation is located at least 48 hours prior to the time of the holding of the
meeting. In case such notice is delivered personally or by facsimile as above
provided, it shall be delivered at least 24 hours prior to the time of the
holding of the meeting. Such mailing, telegraphing, delivery or facsimile
transmission as above provided shall be due, legal and persona/notice to such
director. Except where otherwise required by law or by these Bylaws, notice of
the purpose of a special meeting need not be given. Notice of any meeting of the
Board shall not be required to be given to any director who is present at such
meeting, except a director who shall attend such meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
SECTION 3.9 Quorum and Manner of Acting. Except as otherwise provided
in these Bylaws, the Certificate of Incorporation or by applicable law, the
presence of a majority of the authorized number of directors shall be required
to constitute a quorum for the transaction of business at any meeting of the
Board, and all matters shall be decided at any such meeting, a quorum being
present, by the affirmative votes of a majority of the directors present. A
meeting at which a quorum is initially present may continue to transact business
notwithstanding the
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withdrawal of directors, provided any action taken is approved by at least a
majority of the required quorum for such meeting. In the absence of a quorum, a
majority of directors present at any meeting may adjourn the same from time to
time until a quorum shall be present. Notice of any adjourned meeting need not
be given. The directors shall act only as a Board, and the individual directors
shall have no power as such. Notwithstanding the foregoing to the contrary, in
the event of the existence of two or more vacancies of the Board of Directors, a
minimum of two (2) directors shall constitute a quorum to transact any business
of the Board.
SECTION 3.10 Action by Consent. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if consent in writing is given thereto by all members of the
Board or of such committee, as the case may be, and such consent is filed with
the minutes of proceedings of the Board or of such committee.
SECTION 3.11 Compensation. Directors, whether or not employees of the
Corporation or any of its subsidiaries, may receive an annual fee for their
services as directors in an amount fixed by resolution of the Board plus other
compensation, including options to acquire capital stock of the Corporation, in
an amount and of a type fixed by resolution of the Board, and, in addition, a
fixed fee, with or without expenses of attendance, may be allowed by resolution
of the Board for attendance at each meeting, including each meeting of a
committee of the Board. Nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation therefor.
SECTION 3.12 Committees. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, including,
without limitation, an audit committee, a compensation committee and
stock-incentive committee. Each committee to consist of one or more of the
directors of the Corporation. Any such committee, to the extent provided in the
resolution of the Board and subject to any restrictions or limitations on the
delegation of power and authority imposed by applicable law, shall have and may
exercise all the powers and authority of the Board in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. Any such committee
shall keep written minutes of its meetings and report the same to the Board at
the next regular meeting of the Board. Unless the Board or these Bylaws shall
otherwise prescribe the manner of proceedings of any such committee, meetings of
such committee may be regularly scheduled in advance and may be called at any
time by the chairman of the committee or by any two members thereof, otherwise,
the provisions of these Bylaws with respect to notice and conduct of meetings of
the Board shall govern.
SECTION 3.13 Affiliated Transactions. Notwithstanding any other
provisions of these Bylaws, each transaction, or, if an individual transaction
constitutes a part of a series of transactions, each series of transactions,
proposed to be entered into between the Corporation, on the one hand, or any
person affiliated with Corporation, on the other hand, must be approved by a
majority of the independent directors.
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ARTICLE IV: OFFICERS
SECTION 4.1 Officers. The officers of the Corporation shall be a
Chairman, a Chief Executive Officer, a President, an Executive Vice President,
one or more Vice Presidents (the number thereof and their respective titles to
be determined by the Board), a Secretary, and such other officers as may be
appointed at the discretion of the Board in accordance with the provisions of
Section 4.3 hereof.
SECTION 4.2 Election. The officers of the Corporation, except such
officers as may be appointed or elected in accordance with the provisions of
Sections 4.3 or 4.5 hereof, shall be chosen annually by the Board at the first
meeting thereof after the annual meeting of stockholders, and each officer shall
hold office until such officer shall resign or shall be removed or otherwise
disqualified to serve, or until such officer's successor shall be elected and
qualified.
SECTION 4.3 Other Officers. In addition to the officers chosen annually
by the Board at its first meeting, the Board also may appoint or elect such
other officers as the business of the Corporation may require, each of whom
shall have such authority and perform such duties as are provided in these
Bylaws or as the Board may from time to time specify, and shall hold office
until such officer shall resign or shall be removed or otherwise disqualified to
serve, or until such officer's successor shall be elected and qualified.
SECTION 4.4 Removal and Resignation. Any officer may be removed, either
with or without cause, by resolution of the Board, at any regular or special
meeting of the Board, or except in case of an officer chosen by the Board, by
any officer upon whom such power of removal may be conferred by the Board. Any
officer or assistant may resign at any time by giving written notice of his
resignation to the Board or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or, if the time is
not specified, upon receipt thereof by the Board or the Secretary, as the case
may be; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 4.5 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular appointments to such office.
SECTION 4.6 Chairman of the Board. The Chairman of the Board shall
preside at all meetings of stockholders and at all meetings of the Board. The
Chairman shall exercise and perform such powers and duties with respect to the
business and affairs of the Corporation as may be assigned to the Chairman by
the Board or such other powers and duties as may be prescribed by the Board or
these Bylaws.
SECTION 4.7 Chief Executive Officer. The Chief Executive Officer shall
exercise and perform such powers and duties with respect to the administration
of the business and affairs of the Corporation as may from time to time be
assigned to the Chief Executive Officer by the
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Chairman of the Board or by the Board, or as may be prescribed by these Bylaws.
In the absence or disability of the Chairman of the Board, or in the event and
during the period of a vacancy in that office, the Chief Executive Officer shall
perform all the duties of the Chairman of the Board, and when so acting shall
have all of the powers of, and be subject to all the restrictions upon, the
Chairman of the Board of the Corporation.
SECTION 4.8 President. The President shall exercise and perform such
powers and duties with respect to the administration of the business and affairs
of the Corporation as may from time to time be assigned to the President by the
Chairman of the Board or by the Board, or as may be prescribed by these Bylaws.
In the absence or disability of the Chairman of the Board and the Chief
Executive Officer, or in the event and during the period of a vacancy in the
office of Chairman of the Board, the President shall perform all the duties of
the Chairman of the Board, and when so acting shall have all of the powers of,
and be subject to all the restrictions upon, the Chairman of the Board of the
Corporation.
SECTION 4.9 Vice Presidents. The Executive Vice President and each
other Vice President shall have such powers and perform such duties with respect
to the administration of the business and affairs of the Corporation as may from
time to time be assigned to such Vice President by the Chairman of the Board or
the Board, or the President or as may be prescribed by these Bylaws. In the
absence or disability of the Chairman of the Board, the Chief Executive Officer
and the President, the Executive Vice President, and to the extent the Executive
Vice President is unable to perform, the other Vice Presidents in order of their
rank as fixed by the Board, or if not ranked, the Vice President designated by
the Board, shall perform all of the duties of the Chairman of the Board, and
when so acting shall have all the powers of, and be subject to all the
restrictions upon, the Chairman of the Board.
SECTION 4.10 Secretary.
(A) The Secretary shall keep, or cause to be kept, at the principal
office of the Corporation or such other place as the Board may order, a book of
minutes of all meetings of directors and stockholders, with the time and place
of holding, whether regular or special, and if special, how authorized and the
notice thereof given, the names of those present at meetings of directors, the
number of shares present or represented at meetings of stockholders, and the
proceedings thereof
(B) The Secretary shall keep, or cause to be kept, at the principal
office of the Corporation's transfer agent, a share register, or a duplicate
share register, showing the name of each stockholder, the number of shares of
each class held by such stockholder, the number and date of certificates issued
for such shares, and the number and date of cancellation of every certificate
surrendered for cancellation.
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ARTICLE V: CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 5.1 Execution of Contracts. The Board, except as otherwise
provided in these Bylaws, may authorize any officer or officers, or agent or
agents, to enter into any contract or execute any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confined to
specific instances; and unless so authorized by the Board or by these Bylaws, no
officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
SECTION 5.2 Checks, Drafts, Etc. All checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness, issued in the name of
or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such officer, assistant, agent or attorney shall
give such bond, if any, as the Board may require.
SECTION 5.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may select, or
as may be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. For the purpose of deposit and for the purpose
of collection for the account of the Corporation, the Chairman of the Board, the
Chief Executive Officer, the President, the Executive Vice President (or any
other officer or officers, assistant or assistants, agent or agents, or attorney
or attorneys of the Corporation who shall from time to time be determined by the
Board) may endorse, assign and deliver checks, drafts and other orders for the
payment of money which are payable to the order of the Corporation.
SECTION 5.4 General and Special Bank Accounts. The Board may from time
to time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may select
or as may be selected by any officer or officers, assistant or assistants, agent
or agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
ARTICLE VI: SHARES AND THEIR TRANSFER
SECTION 6.1 Certificates for Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe, including without limitation a book
entry system, certifying the number and class or series of shares of the stock
of the Corporation owned by such owner. The certificates representing shares of
such stock shall be numbered in the order in which they shall be issued and
shall be signed in the name of the Corporation by the Chairman of the Board, the
Chief Executive Officer, the
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President or the Executive Vice President, and by the Secretary. Any or all of
the signatures on the certificates may be a facsimile. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any such certificate, shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, such certificate
may nevertheless be issued by the Corporation with the same effect as though the
person who signed such certificate, or whose facsimile signature shall have been
placed thereupon, were such an officer, transfer agent or registrar at the date
of issue. A record shall be kept of the respective names of the persons, firms
or corporations owning the stock represented by such certificates, the number
and class or series of shares represented by such certificates, respectively,
and the respective dates thereof, and in case of cancellation, the respective
dates of cancellation. Every certificate surrendered to the Corporation for
exchange or transfer shall be canceled, and no new certificate or certificates
shall be issued in exchange for any existing certificate until such existing
certificate shall have been so canceled, except in cases provided for in Section
6.4 hereof.
SECTION 6.2 Transfers of Stock. Transfers of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by such holder's attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary, or with a transfer clerk or
a transfer agent appointed as provided in Section 6.3 hereof, and upon surrender
of the certificate or certificates for such shares properly endorsed and the
payment of all taxes thereon. The person in whose name shares of stock stand on
the books of the Corporation shall be deemed the owner thereof for all purposes
as regards the Corporation. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, such fact shall be so expressed in the
entry of transfer if, when the certificate or certificates shall be presented to
the Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
SECTION 6.3 Regulations. The Board may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or officers to appoint,
one or more transfer clerks or one or more transfer agents and one or more
registrars, and may require all certificates for stock to bear the signature or
signatures of any of them.
SECTION 6.4 Lost, Stolen, Destroyed, and Mutilated Certificates. In any
case of loss, theft, destruction, or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft, destruction,
or mutilation and upon the giving of a bond of indemnity to the Corporation in
such form and in such sum as the Board may direct; provided, however, that a new
certificate may be issued without requiring any bond when, in the judgment of
the Board, it is proper so to do.
SECTION 6.5 Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any other
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change, conversion or exchange of stock or for the purpose of any other lawrial
action other than to consent to corporate action in writing without a meeting,
the Board may fix, in advance, a record date, which shall not be more than 60
nor less than 10 days before the date of such meeting, nor more than 60 days
prior to any such other action. If in any case involving the determination of
stockholders for any purpose other than notice of or voting at a meeting of
stockholders the Board shall not fix such a record date, then the record date
for determining stockholders for such purpose shall be the close of business on
the day on which the Board shall adopt the resolution relating thereto. A
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of such meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
ARTICLE VII: INDEMNIFICATION
SECTION7.1 Indemnification of Directors and Officers. The Corporation
shall indemnify, in the manner and to the fullest extent permitted by the
Delaware General Corporation Law (and in the case of any amendment thereto, to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), any person (or the estate
of any person) who is or was a party to, or is threatened to be made a party to,
any threatened, pending or completed action, suit or proceeding, whether or not
by or in the right of the Corporation, and whether civil, criminal,
administrative, investigative or otherwise, by reason of the fact that such
person is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise. The
Corporation may, to the fullest extent permitted by the Delaware General
Corporation Law, purchase and maintain insurance on behalf of any such person
against any liability which may be asserted against such person. The Corporation
may create a trust fund, grant a security interest or use other means (including
without limitation a letter of credit) to ensure the payment of such sums as may
become necessary to effect the indemnification as provided herein. To the
fullest extent permitted by the Delaware General Corporation Law, the
indemnification provided herein shall include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement and any such expenses
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
indemnitee to repay such amounts if it is ultimately determined that he or she
is not entitled to be indemnified. The indemnification provided herein shall not
be deemed to limit the right of the Corporation to indemnify any other person
for any such expenses to the fullest extent permitted by the Delaware General
Corporation Law, nor shall it be deemed exclusive of any other rights to which
any person seeking indemnification from the Corporation may be entitled under
any agreement, the Corporation's Certificate of Incorporation, vote of
stockholders or disinterested directors, or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
SECTION 7.2 Indemnification of Employees and Agents. The Corporation
may, but only to the extent that the Board of Directors may (but shall not be
obligated to) authorize from time to time, grant rights to indemnification and
to the advancement of expenses to any employee or
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agent of the Corporation to the fullest extent of the provisions of this Article
VII as they apply to the indemnification and advancement of expenses of
directors and officers of the Corporation.
SECTION 7.3 Enforcement of Indemnification. The rights to
indemnification and the advancement of expenses conferred above shall be
contract rights. If a claim under this ARTICLE VII is not paid in full by the
Corporation within 60 days after 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 20 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
expenses 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) 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 any applicable standard for indemnification set forth in
the Delaware Law. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or 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 General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or stockholders) that the indemnitee has
not met such applicable standard of conduct, shall create a presumption that the
indenmitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnltee, 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 thc 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.
ARTICLE VIII: MISCELLANEOUS
SECTION 8.1 Seal. The Board shall adopt a corporate seal, which shall
be in the form of a circle and shall bear the name of the Corporation and words
showing that the Corporation was incorporated in the State of Delaware.
SECTION 8.2 Waiver of Notices. Whenever notice is required to be given
by these Bylaws or the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or after
the time stated therein, and such waiver shall be deemed equivalent to notice.
SECTION 8.3 Amendments. Except as otherwise provided herein or in the
Certificate of Incorporation, these Bylaws or any of them may be altered,
amended, repealed or rescinded and
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new Bylaws may be adopted by affirmative vote of a majority of the Board or by
affirmative vote of a majority of the outstanding shares of the corporation's
voting stock at any annual or special meeting of stockholders, provided that
notice of such proposed alteration, amendment, repeal, recession or adoption is
given in the notice of such meeting.
SECTION 8.4 Representation of Other Corporations. The Chairman of the
Board, the Chief Executive Officer, the President, the Executive Vice President
or the Secretary or any Vice President of the Corporation is authorized to vote,
represent and exercise on behalf of the Corporation all rights incident to any
and all shares of any other corporation or corporations standing in the name of
the Corporation, other than a corporation of which the Corporation owns twenty
percent (20%) or more of its capital stock, in which case such officers shall
not be so authorized under these Bylaws without the authorization of the Board.
The authority herein granted to said officers to vote or represent on behalf of
the Corporation any and all shares held by the Corporation in any other
corporation or corporations may be exercised either by such officers in person
or by any person authorized so to do by proxy or power of attorney duly executed
by such officers.
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AMENDMENT TO BYLAWS
DATED AS OF OCTOBER 21, 1998
Section 3.2 of the Bylaws of MLC is amended to increase the number of directors
who constitute the Board of Directors from five (5) to six (6).
Section 3.9 of the Bylaws of MLC is amended to add the following to the end of
Section 3.9:
"Notwithstanding, the provisions set forth hereinabove, without the prior
consent of at least 65% of the members of the Board, the Corporation shall not,
and shall cause each of its subsidiaries not to:
(i) make any capital expenditures for purchases of property or equipment (other
than capital expenditures for property or equipment to be leased or sold in the
ordinary course of the Corporation's and its subsidiaries' businesses consistent
with past practice, including without limitation, with respect to the collection
of accounts receivable, purchases of inventory and supplies, repairs and
maintenance, payment of accounts payable and accrued expenses, levels of capital
expenditures, and operation of cash management practices generally (the
"Ordinary Course of Business")) which shall cause the Corporation's and its
subsidiaries expenditures for any fiscal year to exceed by more than 10% the
amount set forth for capital expenditures for purchases of property and
equipment (other than capital expenditures for property and equipment to be
leased or sold in the Ordinary Course of Business) in the Corporation's
operating budget for the then current year;
(ii) acquire (via stock purchase, asset purchase, merger, recapitalization,
share exchange, consolidation or other transaction) or make an investment in any
entity or permit any subsidiary of the Corporation to acquire (via stock
purchase, asset purchase, merger, recapitalization, share exchange,
consolidation or other transaction) or make an investment in any entity without
the consent of at least 65% of the Board so long as such transaction involves
consideration or has a value of less than $5,000,000; or (iii) except in the
Ordinary Course of Business, sell, lease or otherwise dispose of or permit any
subsidiary to sell, lease
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or otherwise dispose of, more than 20% of the consolidated assets of the
Corporation and its subsidiaries (computed on the basis of book value,
determined in accordance with generally accepted accounting principles
consistently applied, or fair market value, determined by the Board in its
reasonable good faith judgment) in any transaction or series of related
transactions."
Section 8.3 of the Bylaws of MLC is amended by adding the following
sentence to the end of such section:
"Notwithstanding the above, Section 3.9 and this sentence of this Section
8.3 of these Bylaws may only be amended, altered, rescinded or repealed upon the
affirmative vote of at least 65% of the members of the Board of Directors"
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Amendment to Bylaws
Dated as of October 19. 1999
The title of the Bylaws of MLC Holdings, Inc. is amended to change the name
of the corporation to ePlus Inc.
Section 1.1 of the Bylaws is also amended to change the name of the
corporation to ePlus Inc.
/s/Phillip G. Norton
--------------------
Phillip G. Norton,
President/CEO
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EXHIBIT 5
[ALSTON & BIRD LLP LETTERHEAD]
December 1, 1999
ePlus Inc.
400 Herndon Parkway
Suite B
Reston, Virginia 20170
Re: Registration Statement on Form S-8
1997 Employee Stock Purchase Plan
1998 Long-Term Incentive Plan, and
Shares issuable upon Exercise of Certain Employee Stock Options
Ladies and Gentlemen:
We have acted as counsel to ePlus Inc., a Delaware corporation (the
"Company"), in connection with the filing of the above-referenced Registration
Statement (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") to register under the Securities Act of 1933, as
amended (the "Securities Act"), 4,265,000 shares of the Company's Common Stock,
par value $.01 per share (the "Shares "), which may be issued upon the grant or
exercise of awards under the MLC Holdings, Inc. 1998 Long-Term Incentive Plan or
the MLC Holdings, Inc. 1997 Employee Stock Purchase Plan (the "Plans"), or which
may be issued by the Company upon exercise of stock options granted to certain
employees of the Company outside of any plan (the "Options"). This opinion
letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of
Regulation S-K.
We have examined the Certificate of Incorporation of the Company, as
amended, the By-Laws of the Company, as amended, records of proceedings of the
Board of Directors of the Company deemed by us to be relevant to this opinion
letter, the Plans, the form of stock option agreement pursuant to which the
Options were issued, and the Registration Statement. We also have made such
further legal and factual examinations and investigations as we deemed necessary
for purposes of expressing the opinion set forth herein.
As to certain factual matters relevant to this opinion letter, we have
relied upon certificates and statements of officers of the Company and
certificates of public officials. Except to the extent expressly set forth
herein, we have made no independent investigations with regard thereto, and,
accordingly, we do not express any opinion as to matters that might have been
disclosed by independent verification.
This opinion letter is provided to the Company and the Commission for their
use solely in connection with the transactions contemplated by the Registration
Statement and may not be used, circulated, quoted or otherwise relied upon by
any other person or by the Company or the Commission for any other purpose
without our express written consent. The only opinion rendered by us consists of
those matters set forth in the sixth paragraph hereof, and no opinion may be
implied or inferred beyond those expressly stated.
Our opinion set forth below is limited to the laws of the State of
Delaware, and we do not express any opinion herein concerning any other laws.
Based on the foregoing, it is our opinion that (i) the Shares to be issued
upon the grant or exercise of awards under the Plans, and (ii) the Shares to be
issued upon exercise of the Options are duly authorized and, when issued by the
Company in accordance with the terms of the Plan or the Options, as the case may
be, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission thereunder.
ALSTON & BIRD LLP
By: /s/ Laura G. Thatcher,Partner
-------------------------------
Laura G. Thatcher, Partner
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
ePlus Inc. (formerly MLC Holdings, Inc.) on Form S-8 of our report dated June
11, 1999, appearing in the Annual Report on Form 10-K of MLC Holdings, Inc., for
the year ended March 31, 1999.
/s/Deloitte & Touche LLP
- ------------------------
Deloitte & Touche LLP
McLean, VA
December 1, 1999
