<PAGE>
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
Filed by the Registrant [x]
Filed by the Party other than the Registrant [ ]
Check the appropriate box:
[x] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ' 240.14a-11(c) or ' 240.14a-12
REGAL INTERNATIONAL, INC.
-------------------------
(Name of Registrant as Specified In Its Charter)
REGAL INTERNATIONAL, INC.
-------------------------
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-
6(i)(2).
[ ] $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-
11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
(4) Proposed maximum aggregate value of transaction:
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE>
APPOINTMENT OF PROXY
REGAL INTERNATIONAL, INC.
Special Meeting of Stockholders -- March 4, 1997
The undersigned hereby appoints_____________ and ____________and each of
them (with full power to act without the other), the true and lawful proxies
of the undersigned, each having full power to substitute, to represent the
undersigned and to vote all shares of stock of REGAL INTERNATIONAL, INC.
(the "Company") which the undersigned would be entitled to vote if
personally present at the Special Meeting of Stockholders (the "Meeting") of
REGAL INTERNATIONAL, INC., to be held at ___________________________, on
March 4, 1997, at the hour of 10:00 a.m., local time.
1. FOR [ ] WITHHOLD [ ] ratification of the acquisition of Westronix
Limited by the Company.
2. FOR [ ] WITHHOLD [ ] one or more amendments to the Certificates of
Incorporation to increase the authorized number of shares of Common stock up
to 1,100,000,000.
3. FOR [ ] WITHHOLD [ ] amendments to the Article Fourth, Fifth, Sixth,
Seventh and Tenth of the Company's Certificate of Incorporation.
4. FOR [ ] WITHHOLD [ ] reverse split of common stock of the Company.
5. FOR [ ] WITHHOLD [ ] adoption of restated and amended Bylaws of the
Company.
6. FOR [ ] WITHHOLD [ ] adoption of 1997 Incentive Stock Option plan.
7. Upon all such other matters that may promptly be brought before such
Meeting, as to which the undersigned hereby confers discretionary authority
upon said proxies.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF THE
COMPANY. THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED FOR (1) [ ] THE
RATIFICATION OF THE ACQUISITION OF WESTRONIX LIMITED (2) [ ] ONE OR MORE
AMENDMENTS TO THE CERTIFICATE OF INCORPORATION (3) [ ] AMENDMENTS TO
ARTICLE FOURTH, FIFTH, SIXTH, SEVENTH AND TENTH OF THE CERTIFICATE OF
INCORPORATION (4) [ ] THE REVERSE SPLIT OF COMMON STOCK, (5) [ ], ADOPTION
OF RESTATED AND AMENDED BYLAWS, (6) [ ], ADOPTION OF 1997 INCENTIVE STOCK
OPTION PLAN , OR, IF A CONTRARY INSTRUCTION IS INDICATED IN ACCORDANCE WITH
SUCH INSTRUCTIONS.
All other proxies heretofore given by the undersigned to vote shares of
stock of REGAL INTERNATIONAL, INC. which the undersigned would be entitled
to vote if personally present at said Meeting or any adjournment thereof are
hereby expressly revoked. This proxy may be revoked at any time prior to
the voting hereof.
NOTE: Please date this proxy and sign it exactly as your name or names
appear on your shares. If signing as an attorney, executor, administrator,
guardian or trustee, please give full title as such. If a corporation,
please sign full corporate name by duly authorized officer or officers,
affix corporate seal and attach a certified copy of resolution or bylaws
evidencing authority.
-------------------------------
(Date)
-------------------------------
(Signature)
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(Signature)
<PAGE>
REGAL INTERNATIONAL, INC.
52/F Bank of China Tower
1 Garden Road, Hong Kong
------------------------------
NOTICE OF SPECIAL MEETING
------------------------------
To Be Held
March 4, 1997
NOTICE IS HEREBY GIVEN, in accordance with the provisions of Section 222 of
the General Corporation Law of the State of Delaware, that a special meeting
of the stockholders (the "Meeting") of REGAL INTERNATIONAL, INC., a Delaware
corporation (the "Company"), whose principal executive offices are located
at 52/F Bank of China Tower, 1 Garden Road, Hong Kong, will be held as
follows:
Place: _________________, Los Angeles, California
Date: March 4, 1997
Time: 10:00 a.m.
The purpose of the Meeting is as follows:
1. To ratify the acquisition of Westronix Limited by the Company.
2. To amend the Company's Certificate of Incorporation to increase the
authorized number of shares of Common Stock up to 1,100,000,000 shares, of
par value $0.01 per share.
3. To amend the Company's Certificate of Incorporation (i) Article Fourth
(D)(7), to provide that the Company may remove directors or adopt, repeal
or amend bylaws by a meeting of the shareholders or a written consent by
shareholders holding a majority of the voting shares; (ii) Article Fifth to
provide that the number of directors shall not be less than three, and to
remove the classification of the board of directors; (iii) Article Sixth to
provide that the affirmative vote of the majority of voting shares is
sufficient for the amendment or adoption of bylaws; (iv) Article Seventh to
remove the requirement of 80% shareholders' vote for certain transactions
and to provide that the affirmative vote of the majority of voting shares is
sufficient to approve those certain transactions listed in Article Seventh;
and Article Tenth to remove the requirement of 80% shareholders' vote to
amend Article Fourth, Paragraph D (7) and (8), Article Fifth, Sixth,
Seventh and Tenth, and to provide that the affirmative vote of the majority
of voting shares is sufficient to approve amendments to those provisions of
the Company's Certificate of Incorporation.
4. To undertake a 138 to 1 reverse split of the Company's Common Stock
5. To adopt restated and amended Bylaws of the Company.
6. To adopt a 1997 Incentive Stock Option Plan.
7. All such other matters as may be brought before such Meeting.
The Board of Directors has fixed the close of business on January 27, 1997
as the record date for determination of stockholders entitled to notice of,
and to vote at, the Meeting.
Shares can be voted at the Meeting only if the record holder thereof is
present at the Meeting or represented by proxy. To ensure the presence of a
quorum at the Meeting, you are requested to sign and date the accompanying
Appointment of Proxy and return it promptly in the enclosed return envelope.
The giving of such Appointment of Proxy will not affect your rights to vote
in person in the event you attend the Meeting.
February 3, 1997 By Order of The Board of Directors
<PAGE>
REGAL INTERNATIONAL, INC.
52/F Bank of China Tower
1 Garden Road, Hong Kong
PROXY STATEMENT
Mailing Date: February 3, 1997
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SPECIAL MEETING OF STOCKHOLDERS
-------------------------------
To Be Held March 4, 1997
General
This Proxy Statement is furnished to the holders of Common Stock, $.01 par
value per share (the "Common Stock"), of REGAL INTERNATIONAL, INC. (the
"Company"), on behalf of the Company, in connection with its solicitation of
Appointments of Proxy in the form enclosed herewith for use at a special
meeting of stockholders (the "Meeting") to be held on March 4, 1997, and at
any adjournments thereof. The Meeting will be held at 10:00 a.m. local
time, on the above date, at___________________________________________ The
matters to be acted upon at the Meeting are set forth in the accompanying
Notice of Meeting and are described herein.
The cost of this solicitation of Appointments of Proxy will be borne by the
Company. In addition to the solicitation of Appointments of Proxy by mail,
certain officers, directors and regular employees of the Company, without
additional remuneration, may solicit Appointments of Proxy, personally or by
telephone, telegraph or cable. Arrangements will also be made with
brokerage firms and other nominee holders for forwarding proxy materials to
the beneficial owners of shares of the Common Stock, and the Company will
reimburse such persons for reasonable out-of-pocket expenses incurred by
them in connection therewith.
Voting of Appointments of Proxy
The persons named in the enclosed Appointment of Proxy, as proxies to
represent stockholders at the Meeting, are __________and______________. An
Appointment of Proxy which is properly executed and returned, and not
revoked, will be voted in accordance with the directions contained therein.
If no directions are given, that Appointment of Proxy will be voted FOR the
ratification of the acquisition of Westronix Limited by the Company as
further described in Proposal 1, FOR the amendment to the Company's
Certificate of Incorporation increasing the authorized number of Common
Stock to 1,100,000,000, as further described in Proposal 2 herein, FOR
amendment to the Company's Certificate of Incorporation to amend Articles
Fourth, Fifth, Sixth, Seventh and Tenth, as further described in Proposal 3
herein, FOR the amendment to the Company's Certificate of Incorporation to
effect a 1-for-138 reverse stock split approved by the Board of Directors on
_________, 1997, as further described in Proposal 4 herein, FOR adoption of
the amended and restated Bylaws of the Company, as further described in
Proposal 5 herein, FOR adoption of 1997 Incentive Stock Option Plan, as
further described in Proposal 6 herein. On any other matters that may come
before the Meeting, each Appointment of Proxy will be voted in accordance
with the best judgment of the proxies.
Revocability of Appointments of Proxy
An Appointment of Proxy may be revoked by the stockholder at any time before
it is exercised by filing with the Secretary of the Company a written
revocation or a duly executed Appointment of Proxy bearing a later date, or
by attending the Meeting and announcing his intention to vote in person.
Record Date and Voting Rights
The close of business on January 27, 1997 has been fixed as the record date
for the determination of stockholders entitled to notice of, and to vote at,
the Meeting. Only those stockholders of record, on that date, will be
entitled to vote on the proposals described herein.
<PAGE>
The voting securities of the Company are the shares of its Common Stock, of
which shares were issued and outstanding as of January 27, 1997. All
outstanding shares of Common Stock are entitled to one vote on each matter
submitted for voting at the meeting.
China Strategic Holdings Limited has indicated its intention to vote for
the proposals to be presented at the Meeting.
Beneficial Ownership of Common Stock
Principal Stockholders, Directors and Officers. The following table sets
forth the beneficial ownership of the Company's Common Stock, as of January
27, 1997, by each person known to the Company to own more than five percent
(5%) of the Company's Common Stock and by each of the Company's current
directors, and by all directors and officers of the Company as a group. The
table has been prepared based on information provided to the Company by each
stockholder.
Amount of
Name and Beneficial Percent of
Address Ownership Class
- --------- ---------- ----------
China Strategic Holdings Ltd. (1) 1,033,877,483 96.16%
Harlequin Investment Holdings Ltd. (2)(3) 4,452,082 0.41%
Richard N. Gray (2)(3)
Director 4,452,082 0.41%
Noble House, Queens Road
St. Peter Fort, Guernsey, Channel Islands
Oei Hong Leong (1) 1,033,877,483 96.16%
Director
52/F Bank of China Tower
1 Garden Road, Hong Kong
Chung Cho Yee Mico (1) 0 0%
President and Director
52/F Bank of China Tower
1 Garden Road, Hong Kong
Ma Wai Man Catherine (1) 0 0%
Director
52/F Bank of China Tower
1 Garden Road, Hong Kong
Jim G.K. Pang
Chief Financial Officer
52/F Bank of China Tower
1 Garden Road, Hong Kong 0 0%
Martin J. Furner 0 0%
Director
24 Chiswick High Road
Chiswick, London W4 1TE
All Directors and Officers 1,038,329,565 96.57%
as a Group (6 persons)
- ---------------------
As used in this table, "beneficial ownership" means the sole or shared power
to vote, or to direct the voting of, a security, or the sole or shared
investment power with respect to a security (i.e., the power to dispose of,
or to direct the disposition of a security).
(1) China Strategic Holdings Limited has indirect voting and investment
power with respect to 993,377,483 shares issuable upon the conversion of a
$30,000,000 Convertible Note held by Horler Holdings Limited, P.O. Box 71,
Craigmuer Chamber, Road Town, Tortola, British Virgin Islands, a wholly
owned subsidiary of China Strategic Holdings Limited.
<PAGE>
(2) Harlequin Investment Holdings Limited has sole voting and investment
power with respect to the shares of common Stock. The beneficial ownership
set forth herein does not include 8,000,000 shares of Common Stock to be
acquired upon an exercise of a Stock Purchase Option granted by China
Strategic Holdings Limited to Harlequin Investment Holdings Limited. The
percentage of beneficial ownership is based upon _______shares of Common
Stock outstanding as of January 27, 1996.
(3) Harlequin Investment Holdings Limited is a wholly owned subsidiary of
GHL (Senior) Pension Fund, Noble House, Queens Road, St. Peter Port,
Guernsey, Channel Islands. Richard N. Gray and Overseas Trust Company
Limited are trustees of GHL (Senior) Pension Fund and have the same address.
Mr. Gray and Overseas Trust Company Limited each disclaim beneficial
ownership of the shares of Common Stock.
As of January 27, 1997, there were_____shareholders of record. The
percentage of beneficial ownership is based upon _____________shares of
Common Stock outstanding as of January 27, 1997 and _______________
993,377,483 shares of Common Stock issuable upon conversion of the
$30,000,000 Convertible Note.
PROPOSAL NO. 1
RATIFICATION OF THE ACQUISITION OF WESTRONIX LIMITED
On September 7, 1996, the Board of Directors of the Company approved the
acquisition of all the issued and outstanding shares of Westronix Limited, a
British Virgin Islands corporation ("Westronix"), from China Strategic
Holdings Limited, a Hong Kong company ("CSH") pursuant to the terms of the
Acquisition Agreement entered into on September 10, 1996. Westronix's
sole asset is a 100% equity interest in China Construction Holdings,
formerly China Construction International Group, a Hong Kong company ("China
Construction") which owns 51% joint venture interest in Hangzhou Zhongce
Huantong Development Co., Ltd. ("Hangzhou Huantong"), a Sino-foreign joint
venture established in Hangzhou, Zhejiang Province, the People's Republic of
China ("China") on June 23, 1993. The consideration paid by the Company
consisted of a $30 million Convertible Note bearing interest at the rate of
nine percent (9%) per annum after an initial six (6) month interest-free
period (the "Note").
The Note is payable interest only on an annual basis, with all principal
being due and payable on September 10, 1999. The principal and any unpaid
interest due on the Note are convertible into shares of Common Stock, $0.01
par value, of the Company ("Common Stock") at a conversion price of $0.0302
per share. The principal amount of the Note may be automatically reduced
and adjusted downwards, if an opinion issued by an independent third party
on the amount of consideration paid by the Company, states an amount which
is 10% less than the consideration paid by the Company. The adjustment is a
formula designed to ensure fairness of the transaction. The Board of
Directors obtained a fairness opinion with respect to the transaction from
the independent third party, which opinion confirmed that the acquisition of
Westronix at the purchase price set forth above was fair to the Company.
The Note is secured by all assets of Westronix and its related subsidiaries.
Hangzhou Huantong is a joint venture between China Construction (51%) and
Hangzhou Transportation Development Corporation (49%). Hangzhou Huantong has
been established to develop the construction project called "Hangzhou Ring
Road" which has been approved as a priority project by the Hangzhou Town
Planning Committee in 1992. The Hangzhou Ring Road is built to direct the
congested traffic outside the city of Hangzhou. The Hangzhou Ring Road has
a total length of 38.2 km and comprises of three sections: Section 1
consists of 13.2 km route from Jichang Road to Xiangfuqiao; Section 2
consists of 13.7 km route from Xiangfuqiao to Liuxai, and Section 3
consists of 11.3 km route from Liuxai to Lingjiaqiao. Section 1 and 2 have
been completed and opened for traffic. Construction of Section 3 has already
been started and it is expected to be completed by the end of year 1997 and
opened to traffic in January 1998. Hangzhou Huantong employs approximately
142 employees and is located in Hangzhou, Zhejiang Province, China. Sales
for the fiscal year ended December 31, 1995 were approximately $4.47 million
(Rmb 37.2 million) with net profit of approximately $1.8 million (Rmb 15
million) ( as such figures are provided in the audited financial statements
of Westronix Limited and Subsidiaries prepared by Arthur Andersen in
accordance with the generally accepted accounting practices and rules
applicable to sino-foreign equity joint ventures in China and assuming
conversion into United Stated Dollars at a rate of $1.00=Rmb8.32). The
acquisition of Hangzhou Huantong will enable the Company to participate in
the infrastructure projects in China, which participation presents an
excellent opportunity for growth and higher return for the Company and its
shareholders.
The acquisition of Westronix Limited was approved by the consent in writing
of the majority of the Company's shareholders on September 7, 1996.
Attached to this Proxy Statement is a report on Form 8-K/A filed with
respect to the acquisition of Westronix Limited, which includes financial
statements of Westronix Limited. The Board of Directors recommends that
stockholders ratify the acquisition of Westronix Limited. This proposal
requires the affirmative vote of 80% of the outstanding shares of Common
Stock entitled to vote at the Meeting
<PAGE>
PROPOSAL NO. 2
AMENDMENT OF CERTIFICATE OF INCORPORATION
INCREASE IN AUTHORIZED SHARES OF THE COMPANY'S COMMON STOCK
The Company is soliciting the approval of stockholders for one or more
amendments to the Fourth Article of the Company's Certificate of
Incorporation to increase the number of authorized shares of the Company's
Common Stock from 150,000,000 to 1,100,000,000 shares. The number of
authorized shares of the Company's Preferred Stock, $0.10 par value per
share, shall remain unchanged.
The Company's Certificate of Incorporation currently authorizes the issuance
of a total of 150,000,000 shares of Common Stock. There were ___________
shares of Common Stock outstanding at the close of business on January 27,
1997.
The Board of Directors has proposed the increase in authorized Common Stock
to provide the Board of Directors with greater flexibility in the event the
Board of Directors determines that it is in the best interest of the Company
to issue additional shares. In connection with the acquisition of Westronix
Limited, the Company has issued a $30,000,000 convertible note to Horler
Holdings Limited, a wholly owned subsidiary of China Strategic Holdings
Limited. The principal and any unpaid interest due on the Note are
convertible into shares of Common Stock, $0.01 par value, of the Company
("Common Stock") at a conversion price of $0.0302 per share. If the holder
of the Note exercise its conversion rights and converts the full amount of
the Note, the number of shares issued to Noteholder would exceed the total
authorized amount of common stock of the Company.
Under the laws of the State of Delaware, authorized, but unissued and
unreserved, shares may be issued for such consideration (not less than par
value) and purposes as the Board of Directors may determine without further
action by the stockholders. The issuance of such additional shares may,
under certain circumstances, result in the dilution of the equity or
earnings per share of the existing stockholders.
The additional shares of Common Stock authorized by this proposed amendment
will, if and when issued, have the same rights and privileges as the shares
of Common Stock currently authorized. Holders of shares of Common Stock
have no preemptive rights.
The above amendment to the Certificate of Incorporation requires the
affirmative vote of a majority of the outstanding shares of Common Stock
entitled to vote at the Meeting. The Board of Directors recommends that the
stockholders vote FOR this proposal.
PROPOSAL NO. 3
AMENDMENT OF ARTICLES FOURTH, FIFTH, SIXTH, SEVENTH AND TENTH OF CERTIFICATE
OF INCORPORATION
The Company is soliciting the approval of stockholders for one or more
amendments to the Company's Certificate of Incorporation (i) Article Fourth
(D)(7), to provide that a meeting of shareholders or a written consent by
shareholders holding a majority of the voting shares shall be required to
remove directors or adopt, repeal or amend bylaws; (ii) Article Fifth to
provide that the number of directors shall not be less than three, and to
remove the classification of the board of directors; (iii) Article Sixth
to provide that the affirmative vote of the majority of voting shares rather
than 80% of such vote, is sufficient for the amendment or adoption of
bylaws; (iv) Article Seventh to remove the requirement of 80% shareholders'
vote for certain transactions with shareholders that have a 5% or more
holdings with the Company and to provide that the affirmative vote of the
majority of voting shares is sufficient to approve those certain
transactions listed in Article Seventh; and Article Tenth to remove the
requirement of 80% shareholders' vote to amend Article Fourth, Paragraph D
(7) and (8), Article Fifth, Sixth, Seventh and Tenth, and to provide that
the affirmative vote of the majority of voting shares is sufficient to
approve amendments to those provisions of the Company's Certificate of
Incorporation..
The above amendment to the Certificate of Incorporation requires the
affirmative vote of 80% of the outstanding shares of Common Stock entitled
to vote at the Meeting. The Board of Directors recommends that the
stockholders vote FOR this proposal.
<PAGE>
PROPOSAL NO. 4
AMENDMENT OF CERTIFICATE OF INCORPORATION
1-FOR-138 REVERSE STOCK SPLIT
The Board of Directors has proposed to amend the Company's Certificate of
Incorporation to effect a 1-for-138 reverse stock split of its Common Stock
under which each outstanding 138 shares of Common Stock, par value $0.01 per
share, registered in the name of each shareholder as of the record date,
will be exchanged for 1 share of Common Stock. The effective date of the
reverse split shall immediately upon approval of the shareholders. The
Board of Directors believes that the reverse split is necessary in order to
cause the Common Stock to be tradable at such a price per share as is
required by NASDAQ initial admission rules and that the reverse split will
raise earnings per share to acceptable levels, in connection with the
Company's future plans to apply to NASDAQ for inclusion of the Company's
Common Stock. In addition, the Board of Directors believes that the
proposed reverse split will make the management of shareholding more
efficient and cost effective. Fractional shares will be rounded up to the
nearest whole share.
The above amendment to the Certificate of Incorporation requires the
affirmative vote of 80% of the outstanding shares of Common Stock entitled
to vote at the Meeting. The Board of Directors recommends that the
stockholders vote FOR this proposal.
PROPOSAL NO. 5
ADOPTION OF AMENDED AND RESTATED BYLAWS
Pursuant to the Company's Certificate of Incorporation, the adoption of
amended or restated bylaws may only be approved at the annual or special
meeting of stockholders of the Company. The Board of Directors proposes to
adopt the amended and restated Bylaws in the form attached to this Proxy
Statement as Exhibit A. The above proposal requires 80% of the affirmative
vote of a majority of the outstanding shares of Common Stock entitled to
vote at the Meeting. The Board of Directors recommends that the
stockholders vote FOR this proposal.
PROPOSAL NO. 6
ADOPTION OF 1997 INCENTIVE STOCK OPTION PLAN
The Company's proposed 1997 Incentive Stock Option Plan (the "Plan")
provides for the grant of incentive stock options ("ISO's") qualifying under
the Internal Revenue Code, the grant of nonqualifying stock options
("NSO's"), and the grant of awards of stock appreciation rights, stock
options, restricted stock or performance units ("Awards") to officers,
employees and consultants of the Company and its affiliates. 750,000 shares
of the Company's Common Stock will be reserved for issuance pursuant to the
Plan. The Plan will be administered by the Stock Option Committee of the
Board of Directors or such other committee of the Board, if the Board so
designates (the "Committee"). The purpose of the Plan is to aid the Company
in retaining the services of executive and key employees and in attracting
new management personnel when needed for future operations and growth, to
offer such personnel additional incentives to put forth maximum efforts for
the success of the business and to afford them opportunities to obtain or
increase a proprietary interest in the Company on a favorable basis and,
thereby, to have an opportunity to share in its success.
The Plan will expire ten years from its effective date as specified by the
Board of Directors at the time the Plan is approved (except as to options
outstanding at that time, if any). The Board may amend, alter or terminate
the Plan in any respect at any time, except that no amendment, alteration or
termination shall be made which would (i ) impair the rights of an optionee
under a stock option, stock appreciation right, restricted stock or
performance award unit therefore granted without such optionee"s consent, or
(ii) disqualify the Plan from the exemption provided by Rule 16b-3 of the
Securities Exchange Act of 1934, and , further, no material amendment shall
be made without the prior approval of the Company's stockholders to the
extent such approval is required by law or agreement.
The Committee has substantial discretion pursuant to the Plan to determine
the persons to whom ISO's, NSO's and Awards may be granted or authorized and
also to determine the amounts, time, price (provided that the exercise price
per share shall not be less than the fair market value of the Common Stock
on the date of such grant ), exercise terms and restrictions imposed in
connection with each individual grant. ISO's, NSO's and Awards may be
granted to any employee (which may include officers, and directors who are
also employees) or consultants of the Company or its subsidiaries. No
participant in the Plan may be granted ISO's, NSO's or Awards aggregating in
excess of__________ shares of Common Stock over the life of the Plan and no
stock option shall be exercisable more than ten years after the date such
option is granted. Options may expire earlier as determined by the
Committee and the Committee may determine vesting provisions in its
discretion.
Stock appreciation rights may be granted in conjunction with all or part of
any stock options granted under the Plan at the discretion of the Committee.
Shares of restricted stock and performance units may be awarded either
alone or in addition to other Awards granted under the Plan at the
discretion of the Committee.
<PAGE>
If an optionee ceases to be an employee of the Company or a subsidiary other
than by reason of death, disability or retirement, any stock option held by
him shall terminate on the date of termination of his employment in the case
of voluntary termination, and shall terminate one month after the
termination of his employment in the case of involuntary termination of
employment (but not later than its specified expiration date). In the case
of death, any stock option held by an optionee may be exercised by his
estate, personal representative or beneficiary at any time prior to the
earlier of the specified expiration date of the stock option or one year
from the date of the optionee's death. If an optionee's employment is
terminated by reason of disability or retirement, the optionee may exercise
any stock options held by him at any time prior to the earlier of the
specified expiration date of the stock option or three years from the date
of termination of employment.
Options are, in general, non-assignable. The options carry certain anti-
dilution provisions concerning stock dividends, stock splits,
consolidations, mergers, recapitalizations and reorganizations.
Generally, under applicable provisions of the Internal Revenue Code, the
amount of profit realized by an optionee under exercise of stock option is
taxed as ordinary income to the optionee in the year of exercise. The
Company is entitled to a compensation deduction in the same amount in the
same year.
An optionee who holds the stock received upon exercise of a stock option for
at least two years from the date the option was granted and at least one
year from the receipt of the stock upon exercise generally pays no tax until
the stock is sold, at which time any profit or loss realized is long-term
capital gain or loss, as the case may be, and the Company is not entitled to
a corresponding tax deduction at any time. The spread at exercise of a
stock option is effectively treated as a tax preference item in the exercise
year for purposes of calculating the optionee's alternative minimum tax.
An optionee who sells the stock received upon the exercise of a stock option
within two years after the option was granted or within one year of receipt
of the shares upon exercise is taxed on the profit up to the date of the
exercise (which is ordinary income) and the Company is entitled to a
corresponding tax deduction; the income and tax deduction items are
recognized by the optionee and the Company, respectively, in the year the
stock is sold. Appreciation or depreciation after the date of exercise is
taxable to the optionee as capital gain or loss, respectively, and is
nondeductible by the Company.
The Company may be required to withhold tax on the amount of the income
recognized by the optionee upon exercise of an option and upon transfer of
stock received upon exercise of an option.
The above proposal requires the affirmative vote of a majority of the
outstanding shares of Common Stock entitled to vote at the Meeting. The
Board of Directors recommends that the stockholders vote FOR this proposal.
PROPOSAL NO.7
OTHER MATTERS
The Board of Directors is not aware of any other matters that will be
presented for consideration at the Meeting other than those matters referred
to in this Proxy Statement.
February 3, 1997 BY ORDER OF THE BOARD OF DIRECTORS
<PAGE>
BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR ITS
CERTIFICATE OF INCORPORATION, OF
REGAL INTERNATIONAL, INC.
a Delaware corporation
ARTICLE I
OFFICES
-------
Section 1. Principal Executive Office. The principal executive office
of the corporation shall be located as directed by the board of directors.
Section 2. Other Offices. Other business offices may at any time be
established by the board of directors at any place or places by them or
where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
-------------------------
Section 1. Place of Meetings. All meetings of stockholders shall be
held at the principal executive office of the corporation, or at any other
place within or without the State of Delaware which may be designated either
by the board of directors or by the written consent of all persons entitled
to vote thereat and not present at the meeting, given either before or after
the meeting and filed with the secretary of the corporation.
Section 2. Annual Meetings. The annual meetings of stockholders shall
be fixed by the board of directors. At such meetings directors shall be
elected, reports of the affairs of the corporation shall be considered, and
any other business may be transacted which is within the powers of the
stockholders.
Section 3. Special Meetings. Special meetings of the stockholders,
for the purpose of taking any action permitted by the stockholders under the
Delaware General Corporation Law and the certificate of incorporation of the
corporation, may be called at any time by the chairman of the board or the
president, or by the board of directors, or by one or more holders of shares
entitled to cast in the aggregate not less than twenty percent (20%) of the
votes at the meeting. Upon request in writing that a special meeting of
stockholders be called for any proper purpose, directed to the chairman of
the board, president, vice president or secretary by any person (other than
the board of directors) entitled to call a special meeting of stockholders,
the officer forthwith shall cause notice to be given to 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 thirty-five (35) nor
more than sixty (60) days after receipt of the request.
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Section 4. Notice of Annual or Special Meeting. Written notice of
each annual or special meeting of stockholders shall be given not less than
ten (10) nor more than sixty (60) days before the date of the meeting to
each stockholder entitled to vote thereat. Such written notice shall be
given either personally or by mail or other means of written communication,
charges prepaid, addressed to such stockholder at his address appearing on
the books of the corporation or given by him to the corporation for the
purpose of notice. If any notice or report addressed to the stockholder at
the address of such stockholder appearing on the books of the corporation is
returned to the corporation by the United States Postal Service as unable to
deliver the notice or report to the stockholder at such address, all future
notices or reports shall be deemed to have been duly given without further
mailing if the same shall be available for the stockholder upon written
demand of the stockholder at the principal executive office of the
corporation for a period of one (1) year from the date of the giving of the
notice or report to all other stockholders. If a stockholder gives no
address, notice shall be deemed to have been given him if sent by mail or
other means of written communication addressed to the place where the
principal executive office of the corporation is situated, or if published
at least once in some newspaper of general circulation in the county in
which said principal executive office is located.
Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of
written communication. An affidavit of mailing of any such notice in
accordance with the foregoing provisions, executed by the secretary,
assistant secretary or any transfer agent of the corporation, shall be prima
facie evidence of the giving of the notice.
Section 5. Quorum. The presence in person or by proxy of the holders
of a majority of the shares entitled to vote at any meeting shall constitute
a quorum for the transaction of business at any meeting of stockholders.
The stockholders present at a duly called or held meeting at which a quorum
is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum, if any
action taken (other than adjournment) is approved by at least a majority of
the shares required to constitute a quorum.
Section 6. Adjourned Meeting and Notice Thereof. Any stockholders'
meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by the vote of a majority of the shares, the
holders of which are either present in person or represented by proxy
thereat, but in the absence of a quorum at the commencement of the meeting,
no other business may be transacted at such meeting.
When any stockholders' meeting, either annual or special, is adjourned
for thirty (30) days or more, or if after adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting shall be
given as in the case of an original meeting. Except as provided above, it
shall not be necessary to give any notice of the time and place of the
adjourned meeting or of the business to be transacted thereat, other than by
announcement of the time and place thereof at the meeting at which such
adjournment is taken.
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Section 7. Voting. The stockholders entitled to vote at any meeting
of stockholders shall be determined in accordance with the Delaware General
Corporation Law (relating to voting of shares held by a fiduciary, in the
name of a corporation, or in joint ownership). The stockholders may vote by
voice vote or by ballot; provided, however, that all elections for director
shall be by ballot. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on
any matter shall be the act of the stockholders, unless the vote of a
greater number of voting by classes is required by the Delaware General
Corporation Law or the certificate of incorporation.
Section 8. Validation of Defectively Called or Noticed Meeting. The
transactions of any meeting of stockholders, either annual or special,
however called and noticed, shall be as valid as though had at a meeting
duly held after regular call and notice, if a quorum be 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, or who, though
present, has, at the beginning of the meeting, properly objected to the
transaction of any business because the meeting was not lawfully called or
convened, or to particular matters of business legally required to be
included in the notice, but not so included, signs a written waiver of
notice, or a consent to the holding of such 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.
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 or consent, except that if action is taken or proposed to be taken
for approval of any of those matters specified in paragraph (e) of Section 4
above, the waiver of notice or consent shall state the general nature of the
proposal.
Section 9. Action Without Meeting. Directors may be elected without a
meeting by a consent in writing, setting forth the action so taken, signed
by all of the persons who would be entitled to vote for the election of
directors, provided that, without prior notice except as hereinafter set
forth, a director may be elected at any time to fill a vacancy not filled by
the directors by the written consent of persons holding a majority of the
outstanding shares entitled to vote for the election of directors.
Any other action which, under any provision of the Delaware General
Corporation Law, may be taken at a meeting of the stockholders, may be taken
without a meeting, and without prior notice except as hereinafter set forth,
if a consent in writing, setting forth the action so taken, is 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
the consents of all stockholders entitled to vote have been solicited in
writing.
Unless, as provided in Section 12 of this Article II, the board of
directors has fixed a record date for the determination of stockholders
entitled to notice of and to give such written consent, the record date for
such determination shall be the day on which the first written consent is
given. All such written consents shall be filed with the secretary of the
corporation.
Any stockholder giving a written consent, or the stockholder's proxy
holders, or a transferee of the shares or a personal representative of the
stockholder or their respective proxy holders, may revoke the consent by a
writing received by the corporation prior to the time that written consents
of the number of shares required to authorize the proposed action have been
filed with the secretary of the corporation, but may not do so thereafter.
Such revocation is effective upon its receipt by the secretary of the
corporation.
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Section 10. Proxies. Every person entitled to vote or execute
consents shall have the right to do so either in person or by one or more
agents authorized by a written proxy executed by such person or his duly
authorized agent and filed with the secretary of the corporation. Subject
to the Delaware General Corporation Law in the case of any proxy which
states that it is irrevocable, any proxy duly executed shall continue in
full force and effect until (i) an instrument revoking it or a duly executed
proxy bearing a later date is filed with the secretary of the corporation
prior to the vote pursuant thereto, (ii) the person executing the proxy
attends the meeting and votes in person, or (iii) written notice of the
death or incapacity of the maker of such proxy is received by the
corporation before the vote pursuant thereto is counted; provided that no
such proxy shall be valid after the expiration of three (3) years from the
date of its execution, unless otherwise provided for in the proxy. The
dates contained on the forms of proxy shall presumptively determine the
order of execution of the proxies, regardless of the postmark dates on the
envelopes in which they are mailed.
Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy, the following shall
constitute a valid means by which a stockholder may grant such authority.
(a) A stockholder may execute a writing authorizing another person or
persons to act for him as proxy. Execution may be accomplished by the
stockholder or his authorized officer, director, employee or agent signing
such writing or causing his or her signature to be affixed to such writing
by any reasonable means including, but not limited to, by facsimile
signature.
(b) A stockholder may authorize another person or persons to act for him
as proxy by transmitting or authorizing the transmission of a telegram,
cablegram, or other means of electronic transmission to the person who will
be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be
the holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either
set forth or be submitted with information from which it can be determined
that the telegram, cablegram or other electronic transmission was authorized
by the stockholder. If it is determined that such telegrams, cablegrams or
other electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied.
(c) Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission described in Paragraphs (a) or (b) may be
substituted or used in lieu of the original writing or transmission for any
and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing
or transmission.
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Section 11. Inspectors of Election. In advance of any meeting of
stockholders, the board of directors may appoint any person or persons other
than nominees for office as inspectors of election to act at such meeting or
any adjournment thereof. If inspectors of election be not so appointed, the
chairman of any such meeting may, and on the request of any stockholder or
his proxy shall, make such appointment at the meeting. The number of
inspectors shall be either one (1) or three (3). If appointed at a meeting
on the request of one or more stockholders or proxies, the majority of
shares represented in person or by proxy shall determine whether one (1) or
three (3) inspectors are to be appointed. In case any person appointed as
inspector fails to appear or fails or refuses to act, the vacancy may, and
on the request of any stockholder or a stockholder's proxy shall, be filled
by appointment by the board of directors in advance of the meeting, or at
the meeting by the chairman of the meeting.
The duties of such inspectors shall be as prescribed by the Delaware
General Corporation Law 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 such acts as may be proper to
conduct the election or vote with fairness to all stockholders.
The inspectors of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is
practical. If there are three (3) inspectors of election, the decision, act
or certificate of a majority is effective in all respects as the decision,
act or certificate of all. Any report or certificate made by the inspectors
of election is prima facie evidence of the facts stated therein.
Section 12. Record Date for Stockholder Notice, Voting and Giving
Consents. For purposes of determining the stockholders entitled to notice
of any meeting or to vote or entitled to give consent to corporate action
without a meeting, the board of directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10)
days before the date of any such meeting nor more than sixty (60) days
before any such action without a meeting, and in this event only stockhold-
ers of record on the date so fixed are entitled to notice and to vote or to
give consents, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date, except as
otherwise provided in the Delaware General Corporation Law.
If the board of directors does not so fix a record date:
(a) 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 business day next preceding the day on which notice is given, or if
notice is waived, at the close of business on the business day next prece-
ding the day on which the meeting is held.
(b) The record date for determining stockholders entitled to give consent
to corporate action in writing without a meeting, (i) when no prior action
by the board has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the board is required by the
Delaware General Corporation Law, shall be at the close of business on the
day on which the board adopts the resolution relating to that action, or the
sixtieth (60th) day before the date of such other action, whichever is
later.
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ARTICLE III
DIRECTORS
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Section 1. Powers. Subject to the provisions of the Delaware General
Corporation Law, and to any limitations in the certificate of incorporation
and these bylaws, relating to action required to be approved by the
stockholders or approved by the outstanding shares, all corporate powers
shall be exercised by or under the authority of, and the business and
affairs of the corporation shall be managed by, the board of directors.
Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the board of directors
shall have the following powers, to wit:
(a) To select and remove all the officers, agents and employees of the
corporation, prescribe such powers and duties for them as may not be
inconsistent with law, with the certificate of incorporation or with these
bylaws, fix their compensation and require from them security for faithful
service.
(b) To conduct, manage and control the affairs and business of the
corporation, and to make such rules and regulations therefor not
inconsistent with law, or with the certificate of incorporation or with
these bylaws, as they may deem best.
(c) To change the principal executive office and principal office for the
transaction of the corporation from one location to another; to fix and
locate from time to time one or more subsidiary offices of the corporation
within or without the State of Delaware; to designate any place within or
without the State of Delaware for the holding of any stockholders' meeting
or meetings; and to adopt, make and use a corporate seal, and to prescribe
the forms of certificates of stock, and to alter the form of such seal and
of such certificates from time to time, as in their judgment they may deem
best, provided such seal and such certificates shall at all times comply
with the provisions of law.
(d) To authorize the issuance of shares of stock of the corporation from
time to time, upon such terms as may be lawful.
(e) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mort-
gages, pledges, hypothecation's or other evidences of debt and securities
therefor.
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Section 2. Number and Qualification of Directors. The authorized
number of directors shall be no less than three, and shall be such maximum
number of persons as may be determined from time to time by affirmative vote
of a majority of the entire board of directors or by action of the
stockholders of the Corporation. Any decrease in the number of directors
shall be effective at the time of the next succeeding annual meeting of the
stockholders unless there shall be vacancies in the board of directors, in
which case such decrease may become effective at any time prior to the next
succeeding annual meeting to the extent of the number of such vacancies.
The board of directors shall be divided into three classes, as nearly equal
in numbers as the then total number of directors constituting the entire
board permits with the term of office in one class expiring each year.
Directors of the first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of the second
class shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be elected
to hold office for a term expiring at the third succeeding annual meeting.
Each director shall hold office until his successor shall have been elected
and qualified, or until his death, or until he shall have resigned, or have
been removed, as hereinafter provided in these Bylaws.
Section 3. 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.
All directors shall hold office until their respective successors are
elected and qualified, subject to the Delaware General Corporation Law and
the provisions of these bylaws with respect to vacancies on the board of
directors.
Section 4. Vacancies. A vacancy in the board of directors shall be
deemed to exist in case of the death, resignation or removal of any
director, or if the board of directors by resolution declares vacant the
office of a director who has been declared of unsound mind by order of court
or convicted of a felony, 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.
Vacancies in the board of directors, except for a vacancy created by
the removal of a director, may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, and
each director so elected shall hold office until his successor is elected at
an annual or a special meeting of the stockholders. A vacancy in the board
of directors created by the removal of a director may only be filled by the
vote of a majority of the shares entitled to vote represented at a duly held
meeting at which a quorum is present, or by the written consent of the
holders of a majority of the outstanding shares entitled to vote.
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 shall require the consent of holders of a majority of the
outstanding shares entitled to vote.
Any director may resign effective upon giving written notice to the
chairman of the board, the chief executive officer, the president, the
secretary or the board of directors of the corporation, unless the notice
specifies a later time for the effectiveness of such resignation. If the
board of directors accepts the resignation of a director tendered to take
effect at a future time, the board of directors or the stockholders shall
have power to elect a successor or take office when the resignation is to
become effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of
office.
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Section 5. Place of Meeting. Regular meetings of the board of
directors shall be held at any place within or without the State of Delaware
which has been designated from time to time by resolution by the board or by
written consent of all members of the board of directors. In the absence of
such designation, regular meetings shall be held at the principal executive
office of the corporation. Special meetings of the board may be held either
at a place so designated or at the principal executive office.
Section 6. Annual Meeting. Immediately following each annual meeting
of stockholders, the board of directors shall hold a regular meeting at the
place of said annual meeting or at such other place as shall be fixed by the
board of directors, for the purpose of organization, election of officers,
and the transaction of other business. Call and notice of such meetings are
hereby dispensed with.
Section 7. Other Regular Meetings. Other regular meetings of the
board of directors shall be held without call on the date and at the time
which the board of directors may from time to time designate; provided,
however, that should the day so designated fall upon a Saturday, Sunday or
legal holiday observed by the corporation at its principal executive office,
then said meeting shall be held at the same time on the next day thereafter
ensuing which is a full business day. Notice of all such regular meetings
of the board of directors is hereby dispensed with.
Section 8. Special Meetings. Special meetings of the board of
directors for any purpose or purposes shall be called at any time by the
chairman of the board, the president, any vice president, the secretary or
by any director.
Special meetings of the board of directors shall be held upon four (4)
days' written notice or forty-eight (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 direc-
tor'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 purposes of notice
or, if such address is not shown on such records or is not readily ascer-
tainable, 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 mail, 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 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.
Any notice shall state the date, place and hour of the meeting. Notice
given to a director in accordance with this section shall constitute due,
legal and personal notice to such director.
Section 9. Action at a Meeting: Quorum and Required Vote. The
presence of a majority of the authorized number of directors at a meeting of
the board of directors constitutes a quorum for the transaction of business,
except as hereinafter provided. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum
is present shall be regarded as the act of the board of directors, unless a
greater number, or the same number, after disqualifying one or more
directors from voting, is required by law, by the certificate of
incorporation or by these bylaws. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, provided that any action taken is approved by at least a majority
of the required quorum for such meeting.
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Section 10. Validation of Defectively Called or Noticed Meetings. The
transactions of any meeting of the board of directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum is present and if, either
before or after the meeting, each of the directors not present or who,
though present, has prior to the meeting or at its commencement, protested
the lack of proper notice to him, signs a written waiver of notice or a
consent to holding such 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 or the meeting.
Section 11. Adjournment. A majority of the directors present, whether
or not constituting a quorum, may adjourn any board of directors' meeting to
another time or place.
Section 12. Notice of Adjournment. If a meeting is adjourned for more
than twenty-four (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 adjournment; otherwise, notice
of the time and place of holding an adjourned meeting need not be given to
absent directors if the time and place be fixed at the meeting adjourned.
Section 13. Participation in Meetings by Conference Telephone.
Members of the board of directors may participate in a meeting through use
of conference telephone or similar communications equipment, so long as all
members participating in such meeting can hear one another. Participating
in a meeting as permitted in this Section constitutes presence in person at
such meeting.
Section 14. Action Without Meeting. Any action by the board of
directors may be taken without a meeting if all members of the board shall
individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the
proceedings of the board and shall have the same force and effect as a
unanimous vote of such directors.
Section 15. 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 resolution
of the board of directors.
Section 16. Committees. The board of directors may, by resolution
adopted by a majority of the authorized number of directors, designate an
executive and other committees, each consisting of two (2) or more
directors, to serve at the pleasure of the board of directors, and may
prescribe the manner in which proceedings of any such committee meetings of
such committee may be regularly scheduled in advance and may be called at
any time by any two (2) members thereof; otherwise, the provisions of these
bylaws with respect to notice and conduct of meetings of the board of
directors shall govern. Any such committee, to the extent provided in a
resolution of the board of directors, shall have all of the authority of the
board of directors, except as limited by the Delaware General Corporation
Law.
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ARTICLE IV
OFFICERS
----------
Section 1. Officers. The officers of the corporation shall be a chief
executive officer, a president, a secretary and a chief financial officer.
The corporation may also have, at the discretion of the board of directors,
a chairman of the board, one or more vice presidents, one or more assistant
secretaries, one or more assistant treasurers, and such other officers as
may be appointed in accordance with the provisions of Section 3 of this
Article. Any number of offices may be held by the same person.
Section 2. Election. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 3
or Section 6 of this Article, shall be chosen annually by, and shall serve
at the pleasure of, the board of directors, and each shall hold his office
until he or she shall resign or shall be removed or otherwise disqualified
to serve, or his or her successor shall be elected and qualified.
Section 3. Subordinate Officer. The board of directors or the chief
executive officer may 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.
Section 4. Removal and Resignation. Subject to the rights, if any, of
an officer under any contract of employment, any officer may be removed,
either with or without cause, by the board of directors, at any regular or
special meeting thereof, or, except in case of an officer chosen by the
board of directors, by any officer upon whom such power or removal may be
conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
board of directors, or to the president or to the secretary of the
corporation. Any resignation is without prejudice to the rights, if any, of
the corporation under any contract to which such 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.
Section 5. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in
the manner prescribed in these bylaws for regular election or appointment to
such office.
Section 6. Chairman of the Board. The chairman of the board, if there
be such an office, shall preside at all meetings of the board of directors
and exercise and perform such other powers and duties as may be from time to
time assigned to him by the board of directors or prescribed by these
bylaws.
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Section 7. Chief Executive Officer. Subject to such supervisory
powers, if any, as may be given by the board of directors to the chairman of
the board, if there be such an officer, the chief executive officer shall be
the chief executive officer of the corporation and shall, subject to the
control of the board of directors, have general supervision, direction and
control of the business and officers of the corporation. 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 the standing committees,
including the executive committee, if any, and shall have the general power
and duties of management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may be pre-
scribed by the board of directors or these bylaws.
Section 8. President. The president shall be the chief operating
officer of the corporation, and in the event of absence or disability of the
chief executive officer, or if no chief executive officer has been appointed
by the board of directors, shall perform all the duties of the chief
executive officer, and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the chief executive officer.
Section 9. Vice Presidents. In the absence or disability of the
president, the vice presidents in order of their rank as fixed by the board
of directors or, if not ranked, a vice president designated by the board of
directors, if there be such an officer or officers, 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, if there be such an officer or officers, shall have such other
powers and perform such other duties as from time to time may be prescribed
for them respectively by the board of directors or these bylaws.
Section 10. Secretary. The secretary shall record or cause to be
recorded, and shall keep or cause to be kept, at the principal executive
office or such other place as the board of directors may order, a book of
minutes of all meetings and actions, of the stockholders, the board
directors and all committees thereof, with the time and place of holding of
meetings, 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 stockholders' meetings, and the
proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive 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 the 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.
Section 11. Chief Financial Officer. The chief financial officer
shall keep and maintain, or cause to be kept and maintained, adequate and
colored accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares. The
books of account shall at all reasonable times be open to inspection by any
director.
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The chief financial officer 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, shall render to the president and directors, whenever they
request it, an account of all of his 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 of
directors or these bylaws.
Section 12. Assistant Secretaries and Assistant Treasurers. In the
absence or disability of the secretary or the chief financial officer, their
duties shall be performed and their powers exercised, respectively, by any
assistant secretary or any assistant treasurer which the board of directors
may have elected or appointed. The assistant secretaries and the assistant
treasurers shall have such other duties and powers as may have been
delegated to them, respectively, by the secretary or the chief financial
officer or by the board of directors.
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ARTICLE V
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND OTHER AGENTS
------------------------------------
Section 1. Definitions. For the purpose of this Article V, "agent"
means any person who is or was a director, officer, employee or other agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director, officer, employee or agent of a foreign or domestic corporation
which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation; "proceeding"
means any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative; and "expenses" includes,
without limitation, attorneys' fees and any expenses of establishing a right
to indemnification under Section 4 or Section 5(c) of this Article V.
Section 2. Actions by Third Parties. The corporation shall indemnify
any person who was or is a party, or is threatened to be made a party, to
any proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was an agent of the
corporation, against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such proceeding
to the fullest extent permitted by the laws of the State of Delaware as they
may exist from time to time.
Section 3. Actions by or in the Right of the Corporation. 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 by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that such person is or was an agent of the
corporation, against expenses actually and reasonably incurred by such
person in connection with the defense or settlement of such action to the
fullest extent permitted by the laws of the State of Delaware as they may
exist from time to time.
Section 4. Advance of Expenses. Expenses incurred in defending any
proceeding may be advanced by the corporation prior to the final disposition
of such proceeding upon receipt of a request therefor and an undertaking by
or on behalf of the agent to repay such amount unless it shall be determined
ultimately that the agent is not entitled to be indemnified as authorized in
this Article V.
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Section 5. Contractual Nature. The provision of this Article V shall
be deemed to be a contract between the corporation and each director and
officer who serves in such capacity at any time while this Article is in
effect, and any repeal or modification thereof shall not affect any rights
or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore existing
or any action, suit or proceeding theretofore or thereafter brought based in
whole or in part upon any such state of facts.
Section 6. Insurance. Upon and in the event of a determination by the
board of directors to purchase such insurance, the corporation shall
purchase and maintain insurance on behalf of any agent of the corporation
against any liability asserted against or incurred by the agent in such
capacity or arising out of the agent's status as such whether or not the
corporation would have the power to indemnify the agent against such
liability under the provisions of this Article V. All amounts received by
an agent under any such policy of insurance shall be applied against, but
shall not limit, the amounts to which the agent is entitled pursuant to the
foregoing provisions of this Article V.
Section 7. ERISA. To assure indemnification under this provision of
all such persons who are or were "fiduciaries" of an employee benefit plan
governed by the Employee Retirement Income Security Act of 1974, as amended
from time to time ("ERISA"), the provisions of this Article V shall, except
as limited by Section 410 of ERISA, be interpreted as follows: an "other
enterprise" shall be deemed to include an employee benefit plan; the
corporation shall be deemed to have requested a person to serve as an
employee of an employee benefit plan where the performance by such person of
his duties to the corporation also imposes duties on, or otherwise involves
services by , such person to the plan or participants or beneficiaries of
the plan; excise taxes assessed on a person with respect to an employee
benefit plan in the performance of such person's duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the
terms of the plan shall be deemed to be for a purpose which is not opposed
to the best interests of the corporation.
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ARTICLE VI
GENERAL CORPORATE MATTERS
--------------------------
Section 1. Record Date for Purposes Other Than Notice and Voting. For
purposes of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any right in respect of any other lawful action (other than as
provided in Section 12 of Article II of these bylaws), the board of
directors may fix, in advance, a record date, which shall not be more than
sixty (60) days before any such action, and in that case only stockholders
of record on the date so fixed are entitled to receive the dividend,
distribution, or allotment of rights or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date so fixed, except as otherwise provided in
the Delaware General Corporation Law.
If the board of directors does not so fix a record date, the record
date for determining stockholders for any such purpose shall be at the close
of business on the day on which the board adopts the applicable resolution
or the sixtieth (60th) day before the date of that action, whichever is
later.
Section 2. Inspection of Corporate Records. The accounting books and
records, the records of stockholders, and minutes of proceedings of the
stockholders and the board and committees of the board of directors of the
corporation and any subsidiary of the corporation shall be open to
inspection upon the written demand on the corporation of any stockholder or
holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interests
as a shareholder or as the holder of such voting trust certificate. Such
inspection by a stockholder or holder of a voting trust certificate may be
made in person or by an agent or attorney, and the right of inspection
includes the right to copy and make extracts.
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. Such inspection by a
director may be made in person or by agent or attorney, and the right of
inspection includes the right to copy and make extracts.
Section 3. Inspection of Bylaws. The corporation shall keep in its
principal executive office in California, or if its principal executive
office is not in California, then at its principal business office in
California (or otherwise provide upon written request of any stockholder)
the original or a copy of the bylaws as amended or otherwise altered to
date, certified by the secretary, which shall be open to inspection by the
stockholders at all reasonable times during office hours.
Section 4. Checks, Drafts, Etc. All checks, drafts or other orders
for payment of money, notes or other evidences of indebtedness, issued in
the name of or payable to the corporation, shall be signed or endorsed by
such person or persons and in such manner as, from time to time, shall be
determined by resolution of the board of directors.
Section 5. Contracts and Instruments; How Executed. The board of
directors, except as in these bylaws otherwise provided, may authorize any
officer or officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances; and, unless so
authorized or ratified by the board of directors, 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 to any amount.
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Section 6. Certificate for Shares. Every holder of shares in the
corporation shall be entitled to have a certificate signed in the name of
the corporation by the chairman of the board or the president or a vice
president and by the chief financial officer or an assistant treasurer or
the secretary or any assistant secretary, certifying the number of shares
and the Class or series of shares owned by the stockholder. Any of the
signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, 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.
Any such certificate shall also contain such legend or other statement
as may be required by applicable state securities laws, the federal
securities laws, and any agreement between the corporation and the
stockholders thereof.
Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the board of directors or these bylaws
may provide; provided, however, that on any certificate issued to represent
any partly paid shares, the total amount of the consideration to be paid
therefor and the amount paid thereon shall be stated.
Except as provided in this Section 6, no new certificate for shares
shall be issued in lieu of an old one unless the latter is surrendered and
canceled at the same time. The board of directors may, however, in case any
certificate for shares is alleged to have been lost, stolen, or destroyed,
authorize the issuance of a new certificate in lieu thereof, and the
corporation may require that the corporation be given a bond or other
adequate security sufficient to indemnify it against any claim that may be
made against it (including expense or liability) on account of the alleged
loss, theft, or destruction of such certificate of the issuance of such new
certificate.
Section 7. Representation of Shares of Other Corporations. The
president or any other officer or officers authorized by the board of
directors 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 8. Construction and Definitions. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the Delaware General Corporation Law shall govern the
construction of these bylaws. Without limiting the generality of the
foregoing, the masculine gender includes the feminine and neuter, the
singular number includes the plural and the plural number includes the
singular, and the term "person" includes a corporation as well as a natural
person.
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ARTICLE VII
AMENDMENTS TO BYLAWS
---------------------
Section 1. Amendment by Stockholders. New bylaws may be adopted or
these bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the certificate of incorporation of the corporation sets
forth the number of authorized directors of the corporation, the authorized
number of directors may be changed only by an amendment of the certificate
of incorporation.
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