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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A-1
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(Mark One)
[X] Amendment to
Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 29, 1996
OR
[ ] Transition Report to Section 13 or 15(d) of the
Securities Exchange Act of 1934
COMMISSION FILE NO. 0-11007
EMULEX CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 51-0300558
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3535 HARBOR BOULEVARD 92626
COSTA MESA, CALIFORNIA (Zip Code)
(Address of principal executive offices)
(714) 662-5600
(Registrant's telephone number, including area code)
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Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
---- ----
As of November 7, 1996, the registrant had 6,033,210 shares of common stock
outstanding.
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PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES.
(a) Registrant's By-laws were amended on August 22, 1996 by the Board of
Directors. Section 3 of Article II of the By-laws was amended to provide that
special meetings of stockholders may be called at any time by the Board, the
Chairman of the Board or the President of the corporation, and no longer by the
holders of shares entitled to cast not less than ten percent of the votes at
such special meeting. Section 14 of Article II was added providing that at an
annual or special meeting of the stockholders, only such business shall be
conducted as is properly brought before the meeting, and specifying the
requirements for properly bringing business before any such meeting. Section 18
of Article III was added stating that only those persons nominated in accordance
with provisions set forth in the section are eligible for election as Directors,
and setting out the required provisions for such nomination.
Registrant's By-laws were amended on November 21, 1996 by the Board of
Directors. Section 2 of Article III was amended to change the exact number of
Directors to five (5).
By-law amendments affect the rights of holders of the Registrant's Common Stock
and Series A Junior Participating Preferred Stock.
The amended and Restated By-laws are filed as Exhibit 3.1 and are incorporated
herein by reference.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibit 3.1 Amended and Restated By-laws
Exhibit 27.1 Financial Data Schedule (previously filed as Exhibit 27.1 to
Form 10-Q for the quarterly period ended September 29, 1996)
(b) The Registrant has not filed any reports on Form 8-K during the period for
which this report is filed.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: December 20, 1996
EMULEX CORPORATION
By: /s/ Paul F. Folino
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Paul F. Folino
President and Chief Executive Officer
By: /s/ Walter J. McBride
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Walter J. McBride
Sr. Vice President & Chief
Financial Officer
(Principal Financial & Chief
Accounting Officer)
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EXHIBIT 3.1
* * * * *
B Y - L A W S
OF
EMULEX CORPORATION
AS AMENDED AND RESTATED
November 21, 1996
* * * * *
ARTICLE I. OFFICES
Section 1. Registered Office. The registered office shall be at 1209 Orange
Street, City of Wilmington, County of New Castle, State of Delaware, and the
name of the registered agent in charge thereof shall be The Corporation Trust
Company.
Section 2. Principal Office. The principal office of the corporation is hereby
fixed at 3535 Harbor Boulevard, Costa Mesa, California 92626. The Board of
Directors (herein called the "Board") is hereby granted full power and authority
to change said principal office from one location to another. Any such change
shall be noted on the by-laws opposite this Section, or this Section may be
amended to state the new location.
Section 3. Other Offices. The corporation may also have offices at such other
places both within and without the State of Delaware as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II. STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders shall be held at such
places, within or without the State of Delaware, as may be designated from time
to time by the person or persons calling the respective meeting and specified in
the respective notices or waivers of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders for the purpose of
electing directors and for the transaction of such proper business as may come
before such meetings shall be held on the third Wednesday of November of each
year if not a legal holiday, and if a legal holiday, then on the next secular
day following, at 2:00 p.m., local time, or at such other date and time as shall
be designated from time to time by the Board and stated in the notice of the
meeting.
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Section 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called at any time by the Board, the
Chairman of the Board or the President. Upon request in writing to the Chairman
of the Board, the President, any Vice President or to the Secretary by any
person (other than the Board) entitled to call a special meeting of the
stockholders, the officer forthwith shall cause notice to be given to the
stockholders entitled to vote that a meeting will be held at a time requested by
the person or persons calling the meeting, not less than 35 nor more than 60
days after receipt of the request. If the notice is not given within 20 days
after receipt of the request, the persons entitled to call the meeting may give
the notice. Such request shall state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 4. Notice of Meeting. Except as otherwise required by law, written
notice of each meeting of the stockholders, whether annual or special, shall be
given to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of the meeting. Such notice shall state the
place, date, and hour of the meeting and (a) in the case of a special meeting
the general nature of the business to be transacted, and no other business may
be transacted, or (b) in the case of the annual meeting those matters which the
Board, at the time of the mailing of the notice, intends to present for action
by the stockholders, but subject to the provisions of applicable law, any proper
matter may be presented at the meeting for such actions. The notice of any
meeting at which directors are to be elected shall include the names of nominees
intended at the time of the notice to be presented by management for election.
Notice of a stockholders' meeting shall be given either personally
or by first-class mail, or by other means of written communication, addressed to
the stockholder at the address of such stockholder appearing on the records of
the corporation or given by the stockholder to the corporation for the purpose
of notice. Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient.
Section 5. Quorum. The holders of a majority of the shares of stock entitled to
vote at any meeting of the stockholders of the corporation, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
thereat or any adjournment thereof, except as otherwise provided by statute or
by the certificate of incorporation. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a
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notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 6. Voting.
(a) The stockholders entitled to notice of any meeting or to vote at
any such meeting shall be only persons in whose name shares stand on the stock
records of the corporation on the record date determined in accordance with
Section 7 of this Article.
(b) Shares of its own stock belonging to the corporation or to
another corporation, if a 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 be 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 proxy of the pledgee, 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 in
common, tenants by 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.
(c) Any such voting rights may be exercised by the stockholder
entitled thereto in person or by the stockholder's proxy appointed by an
instrument in writing in accordance with Section 10 of this Article. 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 the stockholder
shall in writing so notify the Secretary of the meeting prior to the voting of
the proxy.
(d) At any meeting of the stockholders all matters, except as
otherwise provided in the certificate of incorporation, in these by-laws 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, a quorum being present. The vote at any meeting of the 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 his proxy, if there be such proxy, and it shall state the number
of shares voted.
Section 7. Record Date. The Board may fix, in advance, a record date for the
determination of the stockholders entitled to notice of any meeting or to vote
or entitled to receive payment of any dividend or other distribution, or any
allotment of rights, or to exercise rights in respect of any other lawful
action. The record date so fixed shall be not more than 60 nor less than 10 days
prior to the date of the meeting nor more than 60 days prior to any other
action. When a record date is so fixed, only stockholders of record on that date
are entitled to notice of and to vote at the meeting or to receive the dividend,
distribution,
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or allotment of rights, or to exercise of the rights, as the case may be,
notwithstanding any transfer of shares on the books of the corporation after the
record date. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting unless the Board fixes a new record date for the adjourned meeting.
If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. The record date for
determining stockholders for any purpose other than set forth in this Section 7
of this Article shall be at the close of business on the day an which the Board
adopts the resolution relating thereto, or the sixtieth day prior to the date of
such other action, whichever is later.
Section 8. Consent of Absentees. The transaction of any meeting of
stockholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice, or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents, or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a person at a meeting shall constitute a
waiver of notice of and presence at such meeting, except when the person
objects, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened and except that
attendance at a meeting is not a waiver of any right to object to the
consideration of matters required by the Delaware General Corporation law to be
included in the notice but not so included, if such objection is expressly made
at the meeting. Neither the business to be transacted at nor the purpose of any
regular or special meeting of stockholders need be specified in any written
waiver of notice, except as may be provided in the Delaware General Corporation
Law.
Section 9. Action without Meeting. Any action which may be taken at any annual
or special meeting of stockholders may be taken without a meeting and without
prior notice if a consent in writing, setting forth the action so taken, shall
be signed by the holders of outstanding shares 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.
Unless a record date for voting purposes be fixed as provided in Section 7 of
this Article, the record date for determining stockholders entitled to give
consent pursuant to this Section 9, when no prior action by the Board has been
taken, shall be the day on which the first written consent is given.
Section 10. Proxies. Every person entitled to vote shares has the right to do
so either in person or by one or more persons authorized by a written proxy
executed by such stockholder and filed with the Secretary. Any proxy duly
executed is not revoked and continues in full
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force and effect until revoked by the person executing it prior to the vote
pursuant thereto by a writing delivered to the corporation stating that the
proxy is revoked or by a subsequent proxy executed by the person executing the
prior proxy and presented to the meeting, or as to any meeting by attendance at
such meeting and voting in person by the person executing the proxy; provided,
however, that no proxy shall be valid after the expiration of 11 months from the
date of its execution unless otherwise provided in the proxy.
Section 11. Inspectors of Election. In advance of any meeting of stockholders,
the Board may appoint any persons, other than nominees for office, as inspectors
of elections to act at such meetings and any adjournment thereof. If inspectors
of elections be not so appointed or if any person so appointed fail to appear or
refuse to act, the chairman of any such meeting may, and on the request of any
stockholder or stockholder's proxy shall make such appointment at the meeting.
The number of inspectors shall be either one or three. If appointed at a meeting
on the request of one or more stockholders or proxies, the majority of shares
present shall determine whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by the Board
and shall include determining the number of shares outstanding and the voting
power of each; the shares represented at the meeting, the existence of a quorum;
the authenticity, validity, and effect of proxies; receiving votes, ballots, or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
or consents, determining when the polls shall close; determining the result; and
doing such acts as may be proper to conduct the election or vote with fairness
to all stockholders. If there are three inspectors of election, the decision,
act, or certificate of a majority is effective in all respects as the decision,
act, or certificate of all.
Section 12. Conduct of Meeting. The Chairman of the Board shall preside as
chairman at all meetings of the stockholders. The chairman shall conduct each
such meeting in a businesslike and fair manner, but shall not be obligated to
follow any technical, formal, or parliamentary rules or principles of procedure.
The chairman's rulings on procedural matters shall be conclusive and binding on
all stockholders, unless at the time of a ruling a request for a vote is made to
the stockholders entitled to vote and represented in person or by proxy at the
meeting, in which case the decision of a majority of such shares shall be
conclusive and binding on all stockholders. Without limiting the generality of
the foregoing, the chairman shall have all of the powers usually vested in the
chairman of a meeting of stockholders.
Section 13. Preparation of Stockholder List. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten 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
each stockholder 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 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
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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 whole time
thereof, and may be inspected by any stockholder who is present.
Section 14. Stockholder Proposals at Meetings of the Stockholders.
(a) At an annual or special meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before a stockholders' annual or special
meeting, business must be (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board; (ii) otherwise
properly brought before the meeting by or at the direction of the Board; or
(iii) otherwise properly brought before the meeting by a stockholder. In
addition to any other applicable requirements, and subject to any limitations on
business which may be proposed or transacted at such meeting, including the
provisions of Article II, Section 3 of these By-laws, for business to be
properly brought before an annual or special meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the corporation. To be timely with respect to an annual meeting, a stockholder's
notice must be received at the principal executive office of the corporation not
less than sixty (60) days nor more than ninety (90) days prior to the date of
such annual meeting; provided, however, that in the event that the first public
disclosure (whether by mailing of a notice to stockholders or to the Nasdaq
National Market, by press release or otherwise) of the date of the annual
meeting is made less than seventy (70) days prior to the date of the meeting,
notice by the stockholder will be timely received not later than the close of
business on the tenth (10th) day following the day on which such public
disclosure was first made. To be timely with respect to a special meeting, a
stockholder's notice must be received at the principal executive office of the
corporation not later than the close of business on the tenth (10th) day
following the day on which the first public disclosure (whether by mailing of a
notice to stockholders or the Nasdaq National Market, by press release or
otherwise) of the date of the special meeting is made.
(b) A stockholder's notice to the Secretary shall set forth, as to
each matter the stockholder proposes to bring before the annual or special
meeting: (i) a reasonably detailed description of any proposal to be made at
such meeting; (ii) the name and address, as they appear on the corporation's
stock register, of the stockholder proposing such business; (iii) the class and
number of shares of capital stock of the corporation which are beneficially
owned by the stockholder; (iv) any material interest of the stockholder in such
business; and (v) such other information relating to the stockholder or the
proposal as is required to be disclosed under the rules of the Securities and
Exchange Commission governing the solicitation of proxies whether or not such
proxies are in fact solicited by the stockholder. Notwithstanding anything in
these By-laws to the contrary, no business shall be conducted at an annual or
special stockholders' meeting except in accordance with the procedures set forth
in this Section 14; provided, however, that nothing in this Section 14 shall be
deemed to preclude discussion by any stockholder of any business properly
brought before the annual or special meeting in accordance with said procedures.
The chairman of an annual or special
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meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
provisions of this Section 14, and if he should so determine, any such business
not properly brought before the meeting shall not be transacted.
ARTICLE III. DIRECTORS
Section 1. Powers. Subject to limitations of the certificate of incorporation
or these by-laws, and the Delaware General Corporation Law relating to action
required to be approved by the stockholders or by the outstanding shares, the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board. The Board may
delegate the management of the day-to-day operation of the business of the
corporation to a management company or other person provided that the business
and affairs of the corporation shall be managed and all corporate powers shall
be exercised under the ultimate direction of the Board. Without prejudice to
such general powers, but subject to the same limitations, it is hereby expressly
declared that the Board shall have the following powers in addition to the other
powers enumerated in these by-laws:
(a) To select and remove all the other officers, agents, and
employees of the corporation, prescribe the powers and duties for them as may
not be inconsistent with law, or with the certificate of incorporation or these
by-laws, fix their compensation, and require 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, or with the certificate of incorporation or these by-laws, as they may
deem best.
(c) To adopt, make, and use a corporate seal, and to prescribe the
forms of certificates of stock, and to alter the form of such seal and of such
certificates from time to time as in their judgement they may deem best.
(d) To authorize the issuance of shares of stock of the corporation
from time to time, upon such terms and for such consideration 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, bond, debentures, deeds of trust, mortgages,
pledges, hypothecations, or other evidences of debt and securities therefor.
Section 2. Number of Directors. The number of directors which shall constitute
the whole Board shall be not less than four (4) nor more than seven (7) until
changed by a by-law duly adopted by the stockholders or by the Board. The exact
number of directors shall be fixed, within the limits specified in the by-laws,
by a by-law or amendment thereof duly adopted by the stockholders or by the
Board. The exact number of directors shall be five (5)
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until changed as provided in the preceding sentence of this Section 2. Directors
need not be stockholders.
Section 3. Vacancies. Any director may resign effective upon giving written
notice to the Chairman of the Board, the President, Secretary, or the Board,
unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective. Vacancies and
newly created directorships resulting from any increase in the authorized number
of directors may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and the directors so chosen
shall hold office until the next annual election and until their successors are
duly elected and shall qualify, unless sooner displaced. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute.
A vacancy or vacancies in the Board shall be deemed to exist in case
of the death, resignation, or removal of any director, or if the authorized
number of directors be increased, or if the stockholders fail, at any annual or
special meeting of stockholders at which any director or directors are elected,
to elect the full authorized number of directors to be voted for at that
meeting.
The stockholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors. Any such election by
written consent other than to fill a vacancy created by removal requires the
consent of a majority of the outstanding shares entitled to vote. If the Board
accepts the resignation of a director tendered to take effect at a future time,
the Board or the stockholders shall have the power to elect a successor to take
office when the resignation is to become effective.
No reduction of the authorized number of directors shall have the
effect of removing any directors prior to the expiration of the director's term
of office.
Section 4. Election and Term of Office. The directors shall be elected at each
annual meeting of stockholders but if any such annual meeting is not held or the
directors are not elected thereat, the directors may be elected at any special
meeting of stockholders held for that purpose. Each director shall hold office
until expiration of the term for which elected and until a successor has been
elected and qualified or until any such director is removed or resigns. The
persons receiving the greatest number of votes, up to the number of directors to
be elected, shall be the directors.
Section 5. Place of Meeting. Regular or special meetings of the Board shall be
held at any place within or without the State of Delaware which has been
designated from time to time by the Board. In the absence of such designation
regular meetings shall be held at the principal office of the corporation.
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Section 6. Regular Meetings Immediately following each annual meeting of
stockholders the Board shall hold a regular meeting without call or notice for
the purpose of organization, election of officers, and the transaction of other
business.
Other regular meetings of the Board shall be held as specified by
the Board.
Section 7. Special Meetings. Special meetings of the Board for any purpose or
purposes may be called at any time by the Chairman of the Board, the President,
or the Secretary or by any two directors.
Special meetings of the Board shall be held upon not less than four
days' written notice or not less than 48 hours' notice given personally or by
telephone, telegraph, telex, or other similar means of communication. Any such
notice shall be addressed or delivered to each director at such director's
address as it is shown upon the records of the corporation or as may have been
given to the corporation by the director for the purposes of notice or, if such
address is not shown on such records or is not readily ascertainable, at the
place in which the meetings of the directors are regularly held.
Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless, to
the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient.
Section 8. Quorum. Except as may be otherwise specifically provided in these
by-laws by statute or by the certificate of incorporation, at all meetings of
the Board a majority of the authorized number of directors shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for such
meetings.
Section 9. Action by Consent. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the Board or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 10. Participation in Meetings by Conference Telephone. Unless otherwise
restricted by the certificate of incorporation or these by-laws, members of the
Board, or any
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committee designated by the Board, may participate in a meeting, of the Board,
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
Section 11. Waiver of Notice. Notice of a meeting need not be given to any
director who signs a waiver of notice or a consent to holding the meeting or an
approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director. All such waivers, consents, and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 12. Adjournment. A majority of the directors present, whether or not a
quorum is present, may adjourn any directors' meeting to another time and place.
If the meeting is adjourned for more than 24 hours, notice of any adjournment to
another time or place shall be given prior to the time of the adjourned meeting
to the directors who were not present at the time of the adjournment.
Section 13. Fees and Compensation. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by the Board; provided that nothing
herein contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
Section 14. Rights of Inspection. Every director shall have the absolute right
at any reasonable time to inspect and copy all books, records, and documents of
every kind and to inspect the physical properties of the corporation and also of
its subsidiary corporations, domestic or foreign. Such inspection by a director
may be made in person or by agent or attorney and includes the right to copy and
obtain extracts.
Section 15. Committees. The Board may appoint one or more committees, each
consisting of two or more directors, and delegate to such committees any of the
authority of the Board except with respect to:
(a) The approval of any action for which the Delaware General
Corporation Law also requires stockholders' approval or approval of the
outstanding shares;
(b) The filling of vacancies on the Board or on any committee;
(c) The fixing of compensation of the directors for serving on the
Board or on any committee;
(d) The amendment or repeal of by-laws or the adoption of new
by-laws;
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(e) The amendment or repeal of any resolution of the Board which by
its express terms is not so amendable or repealable;
(f) A distribution to the stockholders of the corporation except at
a rate or in a periodic amount or within a price range determined by the Board.
(g) The appointment of other committees of the Board or the members
thereof.
Any such committee must be appointed by resolution adopted by a
majority of the authorized number of directors and may be designated an
Executive Committee or by such other name as the Board shall specify. The Board
may designate one or more directors as alternate members of any committee, who
may replace any absent member at any meeting of the committee. The appointment
of members or alternate members of a committee requires the vote of a majority
of the authorized number of directors. The Board shall have the power to
prescribe the manner in which proceedings or any such committee shall be
conducted. In the absence of any such prescription, such committee shall have
the power to prescribe the manner in which its proceedings shall be conducted.
Unless the Board or such committee shall provide, the regular and special
meetings of any such committe shall be governed by the provisions of this
Article applicable to meetings and actions of the Board. Minutes shall be kept
of each meeting of each committee.
Section 16. Removal of Directors. Unless otherwise restricted by the certificate
of incorporation or by law, any director or the entire Board may be removed at
any time, with or without cause, by the affirmative vote of the stockholders
having a majority of the voting power of the corporation.
Section 17. Chairman of the Board. The board shall elect one of the directors as
the chairman of the board who shall preside at all meetings of the Board and all
meetings of stockholders and exercise and perform such other powers and duties
as may be from time to time assigned by the Board.
Section 18. Notice of Stockholder Nominees.
(a) Only persons who are nominated in accordance with the procedures
set forth in this Section 18 shall be eligible for election as Directors.
Nominations of persons for election to the Board of Directors of the corporation
may be made at a meeting of stockholders by or at the direction of the Board of
Directors or by any stockholder of the corporation entitled to vote for the
election of Directors at the meeting who complies with the notice procedures set
forth in this Section 18. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the corporation not less than sixty (60) days nor more than ninety
(90) days prior to the date of the meeting; provided, however, that
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in the event that the first public disclosure (whether by mailing of a notice to
stockholders or to the Nasdaq National Market, by press release or otherwise) of
the date of the meeting is made less than seventy (70) days prior to the date of
the meeting, notice by the stockholder will be timely received not later than
the close of business on the tenth (10th) day following the day on which such
public disclosure was first made.
(b) A stockholder's notice to the Secretary shall set forth (a) as
to each person whom the stockholder proposes to nominate for election or
re-election as a Director, (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of the corporation which are
beneficially owned by such person and (iv) any other information relating to
such person that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
without limitation such persons' written consent to being named in the proxy
statement as a nominee and to serving as a Director if elected); and (b) as to
the stockholder giving notice, (i) the name and address, as they appear on the
corporation's books, of such stockholder, and (ii) the class and number of
shares of the corporation which are beneficially owned by such stockholder. At
the request of the Board of Directors any person nominated for election as a
Director shall furnish to the Secretary of the corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee and such other information as may reasonably be required by the
corporation to determine the eligibility for election as a Director of 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 18. The Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the By-laws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
ARTICLE IV. OFFICERS
Section 1. Officers. The officers of the corporation shall be a president, a
chief financial officer, and a secretary. The corporation may also have, at the
discretion of the Board, one or more vice presidents, a treasurer, one or more
assistant treasurers, one or more assistant secretaries, and such other officers
as may be elected or appointed in accordance with the provisions of Section 3 of
this Article.
Section 2. Election. The officers of the corporation, except such officers as
may be elected or appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be chosen annually by, and shall serve at the
pleasure of, the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected.
Section 3. Subordinate Officers. The Board may elect, and may empower the
President to appoint, such other officers and agents as it or he shall deem
necessary who shall
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hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board.
Section 4. Compensation. The compensation of all officers and agents of the
corporation shall be fixed from time to time by the Board. No officer shall be
prevented from receiving such compensation by reason of the fact that the
officer is also a director of the corporation. Nothing contained herein shall
preclude any officer from serving the corporation, or any subsidiary
corporation, in any other capacity and receiving compensation therefor.
Section 5. Election, Removal, Resignation, and Vacancies. The officers of the
corporation shall hold office until their successors are chosen and qualify or
until any such officer is removed or resigns. Any officer may be removed, either
with or without cause, by the Board at any time, or, except in the case of an
officer chosen by the Board, by any officer upon whom such power of removal may
be conferred by the Board. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
A vacancy in any office because of death, resignation, removal,
disqualification, or any other cause shall be filled in the manner prescribed in
these by-laws for regular election or appointment to such office.
Section 6. Chairman of the Board. The Chairman of the Board shall, if present,
preside at all meetings of the Board and exercise and perform such other powers
and duties as may be from time to time assigned by the Board.
Section 7. President. The president is the chief executive officer of the
corporation and has, subject to the control of the Board, general supervision,
director, and control of the operations and officers of the corporation. The
president has the general powers and duties of management usually vested in the
office of the president and chief executive officer of a corporation and such
other powers and duties as may be prescribed by the Board. In the absence of the
chairman of the Board, the president, if present, shall preside at all meetings
of the board and all meetings of stockholders.
Section 8. Vice Presidents. In the absence or disability of the President, the
Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board) shall perform all the duties of
the President, and when so acting shall have all the powers of, and be subject
to all the restrictions upon, the President. The Vice Presidents shall perform
such other duties and have such other powers as the Board,
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the Chairman of the Board and/or the President, respectively, may from time to
time prescribe.
Section 9. Secretary. The Secretary shall keep or cause to be kept, at the
principal office and such other place as the Board may order, a book of minutes
of all meetings of stockholders, the Board, and its committees, 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 Board and
committee meetings, the number of shares present or represented at stockholders'
meetings, and the proceedings thereof. The Secretary shall keep, or cause to be
kept, a copy of the by-laws of the corporation at the principal office of the
corporation.
The Secretary shall keep, or cause to be kept, at the principal
office or at the office of the corporation's transfer agent or registrar, if one
be appointed, a share register, or a duplicate share register, showing the names
of stockholders 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.
The Secretary shall give, or cause to be given, notice of all the
meetings of the stockholders and of the Board and of any committees thereof
required by these by-laws or by law to be given, 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.
Section 10. Chief Financial Officer. The Chief Financial Officer of the
corporation shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions of the
corporation, and shall send or cause to be sent to the stockholders of the
corporation such financial statements and reports as are by law or these by-laws
required to be sent to them. The books of account shall at all times be open to
inspection by any director.
The Chief Financial officer shall deposit all monies and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated by the Board. The Chief Financial Officer
shall disburse the funds of the corporation as may be ordered by the Board,
shall render to the President and directors, whenever they request it, an
account of all transactions as Chief Financial officer 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.
ARTICLE V.
Section 1. Certificates for Stock.
(a) The shares of the corporation shall be represented by
certificates, provided that the Board may provide by resolution or resolutions
that some or all of any or all
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classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Notwithstanding the adoption of
such a resolution by the Board, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate, in such form as the Board shall prescribe,
signed by, or in the name of, the corporation by the Chairman of the Board or
the President or Vice President, and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary of the corporation representing the
number of shares registered in certificate form. Any of 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 used, 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 officer, transfer agent or registrar at the date of issue.
(b) 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 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 cancelled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so cancelled, except in cases provided for in Section 4.
Section 2. Transfers of Stock. Transfer 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 3 of this Article, 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 3. Regulations. The Board may make such rules and regulations as it may
deem expedient, not inconsistent with these by-laws, 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 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
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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.
ARTICLE VI. OTHER PROVISIONS
Section 1. Endorsement of Documents; Contracts. Subject to the provisions of
applicable law, any note, mortgage, evidence of indebtedness, contract, share
certificate, conveyance, or other instrument in writing and any assignment or
endorsements thereof executed or entered into between this corporation and any
other person, when signed by the President or any Vice President, and the
Secretary, any Assistant Secretary, the Treasurer, or any Assistant Treasurer of
this corporation shall be valid and binding on this corporation in the absence
of actual knowledge on the part of the other person that the signing officer had
not authority to execute the same. Any such instrument may be signed by any
other person or persons and in such manner as from time to time shall be
determined by the Board and, unless so authorized by the Board, 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 amount.
Section 2. Representation of Shares of Other Corporations. The President, any
Vice President or any other officer or officers authorized by the Board or the
President are each 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. The authority herein
granted may be exercised either by any such officer in person or by any other
person authorized so to do by proxy or power of attorney duly executed by said
officer.
Section 3. Stock Purchase Plans. The corporation may adopt and carry out a
stock purchase plan or agreement or stock option plan or agreement providing for
the issue and sale for such consideration as may be fixed of its unissued
shares, or of issued shares acquired or to be acquired, to one or more of the
employees or directors of the corporation or of a subsidiary or to a trustee on
their behalf and for the payment for such shares in installments or at one time,
and may provide for aiding any such person in paying for such shares by
compensation for services rendered, promissory notes, or otherwise.
Any such stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefor, the effect of the termination of employment and
option or obligation on the part of the corporation to repurchase the shares
upon termination of employment, restrictions upon the transfer of the shares,
the time limits of and termination of the plan, and any other matters, not in
violation of
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applicable law, as may be included in the plan as approved or authorized by the
Board or any committee of the Board.
Section 4. Accounting Year. The accounting year of the corporation shall be
fixed by resolution of the Board.
Section 5. Amendments. These by-laws, or any of them, may be altered, amended
or repealed and new by-laws may be made, (i) by the Board, by vote of a majority
of the number of directors then in office as directors, acting at any meeting of
the Board, or (ii) by the stockholders, at any annual meeting of stockholders,
without previous notice, or at any special meeting of stockholders, provided
that notice of such proposed amendment, modification, repeal or adoption is
given in the notice of special meeting. Any by-laws made or altered by the
stockholders may be altered or repealed by either the Board or the stockholders.
ARTICLE VII. INDEMNIFICATION
Section 1. Scope of Indemnification. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that such person is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys, fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding to the fullest extent permitted by Delaware law
and the certificate of incorporation.
Section 2. Advance of Expenses. Costs and expenses (including attorneys' fees)
incurred by or on behalf or a director, officer, employee or agent in defending
or investigating any action, suit, proceeding or investigation shall be paid by
the corporation in advance of the final disposition of such matter, if such
director, officer, employee or agent shall undertake in writing to repay any
such advances in the event that it is ultimately determined that he is not
entitled to indemnification. Notwithstanding the foregoing, no advance shall be
made by the corporation if a determination is reasonably and promptly made by
the Board by a majority vote of a quorum of disinterested directors, or (if such
a quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs) by independent legal counsel, that based upon the facts
known to the Board or counsel at the time such determination is made, (a) the
director, officer, employee or agent acted in bad faith or deliberately breached
his duty to the corporation or its stockholders, and (b) as a result of such
actions by the director, officer, employee or agent, it is more likely than not
that it will ultimately be determined that such director, officer, employee or
agent is not entitled to indemnification.
Section 3. Rights and Remedies. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Article shall not be
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deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-laws, agreement, 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 4. Continuation of Indemnification and Advancement of Expense. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Section 5. Insurance. Upon resolution passed by the Board, the corporation may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against such
liability under the provisions of this Article.
ARTICLE VIII. EMERGENCY PROVISIONS
Section 1. General. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the President's functions, or in the event of a nuclear,
atomic, or other attack on the United States or a disaster making it impossible
or impracticable for the corporation to conduct its business without recourse to
the provisions of this Article. Said provisions in such event shall override all
other by-laws of this corporation in conflict with any provisions of this
Article, and shall remain operative so long as it remains impossible or
impracticable to continue the business of the corporation otherwise, but
thereafter shall be inoperative; provided that all actions taken in good faith
pursuant to such provisions shall thereafter remain in full force and effect
unless and until revoked by action taken pursuant to the provisions of the
by-laws other than those contained in this Article.
Section 2. Unavailable Directors. All directors of the corporation who are not
available to perform their duties as directors by reason of physical or mental
incapacity or for any other reason or who are unwilling to perform their duties
or whose whereabouts are unknown shall automatically cease to be directors, with
like effect as if such persons had resigned as directors, so long as such
unavailability continues.
Section 3. Authorized Number of Directors. The authorized number of directors
shall be the number of directors remaining after eliminating those who have
ceased to be directors pursuant to Section 2, or the minimum number required by
law, whichever is greater.
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Section 4. Quorum. The number of directors necessary to constitute a quorum
shall be one-third of the authorized number of directors as specified in the
foregoing Section or such other minimum number as, pursuant to the law or lawful
decree then in force, it is possible for the by-laws of a corporation to
specify.
Section 5. Creation of Emergency Committee. In the event the number of
directors remaining after eliminating those who have ceased to be directors
pursuant to Section 2 is less than the minimum number of authorized directors
required by law, then until the appointment of additional directors to make up
such required minimum, all the powers and authorities which the Board could by
law delegate, including all powers and authorities which the Board could
delegate to a committee, shall be automatically vested in an emergency
committee, and the emergency committee shall thereafter manage the affairs of
the corporation pursuant to such powers and authorities and shall have all such
other powers and authorities as may by law or lawful decree be conferred on any
person or body of persons during a period of emergency.
Section 6. Constitution of Emergency Committee. The emergency committee shall
consist of all the directors remaining after eliminating those who have ceased
to be directors pursuant to Section 2, provided that such remaining directors
are not less than three in number. In the event such remaining directors are
less than three in number, the emergency committee shall consist of three
persons, who shall be the remaining director or directors and either one or two
officers or employees of the corporation, as the remaining director or directors
may in writing designate. If there is no remaining director, the emergency
committee shall consist of the three most senior officers of the corporation who
are available to serve, and if and to the extent that officers are not
available, the most senior employees of the corporation. Seniority shall be
determined in accordance with any designation of seniority in the minutes of the
proceedings of the Board, and in the absence of such designation, shall be
determined by rate of remuneration. In the event that there are no remaining
directors and no officers or employees of the corporation available, the
emergency committee shall consist of three persons designated in writing by the
stockholder owning the largest number of shares of record as of the date of the
last record date.
Section 7. Powers of Emergency Committee. The emergency committee, once
appointed, shall govern its own procedures and shall have power to increase the
number of members thereof beyond the original number, and in the event of a
vacancy or vacancies therein, arising at any time, the remaining member or
members of the emergency committee shall have the power to fill such vacancy or
vacancies. In the event at any time after its appointment all members shall die
or resign or become unavailable to act for any reason whatsoever, a new
emergency committee shall be appointed in accordance with the foregoing
provisions of this Article.
Section 8. Directors Becoming Available. Any person who has ceased to be a
director pursuant to the provisions of Section 2 and who thereafter becomes
available to serve as a director shall automatically become a member of the
emergency committee.
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Section 9. Election of Board of Directors. The emergency committee shall, as
soon after its appointment as is practicable, take all requisite action to
secure the election of a board of directors, and upon such election all the
powers and authorities of the emergency committee shall cease.
Section 10. Termination of Emergency Committee. In the event, after the
appointment of an emergency committee, a sufficient number of persons who ceased
to be directors pursuant to Section 2 become available to serve as directors, so
that if they had not ceased to be directors as aforesaid, there would be enough
directors to constitute the minimum number of directors required by law, then
all such persons shall automatically be deemed to be reappointed as directors
and the powers and authorities of the emergency committee shall be at an end.
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