Registration
No._________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Maxwell Laboratories, Inc.
(Exact name of issuer as specified in its charter)
Delaware 95-2390133
(State of Incorporation) (I.R.S. Employer Identification No.)
8888 Balboa Avenue
San Diego, California 90066
(Address of Principal Executive Offices including Zip Code)
Maxwell Laboratories, Inc.
Restricted Stock Incentive Plan
(Full Title of Plan)
Donald M. Roberts
General Counsel
Maxwell Laboratories, Inc.
8888 Balboa Avenue
San Diego, California 90066
(619) 279-5100
(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share (1) Price Fee
- ---------- ---------- --------- ---------- ------------
Common Stock,
$0.10 Par
Value 88,980 shs. $14.75 $1,312,455 $452.57
(1) Determined solely for the purpose of computing the registration fee
pursuant to Rule 457, based upon the average of the high and low price of
the registrant's Common Stock reported on NASDAQ on July 3, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents are incorporated by reference in the
registration statement:
(a) The registrant's latest annual report on Form 10-K or, if the
financial statements therein are more current, the registrant's
latest prospectus, other than the prospectus of which this
document is a part, filed pursuant to Rule 424(b) of the
Securities and Exchange Commission under the Securities Act of
1933.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the fiscal
year covered by the annual report on Form 10-K or the prospectus
referred to in (a) above;
(c) The description of the registrant's Common Stock which is
contained in the registrant's registration statement filed under
section 12 of the Securities Exchange Act of 1934, including any
amendment or reports filed for the purpose of updating such
descriptions.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to the registration statement
which indicates that all of the shares of common stock offered have been sold
or which deregisters all of such shares then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Section 145 of the General Corporation Law of Delaware authorizes
indemnification of directors, officers and employees of Delaware corporations
and authorizes the Board of Directors to have the registrant provide the cost
of defense, settlement or payment of any judgment against any such person under
certain circumstances. The registrant's charter documents provide for similar
indemnification of its directors, officers, employees and agents. The
registrant currently maintains policies of insurance under which the directors
and officers of registrant are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, and certain liabilities which might
be imposed as a result of such actions, suits or proceedings, to which they are
parties by reason of being or having been such directors or officers.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
The exhibits to the registration statement are listed in the Exhibit
Index elsewhere herein.
Item 9. Undertakings.
-------------
In connection with this Registration Statement on Form S-8, the
registrant hereby makes the following 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 the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement
is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) 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 the registration statement shall be
deemed to be a new registration statement relating to
the securities offered herein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to deliver
or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the
latest annual report to security holders that is
incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Securities Exchange
Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X
is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly
report that is specifically incorporated by reference
in the prospectus to provide such interim financial
information.
(h) 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 provisions described in Item
6, 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
The Registrant. 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 City of San Diego, State of California, on
the 25th day of June, 1996.
MAXWELL LABORATORIES, INC.
By: /s/Kenneth F. Potashner
------------------------
Kenneth F. Potashner,
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/Kenneth F. Potashner President and Chief June 25, 1996
- ----------------------- Executive Officer and Director
Kenneth F. Potashner
/s/Donn A. Starry Chairman of the Board, June 25, 1996
- ----------------------- and Director
Donn A. Starry
/s/Lewis J. Colby, Jr. Director June 25, 1996
- -----------------------
Lewis J. Colby, Jr.
/s/Adolphe G. Gueymard Director June 25, 1996
- -----------------------
Adolphe G. Gueymard
/s/Alan C. Kolb Director June 25, 1996
- -----------------------
Alan C. Kolb
Director and Secretary June , 1996
- -----------------------
Karl M. Samuelian
/s/John W. Weil Director June 25, 1996
- -----------------------
John W. Weil
/s/Thomas B. Hayward Director June 25, 1996
- -----------------------
Thomas B. Hayward
/s/Henry F. Owsley Director June 25, 1996
- -----------------------
Henry F. Owsley
/s/Gary J. Davidson Vice President- June 25, 1996
- ----------------------- Finance and Treasurer
Gary J. Davidson (Principal Financial and
Accounting Officer)
Index of Exhibits
-----------------
4.1. Restated Certificate of Incorporation of the Registrant - Exhibit 3.1 to
the Registrant's Form 10-K Annual Report for the year ended July 31,
1987 ("1987 Form 10-K) is incorporated by reference.
4.2. Bylaws of the Registrant as amended to date.
5. Opinion of Donald M. Roberts, General Counsel of Registrant.
23. Consent of Ernst & Young LLP, Independent Auditors
Exhibit 4.2
BYLAWS
OF
MAXWELL LABORATORIES, INC.
(A Delaware Corporation)
ARTICLE I
Offices
Section 1.01. REGISTERED OFFICE. The registered office of Maxwell
Laboratories, Inc. (the "Corporation") in the State of Delaware shall be at
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of
New Castle, and the name of the registered agent at that address shall be The
Corporation Trust Company.
Section 1.02. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of
the Corporation shall be located at such place within or outside of the State
of Delaware as the Board of Directors of the Corporation ("Board of Directors")
from time to time shall designate.
Section 1.03. 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 of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 2.01. ANNUAL MEETINGS. The annual meeting of stockholders of the
Corporation shall be held on the last Wednesday of November at 11:00 a.m. or on
such other date and at such other time as the Board of Directors shall
determined. At each annual meeting of stockholders, directors shall be elected
in accordance with the provisions of Section 3.03 hereof and any other proper
business may be transacted.
Section 2.02. SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called at any time by a majority of the Board of
Directors, by the Chairman of the Board, or by the President. Special meetings
may not be called by any other person or persons. Each special meeting shall
be held at such date and time as is requested by the person or persons calling
the meeting, within the limits fixed by law.
Section 2.03. PLACE OF MEETINGS. Each annual or special meeting of
stockholders shall be held at such location as may be determined by the Board
of Directors or, if no such determination is made, at such place as may be
determined by the Chairman of the Board. If no location is so determined, any
annual or special meeting shall be held at the principal executive office of
the Corporation.
Section 2.04. NOTICE OF MEETINGS. Written notice of each annual or special
meeting of stockholders stating the date and time when, and the place where, it
is to be held shall be delivered either personally or by mail to stockholders
entitled to vote at such meeting not less than ten (10) nor more than sixty
(60) days before the date of the meeting. The purpose or purposes for which
the meeting is called may, in the case of an annual meeting, and shall, in the
case of special meeting, also be stated. If mailed, such notice shall be
directed to a stockholder at his address as it shall appear on the stock books
of the Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address, in which case such notice shall be mailed to the address
designated in such request.
Section 2.05. CONDUCT OF MEETINGS. All annual and special meetings of
stockholders shall be conducted in accordance with such rules and procedures as
the Board of Directors may determine subject to the requirements of applicable
law and, as to matters not governed by such rules and procedures, as the
chairman of such meetings shall determine. The chairman of any annual or
special meeting of stockholders shall be the Chairman of the Board. The
Secretary, or in the absence of the Secretary, a person designated by the
Chairman of the Board, shall act as secretary of the meeting.
Section 2.06. QUORUM. At any meeting of stockholders, the presence, in
person or by proxy, of the holders of record of a majority of shares then
issued and outstanding and entitled to vote at the meeting shall constitute a
quorum for the transaction of business; provided, however, that this Section
2.06 shall not affect any different requirement which may exist under statute,
pursuant to the rights of any authorized class or series of stock, or under the
Certificate of Incorporation of the Corporation (the "Certificate") for the
vote necessary for the adoption of any measure governed thereby. In the
absence of a quorum, the stockholders present in person or by proxy, by
majority vote and without further notice, may adjourn the meeting from time to
time until a quorum is attained. At any reconvened meeting following such an
adjournment at which a quorum shall be present, any business may be transacted
which might have been transacted at the meeting as originally notified.
Section 2.07. VOTES REQUIRED. A majority of the votes cast at a duly called
meeting of stockholders, at which a quorum is present, shall be sufficient to
take or authorize action upon any matter which may properly come before the
meeting, unless the vote of a greater or different number thereof is required
by statute, by the rights of any authorized class or series of stock or by the
Certificate. Unless the Certificate or a resolution of the Board of Directors
adopted in connection with the issuance of shares of any class or series of
stock provides for a greater or lesser number of votes per share, or limits or
denies voting rights, each outstanding share of stock, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting
of stockholders.
Section 2.08. PROXIES. A stockholder may vote the shares owned of record by
him either in person or by proxy executed in writing (which shall include
writings sent by telex, telegraph, cable or facsimile transmission) by the
stockholder himself or by his duly authorized attorney-in-fact. No proxy shall
be valid after three (3) years from its date, unless the proxy provides for a
longer period. Each proxy shall be in writing, subscribed by the stockholder
or his duly authorized attorney-in-fact, and dated, but it need not be sealed,
witnessed or acknowledged.
Section 2.09. STOCKHOLDER ACTION. Any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual meeting or special meeting of stockholders of the Corporation, unless
such action requiring or permitting stockholder approval is approved by a
majority of the Disinterested Directors (as defined in the Certificate), in
which case such action may be authorized or taken by the written consent of the
holders of outstanding shares of stock having not less than the minimum voting
power that would be necessary to authorize or take such action at a meeting of
stockholders at which all shares entitled to vote thereon were present and
voted, provided all other requirements of applicable law and the Certificate
have been satisfied.
Section 2.10. LIST OF STOCKHOLDERS. The Secretary of the Corporation shall
prepare and make (or cause to be prepared and made), at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order and showing
the address of, and the number of shares registered in the name of, each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, 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. The list shall also be produced and kept at the time and place
of the meeting during the duration thereof, and may be inspected by any
stockholder who is present.
Section 2.11. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board of Directors may appoint Inspectors of Election to act
at such meeting or at any adjournment or adjournments thereof. If such
Inspectors are not so appointed or fail or refuse to act, the chairman of any
such meeting may (and, upon the demand of any stockholder or stockholder's
proxy, shall) make such an appointment.
The number of Inspectors of Election shall be one (1) or three (3). If there
are three (3) Inspectors of Election, the decision, act or certificate of a
majority shall be effective and shall represent the decision, act or
certificate of all. No such Inspector need be a stockholder of the
Corporation.
The Inspectors of Election shall determine the number of shares outstanding,
the voting power of each, the shares represented at the meeting, the existence
of a quorum and the authenticity, validity and effect of proxies; they shall
receive votes, ballots or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine when the polls shall close and
determine the result; and finally, they shall do such acts as may be proper to
conduct the election to vote with fairness to all stockholders. On request,
the Inspectors shall make a report in writing to the secretary of the meeting
concerning any challenge, question or other matter as may have been determined
by them and shall execute and deliver to such secretary a certificate of any
fact found by them.
ARTICLE III
Directors
Section 3.01. POWERS. The business and affairs of the Corporation shall be
managed by and be under the direction of the Board of Directors. The Board of
Directors shall exercise all the powers of the Corporation, except those that
are conferred upon or reserved to the stockholders by statute, the Certificate
of these Bylaws.
Section 3.02. NUMBER. The number of directors shall be fixed from time to
time by resolution of the Board of Directors but shall not be less than three
(3). The first Board of Directors and subsequent Boards of Directors shall
consist of three (3) directors until changed as herein provided.
Section 3.03. ELECTION AND TERM OF OFFICE OF DIRECTORS. Except as provided
in Section 3.06 hereof, directors shall be elected by the stockholders of the
Corporation. The Board of Directors shall be and is divided into three
classes, designated Class I, Class II and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors, with the term of office of the
directors of one class expiring each year. Each director shall serve for a
term ending on the date of the third annual meeting following the annual
meeting at which such director was elected, provided, however, that the
directors elected to Class I at the 1986 annual meeting of stockholders shall
serve for a term ending on the date of the annual meeting next following the
end of the calendar year 1986, and the directors elected to Class II at the
1986 annual meeting of stockholders shall serve for a term ending on the date
of the annual meeting next following the end of the calendar year 1987, and
the directors elected to Class III at the 1986 annual meeting of stockholders
shall serve for a term ending on the date of the annual meeting next following
the end of the calendar year 1988.
Notwithstanding the foregoing provisions of this Section 3.03, each director
shall serve until his successor is elected and qualified or until his death,
resignation or removal and no decrease in the authorized number of directors
shall shorten the term of any incumbent director.
Section 3.04. ELECTION OF CHAIRMAN OF THE BOARD. At the organizational
meeting immediately following the annual meeting of stockholders, the directors
shall elect a Chairman of the Board from among the directors who shall hold
office until the corresponding meeting of the Board of Directors in the next
year and until his successor shall have been elected or until his earlier
resignation or removal. Any vacancy in such office may be filled for the
unexpired portion of the term in the same manner by the Board of Directors at
any regular or special meeting.
Section 3.05. VACANCIES AND ADDITIONAL DIRECTORSHIPS. Newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Section 3.06. REGULAR AND SPECIAL MEETINGS. Regular meetings of the Board
of Directors shall be held at such place or places, on such date or dates, and
at such time or times as shall have been established by the Board of Directors
and publicized among all directors, except that a regular meeting shall be held
immediately following each annual meeting of shareholders for the purpose of
organization, election of officers and the transaction of other business. A
notice of each regular meeting shall not be required.
Special meetings of the Board of Directors shall be held upon call by or at
the direction of the Chairman of the Board, the President, any Vice President,
the Secretary or any two directors. Except as otherwise required by law,
notice of each special meeting shall be mailed to each director, addressed to
him at his residence or usual place of business, at least two days before the
day on which the meeting is to be held, or shall be sent to him at such place
by telex, telegram, cable, facsimile transmission or telephoned or delivered to
him personally, not later than the day before the day on which the meeting is
to be held. Such notice shall state the time and place of such meeting, but
need not state the purpose or purposes thereof, unless otherwise required by
law, the Certificate of these Bylaws.
Notice of any meeting need not be given to any director who shall attend
such meeting in person or who shall waive notice thereof, before or after such
meeting, in a signed writing.
Section 3.07. QUORUM. At all meetings of the Board of Directors, a majority
of the fixed number of directors shall constitute a quorum for the transaction
of business. In the absence of a quorum, the directors present, by majority
vote and without notice other than by announcement, may adjourn the meeting
from time to time until a quorum shall be present. At any reconvened meeting
following such an adjournment at which a quorum shall be present, any business
may be transacted which might have been transacted at the meeting as originally
notified.
Section 3.08. VOTES REQUIRED. Except as otherwise provided by applicable
law or by the Certificate, the vote of a majority of the directors present at
a meeting duly held at which a quorum is present shall be sufficient to pass
any measure.
Section 3.09. PLACE AND CONDUCT OF MEETINGS. Each regular meeting and
special meeting of the Board of Directors shall be held at a location
determined as follows: The Board of Directors may designate any place, within
or without the State of Delaware, for the holding of any meeting. If no such
designation is made: (i) any meeting called by a majority of the directors
shall be held at such location, within the county of the Corporation's
principal executive office, as the directors calling the meeting shall
designate; and (ii) any other meeting shall be held at such location, within
the county of the Corporation's principal executive office, as the Chairman of
the Board may designate or, in the absence of such designation, at the
Corporation's principal executive office. Subject to the requirements of
applicable law, all regular and special meetings of the Board of Directors
shall be conducted in accordance with such rules and procedures as the Board of
Directors may approve and, as to matters not governed by such rules and
procedures, as the chairman of such meeting shall determine. The chairman of
any regular or special meeting shall be the Chairman of the Board, or in his
absence a person designated by the Board of Directors. The Secretary, or in
the absence of the Secretary a person designated by the chairman of the
meeting, shall act as secretary of the meeting.
Section 3.10. FEES AND COMPENSATION. Directors shall be paid such
compensation as may be fixed from time to time by resolutions of the Board of
Directors (a) for their usual and contemplated services as directors, (b) for
their services as members of committees appointed by the Board of Directors,
including attendance at committee meetings as well as services which may be
required when committee members must consult with management staff, and (c)
for extraordinary services as directors or as members of committees appointed
by the Board of Directors, over and above those services for which compensation
is fixed pursuant to items (a) and (b) in this Section 3.10. Compensation may
be in the form of an annual retainer fee or a fee for attendance at meetings,
or both, or in such other form or on such basis as the resolutions of the Board
of Directors shall fix. Directors shall be reimbursed for all reasonable
expenses incurred by them in attending meetings of the Board of Directors and
committees appointed by the Board of Directors and in performing compensable
extraordinary services. Nothing contained herein shall be construed to
preclude any director from serving the Corporation in any other capacity,
such as an officer, agent, employee, consultant or otherwise, and receiving
compensation therefor.
Section 3.11. COMMITTEES OF THE BOARD OF DIRECTORS. Subject to the
requirements of applicable law, the Board of Directors may from time to time
establish committees, including an executive committee and other standing or
special committees, which shall have such duties and powers as are authorized
by these Bylaws or by the Board of Directors. Committee members, and the
chairman of each committee, shall be appointed by the Board of Directors. The
Chairman of the Board, in conjunction with the several committee chairman,
shall make recommendations to the Board of Directors for its final action
concerning members to be appointed to the several committees of the Board of
Directors. Any member of any committee may be removed at any time with or
without cause by the Board of Directors. Vacancies which occur on any
committee shall be filled by a resolution of the Board of Directors. If any
vacancy shall occur in any committee by reason of death, resignation,
disqualification, removal or otherwise, the remaining members of such
committee, so long as a quorum is present, may continue to act until such
vacancy is filled by the Board of Directors. The Board of Directors may, by
resolution, at any time deemed desirable, discontinue any standing or special
committee.
Section 3.12. MEETING OF COMMITTEES. Each committee of the Board of
Directors shall fix its own rules of procedure consistent with the provisions
of applicable law and of any resolutions of the Board of Directors governing
such committee. Each committee shall meet as provided by such rules or such
resolution of the Board of Directors, and shall also meet at the call of its
chairman of any two (2) members of such committee. Unless otherwise provided
by such rules or by such resolution, the provisions of these Bylaws under
Article III entitled "Directors" relating to the place of holding meetings
and the notice required for meetings of the Board of Directors shall govern
the place of holding meetings and notice of meetings for committees of the
Board of Directors. A majority of the members of each committee shall
constitute a quorum thereof. In the absence of a quorum, a majority of the
members present at the time and place of any meeting may adjourn the meeting
from time to time until a quorum shall be present and the meeting may be held
as adjourned without further notice of waiver. Except in cases where it is
otherwise provided by the rules of such committee or by a resolution of the
Board of Directors, the vote of a majority of the members present at a duly
constituted meeting at which a quorum is present shall be sufficient to pass
any measure by the committee.
Section 3.13. REMOVAL. Any director may be removed from office only as
provided in Article Tenth of the Certificate.
ARTICLE IV
(As Amended on the 22nd day of January 1996)
Officers
Section 4.01. DESIGNATION, ELECTION AND TERM OF OFFICE. The Corporation
shall have a Chairman of the Board, a Chief Executive Officer, a President,
and such Vice Presidents as the Board of Directors deems appropriate, a
Secretary and a Treasurer. Any number of offices may be held by the same
person. These officers shall be elected annually by the Board of Directors
at an organizational meeting immediately following the annual meeting of
stockholders, and each officer shall serve at the pleasure of the Board of
Directors, to hold office until the corresponding meeting of the Board of
Directors in the next year, and until his successor shall have been elected
and qualified, or until his earlier resignation, death or removal. Any
vacancy in any of the above offices may be filled for the unexpired portion
of the term by the Board of Directors at any regular or special meeting.
Section 4.02a. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
have the general powers and duties of management usually vested in the office
of the Chairman of the Board and shall, in addition, be the Chief Executive
Officer of the Corporation with all the powers and duties vested in the office
of the CEO as prescribed in Section 4.02b of this Article IV unless the Board
of Directors elects another individual to fill such office. He shall, if
present, preside at all meetings of the Board of Directors and at all meetings
of the stockholders and he shall be ex-officio a member of all standing
committees, if any, of the Board of Directors. The Chairman of the Board shall
have such other powers and duties as may be prescribed by the Board of
Directors or these Bylaws. Subject to such limitations as may be imposed by
the Board of Directors, any powers or duties vested in the Chairman of the
Board may be delegated by him to such subordinates as he may choose.
Section 4.02b. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
provide senior level executive leadership to the Corporation. He shall have
the general powers and duties of management usually vested in the office of
the Chief Executive of a corporation, and shall have in addition such other
powers and duties as may be prescribed by the Chairman of the Board or these
Bylaws. In the absence of the Chairman of the Board, he shall preside at all
meetings of the stockholders and at all meetings of the Board of Directors. He
shall be ex-officio a member of all standing committees, if any, of the Board
of Directors. Subject to such limitations as may be imposed by the Chairman,
any powers or duties vested in the Chief Executive Officer may be delegated
by him to such subordinates as he may choose. If there is no President, the
CEO shall, in addition, be the President of the Corporation and shall have
the powers and duties vested in the office of the President, as prescribed in
Section 4.03 of this Article IV.
Section 4.03. PRESIDENT. Subject to the control of the Chief Executive
Officer and to the general oversight powers of the Chairman, the President
shall provide general supervision, direction and control of the business and
operations of the Corporation. He shall have the general powers and duties of
management usually vested in the office of President of a corporation and shall
have, in addition, such other powers and duties as may be prescribed by the
CEO. Subject to such limitations as may be imposed by the CEO, any powers and
duties vested in the President may be delegated by him to such subordinates
as he may choose.
Section 4.04. VICE PRESIDENTS. Vice Presidents and Executive Vice
Presidents of the Corporation who are elected by the Board of Directors shall
perform such duties as may be assigned to them from time to time by the Board
of Directors, Chairman of the Board, President, or by these Bylaws.
Section 4.05. SECRETARY.
(a) The Secretary shall keep or cause to be kept, at the principal office
or such other place as the Board of Directors may order, a book of minutes of
all meetings of Directors and shareholders, with the time and place of
holding, whether regular or special, and, if special, how authorized, the
notice thereof given, the names of those present at Directors meetings, the
number of shares present or represented at shareholders meetings, and the
proceedings thereof.
(b) The Secretary shall keep, or cause to be kept, at the principal office
or at the office of the corporation's transfer agent, a share register, or a
duplicate share register, showing the names of the shareholders and their
addresses, the number and classes of shares held by each, the number and date
of certificates issued for the same, and the number and date of cancellation
of every certificate surrendered for cancellation.
(c) The Secretary shall give, or cause to be given notice of all the
meetings of the shareholders and of the Board of Directors required by the
Bylaws or Bylaw to be given, and he shall keep the seal of the corporation in
safe custody, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or by the Bylaws.
Section 4.06. TREASURER.
(a) The Treasurer shall keep and maintain, or cause to be kept and
maintained, adequate and correct accounts of the properties and business
transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of stated capital, shall be classified according to
source and shown in a separate account. The books of accounts shall at all
reasonable times be open to inspection by any director.
(b) The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the corporation with such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
corporation as may be ordered by the Board of Directors, whenever they request
it, an account of all of his transactions as Treasurer and of the financial
condition of the corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by the Bylaws.
Section 4.07. ASSISTANT OFFICERS. The Board of Directors may appoint or
may confer upon any officer or officers of the Corporation the power to
appoint such other officers as the business of the Corporation may require,
each of whom shall hold office for such period, have such authority and
perform such duties as are provided in these Bylaws or as the Board of
Directors may from time to time determine. If an assistant officer to any
officer shall be appointed, such assistant officer may exercise any of the
powers of his superior officer, as provided in these Bylaws or as authorized
by the Board of Directors, and shall perform such other duties as are imposed
upon him by these Bylaws or the Board of Directors.
Section 4.08. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors, to the Chairman of the Board, to
the President, or to the Secretary of the Corporation. Any such resignation
shall take effect at the time specified therein unless otherwise determined by
the Board of Directors. The acceptance of a resignation by the Corporation
shall not be necessary to make it effective.
Section 4.09. REMOVAL. Any officer of the Corporation may be removed, with
or without cause, by the affirmative vote of a majority of the entire Board
of Directors. Any assistant officer of the Corporation may be removed, with
or without cause, by the Chairman of the Board, the President or by the Board
of Directors.
ARTICLE V
Indemnification of Directors, Officers,
Employees and Other Corporate Agents
Section 5.01. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, or was a director, officer, employee or
agent of a foreign or domestic corporation which was a predecessor of the
Corporation or of another enterprise at the request of such predecessor
corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, 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 said law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue as to
a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Section 5.02 of this Article V,
the Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. The right to indemnification conferred in this Section
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action
of its Board of Directors, provide indemnification to employees and agents
of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers. This Article shall create a right
of indemnification for each such indemnifiable party whether or not the
proceeding to which the indemnification relates arose in whole or in part
prior to adoption of this Article (or the adoption of the comparable provisions
of the Bylaws of the Corporation's predecessor corporation).
Section 5.02. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section
5.01 is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall
be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the ]
failure of the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she 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 its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 5.03. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article V shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Certificate, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 5.04. 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 such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
ARTICLE VI
Stock
Section 6.01. CERTIFICATES. Except as otherwise provided by law, each
stockholder shall be entitled to a certificate or certificates which shall
represent and certify the number and class (and series, if appropriate) of
shares of stock owned by him in the Corporation. Each certificate shall be
signed in the name of the Corporation by the Chairman of the Board or the
President or a Vice President together with the Secretary, or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer. Any or all of the
signatures on any 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, it may be issued by the
Corporation with the same effect as if such person were an officer, transfer
agent or registrar at the date of issue.
Section 6.01. TRANSFER OF SHARES. Shares of stock shall be transferable on
the books of the Corporation only by the holder thereof, in person or by his
duly authorized attorney, upon the surrender of the certificate representing
the shares to be transferred, properly endorsed, to the Corporation's registrar
if the Corporation has a registrar. The Board of Directors shall have power
and authority to make such other rules and regulations concerning the issue,
transfer and registration of certificates of the Corporation's stock as it may
deem expedient.
Section 6.03. TRANSFER AGENTS AND REGISTRARS. The Corporation may have one
or more transfer agents and one or more registrars of its stock whose
respective duties the Board of Directors or the Secretary may, from time to
time, define. No certificate of stock shall be valid until countersigned by
a transfer agent, if the Corporation has a transfer agent, or until registered
by a registrar, if the Corporation has a registrar. The duties of transfer
agent and registrar may be combined.
Section 6.04. STOCK LEDGERS. Original or duplicate stock ledgers,
containing the names and addresses of the stockholders of the Corporation and
the number of shares of each class of stock held by them, shall be kept at the
principal executive office of the Corporation or at the office of its transfer
agent or registrar.
Section 6.05. RECORD DATES. The Board of Directors shall fix, in advance,
a date as the record date for the purpose of determining stockholders entitled
to notice of, or to vote at, any meeting of stockholders or any adjournment
thereof, or stockholders 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 change, conversion or exchange of stock, or in order to make
a determination of stockholders for any other proper purpose. Such date in any
case shall be not more than sixty (60) days, and in case of a meeting of
stockholders, not less than ten (10) days, prior to the date on which the
particular action requiring such determination of stockholders is to be taken.
Only those stockholders of record on the date so fixed shall be entitled to
any of the foregoing rights, notwithstanding the transfer of any such stock on
the books of the Corporation after any such record date fixed by the Board of
Directors.
Section 6.06. NEW CERTIFICATES. In case any certificate of stock is lost,
stolen, mutilated or destroyed, the Board of Directors may authorize the
issuance of a new certificate in place thereof upon such terms and conditions
as it may deem advisable; or the Board of Directors may delegate such power
to any officer or officers or agents of the Corporation; but the Board of
Directors or such officer or officers or agents, in their discretion, may
refuse to issue such a new certificate unless the Corporation is ordered to
do so by a court of competent jurisdiction.
ARTICLE VII
Sundry Provisions
Section 7.01. FISCAL YEAR. The fiscal year of the corporation shall end
on the 31st day of July of each year.
Section 7.02. SEAL. The Board of Directors may provide a suitable seal,
bearing the name of the Corporation, which seal shall be in the charge of the
Secretary of the Corporation.
Section 7.03. VOTING OF STOCK IN OTHER CORPORATIONS. Any shares of stock in
other corporations or associations, which may from time to time be held by the
Corporation, may be represented and voted at any of the stockholders' meetings
thereof by the Chairman of the Board or his designee. The Board of Directors,
however, may by resolution appoint some other person or persons to vote such
shares, in which case such person or persons shall be entitled to vote such
shares upon the production of a certified copy of such resolution.
Section 7.04. AMENDMENTS. New bylaws may be adopted or these bylaws may be
amended or repealed by the vote or written consent of shareholders entitled to
exercise a majority of the voting power of the corporation, except as otherwise
provided by law or by the Certificate. Subject to the rights of the
shareholders as provided in this Section to adopt, amend or repeal bylaws,
bylaws may be adopted, amended or repealed by the board of directors. Whenever
an amendment or new bylaw is adopted it shall be copied in the original bylaws
in the appropriate place. If any bylaw is repealed, the fact of repeal and
the date of the meeting at which the repeal was enacted or the date the written
consent was effective shall be stated in the original bylaws.
Exhibit 5
June 10, 1996
To the Board of Directors of
Maxwell Laboratories, Inc.
Re: Form S-8 Registration Statement covering
Restricted Stock Incentive Plan; Listing of Underlying Shares
Gentlemen:
This opinion is rendered to you in connection with the registration
under the Securities Act of 1933, as amended (the "Act"), and the listing for
trading on the NASDAQ national market system, of 88,980 shares of the
Company's $.10 par value Common Stock ("Common Stock") authorized for issuance
under the Maxwell Laboratories, Inc. Restricted Stock Incentive Plan (the
"Plan").
In rendering this opinion, I have examined and relied upon, among other
things, originals or copies, identified to my satisfaction as being true
copies, of the following: Certificate of Incorporation of the Company, as
amended to date; Bylaws of the Company, as amended to date; and corporate
records and other instruments and documents as were deemed necessary or
appropriate for purposes of this opinion. As to questions of fact material to
this opinion, I have, when the relevant facts were not independently
established by me, relied upon the documents I have examined or upon
certificates of officers of the Company. In my examination of the documents
referred to above, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity
with the originals of all documents submitted to me as copies.
I have investigated such questions of law for the purpose of rendering
this opinion as I have deemed necessary. I am an attorney duly admitted and
qualified to practice in the State of California and I express no opinion as
to the laws of any other jurisdiction except Delaware corporate law and
United States federal law.
On the basis of the foregoing, and in reliance thereon, I am of the
opinion that the 88,980 shares of Common Stock reserved for issuance under
the Plan have been duly and validly authorized for issuance, and said shares,
upon issuance pursuant to the provisions of the Plan, including forfeiture
restrictions in the event of early termination of employment, will be validly
issued, fully paid and nonassessable.
<PAGE>
To the Board of Directors of
Maxwell Laboratories, Inc.
June 10, 1996
I hereby consent to the inclusion of this opinion as an Exhibit to the
Form S-8 Registration Statement covering the shares of Common Stock issuable
pursuant to the terms of the Plan.
This opinion is intended solely for your use in connection with the
registration under the Act of shares under the Plan and the listing of such
shares with appropriate stock trading organizations, and this opinion may not
be relied upon by any other party or for any other purpose.
Very truly yours,
/s/ Donald M. Roberts
Donald M. Roberts
General Counsel
DMR/lp
EXHIBIT 23
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Maxwell Laboratories, Inc. Restricted
Stock Incentive Plan of our report dated September 28, 1995, with respect to
the consolidated financial statements of Maxwell Laboratories, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
July 31, 1995, filed with the Securities and Exchange Commission.
/s/Ernst & Young
ERNST & YOUNG LLP
San Diego, California
July 8, 1996
