SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
___
| X | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
---
OF THE SECURITIES EXCHANGE ACT OF 1934.
For the quarterly period ended April 30, 1995
OR
___
| | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
---
OF THE SECURITIES EXCHANGE ACT OF 1934.
For the transition period from ___________ to __________
Commission file number: 1-4423
HEWLETT-PACKARD COMPANY
----------------------------------------------------
(Exact name of registrant as specified in its charter)
California 94-1081436
- ------------------------------- ------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3000 Hanover Street, Palo Alto, California 94304
- ------------------------------------------ ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (415) 857-1501
--------------
______________________________________________________
(Former name, former address and former fiscal year, if
changed since last report)
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
----- -----
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at April 30, 1995
- ------------------- -------------------------------
Common Stock, $1 par value 511.5 million shares
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
INDEX
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Page No.
--------
Part I. Financial Information
Item 1. Financial Statements
Consolidated Condensed Balance Sheet
April 30, 1995 and October 31, 1994 2
Consolidated Condensed Statement of Earnings
Three months and six months ended April 30, 1995 and 1994 3
Consolidated Condensed Statement of Cash Flows
Six months ended April 30, 1995 and 1994 4
Notes to Consolidated Condensed Financial Statements 5
Item 2. Management's Discussion and Analysis of Results of
Operations, Financial Condition and Factors
That May Affect Future Results 6-7
Part II. Other Information
Item 4. Submission of Matters to a Vote of Security Holders 8
Item 5. Other Information 8
Item 6. Exhibits and Reports on Form 8-K 8
Signature 9
Exhibit Index 10
1
<TABLE>
Item 1. Financial Statements.
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEET
------------------------------------
(Millions except par value and number of shares)
<CAPTION>
April 30 October 31
1995 1994
--------- ----------
Assets (Unaudited)
------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 1,936 $ 1,357
Short-term investments 1,060 1,121
Accounts and notes receivable 5,449 5,028
Inventories:
Finished goods 2,631 2,466
Purchased parts and fabricated assemblies 1,985 1,807
Other current assets 794 730
------- -------
Total current assets 13,855 12,509
------- -------
Property, plant and equipment (less accumulated
depreciation: April 30, 1995 - $3,847;
October 31, 1994 - $3,610) 4,418 4,328
Long-term receivables and other assets 3,039 2,730
------- -------
$21,312 $19,567
======= =======
Liabilities and Shareholders' Equity
------------------------------------
Current liabilities:
Notes payable and short-term borrowings $ 2,151 $ 2,469
Accounts payable 1,782 1,466
Employee compensation and benefits 1,448 1,256
Taxes on earnings 1,259 1,245
Deferred revenues 805 598
Other accrued liabilities 1,308 1,196
------- -------
Total current liabilities 8,753 8,230
------- -------
Long-term debt 665 547
Other liabilities 938 864
Shareholders' equity:
Preferred stock, $1 par value; 300,000,000 shares
authorized; none issued and outstanding
Common stock and capital in excess, $1 par value;
1,200,000,000 shares authorized;
511,511,000 and 254,827,000 shares issued and
outstanding at April 30, 1995 and October 31,
1994, respectively* 1,037 1,033
Retained earnings 9,919 8,893
------- -------
Total shareholders' equity 10,956 9,926
------- -------
$21,312 $19,567
======= =======
The accompanying notes are an integral part of these consolidated condensed
financial statements.
* See discussion of the March 1995 2-for-1 stock split on page 5 of this
report.
2
</TABLE>
<TABLE>
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENT OF EARNINGS
--------------------------------------------
(Unaudited)
(Millions except per share amounts)
<CAPTION>
Three months ended Six months ended
April 30 April 30
------------------ ----------------
1995 1994 1995 1994
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenue:
Products $6,339 $5,382 $12,624 $10,244
Services 1,089 872 2,108 1,692
------ ------ ------- -------
7,428 6,254 14,732 11,936
------ ------ ------- -------
Costs and expenses:
Cost of products sold and services 4,654 3,890 9,201 7,360
Research and development 556 502 1,091 968
Selling, general and administrative 1,343 1,224 2,633 2,372
------ ------ ------- -------
6,553 5,616 12,925 10,700
------ ------ ------- -------
Earnings from operations 875 638 1,807 1,236
Interest income and other, net 26 6 59 9
Interest expense 47 35 93 69
------ ------ ------- -------
Earnings before taxes 854 609 1,773 1,176
Provision for taxes 277 201 594 400
------ ------ ------- -------
Net earnings $ 577 $ 408 $ 1,179 $ 776
====== ====== ======= =======
Net earnings per share * $ 1.10 $ .78 $ 2.25 $ 1.49
====== ====== ======= =======
Cash dividends declared per share * $ .20 $ --- $ .50 $ .25
====== ====== ======= =======
Average shares and equivalents used
in computing net earnings per share * 526 522 525 520
====== ====== ======= =======
The accompanying notes are an integral part of these consolidated condensed
financial statements.
Certain amounts have been reclassified to conform to the 1995 presentation.
* 1994 amounts have been restated to reflect the retroactive effect of the
March 1995 2-for-1 stock split. See discussion on page 5 of this report.
3
</TABLE>
<TABLE>
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENT OF CASH FLOWS
----------------------------------------------
(Unaudited)
(Millions)
<CAPTION>
Six months ended
April 30
----------------
1995 1994
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net earnings $1,179 $ 776
Adjustments to reconcile net earnings to cash
provided by operating activities:
Depreciation and amortization 539 466
Deferred taxes on earnings (67) (83)
Change in assets and liabilities:
Accounts and notes receivable (413) (101)
Inventories (343) (331)
Accounts payable 316 25
Taxes on earnings (9) 84
Deferred revenues 207 99
Other current assets and liabilities 260 165
Other, net (78) 52
------ ------
1,591 1,152
------ ------
Cash flows from investing activities:
Investment in property, plant and equipment (700) (550)
Disposition of property, plant and equipment 179 189
Purchases of short-term investments (1,637) (1,058)
Maturities of short-term investments 1,698 950
Purchases of long-term investments (100) (15)
Other, net (22) 39
------ ------
(582) (445)
------ ------
Cash flows from financing activities:
Change in notes payable and
short-term borrowings (349) 34
Issuance of long-term debt 401 31
Payment of current maturities of long-term debt (255) (27)
Issuance of common stock under employee stock plans 184 170
Repurchase of common stock (260) (126)
Dividends (153) (127)
Other, net 2 ---
------ ------
(430) (45)
------ ------
Increase in cash and cash equivalents 579 662
Cash and cash equivalents at beginning of period 1,357 889
------ ------
Cash and cash equivalents at end of period $1,936 $1,551
====== ======
The accompanying notes are an integral part of these consolidated condensed
financial statements.
Certain amounts have been reclassified to conform to the 1995 presentation.
4
</TABLE>
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
----------------------------------------------------
(Unaudited)
1. In the opinion of the Company's management, the accompanying
consolidated condensed financial statements contain all adjustments
(which comprise only normal and recurring accruals) necessary to
present fairly the financial position as of April 30, 1995 and
October 31, 1994, the results of operations for the three
months and six months ended April 30, 1995 and 1994, and the cash
flows for the six months ended April 30, 1995 and 1994.
The results of operations for the three months and six months
ended April 30, 1995 are not necessarily indicative of the
results to be expected for the full year.
2. In fiscal 1995, sales of consumable supplies, consisting primarily
of supplies for the Company's printer products, are reported in the
consolidated condensed statement of earnings as product revenue.
In previous years, consumable supplies were reported as service
revenue. Prior year amounts have been reclassified to reflect
this change, which did not affect total revenue, earnings from
operations or net earnings.
3. The Company paid interest of $79 million and $65 million during the
six months ended April 30, 1995 and 1994, respectively. During
the same periods, the Company paid income taxes of $611 million and
$398 million, respectively. The effect of foreign currency exchange
rate fluctuations on cash balances held in foreign currencies was not
material.
4. Income tax provisions for interim periods are based on estimated
effective annual income tax rates. The effective income tax rate
varies from the U.S. federal statutory income tax rate primarily
because of variations in the tax rates on foreign income.
5. Net earnings per share are computed based on a method which
approximates the use of a weighted-average number of common shares
and common share equivalents outstanding during each period.
Common share equivalents represent the dilutive effect of outstanding
stock options.
6. On February 15, 1995, the Company's Board of Directors approved
a 2-for-1 stock split of the Company's $1 par value common stock
in the form of a 100% distribution to shareholders of record as of
March 24, 1995. As a result of the stock split, fiscal 1995
authorized, outstanding, and reserved common shares doubled
and capital in excess of par value was reduced by the par value of the
additional common shares issued. The rights of the holders of
these securities were not otherwise modified. All per share
amounts have been restated to reflect the retroactive effect
of the stock split.
7. On November 1, 1994, the Company adopted Statement of Financial
Accounting Standards No. 115 ("FAS 115"), Accounting for Certain
Investments in Debt and Equity Securities. FAS 115 requires certain
investments in debt and equity securities be classified into one of
three categories: held-to-maturity, available-for-sale, or trading.
The Company's investments are primarily comprised of debt securities
which are held-to-maturity. Adoption of this statement did not have
a material effect on the Company's financial position or results of
operations.
5
Item 2. Management's Discussion and Analysis of Results of Operations,
Financial Condition and Factors That May Affect Future Results
(Unaudited).
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
RESULTS OF OPERATIONS
- ---------------------
Net Revenue - Net revenue for the first six months of fiscal 1995 was
$14.7 billion, an increase of 23 percent from the same period of fiscal 1994.
Product sales increased 23 percent and service revenue grew 25 percent
over the corresponding period of fiscal 1994. Net revenue grew 28 percent
to $8.4 billion internationally and 17 percent to $6.3 billion in the U.S.
Net revenue for the second quarter ended April 30, 1995 was $7.4 billion, an
increase of 19 percent from the same period of fiscal 1994. Product sales
increased 18 percent and service revenue grew 25 percent over the
corresponding period of fiscal 1994. Net revenue grew 24 percent to
$4.3 billion internationally and 12 percent to $3.1 billion in the U.S.
The second quarter growth in net revenue was principally due to strong demand
for the Company's personal computer and PC networking products, UNIX servers
and the related solutions integration consulting and professional services
business, and test and measurement products.
In fiscal 1995, sales of consumable supplies, consisting primarily of supplies
for the Company's printer products, are reported in the consolidated condensed
statement of earnings as product revenue. In previous years, consumable
supplies were reported as service revenue. Prior year amounts have been
reclassified to reflect this change, which did not affect total revenue,
earnings from operations or net earnings.
Costs and Expenses - Cost of products sold and services as a percentage of net
revenue was 62.7 percent for the second quarter and 62.5 percent for the first
half of fiscal 1995, compared to 62.2 percent for the second quarter and 61.7
percent of the first half of fiscal 1994. These modest increases over fiscal
1994 were the result of the current strength in our higher gross margin test
and measurement and UNIX servers businesses, partially offsetting the growth
in our lower gross margin personal computer business. The Company believes
that competitive pricing pressures and the shift in revenue mix may continue
to place upward pressure on cost of sales.
Operating expenses as a percentage of net revenue were 25.6 percent for the
second quarter and 25.3 percent for the first half of fiscal 1995, compared
to 27.6 percent for the second quarter and 27.9 percent for the first half
of fiscal 1994. These decreases from fiscal 1994 reflect ongoing efforts to
achieve expense structures appropriate for the Company's changing businesses.
Operating expenses increased 10 percent for the second quarter and
11.5 percent for the first half of fiscal 1995 over the corresponding year-ago
periods. These increases resulted primarily from increased research and
development expenses and marketing and selling expenses, which reflects the
Company's belief that success in a global marketplace requires a continuing
flow of innovative, high-quality products.
Interest Income and Other, Net - During the second quarter and first half of
fiscal 1995, interest income and other, net increased to $26 million and $59
million, respectively, compared to $6 million and $9 million in the
corresponding periods of fiscal 1994. These increases are largely due to
gains realized on the sale of certain equity investments and interest income
on higher cash balances, as well as interest rate changes during the
respective periods.
6
Provision for Taxes - The provision for taxes as a percentage of earnings
before taxes was 32.4 percent for the second quarter and 33.5 percent for
the first half of fiscal 1995, compared to 33 percent for the second
quarter and 34 percent for the first half of fiscal 1994. The rate was
reduced in the second quarter of fiscal 1995 to 33.5 percent on a
year-to-date basis, down from 34.5 percent for the first quarter
of fiscal 1995. The main factor which led to this adjustment was the
favorable resolution of certain issues relating to tax returns filed
in previous years.
Net Earnings - Net earnings for the second quarter of fiscal 1995 were $577
million, or $1.10 per share on an average of 526 million shares, compared
to net earnings of $408 million, or $0.78 per share on an average of 522
million shares for the second quarter of fiscal 1994. For the six months
ended April 30, 1995, net earnings were $1,179 million, or $2.25 per share on
an average of 525 million shares, compared to net earnings of $776 million,
or $1.49 per share on an average of 520 million shares for the first half of
fiscal 1994. The 1994 per share amounts have been restated to reflect the
retroactive effect of the March 1995 stock split.
FINANCIAL CONDITION
- -------------------
Liquidity and Capital Resources - The Company's financial position remains
strong, with cash and cash equivalents and short-term investments of $3.0
billion at April 30, 1995, compared with $2.4 billion at April 30, 1994.
Cash flows from operating activities were $1.6 billion during the first
six months of fiscal 1995, compared to $1.2 billion for the corresponding
period of fiscal 1994. The increase in cash flows from operating activities
for fiscal 1995 was primarily attributable to higher net earnings and changes
in accounts payable and other current assets and liabilities. These factors
were partially offset by increases in accounts and notes receivable. Inventory
management remains an area of focus, with slightly higher inventory growth
for the first six months of fiscal 1995 compared to the first six months of
fiscal 1994.
Capital expenditures for the first six months of fiscal 1995 were
$700 million, compared to $550 million for the corresponding period in the
previous year. The capital expenditures in 1995 relate mainly to expansion
of production capacity and to accomodate the introduction of new products.
The changes in investment and borrowing activities during the first six months
of fiscal 1995, when compared to the same period in 1994, resulted from changes
in the Company's liquidity requirements to meet short-term working capital
needs.
Under the Company's ongoing stock repurchase program, shares have been
purchased periodically to meet employee stock plan requirements. During
the six months ended April 30, 1995, the Company purchased and retired
approximately 5.0 million shares (on a post-split basis) for an aggregate
price of $260 million. During the six months ended April 30, 1994, the
Company repurchased and retired approximately 1.6 million shares (on
a pre-split basis) for an aggregate price of $126 million.
FACTORS THAT MAY AFFECT FUTURE RESULTS
- ---------------------------------------
The Company's operations are dependent on the ability of significant suppliers
to deliver integral sub-assemblies and components in time to meet critical
manufacturing schedules. The Company periodically experiences constrained
supply of certain component parts in some product lines, as a result of
strong demand in those product lines as well as strong demand in the industry.
Continued contraints may result in moderated revenue growth until alternate
sourcing is developed. The Company believes that alternate suppliers or design
solutions can be arranged within a reasonable time in order to minimize
material long-term adverse impacts.
7
PART II. OTHER INFORMATION
---------------------------
Item 4. Submission of Matters to a Vote of Security Holders
(a) The Company's Annual Meeting of Shareholders was held on
February 28, 1995.
(c) At said Annual Meeting, shareholders voted on three matters:
the election of directors, approval of the adoption of the
Company's 1995 Incentive Stock Plan (the "1995 Plan") and the
appointment of Price Waterhouse LLP as the Company's independent
accountants. The shareholders elected all members of the management
slate in an uncontested election and approved the adoption of the
1995 Plan and the appointment of independent accountants, by the
following votes, respectively.
Directors
- ---------
Votes Withheld/
Director Votes for Abstentions
-------- --------- -------------------
Thomas E. Everhart 212,093,861 407,208
John B. Fery 212,057,944 443,125
Jean-Paul G. Gimon 212,083,875 417,194
Richard A. Hackborn 212,090,307 410,762
Harold J. Haynes 212,050,429 450,640
Walter B. Hewlett 212,079,903 421,166
Shirley M. Hufstedler 212,051,860 449,209
George A. Keyworth II 212,099,870 401,199
Paul F. Miller, Jr. 212,099,003 402,066
Susan P. Orr 212,086,947 414,122
David W. Packard 212,079,874 421,195
Donald E. Petersen 212,089,856 411,213
Lewis E. Platt 212,069,913 431,156
Robert P. Wayman 212,091,284 409,785
1995 Plan
- ----------
Votes Withheld/ Broker
Votes for Votes Against Abstentions Non-Votes
----------- ------------- --------------- ------------
142,104,985 55,277,196 1,082,602 14,036,286
Accountants
- -----------
Votes Withheld/
Votes for Votes Against Abstentions
----------- ------------- ---------------
211,772,292 333,595 395,182
All vote totals are reported before giving effect to the 2-for-1 stock split
described below.
Item 5. Other information
On February 15, 1995 the Company's Board of Directors
approved a 2-for-1 stock split of the Company's $1 par
value common stock in the form of a 100% stock distribution
to shareholders of record as of March 24, 1995. As a result
of the split, fiscal 1995 authorized, outstanding, and reserved
common shares doubled and capital in excess of par value was
reduced by the par value of the additional common shares issued.
The rights of the holders of these securities were not otherwise
modified.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits:
A list of exhibits is set forth in the Exhibit Index found
on page 10 of this report.
(b) Reports on Form 8-K:
There were no reports on Form 8-K filed during the three
months ended April 30, 1995.
8
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
SIGNATURE
---------
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.
HEWLETT-PACKARD COMPANY
(Registrant)
Dated: June 14, 1995 BY: Robert P. Wayman
------------------------
Robert P. Wayman
Executive Vice President,
Finance and Administration
(Chief Financial Officer)
9
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
EXHIBIT INDEX
-------------
Exhibits:
1. Not applicable.
2. None.
3. (i ) Articles of Incorporation, as amended
(ii) Bylaws, as amended
4. None.
5-9 . Not applicable.
10-11. None.
12-14. Not applicable.
15. None.
16-17. Not applicable.
18-19. None.
20-21. Not applicable.
22-24. None.
25-26. Not applicable.
27. Financial Data Schedule.
28. Not applicable.
99. None.
10
HEWLETT-PACKARD COMPANY
AMENDED AND RESTATED ARTICLES OF INCORPORATION
FIRST: The name of this corporation is HEWLETT-PACKARD
COMPANY.
SECOND: The purpose of this corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of California other than the banking business,
the trust company business or the practice of a profession permitted to be
incorporated by the California Corporations Code.
THIRD: This corporation elects to be governed by all of the
provisions of the General Corporation Law of 1977 not otherwise
applicable to it under Chapter 23 thereof.
FOURTH: The number of directors of this corporation shall be
not less than eleven (11) nor more than twenty-one (21). The exact
number of directors shall be fixed and may be changed from time to time,
within the limits specified above, by a by-law or amendment thereof duly
adopted by the shareholders or by the Board of Directors.
FIFTH: The total number of shares of all classes which the
corporation shall have authority to issue shall be 1,500,000,000 which
shall be divided into two classes, one to be designated "Common Stock"
and to be constituted of 1,200,000,000 shares, each of a par value of
$1.00, and a second class to be designated "Preferred Stock", and to be
constituted of 300,000,000 shares, each of a par value of $1.00.
Shares of Preferred Stock may be issued by the corporation from
time to time in one or more series, with such designations, powers,
privileges, preferences and relative, participating, optional or other rights,
if any, and such qualifications, limitations or restrictions thereon, as are
permitted by law and as the Board of Directors shall from time to time
provide for and fix by resolution or resolutions duly adopted, including,
without limitation, voting powers, if any (including multiple or fractional
votes per share), dividend rights (including dividend preferences or limited
or unlimited dividend participation), conversion rights, mandatory or
optional redemption rights or restrictions and preferences, or limited or
unlimited participation in the amount to be paid on liquidation, and the
Board of Directors is hereby authorized to fix and determine the powers,
privileges, preferences and rights of any series of Preferred Shares
(including, but not limited to, applicable conversion or redemption rates
or prices or dividend rates), and to fix the number of shares constituting
any such series and to increase or decrease the number of shares of any
such series (but not below the number of shares thereof then outstanding).
No holders of shares of the corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive rights to
subscribe for, purchase or receive any shares of the corporation of any
class, now or hereafter authorized, or any options or warrants for such
shares, or any rights to subscribe for, purchase or receive any securities
convertible to or exchangeable for such shares, which may at any time be
issued, sold or offered for sale by the corporation, except in the case of
any shares of Preferred Stock to which such rights are specifically granted
by any resolution or resolutions of the Board of Directors adopted
pursuant to this Article FIFTH.
Upon the filing in the Office of the Secretary of State of the State
of California of the Certificate of Amendment of Amended Articles of
Incorporation of this corporation whereby this Article FIFTH is amended
to read as herein set forth, each issued and outstanding share of Common
Stock of the corporation of the par value of $1 per share shall be thereby
and thereupon split up and divided into two shares of the par value of $1
per share and each person at that time holding of record any issued and
outstanding shares of Common Stock shall be entitled to receive a stock
certificate or certificates to evidence and represent the additional shares
of Common Stock to which he becomes entitled by reason of such stock
split onthe basis of one additional share for each share so held of record.
corporation of any class, now or hereafter authorized, or any options or
warrants for such shares, or any rights to subscribe for, purchase or
receive any securities convertible to or exchangeable for such shares,
which may at any time be issued, sold or offered for sale by the
corporation, except in the case of any shares of Preferred Stock to which
such rights are specifically granted by any resolution or resolutions of the
Board of Directors adopted pursuant to this Article FIFTH.
SIXTH: Notwithstanding that no vote may be permitted by law
or by any other Article hereof or by any resolution or resolutions of the
Board of Directors providing for any series of Preferred Stock adopted
pursuant to the provisions of Article FIFTH hereof or by any agreement
between the corporation and any national securities exchange or otherwise,
the vote of the shareholders of the corporation which shall be required to
approve any Business Combination (as hereinafter defined) shall be as set
forth in this Article SIXTH.
(a) In addition to any affirmative vote required by law of any
other provision hereof or any resolution or resolutions of the Board of
Directors providing for any series of Preferred Stock adopted pursuant to
the provisions of Article FIFTH hereof, and except as otherwise expressly
provided in paragraph (b) of this Article SIXTH, none of the following
transactions shall be consummated unless and until such transaction shall
have been approved by the affirmative vote of the holders of at least 80
percent of the combined voting power of the outstanding shares of stock
of all classes and series of the corporation entitled to vote generally in the
election of directors ("Voting Stock")
(1) any merger or consolidation of the corporation with
(i) any corporation which is an Interested Shareholder (as
hereinafter defined) or (ii) any other corporation which after such
merger or consolidation would be an Interested Shareholder or an
Affiliate (as hereinafter defined) of an Interested Shareholder; or
(2) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
related transactions) to or with any Interested Shareholder of (i) all
or substantially all the assets of the corporation or any Subsidiary
(as hereinafter defined) or Subsidiaries having in the aggregate a
Fair Market Value (as hereinafter defined) in an amount which is
more than 10 percent of the total value of the assets of the
corporation and its consolidated subsidiaries as reflected on the
most recent Balance Sheet (as hereinafter defined) of the
corporation; or
(3) any merger or consolidation of any Subsidiary or
Subsidiaries having in the aggregate assets with a Fair Market
Value as of the Announcement Date (as hereinafter defined) in an
amount which is more than 10 percent of the total value of the
assets of the corporation and its consolidated subsidiaries as
reflected on the most recent Balance Sheet of the corporation with
(i) any corporation which is an Interested Shareholder or an
Affiliate thereof or (ii) any other corporation which after such
merger or consolidation would be an Interested Shareholder or any
Affiliate of an Interested Shareholder; or
(4) the issuance or transfer by the corporation or any
Subsidiary (in one transaction or a series of related transactions)
to an Interested Shareholder of any securities of the corporation or
any Subsidiary in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market Value
as of the Announcement Date of $500,000,000 or more, other than
the issuance of securities upon the conversion or exchange of
securities of the corporation or in exchange for securities of any
Subsidiary which were acquired by an Interested Shareholder from
the corporation or a Subsidiary in a Business Combination (as
hereinafter defined) which was approved by a vote of the
shareholder pursuant to this Article SIXTH; or
(5) the adoption of any plan or proposal for the
liquidation of any substantial part of the corporation proposed by
or on behalf of any Interested Shareholder; or
(6) any reclassification of any securities of the
corporation (including any reverse stock split), any recapitalization
of the capital stock of the corporation, any merger or consolidation
of the corporation with or into any of its Subsidiaries, or any other
transaction (whether or not with or involving any Interested
Shareholder), which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any
class of stock or series thereof of the corporation or of any
Subsidiary directly or indirectly Beneficially Owned (as hereinafter
defined) by any Interested Shareholder or as a result of which the
shareholders of the corporation would cease to be shareholders of
a corporation incorporated under the laws of the State of California
having, as part of its articles of incorporation, provisions to the
same effect as this Article SIXTH and the provisions of Article
EIGHTH of these Amended Articles of Incorporation relating to
amendments or changes to this Article SIXTH.
The term "Business Combination" as used in this Article SIXTH
shall mean any transaction or proposed transaction which is referred to in
any ne or more of the foregoing subparagraphs (1) through (6) of this
paragraph (s) of this Article SIXTH.
(b) The provisions of paragraph (a) of this Article SIXTH shall
not be applicable to any particular Business Combination, and such
Business Combination shall require only such vote of shareholders, if any,
as is required by law and any other Article hereof of by the terms of any
resolution or resolutions of the Board of Directors providing for any series
of Preferred Stock adopted pursuant to the provisions of Article FIFTH
hereof or any agreement between the corporation and any national
securities exchanges or otherwise, if such Business Combination shall have
been approved by a majority of the Disinterested Directors (as hereinafter
defined) at the time or if all the conditions specified in each of the
following subparagraphs (1), (2), (3), (4) and (5) are satisfied:
(1) the transaction constituting the Business
Combination shall provide for a consideration per share to be
received by all holders of shares of Common Stock in exchange
for all of their shares of Common Stock, and the aggregate amount
of the cash and the Fair Market Value as of the date of the
consummation of the Business Combination of any consideration
other than cash to be received per share by holders of Common
Stock in such Business Combination, shall be at least equal to the
higher of the following:
(i) if the Announcement Date of such Business
Combination is within five years of the Determination Date (as
hereinafter defined) in respect of the Interested Shareholder
involved in such Business Combination, the higher, if applicable,
of (A) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by such Interested
Shareholder for any shares of Common Stock which are or were at any time
within such five-year period Beneficially Owned by such Interested
Shareholder and were acquired by it at any time within such five-year
period or (B) the price per share equal to the Fair Market Value per
share of Common Stock on the Announcement Date of such Business
Combination multiplied by the ratio of (x) the price determined
pursuant to the foregoing clause (A) to (y) the average of
the Fair Market Values of a share of Common Stock over each
trading day in the period of 90 days prior to such Determination Date, or
(ii) the average of the Fair Market Values of a
share of Common Stock over each trading day in the period of 90
days prior to the Announcement Date of such Business
Combination;
provided, however, that the price referred to in the foregoing clauses
(i)(A) and (ii) of this subparagraph (1) shall be adjusted to reflect fairly
any stock dividend, stock split, reverse stock split, combination of shares,
recapitalization, reorganization or similar event affecting the number of
shares of Common Stock outstanding and the market price per share of
outstanding shares of Common Stock which has occurred after the date as
of which such price is determined; and
(2) the holders of shares of Common Stock and of any other
class or series of Voting Stock shall have the right, at their option, to
receive payment in cash of the consideration to be received by holders of
shares of Common Stock or of any other class or series of Voting Stock
in the Business Combination, if cash were previously paid by the
Interested Combination, if cash were previously paid by the Interested
Shareholder involved in such Business Combination in order to acquire
any shares of Common Stock within the five-year period immediately
prior to the Announcement Date; and
(3) after the Determination Date in respect of the Interested
Shareholder involved in such Business Combination and prior to the
consummation of such Business Combination;
(i) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to declare
and have available for payment at the regular dates therefor, the
full amount of any dividends (whether or not cumulative) accrued
on any series of Preferred Stock or any other class of stock or
series thereof having a preference over the Common Stock as to
dividends; and
(ii) there shall have been (A) no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary
to reflect any split or subdivision of the Common Stock), except
as approved by a majority of the Disinterested Directors, and (B)
an increase in such annual rate of dividends (as necessary to
prevent any such reduction) in the event of any reclassification
(including any reverse stock split or combination of shares),
recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the
Common Stock, unless the failure so to increase such annual rate
is approved by a majority of the Disinterested Directors; and
(4) after the Determination Date in respect of the Interested
Shareholder involved in such Business Combination, such Interested
Shareholder shall not have received the benefit, directly or indirectly
(except as a stockholder of the corporation, in proportion to its
stockholding), of any loans, advances, guarantees or similar financial
assistance (collectively, "Financial Assistance") provided by the
corporation, whether in anticipation of or in connection with such Business
Combination or otherwise, unless the transaction constituting the Business
Combination shall provide for a consideration to be received by the
holders of shares of Common Stock in exchange for all of their shares of
Common Stock in an amount equal to the amount required under the
foregoing subparagraph (1) plus the total amount of the Fair Market Value
of all such Financial Assistance; and
(5) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder
(or any subsequent provisions replacing such Act, rules or regulations)
shall, at the corporation's expense, be mailed to stockholders of the
corporation at least 30 days prior to the consummation of such Business
combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act, rules or regulations or
subsequent provisions), and the Disinterested Directors, if there are any
at the time, shall have been provided a reasonable opportunity to state
their views therein with respect to such proposed Business Combination
and to include therewith an opinion of an independent investment banker
selected by the Disinterested Directors with respect to such Business
Combination.
(c) For purposes of this Article SIXTH:
(1) an "Affiliate" of a person shall mean any person
who, directly or indirectly, controls, is controlled by or is under common
control with such person.
(2) An "Announcement Date" with respect to any
Business Combination means the date on which the proposal of
such Business Combination is first publicly announced.
(3) An "Associate" means (i) with respect to a
corporation or association, any officer or director thereof or of a
subsidiary thereof, (ii) with respect to a partnership, any general
partner thereof or any limited partner thereof having a 10 percent
ownership interest in such partnership, (iii) with respect to a
business trust, any officer or trustee thereof or of any subsidiary
thereof, (iv) with respect to any other trust or an estate, any
trustee, executor or similar fiduciary and any person who has a
substantial interest as a beneficiary of such trust or estate, (v) with
respect to a natural person, the spouses and children thereof and
any other relative thereof or of the spouse thereof who has the
same home, and (vi) any Affiliate of any such person.
(4) "Balance Sheet" as of any particular time means the
most recent, publicly available consolidated balance sheet of the
corporation and its consolidated subsidiaries audited by the
corporation's independent public accountants.
(5) A person shall be "Beneficial Owner" of, or have
"Beneficial Ownership" of or "Beneficially Own", any Voting
Stock over which such person or any of its Affiliates or
Associates, directly or indirectly, through any contract,
arrangement, understanding or relationship, has or shares or, upon
the exercise of any conversion right, exchange right, warrant,
option or similar interest (whether or not then exercisable) would
have or share, either (i) voting power (including the power to vote
or to direct the voting) of such security or (ii) investment power
(including the power to dispose or direct the disposition) of such
security. For the purposes of determining whether a person is an
Interested Shareholder, the number of shares of Voting Stock
deemed to be outstanding shall include any share Beneficially
Owned by such person even though not actually outstanding, but
shall not include any other shares of Voting Stock which are not
outstanding but which may be issuable to other persons pursuant
to any agreement, arrangement or understanding, or upon exercise
of any conversion right, exchange right, warrant, option or similar
interest.
(6) "Consolidated Transaction Reporting System" means
the system of reporting securities information operated under the
authority of Rule 11Aa3-1 under the Securities Exchange Act of
1934, as amended, as such rule may from time to time be
amended, and any successor rule or rules.
(7) "Determination Date" in respect of an Interested
Shareholder means the date on which such Interested Shareholder
first became an Interested Shareholder.
(8) "Disinterested Director" with respect to a Business
Combination means any member of the Board of Directors of the
corporation who is not an Affiliate or Associate of, and was not
directly or indirectly a nominee of, any Interested Shareholder
involved in such Business Combination or any Affiliate or
Associate of such Interested Shareholder and who either (i) was a
member of the Board of Directors prior to the time that such
Interested Shareholder became an Interested Shareholder or (ii) is
a successor of a Disinterested Director and was nominated to
succeed a Disinterested Director by a majority of the Disinterested
Directors on the Board of Directors at the time of his nomination.
Any reference to "Disinterested Directors" shall refer to a singly
Disinterested Director is there by but one. Any matter referred to
in this Article SIXTH as requiring action of, or approval by, a
majority of the Disinterested Directors shall mean an action taken
or approval given by the Board of Directors without giving effect
to the vote of any Director who is not a Disinterested Director and
the affirmative vote of a majority of the Disinterested Directors.
(9) "Fair Market Value" as of any particular date
means: (i) in the case of stock (including Voting Stock of the
corporation) which is traded on any securities exchange or in the
over-the-counter market, the average for the trading days during
the thirty-day period immediately preceding the date in question of
the closing sale price of such stock on the New York Stock
Exchange Composite Tape, or, if such stock is not quoted on the
Composite Tape, on the New York Stock exchange, or, if such
stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act
of 1934, as amended, on which such stock is listed, or, if such
stock is not listed on any such exchange, of the last sales price at
4:00 p.m. reported in the Consolidated Transaction Reporting
System (as heretofore defined) or, if such stock is not so reported,
the average of the highest reported bid and the lowest reported
asked quotation for a share of such stock furnished by the National
Association of Securities Dealers Automated Quotation System or
any successor quotation reporting system or, if quotations are not
available in such system, as furnished by the National Quotation
Bureau Incorporated or any similar organization furnishing
quotations and, of no such quotations are available, the fair market
value on the date in question of a share of such stock as
determined by a majority of the Disinterested Directors in good
faith and (ii) in the case of stock of any class or series which is not
traded on any securities exchange or in the over-the-counter market
or in the case of property other than cash or stock or in the case
of Financial Assistance, the fair market value of such stock,
property or Financial Assistance, as the case may be, on the date
in question as determined by a majority of the Disinterested
Directors in good faith.
(10) "Interested Shareholder" shall mean any person,
other than the corporation, any Subsidiary or any employee benefit
plan of the corporation or any Subsidiary, who or which:
(i) is the Beneficial Owner, directly or indirectly
of shares of Voting Stock which are entitled to case 20
percent or more of the total votes which all of the then
outstanding shares of Voting Stock are entitled to case in
the election of directors or is an Affiliate or Associate of
any such person or
(ii) acts with any other person as a partnership,
limited partnership, syndicate, or other group for the
purpose of acquiring, holding or disposing of securities of
the corporation, and such group is the Beneficial Owner,
directly or indirectly, of shares of Voting Stock which are
entitled to cast 20 percent or more of the total votes which
all of the then outstanding shares of Voting Stock are
entitled to case in the election of directors,
and any reference to a particular Interested Shareholder involved
in a Business Combination shall also refer to any Affiliate or
Associate thereof, an predecessor thereto and any other person
acting as a member of a partnership, limited partnership, syndicate
or group with such particular Interested Shareholder within the
meaning of the foregoing clause (ii) of this subparagraph (10).
(11) a "person" shall mean any individual, firm,
corporation (which shall include a business trust), partnership,
joint venture, trust or estate, association or other entity.
(12) "Subsidiary" in respect of the corporation means any
corporation or partnership of which a majority of any class of its
equity securities is owned, directly or indirectly, by the
corporation.
(d) A majority of the Disinterested Directors shall have the
power and duty to determine, on the basis of information known to them
after reasonable inquiry, all facts necessary to determine compliance with
this Article SIXTH, including, without limitation: (i) whether a person is
an Interested Shareholder, (ii) the number of shares of Voting Stock
Beneficially Owned by any person, (iii) whether a person is an Affiliate
or Associate of another person, (iv) whether the requirements of
paragraph (b) of this Article SIXTH have been met with respect to any
Business Combination, (v) whether two or more transactions constitute a
"series of related transactions" for purposes of paragraph (a) of this
Article SIXTH, and (vi) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the corporation or any Subsidiary in
any Business Combination has, (A) an aggregate Fair Market Value of
$500,000,000 or more or (B) represent in the aggregate more than 10
percent of the total value of the assets of the corporation and its
consolidated subsidiaries. The good faith determination of a majority of
the Disinterested Directors on such matters shall be conclusive and
binding for all purposes of this Article SIXTH.
(e) Nothing contained in this Article SIXTH shall be construed
to relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
SEVENTH: Any action required or permitted to be taken by the
shareholders of the corporation must be effected at a duly called annual
or special meeting of shareholders of the corporation and may not be
effected by any consent in writing by the shareholder.
EIGHTH: (a) The corporation reserves the right at any time and
from time to time to amend, alter, change, or repeal any provisions
contained herein, and other provisions authorized by the laws of the State
of California at the time in force may be added or inserted, in the manner
now or hereafter prescribed by law, and all rights, preferences, and
privileges of whatsoever nature conferred upon stockholders, directors, or
any other persons whomsoever by or pursuant to these Articles of
Incorporation in its present form or as hereafter amended are granted
subject to the right reserved in this Article.
(b) In addition to any requirements of law and any other
provisions hereof or any resolution or resolutions of the Board of
Directors providing for any series of Preferred Stock adopted pursuant to
Article FIFTH hereof (and notwithstanding the fact that approval by a
lesser vote may be permitted by law, and any other provision hereof or
any such resolution or resolutions), the affirmative vote of the holders of
80 percent or more of the combined voting power of the then outstanding
shares of Voting Stock, voting together as a single class, shall be required
to amend, alter or repeal, or adopt any provision inconsistent with, this
Article EIGHTH or Article SIXTH or SEVENTH hereof.
NINTH: (a) The liability of the directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under
California law.
(b) To the fullest extent expressly permitted by Section 317 of
the Corporations Code, the corporation shall indemnify any Agent who is
a natural person and who was or is a party or is threatened to be made a
party to any Proceeding. In addition, the corporation shall have authority
to adopt a resolution or by-law, enter into an agreement, or take other
corporate action pursuant to which the corporation may be permitted or
required to indemnify an Agent for breach of duty to the corporation or
its shareholders in excess of the indemnification expressly permitted by
Section 317 of the Corporation Code, provided however that no Agent
may be indemnified for acts or omissions or transactions from which a
director may not be relieved of liability pursuant to paragraph (a) of this
Article NINTH, or as to circumstances in which indemnity is expressly
prohibited by Section 317 of the Corporations Code.
(c) In serving or continuing to serve the corporation, an Agent
is entitled to rely and shall be presumed to have relied on any rights
granted pursuant to the foregoing provisions of this Article NINTH, which
shall be enforceable as contract rights and continue when the Agent has
ceased to be an Agent and inure to the benefit of the heirs, executors and
administrators of the Agent.
(d) The Board of Directors is authorized, to the fullest extent
permissible under California law, to cause the corporation to pay expenses
incurred by Agents in defending Proceedings and to purchase and maintain
insurance on their behalf whether or not the corporation would have the
power to indemnify them under the provisions of this Article NINTH or
otherwise.
(e) Any right or privilege conferred by or pursuant to this
Article NINTH shall not be exclusive of any other rights to which any
Agent may otherwise be entitled.
(f) As used in this Article NINTH:
(1) "Agent" has the meaning given to such term by
Section 317 of the Corporation Code.
(2) "Indemnify" means to hold harmless against
expenses (including without limitation attorneys' fees and any expenses of
establishing a right to indemnification), judgments, fines, settlements and
other amounts actually and reasonably incurred by an Agent in connection
with a Proceeding;
(3) "Proceeding" means any threatened, pending or
completed action, whether civil, criminal, administrative or investigative;
and
(4) "Section 371 of the Corporations Code" refers to
Section 317 of the Corporations Code of the State of California, as from
time to time amended, and includes any successor provisions of such code
or successor law.
3. The foregoing amendment of articles of incorporation has been
duly approved by the Board of Directors.
4. The foregoing amendment of articles of incorporation has been
duly approved by the required vote of shareholders in accordance
with Section 902 of the Corporations Code. The total number of
outstanding shares of the corporation on the record date for the
vote on this matter was 253,556,020. The number of shares
voting in favor of the amendment equaled or exceeded the vote
required. The percentage vote required was more than 50% of the
outstanding shares.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
3. The foregoing amendment and restatement of Articles of
Incorporation has been duly approved by the Board of Directors.
4. The foregoing amendment of the Amended Articles of
Incorporation has been duly approved by the required vote of
shareholders in accordance with Section 902 of the Corporations
Code. The total number of outstanding shares of the corporation
is 257,695,788. The number of shares voting in favor of this
amendment equaled or exceeded the vote required. The percentage
vote required was more than 50% of the outstanding shares.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge.
BY-LAWS
of
HEWLETT-PACKARD COMPANY
(a California Corporation)
_________________
ARTICLE I
OFFICES
Section 1.1 PRINCIPAL OFFICE. The principal
office for the transaction of the business of the
corporation is hereby fixed and located at 3000
Hanover Street, in the city of Palo Alto, State of
California. The Board of Directors is hereby
granted full power and authority to change said
principal office to another location within or
without the State of California.
Section 1.2 OTHER OFFICES. One or more branch
or other subordinate offices may at any time be
fixed and located by the Board of Directors at such
place or places within or without the State of
California as it deems appropriate.
ARTICLE II
DIRECTORS
Section 2.1 EXERCISE OF CORPORATE POWERS.
Except as other- wise provided by the Articles of
Incorporation of the corporation or by the laws Of
the State of California now or hereafter in force,
the business and affairs of the corporation shall
be man- aged and all corporate powers shall be
exercised by or under the direction of the Board of
Directors. The Board may delegate the management
of the day-to-day operation of the business of the
corporation as permitted by law 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.
Section 2.2 NUMBER. The number of the
Corporation's directors shall be not less than
eleven (11) nor more than twenty-one (21) until
changed by an amendment of this Section 2.2 adopted
by the Shareholders or Board of Directors. Within
such limits the exact number of directors shall be
fifteen (15) until changed by an amendment to this
Section 2.2 adopted by the shareholders or by the
Board of Directors.
Section 2.3 NEED NOT BE SHAREHOLDERS. The
directors Of the corporation need not be
shareholders of the corporation.
Section 2.4 COMPENSATION. Directors shall
receive for their services as directors such stated
fees or other compensation and allowances for
expenses of attendance as may from time to time be
fixed by the Board of Directors. The directors may
also serve the corporation in other capacities and
receive compensation therefor.
Section 2.5 ELECTION AND TERM OF OFFICE. At
each annual meeting of shareholders, directors
shall be elected to hold office until the next
annual meeting, provided, that if for any reason,
said annual meeting or an adjournment thereof is
not held or the directors are not elected thereat,
then the directors may be elected at any special
meeting of the shareholders called and held for
that purpose. The term of office of the directors
shall begin immediately after their election and
shall continue until the expiration of the term for
which elected and until their respective successors
have been elected and qualified.
Section 2.6 VACANCIES. A vacancy or vacancies
in the Board of Directors shall exist when any
authorized position of director is not then filled
by a duly elected director, whether caused by
death, resignation, removal, change in the
authorized number of directors (by the Board or the
shareholders) or otherwise. The Board of Directors
may declare vacant the office of a director who has
been declared of unsound mind by an order of court
or convicted of a felony. Except for a vacancy
created by the removal of a director, vacancies on
the Board may be filled by a majority of the
directors then in office, whether or not less than
a quorum, or by a sole remaining director. A
vacancy created by the removal of a director may be
filled only by the approval of the shareholders.
The shareholders may elect a director at any time
to fill any vacancy not filled by the directors,
but any such election requires the affirmative vote
of a majority of the outstanding shares entitled to
vote and must be made at a meeting duly called and
held in accordance with Article X. Any director
may resign effective upon giving written notice to
the Chairman of the Board, 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 resignation is effective at a future time, a
successor may be elected to take office when the
resignation becomes effective.
Section 2.7 REMOVAL. (a) Any and all of the
directors may be removed without cause if such
removal is approved by the affirmative vote of a
majority of the outstanding shares entitled to vote
at an election of directors, subject to the
following:
(1) No director may be removed (unless
the entire Board is removed) when the
votes cast against removal, or not
consenting in writing to such removal,
would be sufficient to elect such
director if voted cumulatively at an
election at which the same total number
of votes were cast (or, if such action is
taken by written consent, all shares
entitled to vote were voted) and the
entire number of directors authorized at
the time of the director's most recent
election were then being elected; and
(2) When by the provisions of the
Articles the holders of the shares of any
class or series, voting as a class or
series, are entitled to elect one or more
directors, any director so elected may be
removed only by the applicable vote of
the holders of the shares of that class
or series.
(b) Any reduction of the authorized number of
directors does not remove any director prior to the
expiration of such director's term of office.
Section 2.8 NOTIFICATION OF NOMINATIONS.
Nominations for the election of directors may be
made by the Board of Directors or by any
shareholder entitled to vote for the election of
directors. Any shareholder entitled to vote for
the election of directors at a meeting may nominate
persons for election as directors only if written
notice of such shareholder's intent to make such
nomination is given, either by personal delivery or
by United States mail, postage prepaid, to the
Secretary of the Company not later than (I) with
respect to an election to be held at an annual
meeting of shareholders, 90 days in advance of such
meeting, and (ii) with respect to an election to be
held at a special meeting of shareholders for the
election of directors, the close of business on the
seventh day following the date on which notice of
such meeting is first given to shareholders. Each
such notice shall set forth: (a) the name and
address of the shareholder who intends to make the
nomination and of the person or persons to be
nominated, (b) a representation that such
shareholder is a holder of record of stock of the
Company entitled to vote at such meeting and
intends to appear in person or by proxy at the
meeting to nominate the person or persons specified
in the notice, a description of all arrangements
or understandings between such shareholder and each
nominee and any other person or persons (naming
such person or persons) pursuant to which the
nomination or nominations are to be made by such
shareholder, (d) Such other information regarding
each nominee proposed by such shareholder as would
have been required to be included in a proxy
statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had each nominee
been nominated, or intended to be nominated by the
Board of Directors, and (e) the consent of each
nominee to serve as a director of the Company if so
elected. The chairman of a shareholder meeting may
refuse to acknowledge the nomination of any person
not made in compliance with the foregoing
procedure. (As amended November 21, 1985.)
ARTICLE III
OFFICERS
Section 3.1 ELECTION AND QUALIFICATIONS. The
officers of this corporation shall consist of a
President, one or more Vice Presidents, a Secretary
and a Chief Financial Officer who Shall be chosen
by the Board of Directors, and such other officers,
including but not limited to a Chairman of the
Board, a Vice Chairman of the Board, a Chairman of
the Executive Committee and a Treasurer as the
Board of Directors shall deem expedient, who shall
be chosen in such manner and hold their offices for
such terms as the Board of Directors may prescribe.
Any two or more of such offices may be held by the
same person. The Board Of Directors may designate
one or more Vice Presidents as Executive Vice
Presidents or Senior Vice Presidents. Either the
Chairman of the Board, the Vice Chairman of the
Board, the Chairman Of the Executive Committee, or
the President, as the Board of Directors may
designate from time to time, shall be the Chief
Executive Officer of the corporation. The Board of
Directors may from time to time designate the
President or any Executive Vice President as the
Chief Operating Officer of the corporation. Any
Vice President, Treasurer or Assistant Treasurer,
or Assistant Secretary, respectively, may exercise
any of the powers of the President, the Chief
Financial Officer, or the Secretary, respectively,
as directed by the Board of Directors and shall
perform such other duties as are imposed upon such
officer by the By-Laws or the Board of Directors.
(As amended January 20, 1978.)
Section 3.2 TERMS OF OFFICE AND COMPENSATION.
The term of office and salary of each of said
officers and the manner and time of the payment of
such salaries shall be fixed and determined by the
Board of Directors and may be altered by said Board
from time to time at its pleasure, subject to the
rights, if any, of said officers under any contract
of employment.
Section 3.3 REMOVAL AND VACANCIES. Any
officer of the corporation may be removed at the
pleasure of the Board of Directors at any meeting
or by vote of shareholders entitled to exercise the
majority of voting power of the corporation at any
meeting or at the pleasure of any officer who may
be granted such power by resolution of the Board of
Directors. Any officer may resign at any time upon
written notice to the corporation without prejudice
to the rights, if any, of the corporation under any
contract to which the officer is a party. If any
vacancy occurs in any office of the corporation,
the Board of Directors may elect a successor to
fill such vacancy for the remainder of the
unexpired term and until a successor is duly chosen
and qualified.
ARTICLE IV
CHAIRMAN OF THE BOARD
Section 4.1 POWERS AND DUTIES. The Chairman
Of the Board Of Directors, if there be one, shall
preside at all meetings of the shareholders and of
the Board of Directors, and shall have the power to
call meetings of the shareholders and the Board of
Directors to be held within the limitations
prescribed by law or by these By-Laws, at such
times and at such places as the Chairman of the
Board shall deem proper. The Chairman of the Board
shall have such other powers and shall be subject
to such other duties as the Board of Directors may
from time to time prescribe. (As amended January
20, 1978.)
ARTICLE IVa
VICE CHAIRMAN OF THE BOARD
Section 4.la POWERS AND DUTIES. The Vice
Chairman Of the Board of Directors, if there shall
be one, shall, in the case of the absence,
disability or death of the Chairman, exercise all
the powers and perform all the duties of the
Chairman of the Board. The Vice Chairman shall
have such other powers and perform such other
duties as may be granted or prescribed by the Board
of Directors.
ARTICLE IVb
CHAIRMAN OF THE EXECUTIVE COMMITTEE
Section 4.lb POWERS AND DUTIES. The Chairman
of the Executive Committee, if there be one, shall
have the power to call meetings of the shareholders
and also of the Board of Directors to be held,
subject to the limitations prescribed by law or by
these By-Laws, at such times and at such places as
the Chairman of the Executive Committee shall deem
proper. The Chairman of the Executive Committee
shall have such other powers and be subject to such
other duties as the Board of Directors may from
time to time prescribe. (As amended January 20,
1978.)
ARTICLE V
PRESIDENT
Section 5.1 POWERS AND DUTIES. The powers and
duties of the President are:
(a) To call meetings of the shareholders and
also of the Board of Directors to be held, subject
to the limitations prescribed by law or by these
By-Laws, at such times and at such places as the
President shall deem proper.
(b) To affix the signature of the corporation
to all deeds, conveyances, mortgages, leases,
obligations, bonds, certificates and other papers
and instruments in writing which have been
authorized by the Board of Directors or which, in
the judgment of the President, should be executed
on behalf of the corporation, and to sign
certificates for shares of stock of the
corporation.
To have such other powers and be subject to
such other duties as the Board of Directors may
from time to time prescribe.
ARTICLE VI
VICE PRESIDENT
Section 6.1 POWERS AND DUTIES. In Case Of the
absence, disability or death of the President, the
Vice President, or one of the Vice Presidents,
shall exercise all the powers and perform all the
duties of the President. If there is more than one
Vice President, the order in which the Vice
Presidents shall succeed to the powers and duties
of the President shall be as fixed by the Board of
Directors. The Vice President or Vice Presidents
shall have such other powers and perform such other
duties as may be granted or prescribed by the Board
of Directors.
ARTICLE VII
SECRETARY
Section 7.1 POWERS AND DUTIES. The powers and
duties of the Secretary are:
(a) To keep a book of minutes at the principal
office of the corporation, or such other place as
the Board of Directors may order, of all meetings
of its directors and shareholders with the time and
place of holding, whether regular or special, and,
if special, how authorized, the notice thereof
given, the names of those present at directors'
meetings, the number of shares present or
represented at shareholders' meetings and the
proceedings thereof.
(b) To keep the Seal of the Corporation and to
affix the same to all instruments which may require
it.
To keep or cause to be kept at the principal
office of the corporation, or at the office of the
transfer agent or agents, a share register, or
duplicate share registers, showing the names of the
shareholders and their addresses, the number and
classes of shares, and the number and date of
cancellation of every certificate surrendered for
cancellation.
(d) To keep a supply of certificates for
shares of the corporation, to fill in all
certificates issued, and to make a proper record of
each such issuance; provided, that so long as the
corporation shall have one or more duly appointed
and acting transfer agents of the shares, or any
class or series of shares, of the corporation, such
duties with respect to such shares shall be
performed by such transfer agent or transfer
agents.
(e) To transfer upon the share books of the
corporation any and all shares of the corporation;
provided, that so long as the corporation shall
have one or more duly appointed and acting transfer
agents of the shares, or any class or series of
shares, of the corporation, such duties with
respect to such shares shall be performed by such
transfer agent or transfer agents, and the method
of transfer of each certificate shall be subject to
the reasonable regulations of the transfer agent to
which the certificate is presented for transfer,
and also, if the corporation then has one or more
duly appointed and acting registrars, to the
reasonable regulations of the registrar to which
the new certificate is presented for registration;
and provided, further that no certificate for
shares of stock shall be issued or delivered or, if
issued or delivered, shall have any validity
whatsoever until and unless it has been signed or
authenticated in the manner provided in Section
12.4 hereof.
(f) To make service and publication of all
notices that may be necessary or proper, and
without command or direction from anyone. In case
of the absence, disability, refusal, or neglect of
the Secretary to make service or publication of any
notices, then such notices may be served and/or
published by the President or a Vice President, or
by any person thereunto authorized by either of
them or by the Board of Directors or by the holders
of a majority of the outstanding shares of the
corporation.
(g) Generally to do and perform all such
duties as pertain to the office of Secretary and as
may be required by the Board of Directors.
ARTICLE VIII
CHIEF FINANCIAL OFFICER
Section 8.1 POWERS AND DUTIES. The powers and
duties of the Chief Financial Officer are:
(a) To supervise the corporate-wide treasury
functions and financial reporting to external
bodies.
(b) To have the custody of all funds,
securities, evidence of indebtedness and other
valuable documents of the corporation and, at the
Chief Financial Officer's discretion, to cause any
or all thereof to be deposited for the account of
the corporation at such depositary as may be
designated from time to time by the Board of
Directors.
To receive or cause to be received, and
to give or cause to be given, receipts and
acquittances for monies paid in for the account of
the corporation.
(d) To disburse, Or Cause to be disbursed,
all funds of the corporation as may be directed by
the Board of Directors, taking proper vouchers for
such disbursements.
(e) To render to the President and to the
Board Of Directors, whenever they may require,
accounts of all transactions and of the financial
condition of the corporation.
(f) Generally to do and perform all such
duties as pertain to the office of Chief Financial
Officer and as may be required by the Board of
Directors.
ARTICLE IX
COMMITTEES OF THE BOARD
Section 9.1 APPOINTMENT AND PROCEDURE. The
Board Of Directors may, by resolution adopted by a
majority of the authorized number of directors,
designate one or more committees, each consisting
of two (2) or more directors, to serve at the
pleasure of the Board. The Board may designate one
(1) Or more directors as alternate members of any
committee, who may replace any absent member at any
meeting of the committee.
Section 9.2 POWERS. Any committee appointed
by the Board of Directors, to the extent provided
in the resolution of the Board or in these By-Laws,
shall have all the authority of the Board except
with respect to:
(a) the approval of any action which requires
the approval or vote of the shareholders;
(b) the filling of vacancies on the Board or
on any committee;
the fixing of compensation of the
director for serving on the Board or on any
committee;
(d) the amendment or repeal of By-Laws or the
adoption of new By-Laws ;
(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 shareholders 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.
Section 9.3 EXECUTIVE COMMITTEE. In the event
that the Board of Directors appoints an Executive
Committee, such Executive Committee, in all cases
in which specific directions to the contrary shall
not have been given by the Board of Directors,
shall have and may exercise, during the intervals
between the meetings of the Board of Directors, all
the powers and authority of the Board of Directors
in the management of the business and affairs of
the corporation (except as provided in Section 9.2
hereof) in such manner as the Executive Committee
may deem in the best interests of the corporation.
ARTICLE X
MEETINGS OF SHAREHOLDERS
Section 10.1 PLACE OF MEETINGS. Meetings
(whether regular, special or adjourned) of the
shareholders of the corporation shall be held at
the principal office for the transaction of
business as specified in accordance with Section
1.1 hereof, or any place within or without the
State which may be designated by written consent of
all the shareholders entitled to vote thereat, or
which may be designated by the Board of Directors.
Section 10.2 TIME OF ANNUAL MEETINGS. The
annual meeting of the shareholders shall be held at
the hour of 2:00 o'clock in the afternoon on the
fourth Tuesday in February of each year, if not a
legal holiday, and if a legal holiday, then On the
next succeeding business day not a legal holiday.
Section 10.3 SPECIAL MEETINGS. Special
meetings of the shareholders may be called by the
Board of Directors, the Chairman of the Board, the
Vice Chairman of the Board, the Chairman of the
Executive Committee, the President or the holders
of shares entitled to cast not less than 10% of the
vote at the meeting.
Section 10.4 NOTICE OF MEETINGS. (a) Whenever
shareholders are required or permitted to take any
action at a meeting, a written notice of the
meeting shall be given not less than 10 nor more
than 60 days before the day of the meeting to each
shareholder entitled to vote thereat. Such notice
Shall State the place, date and hour of the meeting
and (1) in the case of a special meeting, the
general nature of the business to be transacted,
and that no other business may be transacted, or
(2) 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
shareholders, but subject to the provisions of
subdivision (b) any proper matter may be presented
at the meeting for such action. 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.
(b) Any shareholder approval at a meeting,
other than unanimous approval by those entitled to
vote, on any of the matters listed below shall be
valid only if the general nature of the proposal so
approved was stated in the notice of meeting or in
any written waiver of notice;
(1) a proposal to approve a contract or
other transaction between the corporation and
one or more of its directors, or between the
corporation and any corporation, firm or
association in which one or more directors has
a material financial interest;
(2) a proposal to amend the Articles of
Incorporation;
(3) a proposal regarding a
reorganization, merger or consolidation
involving the corporation;
(4) a proposal to wind up and dissolve
the corporation;
(5) a proposal to adopt a plan of
distribution of the shares, obligations or
securities of any other corporation, domestic
or foreign, or assets other than money which
is not in accordance with the liquidation
rights of any preferred shares as specified in
the Articles of Incorporation.
Section 10.5 DELIVERY OF NOTICE. Notice of a
shareholders' meeting or any report shall be given
either personally or by mail or other means of
written communication, addressed to the share
holder at the address of such shareholder appearing
on the books of the corporation or given by the
shareholder to the corporation for the purpose of
notice; or if no such address appears or is given,
at the place where the principal executive office
of the corporation is located or by publication at
least once in a newspaper of general circulation in
the county in which the principal executive office
is located. The notice or report 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 notice or report in accordance
with the provisions of this section, executed by
the Secretary, Assistant Secretary or any transfer
agent, shall be prima facie evidence of the giving
of the notice or report.
If any notice or report addressed to the
shareholders at the address of such shareholder
appearing on the books of the corporation is
returned to the corporation by United States Postal
Service marked to indicate that the United States
Postal Service is unable to deliver the notice or
report to the shareholder 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 shareholder upon written
demand of the shareholder at the principal
executive office of the corporation for a period of
one (1) year from the date of the giving of the
notice to all other shareholders.
Section 10.6 ADJOURNED MEETINGS. When a
shareholders' meeting is adjourned to another time
or place, unless the By-Laws otherwise require and
except as provided in this section, notice need not
be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which
the adjournment is taken. At the adjourned meeting
the corporation may transact any business which
might have been transacted at the original meeting.
If the adjournment is for more than forty-five (45)
days or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each
shareholder of record entitled to vote at the
meeting.
Section 10.7 CONSENT TO SHAREHOLDERS' MEETING.
The transactions of any meeting of shareholders,
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 and
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 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 California
General Corporation Law to be included in the
notice but not so included in the notice 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
shareholders need be specified in any written
waiver of notice, unless otherwise provided in the
Articles of Incorporation or By-Laws, except as
provided in subdivision (b) of Section 10.4.
Section 10.8 QUORUM. (a) The presence in
person or by proxy of the persons entitled to vote
the majority of the voting shares at any meeting
shall constitute a quorum for the transaction of
business. If a quorum is present, the affirmative
vote of the majority of shares represented at the
meeting and entitled to vote on any matter shall be
the act of the shareholders, unless the vote of a
greater number or voting by classes is required by
law or the Articles of Incorporation of these
By-Laws and except as provided in subdivision (b).
(b) The shareholders present at a duly called
or held meeting at which a quorum is present may
continue to transact business until adjournment
notwithstanding the withdrawal of the number of
enough shareholders 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.
In the absence of a quorum, any meeting of
shareholders may be adjourned from time to time by
the vote of a majority of the shares represented
either in person or by proxy, but no other business
may be transacted, except as provided in
subdivision
(b).
Section 10.9 ACTION BY CONSENT. Subject to
the rights of the holders of shares of any series
of Preferred Stock or any other class of stock or
series thereof having a preference over the Common
Stock as to dividend or upon liquidation, any
action required or permitted to be taken by the
stockholders of the Company must be effected at a
duly called annual or special meeting of
stockholders of the Company and may not be effected
by any consent in writing by such stockholders.
(As amended November 21, 1985).
Section 10.10 VOTING RIGHTS. Except as
provided in Section 10.12 or in the Articles of
Incorporation or in any statute relating to the
election of directors or to other particular
matters, each outstanding share, regardless of
class, shall be entitled to one vote on any matter
submitted to a vote of shareholders. Any holder of
shares entitled to vote on any matter may vote part
of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them
against the proposal, other than elections to
office, but, if the shareholder fails to specify
the number of shares such shareholder is voting
affirmatively, it will be conclusively presumed
that the shareholder's approving vote is with
respect to all shares such shareholder is entitled
to vote.
Section 10.11 DETERMINATION OF HOLDERS OF
RECORD. (a) In order that the corporation may
determine the shareholders entitled to notice of
any meeting or to vote, or entitled to receive
payment of any dividend or other distribution or
allotment of any rights or entitled to exercise any
rights in respect of any other lawful action, the
Board of Directors may fix, in advance, a record
date, which shall not be more than sixty (60) nor
less than ten (10) days prior to the date of such
meeting nor more than sixty (60) days prior to any
other action.
(b) In the absence of any record date set by
the Board of Directors pursuant to subdivision (a)
above then:
(1) The record date for determining
shareholders entitled to notice of or to vote
at a meeting of shareholders 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 preceding the day on
which the meeting is held.
(2) The record date for determining
shareholders for any other purpose shall be at
the close of business on the day on which the
Board adopts the resolution relating thereto,
or the sixtieth (60th) day prior to the date
of such other action, whichever is later.
A determination of shareholders of record
entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the
meeting unless the Board fixes a new record date
for the adjourned meeting, but the Board shall fix
a new record date if the meeting is adjourned for
more than forty- five (45) days from the date set
for the original meeting.
(d) Shareholders on the record date are
entitled to notice and to vote or 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,
except as otherwise provided in the Articles of
Incorporation of these By-Laws or by agreement or
applicable law.
Section 10.12 ELECTION FOR DIRECTORS. (a)
Every shareholder complying with subdivision (b)
and entitled to Vote at any election of directors
may cumulate such shareholder's votes and give one
candidate a number of votes equal to the number of
directors to be elected multiplied by the number of
votes to which the shareholder's shares are
entitled, or distribute the shareholder's votes on
the same principle among as many candidates as the
shareholder thinks fit.
(b) No Shareholder shall be entitled to
cumulate votes (i.e., cast for any one or more
candidates a number of votes greater than the
number of the shareholder's shares) unless such
candidates or candidates' names have been placed in
nomination prior to the voting and the shareholder
has given written notice to the chairman of the
meeting at the meeting prior to the voting of the
shareholder's intention to cumulate the
Shareholder's votes. If any one shareholder has
given such notice, all shareholders may cumulate
their votes for candidates in nomination.
In any election of directors, the
candidates receiving the highest number of votes of
the shares entitled to be voted for them up to the
number of directors to be elected by such shares
are elected.
(d) Elections for directors need not be by
ballot unless a shareholder demands election by
ballot at the meeting and before the voting begins
or unless the By-Laws so require.
Section 10.13 PROXIES. (a) Every person
entitled to vote shares may authorize another
person or persons to act by proxy with respect to
such shares. Any proxy purporting to be executed
in accordance with the provisions of the General
Corporation Law of the State of California shall be
presumptively valid.
(b) No proxy shall be valid after the
expiration of eleven (11) months from the date
thereof unless otherwise provided in the proxy.
Every proxy continues in full force and effect
until revoked by the person executing it prior to
the vote pursuant thereto, except as otherwise
provided in this section. Such revocation may be
effected by a writing delivered to the corporation
stating that the proxy is revoked or by a
subsequent proxy executed by, or by attendance at
the meeting and voting in person by, the person
executing the proxy. The dates contained on the
forms of proxy presumptively determine the order of
execution, regardless of the postmark dates on the
envelopes in which they are mailed.
A proxy is not revoked by the death or
incapacity of the maker unless, before the vote is
counted, written notice of such death or incapacity
is received by the corporation.
Section 10.14 INSPECTORS OF ELECTION. (a) In
advance of any meeting of shareholders the Board
may appoint inspectors of election to act at the
meeting and any adjournment thereof. If inspectors
of election are not so appointed, or if any persons
so appointed fail to appear or refuse to act, the
chairman of any meeting of shareholders may, and on
the request of any shareholder or a shareholder's
proxy shall, appoint inspectors of election (or
persons to replace those who so fail or refuse) 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 shareholders 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.
(b) The inspectors of election shall
determine the number of shares outstanding and the
voting power of each, the shares represented at the
meeting, the existence of a quorum and the
authenticity, validity and effect of proxies,
receive votes, ballots or consents, hear and
determine all challenges and questions in any way
arising in connection with the right to vote, count
and tabulate all votes or consents, determine when
the polls shall close, determine the result and do
such acts as may be proper to conduct the election
or vote with fairness to all shareholders.
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 10.15 ORGANIZATION. The Chairman of
the Board Of Directors shall preside at each
meeting of shareholders. In the absence of the
Chairman, the meeting shall be chaired by an
officer of the corporation in accordance with the
following order: Vice Chairman, Chairman of the
Executive Committee, President, Executive Vice
President, Senior Vice President and Vice
President. In the absence of all such officers,
the meeting shall be chaired by a person chosen by
the vote of a majority in interest of the
shareholders present in person or represented by
proxy and entitled to vote thereat, shall act as
chairman. The Secretary or in his or her absence
an Assistant Secretary or in the absence of the
Secretary and all Assistant Secretaries a person
whom the chairman of the meeting shall appoint
shall act as secretary of the meeting and keep a
record of the proceedings thereof. The Board of
Directors of the Company shall be entitled to make
such rules or regulations for the conduct of
meetings of shareholders as it shall deem
necessary, appropriate or convenient. Subject to
such rules and regulations of the Board of
Directors, if any, the chairman of the meeting
shall have the right and authority to prescribe
such rules, regulations and procedures and to do
all such acts as, in the judgment of such chairman,
are necessary, appropriate or convenient for the
proper conduct of the meeting, including, without
limitation, establishing an agenda or order of
business for the meeting, rules and procedures for
maintaining order at the meeting and the safety of
those present, limitations on participation in such
meeting to shareholders of record of the Company
and their duly authorized and constituted proxies,
and such other persons as the
Chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement
thereof, limitations on the time allotted to
questions or comments by participants and
regulation of the opening and closing of the polls
for balloting on matters which are to be voted on
by ballot, unless, and to the extent, determined by
the Board of Directors or the chairman of the
meeting, meetings of shareholders shall not be
required to be held in accordance with rules of
parliamentary procedure. (As amended November 21,
1985).
ARTICLE XI
MEETING OF DIRECTORS.
Section 11.1 PLACE OF MEETINGS. Unless
otherwise specified in the notice thereof, meetings
(whether regular, special, or adjourned) of the
Board of Directors of this corporation shall be
held at the principal office of the corporation for
the transaction of business, as specified in
accordance with Section 1.1 hereof, which is hereby
designed as an office for such purpose in
accordance with the laws of the State of
California, or in any other place within or without
the State which has been designated from time to
time by resolution of the Board or by written
consent of all members of the Board.
Section 11.2 REGULAR MEETINGS. Regular
meetings of the Board of Directors, of which no
notice need be given except as required by the laws
of the State of California, at such times as may be
designated from time to time by the Board of
Directors.
Section 11.3 SPECIAL MEETINGS. Special
meetings of the Board of Directors may be called at
any time by the Chairman of the Board, the Vice
Chairman of the Board, the President, the Chairman
of the Executive Committee, any Vice President or
the Secretary or by any two (2) Or more of the
directors. (As amended January 20, 1978.)
Section 11.4 NOTICE OF MEETINGS. Except in
the case of regular meetings, notice of which has
been dispensed with, the meetings of the Board of
Directors shall be held upon four (4) days' notice
by mail or forty-eight (48) hours' notice delivered
personally or by telephone, telegraph or other
electronic or wireless means. If the address of a
director is not shown on the records and is not
readily ascertainable, notice shall be addressed to
him at the city or place in which the meetings of
the directors are regularly held. Except as set
forth in Section 11.6, 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 11.5 QUORUM. A majority of the
authorized number of directors constitutes a quorum
of the Board for the transaction of business.
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, except as otherwise
provided by law. 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 meeting.
Section 11.6 ADJOURNED MEETINGS. A majority
of the directors present, whether or not a quorum
is present, may adjourn any meeting to another time
and place. If the 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 the
adjournment.
Section 11.7 WAIVER OF NOTICE AND CONSENT.
(a) Notice of a meeting need not be given to any
director who signs a waiver of notice, 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.
(b) The transactions of any meeting of the
Board, however called and noticed or wherever held,
are 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 signs a written
waiver of notice, a consent to holding the meeting
or an approval of the minutes thereof. All such
waivers, consents and approvals shall be filed with
the corporate records or made a part of the minutes
of the meeting.
Section 11.8 ACTION WITHOUT A MEETING. Any
action required or permitted to be taken by the
Board 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.
Such action by written consent shall have the same
force and effect as an unanimous vote of such
directors.
Section 11.9 CONFERENCE TELEPHONE MEETINGS.
Members of the Board 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.
Participation in a meeting pursuant to this section
constitutes presence in person at such meeting.
Section 11.10 ORGANIZATION. The Chairman Of
the Board shall preside at all meetings of the
Board of Directors. In the absence of the
Chairman, the meeting shall be chaired by one of
the following directors in the order stated: Vice
Chairman, Chairman of the Executive Committee,
President and Executive Vice President. In the
absence of all such directors, a President Pro Tem
chosen by a majority of the directors present shall
preside at the meeting.
Section 11.11 MEETINGS OF COMMITTEES. The
provisions of this Article, except for Section
11.10, apply also to committees of the Board and
action by such committees.
ARTICLE XII
SUNDRY PROVISIONS
Section 12.1 INSTRUMENTS IN WRITING. All
checks, drafts, demands for money and notes of the
corporation, as all written contracts of the
corporation, shall be signed by such officer or
officers, agent or agents, as the Board of
Directors may from time to time by resolution
designate. No officer, agent, or employee of the
corporation shall have power to bind the
corporation by contract or otherwise unless
authorized to do so by these By-Laws or by the
Board of Directors.
Section 12.2 FISCAL YEAR. The fiscal year of
this corporation shall begin on the first day of
November of each year and end on the last day of
October of the following year.
Section 12.3 SHARES HELD BY THE CORPORATION.
Shares in other corporations standing in the name
of this corporation may be voted or represented and
all rights incident thereto may be exercised on
behalf of this corporation by the President or by
any other officer of this corporation authorized so
to do by resolution of the Board of Directors.
Section 12.4 CERTIFICATES OF STOCK. There
shall be issued to each holder of fully paid shares
of the capital stock of the corporation a
certificate or certificates for such 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 or Vice Chairman
of the Board or the President or a Vice President
and by the Chief Financial Officer or the Treasurer
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 shareholder. Any or all 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.
Section 12.5 LOST CERTIFICATES. The
corporation may issue a new share certificate or a
new certificate for any other security in the place
of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and
the corporation may require the owner of the lost,
stolen or destroyed certificate or the owner's
legal representative to give the corporation a bond
(or other adequate security) sufficient to
indemnify it against any claim that may be made
against it (including any expense or liability) on
account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new
certificate. The Board of Directors may adopt such
other provisions and restrictions with reference to
lost certificates, not inconsistent with applicable
law, as it shall in its discretion deem
appropriate.
Section 12.6 CERTIFICATION AND INSPECTION OF
BY-LAWS. The corporation shall keep at its
principal executive office in this state, or if its
principal executive office is not in this state at
its principal business office in this state, the
original or a copy of these By-Laws as amended to
date, which shall be open to inspection by the
shareholders at all reasonable times during office
hours. If the principal executive office of the
corporation is outside this state and the
corporation has no principal business office in
this state, it shall upon the written request of
any shareholder furnish to such shareholder a copy
of the By-Laws as amended to date.
Section 12.7 NOTICES. Any reference in these
By-Laws to the time a notice is given or sent
means, unless otherwise expressly provided, the
time a written notice by mail is deposited in the
United States mails, postage prepaid; or the time
any other written notice 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; or the time any oral notice 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 12.8 REPORTS TO SHAREHOLDERS. Except as
may other- wise be required by law, the rendition
of an annual report to the shareholders is waived
so long as there are less than one hundred (100)
holders of record of the shares of the corporation
(determined as provided in Section 605 of the
California General Corporation Law). At Such time
or times, if any, that the corporation has one
hundred (100) or more holders of record of its
shares, the Board of Directors shall cause an
annual report to be sent to the shareholders not
later than one hundred twenty (120) days after the
close of the fiscal year or within such shorter
time period as may be required by applicable law,
and such annual report shall contain such
information and be accompanied by such other
documents as may be required by applicable law.
ARTICLE XIII
CONSTRUCTION OF BY-LAWS WITH REFERENCE TO
PROVISIONS OF LAW
Section 13.1 DEFINITIONS. Unless defined
Otherwise in these By-Laws or, unless the context
otherwise requires, terms used herein shall have
the same meaning, if any, ascribed thereto in the
California General Corporation Law, as amended from
time to time.
Section 13.2 BY-LAW PROVISIONS ADDITIONAL AND
SUPPLEMENTAL TO PROVISIONS OF LAW. All
restrictions, limitations, requirements and other
provisions of these By-Laws shall be construed,
insofar as possible, as supplemental and additional
to all provisions of law applicable to the subject
matter thereof and shall be fully complied with in
addition to the said provisions of law unless such
compliance shall be illegal.
Section 13.3 BY-LAW PROVISIONS CONTRARY TO OR
INCONSISTENT WITH PROVISIONS OF LAW. Any article,
section, subsection, subdivision, sentence, clause
or phrase of these By-Laws which upon being
construed in the manner provided in Section 13.2
hereof, shall be contrary to or inconsistent with
any applicable provision of law, shall not apply so
long as said provisions of law shall remain in
effect, but such result shall not affect the
validity or applicability of any other portions of
these By-Laws, it being hereby declared that these
By-Laws would have been adopted and each article,
section, subsection, subdivision, sentence, clause
or phrase thereof, irrespective of the fact that
any one or more articles, sections, subsections,
subdivisions, sentences, clauses or phrases is or
are illegal.
ARTICLE XIV
AMENDMENTS
All by-laws of the Company shall be subject to
alteration, amendment, or repeal, in whole or in
part, and new By-Laws not inconsistent with the
laws of the State of California or any provision of
the Certificate of Incorporation may be made,
either by the affirmative vote of a majority of the
whole Board of Directors at any regular or special
meeting of the Board, or by the affirmative vote of
the holders of a majority of the issued and
outstanding stock of the Company entitled to vote
in respect thereof, given at an annual meeting or
at any special meeting at which a quorum shall be
present, provided that, in each case of a proposed
alteration, amendment, or repeal of the By-Laws of
or the proposal of new By-Laws to be voted on at a
meeting of stockholders notices thereof shall be
included in the notice of the meeting of the
stockholders.
As amended May 19, 1995
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<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from
Consolidated Balance Sheet and Consolidated Condensed Statement of
Earnings and is qualified in its entirety by reference to such financial
statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> OCT-31-1995
<PERIOD-END> APR-30-1995
<CASH> 1936
<SECURITIES> 1060
<RECEIVABLES> 5449
<ALLOWANCES> 0
<INVENTORY> 4616
<CURRENT-ASSETS> 13855
<PP&E> 8265
<DEPRECIATION> 3847
<TOTAL-ASSETS> 21312
<CURRENT-LIABILITIES> 8753
<BONDS> 665
<COMMON> 1037
0
0
<OTHER-SE> 9919
<TOTAL-LIABILITY-AND-EQUITY> 21312
<SALES> 12624
<TOTAL-REVENUES> 14732
<CGS> 0
<TOTAL-COSTS> 9201
<OTHER-EXPENSES> 3724
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 93
<INCOME-PRETAX> 1773
<INCOME-TAX> 594
<INCOME-CONTINUING> 1179
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1179
<EPS-PRIMARY> 2.25
<EPS-DILUTED> 0
</TABLE>
