SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
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| X | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
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OF THE SECURITIES EXCHANGE ACT OF 1934.
For the quarterly period ended April 30, 1998
OR
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| | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
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OF THE SECURITIES EXCHANGE ACT OF 1934.
For the transition period from ___________ to __________
Commission file number: 1-4423
HEWLETT-PACKARD COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 94-1081436
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3000 Hanover Street, Palo Alto, California 94304
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (650) 857-1501
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________________________________________________________________________
(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
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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, 1998
-------------------------- -----------------------------
Common Stock, $1 par value 1.04 billion shares
<PAGE>
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
INDEX
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Page No.
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Part I. Financial Information
Item 1. Financial Statements.
Consolidated Condensed Balance Sheet
April 30, 1998 (Unaudited) and October 31, 1997 2
Consolidated Condensed Statement of Earnings
Three and six months ended April 30, 1998
and 1997 (Unaudited) 3
Consolidated Condensed Statement of Cash Flows
Six months ended April 30, 1998 and 1997 (Unaudited) 4
Notes to Consolidated Condensed Financial Statements
(Unaudited) 5-6
Item 2. Management's Discussion and Analysis of Financial
Condition, Results of Operations and Factors That May
Affect Future Results (Unaudited) 7-13
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Part II. Other Information
Item 2. Changes in Securities 13-14
Item 6. Exhibits and Reports on Form 8-K. 14
Signature 15
Exhibit Index 16
<PAGE> 1
<PAGE>
Item 1. Financial Statements.
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEET
------------------------------------
(Millions except par value and number of shares)
April 30 October 31
1998 1997
----------- ----------
(Unaudited)
Assets
------
Current assets:
Cash and cash equivalents $ 4,387 $ 3,072
Short-term investments 650 1,497
Accounts and notes receivable 8,366 8,173
Inventories:
Finished goods 4,229 4,136
Purchased parts and fabricated assemblies 2,471 2,627
Other current assets 1,558 1,442
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Total current assets 21,661 20,947
------- -------
Property, plant and equipment (less accumulated
depreciation: April 30, 1998 - $5,767;
October 31, 1997 - $5,464) 6,396 6,312
Long-term investments and other assets 4,730 4,490
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$32,787 $31,749
======= =======
Liabilities and Shareholders' Equity
------------------------------------
Current liabilities:
Notes payable and short-term borrowings $ 1,154 $ 1,226
Accounts payable 3,084 3,185
Employee compensation and benefits 1,945 1,723
Taxes on earnings 1,796 1,515
Deferred revenues 1,325 1,152
Other accrued liabilities 2,540 2,418
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Total current liabilities 11,844 11,219
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Long-term debt 2,448 3,158
Other liabilities 1,276 1,217
Shareholders' equity:
Preferred stock, $1 par value; 300,000,000
shares authorized; none issued
Common stock and capital in excess of $1 par
value; 2,400,000,000 shares authorized;
1,039,457,000 and 1,041,042,000 shares
issued and outstanding at April 30, 1998
and October 31, 1997, respectively 1,184 1,187
Retained earnings 16,035 14,968
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Total shareholders' equity 17,219 16,155
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$32,787 $31,749
======= =======
The accompanying notes are an integral part of these consolidated
condensed financial statements.
<PAGE> 2
<PAGE>
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENT OF EARNINGS
--------------------------------------------
(Unaudited)
(Millions except per share amounts)
Three months ended Six months ended
April 30 April 30
------------------ ----------------
1998 1997 1998 1997
Net revenue:
Products $10,338 $ 8,833 $20,496 $17,658
Services 1,702 1,507 3,360 2,977
------- ------- ------- -------
12,040 10,340 23,856 20,635
------- ------- ------- -------
Costs and expenses:
Cost of products sold and
services 8,224 6,743 16,061 13,437
Research and development 880 744 1,683 1,443
Selling, general and
administrative 2,064 1,751 3,936 3,372
------- ------- ------- -------
11,168 9,238 21,680 18,252
------- ------- ------- -------
Earnings from operations 872 1,102 2,176 2,383
Interest income and other, net 134 69 224 145
Interest expense 59 51 126 105
------- ------- ------- -------
Earnings before taxes 947 1,120 2,274 2,423
Provision for taxes 262 336 660 727
------- ------- ------- -------
Net earnings $ 685 $ 784 $ 1,614 $ 1,696
======= ======= ======= =======
Net earnings per share:
Basic $ 0.66 $ 0.77 $ 1.55 $ 1.67
======= ======= ======= =======
Diluted $ 0.65 $ 0.75 $ 1.51 $ 1.62
======= ======= ======= =======
Cash dividends declared
per share $ -- $ -- $ .28 $ .24
======= ======= ======= =======
Average shares used in
computing basic net
earnings per share 1,039 1,017 1,039 1,017
======= ======= ======= =======
Average shares and equivalents
used in computing diluted net
earnings per share 1,078 1,046 1,077 1,047
======= ======= ======= =======
The accompanying notes are an integral part of these consolidated
condensed financial statements.
<PAGE> 3
<PAGE>
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENT OF CASH FLOWS
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(Unaudited)
(Millions)
Six months ended
April 30
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1998 1997
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Cash flows from operating activities:
Net earnings $ 1,614 $ 1,696
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization 869 697
Deferred taxes on earnings (160) (314)
Changes in assets and liabilities:
Accounts and notes receivable (117) 251
Inventories 72 146
Accounts payable (118) 98
Taxes on earnings 278 372
Other current assets and liabilities 500 323
Other, net (89) (93)
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Net cash provided by operating activities 2,849 3,176
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Cash flows from investing activities:
Investment in property, plant and equipment (986) (1,040)
Disposition of property, plant and equipment 202 183
Purchase of short-term investments (1,962) (1,338)
Maturities of short-term investments 2,829 1,631
Other, net (7) 17
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Net cash provided by (used in)
investing activities 76 (547)
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Cash flows from financing activities:
Change in notes payable and short-term borrowings (378) (1,871)
Issuance of long-term debt 150 40
Payment of long-term debt (539) (107)
Issuance of common stock under employee stock plans 242 209
Repurchase of common stock (778) (440)
Dividends (291) (244)
Other, net (16) (2)
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Net cash (used in) financing activities (1,610) (2,415)
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Increase in cash and cash equivalents 1,315 214
Cash and cash equivalents at beginning of period 3,072 2,885
------- -------
Cash and cash equivalents at end of period $ 4,387 $ 3,099
======= =======
The accompanying notes are an integral part of these consolidated
condensed financial statements.
<PAGE> 4
<PAGE>
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, 1998 and October
31, 1997, the results of operations for the three and six months ended
April 30, 1998 and 1997, and the cash flows for the six months ended
April 30, 1998 and 1997.
The results of operations for the three and six months ended April 30,
1998 are not necessarily indicative of the results to be expected for
the full year. The information included in this Form 10-Q should be
read in conjunction with Management's Discussion and Analysis and the
consolidated financial statements and notes thereto included in the
Hewlett-Packard Company 1997 Form 10-K.
2. The Company adopted Statement of Financial Accounting Standards No.
128 (SFAS 128), "Earnings per Share," in the first quarter of fiscal
1998. Under SFAS 128, the Company presents two earnings per share
(EPS) amounts. Basic EPS is calculated based on net earnings
available to common shareholders and the weighted-average number of
shares outstanding during the reported period. Diluted EPS includes
additional dilution from potential common stock, such as stock
issuable pursuant to the exercise of stock options outstanding and the
conversion of debt. All prior period EPS amounts have been presented
to conform to the provisions of the statement.
Three Months Ended Six Months Ended
April 30 April 30
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1998 1997 1998 1997
---- ---- ---- ----
(in millions except
per share data)
Numerator:
Net earnings $ 685 $ 784 $1,614 $1,696
Adjustment for interest
expense, net of income
tax effect 6 - 12 -
------ ------ ----- ------
Net earnings, adjusted 691 784 1,626 1,696
Denominator:
Weighted-average shares
outstanding 1,039 1,017 1,039 1,017
Effect of dilutive
securities:
Dilutive options 29 29 28 30
Convertible zero-coupon
notes due 2017 10 - 10 -
------ ------ ------ -----
<PAGE> 5
Dilutive potential
common shares 39 29 38 30
Weighted-average shares
and dilutive potential
common shares 1,078 1,046 1,077 1,047
Basic earnings per share $0.66 $0.77 $1.55 $1.67
Diluted earnings per share $0.65 $0.75 $1.51 $1.62
3. 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
due to variations in the tax rates on foreign income.
4. The Company paid interest of $127 million and $152 million during the
six months ended April 30, 1998 and 1997, respectively. During the
same periods, the Company paid income taxes of $439 million and $600
million, respectively. The effect of foreign currency exchange rate
fluctuations on cash balances held in foreign currencies was not
material.
5. Effective May 20, 1998, the Company changed its state of incorporation
from California to Delaware. As a result of the change, the par value
of the Company's stock was decreased from $1.00 to $0.01 per share.
There was no impact on the Company's financial condition or results
of operations as a result of the reincorporation. The reincorporation
proposal had been approved by the Company's shareholders at the
Company's annual meeting of shareholders. An increase in the number
of authorized shares of the Company's stock from 2,400,000,000 to
4,800,000,000 was also approved by the shareholders.
6. On May 18, 1998, the Company's Board of Directors declared a quarterly
dividend on the Company's common stock for the third quarter of fiscal
1998 in the amount of 16 cents per share. This reflects a 14 percent
increase compared to the 14 cents per share paid for each of the first
and second quarters of the fiscal year. The third quarter dividend
will be paid to shareholders of record as of June 24, 1998 and is
payable on July 15, 1998.
<PAGE> 6
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition,
Results of Operations and Factors That May Affect Future
Results (Unaudited).
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
RESULTS OF OPERATIONS
---------------------
Net Revenue - Net revenue for the second quarter ended April 30, 1998 was
$12.0 billion, an increase of 16 percent from the same period of fiscal
1997. Product sales increased 17 percent and service revenue grew 13
percent over the corresponding period of fiscal 1997. Net revenue grew
14 percent to $6.7 billion internationally and 20 percent to $5.3 billion
in the U.S.
Strong growth continued in unit shipments of the Company's computers and
peripherals, especially in home and desktop PCs, personal and business
inkjets, and LaserJet printers and supplies, driven primarily by increased
market penetration and new product introductions in the first half of 1998.
In the second quarter and first half of fiscal 1998, competitive actions
designed to increase or maintain market share against intense competition
contributed to declines in the average selling prices for many of these
products, especially PCs, resulting in unit volume growth outpacing revenue
growth. Revenue growth was further constrained by continuing weakness in
the Asian markets. In particular, the test and measurement business was
impacted significantly by market slowing and unfavorable fluctuations in
foreign currency exchange rates for the first half of fiscal 1998. Without
the unfavorable impact of currency, the Company's net revenue growth would
have been approximately 22 percent in the first half of 1998.
Costs and Expenses - Cost of products sold and services as a percentage
of net revenue was 68.3 percent for the second quarter and 67.3 percent
for the first half of fiscal 1998, compared to 65.2 percent for the
second quarter and 65.1 percent for the first half of fiscal 1997. The
increase in the ratio over the second quarter and first half of fiscal
1997 was due primarily to intensifying pricing pressures leading to
declines in the average selling prices in the PC and printer businesses
without a corresponding reduction in the costs. To a lesser extent, cost
of sales was impacted by a charge for the consolidation of inkjet
manufacturing operations in the second quarter of fiscal 1998 and the
Company expects to incur additional charges related to the consolidation
in the third quarter. The Company expects continued variability in the
cost of sales trend over time, as competitive pricing pressures and mix
shifts continue.
Operating Expenses - Operating expenses as a percentage of net revenue
were 24.5 percent for the second quarter and 23.6 percent for the first
half of fiscal 1998, compared to 24.1 percent for the second quarter and
23.4 percent for the first half of fiscal 1997. Year-over-year growth in
operating expenses was 18 percent for the second quarter and 17 percent
for the first half of 1998. This growth, which outpaced the Company's
revenue growth for each period, resulted primarily from increased
<PAGE> 7
marketing expenses incurred to support new product introductions such
as the modular ink delivery system for inkjets, several new LaserJet
products and next-generation workstations, and investment in research
and development. Increased employment to support growth in selected
businesses also contributed to the rise in operating expenses. In
addition, operating expenses were impacted by additional compensation
expense recorded on stock appreciation rights, resulting from rises in
the Company's stock price during the second quarter of fiscal 1998, and
a one-time charge for the write-off of in-process research and development
related to an acquisition. The Company remains focused on and committed
to controlling operating expenses and has taken measures designed to
reduce these ratios.
Provision for Taxes - The provision for taxes as a percentage of earnings
before taxes was 28 percent for the second quarter and 29 percent for the
first half of fiscal 1998 compared to 30 percent for the second quarter
and first half of fiscal 1997. The annual effective tax rate decreased
to 29 percent in the second quarter of fiscal 1998 due to resolution of
certain issues related to tax returns filed in previous years and changes
in the geographic mix of the Company's earnings.
Net Earnings - Net earnings for the second quarter of fiscal 1998 were
$685 million compared to net earnings of $784 million for the second
quarter of fiscal 1997. For the six months ended April 30, 1998, net
earnings were $1.6 billion compared to net earnings of $1.7 billion for
the first half of 1997. Earnings per share for the second quarter and
first half of fiscal 1998 on a diluted basis were 65 cents and $1.51
per share, respectively, on 1.08 billion weighted average shares and
equivalents, compared to 75 cents and $1.62 per share on 1.05 billion
weighted average shares for the second quarter and first half of fiscal
1997.
FINANCIAL CONDITION
-------------------
Liquidity and Capital Resources - The Company's financial position
remains strong, with cash and cash equivalents and short-term investments
of $5.0 billion at April 30, 1998, compared with $4.6 billion at October
31, 1997. In addition, other long-term investments, relatively low
levels of debt compared to assets, and a large equity base contribute to
the Company's financial flexibility.
Cash flows from operating activities were $2.8 billion during the first
six months of fiscal 1998, compared to $3.2 billion for the corresponding
period of fiscal 1997. The decrease in cash flows from operating
activities in fiscal 1998 was attributable primarily to increases in
accounts receivable and decreases in accounts payable, offset by
decreases in inventory levels during fiscal 1998. Inventory as a
percentage of net revenue declined to 14.5 percent at April 30, 1998 from
15.7 percent in the corresponding prior period. The decline in the ratio
is attributable to continued progress in supply-chain management. Accounts
and notes receivable increased 22 percent during the first six months of
fiscal 1998 compared to a decrease of 2 percent in the same period of
fiscal 1997. Growth in the Company's leasing business contributed to this
increase. This resulted in an increase in accounts and notes receivable
as a percentage of net revenue, from 17.2 percent in the prior period to
18.1 percent as of April 30, 1998.
<PAGE> 8
Capital expenditures for the first six months of fiscal 1998 were $986
million, compared to $1.04 billion for the corresponding period in fiscal
1997.
The changes in short-term investment and borrowing activities during the
first six months of fiscal 1998 compared to the same period in fiscal
1997 resulted from a program of repatriation of short-term investments
from Puerto Rico in 1997 due to changes in tax laws. Cash from the
liquidation of those investments was used to pay down notes payable and
short-term borrowings in 1997. In 1998, net receipts from maturities of
short-term investments have been used to pay down both short- and
long-term debt.
Shares of the Company's common stock are repurchased under a systematic
program to manage the dilution created by shares issued under employee
stock plans. During the six months ended April 30, 1998, the Company
purchased and retired approximately 12.4 million shares for an aggregate
price of $778 million. During the six months ended April 30, 1997, the
Company purchased and retired approximately 8.3 million shares for an
aggregate price of $440 million.
FACTORS THAT MAY AFFECT FUTURE RESULTS
--------------------------------------
Competition. The Company encounters aggressive competition in all areas
of its business activity. The Company's competitors are numerous,
ranging from some of the world's largest corporations to many relatively
small and highly specialized firms. The Company competes primarily on
the basis of technology, performance, price, quality, reliability,
distribution and customer service and support. Product life cycles are
short, and, to remain competitive, the Company will be required to
develop new products, periodically enhance its existing products and
compete effectively on the basis of the factors described above. In
particular, the Company anticipates that it will have to continue to
adjust prices of many of its products to stay competitive and it will
have to effectively manage financial returns with reduced gross margins.
New Product Introductions. The Company's future operating results may
be adversely affected if the Company is unable to continue to develop,
manufacture and market innovative products and services rapidly that meet
customer requirements for performance and reliability. The process of
developing new high technology products and solutions is inherently
complex and uncertain. It requires accurate anticipation of customers'
changing needs and emerging technological trends. The Company
consequently must make long-term investments and commit significant
resources before knowing whether its predictions will eventually result
in products that achieve market acceptance. After a product is developed,
the Company must quickly manufacture sufficient volumes at acceptable
costs. This is a process that requires accurate forecasting of volumes,
mix of products and configurations. Moreover, the supply and timing of a
new product or service must match customers' demand and timing for the
particular product or service. Given the wide variety of systems,
products and services the Company offers, the process of planning
production and managing inventory levels becomes increasingly difficult.
<PAGE> 9
Inventory Management. Inventory management has become increasingly
complex as the Company continues to sell a greater mix of products,
especially printers and personal computers, through third-party commercial
and retail distribution channels. Channel partners constantly adjust
their ordering patterns in response to the Company's and its competitors'
supply into the channel and the timing of their new product introductions
and relative feature sets, as well as seasonal fluctuations in end-user
demand such as the back-to-school and holiday selling periods. Channel
partners may increase orders during times of shortages, cancel orders if
the channel is filled with currently available products, or delay orders
in anticipation of new products. Any excess supply could result in price
reductions and inventory writedowns, which in turn could adversely affect
the Company's gross margins.
Short Product Life Cycles. The short life cycles of many of the
Company's products pose a challenge for the effective management of the
transition from existing products to new products and could adversely
affect the Company's future operating results. Product development or
manufacturing delays, variations in product costs, and delays in customer
purchases of existing products in anticipation of new product
introductions are among the factors that make a smooth transition from
current products to new products difficult. In addition, the timing of
introductions by suppliers and competitors of new products and services
may negatively affect future operating results of the Company, especially
when competitive product introductions coincide with periods leading up
to the Company's own introduction of new or enhanced products.
Furthermore, some of the Company's own new products may replace or
compete with certain of the Company's current products.
Intellectual Property. The Company generally relies upon patent,
copyright, trademark and trade secret laws in the United States and in
selected other countries to establish and maintain its proprietary rights
in its technology and products. However, there can be no assurance that
any of the Company's proprietary rights will not be challenged,
invalidated or circumvented, or that any such rights will provide
significant competitive advantages. Moreover, because of the rapid pace
of technological change in the information technology industry, many of
the Company's products rely on key technologies developed by others.
There can be no assurance that the Company will be able to continue to
obtain licenses to such technologies. In addition, from time to time,
the Company receives notices from third parties regarding patent or
copyright claims. Any such claims, with or without merit, could be
time-consuming to defend, result in costly litigation, divert
management's attention and resources and cause the Company to incur
significant expenses. In the event of a successful claim of infringement
against the Company and failure or inability of the Company to license
the infringed technology or to substitute similar non-infringing
technology, the Company's business could be adversely affected.
Reliance on Suppliers. Portions of the Company's manufacturing
operations are dependent on the ability of suppliers to deliver quality
components, subassemblies and completed products in time to meet critical
<PAGE> 10
manufacturing and distribution schedules. The Company periodically
experiences constrained supply of certain component parts in some product
lines as a result of strong demand in the industry for those parts. Such
constraints, if persistent, may adversely affect the Company's operating
results until alternate sourcing can be developed. In order to secure
components for production and introduction of new products, the Company
at times makes advance payments to certain suppliers, and often enters
into noncancelable purchase commitments with vendors for such components.
Volatility in the prices of these component parts, the possible inability
of the Company to secure enough components at reasonable prices to build
new products in a timely manner in the quantities and configurations
demanded or, conversely, a temporary oversupply of these parts, could
adversely affect the Company's future operating results.
Reliance on Third-Party Distribution Channels. The Company continues to
expand into third-party distribution channels to accommodate changing
customer preferences. As a result, the financial health of commercial and
retail distribution channels, and the Company's continuing relationships
with them, are becoming more important to the Company's success. Some of
these companies are thinly capitalized and may be unable to withstand
changes in business conditions. The Company's financial results could be
adversely affected if the financial condition of certain of these third
parties substantially weakens or if the Company's relationship with them
deteriorates.
International. Sales outside the United States make up more than half of
the Company's revenues. In addition, a portion of the Company's product
and component manufacturing, along with key suppliers, are located
outside the United States. Accordingly, the Company's future results
could be adversely affected by a variety of factors, including changes
in a specific country's or region's political conditions or changes or
continued weakness in economic conditions, trade protection measures,
import or export licensing requirements, the overlap of different tax
structures, unexpected changes in regulatory requirements and natural
disasters. For example, weakness in the Asian markets adversely affected
the Company's financial results as described above under "Results of
Operations -- Net Revenue."
Derivative Financial Instruments. The Company is also exposed to foreign
currency exchange rate risk inherent in its sales commitments,
anticipated sales and assets and liabilities denominated in currencies
other than the U.S. dollar, as well as interest rate risk inherent in the
Company's debt, investment and finance receivable portfolios. As more
fully described in the notes to the Company's 1997 annual report to
shareholders, the Company's risk management strategy utilizes derivative
financial instruments, including forwards, swaps and purchased options to
hedge certain foreign currency and interest rate exposures, with the
intent of offsetting gains and losses that occur on the underlying
exposures with gains and losses on the derivative contracts hedging them.
The Company does not enter into derivatives for trading purposes.
The Company has performed a sensitivity analysis assuming a hypothetical
10% adverse movement in foreign exchange rates and interest rates applied
to the hedging contracts and underlying exposures described above. As of
April 30, 1998, the analysis indicated that such market movements would
<PAGE> 11
not have a material effect on the Company's consolidated financial
position, results of operations or cash flows. Actual gains and losses
in the future may differ materially from that analysis, however, based on
changes in the timing and amount of interest rate and foreign currency
exchange rate movements and the Company's actual exposures and hedges.
Acquisitions, Strategic Alliances, Joint Ventures and Divestitures. As a
matter of course, the Company frequently engages in discussions with a
variety of parties relating to possible acquisitions, strategic
alliances, joint ventures and divestitures. Although consummation of any
transaction is unlikely to have a material effect on the Company's
results as a whole, the implementation or integration of a transaction
may contribute to the Company's results differing from the investment
community's expectation in a given quarter. Divestitures may result in
the cancellation of orders and charges to earnings. Acquisitions and
strategic alliances may require, among other things, integration or
coordination with a different company culture, management team
organization and business infrastructure. They may also require the
development, manufacture and marketing of product offerings with the
Company's products in a way that enhances the performance of the combined
business or product line. Depending on the size and complexity of the
transaction, successful integration depends on a variety
of factors, including the hiring and retention of key employees,
management of geographically separate facilities, and the integration or
coordination of different research and development and product
manufacturing facilities. All of these efforts require varying levels of
management resources, which may temporarily adversely impact other
business operations.
Earthquake. A portion of the Company's research and development
activities, its corporate headquarters, other critical business
operations and certain of its suppliers are located near major earthquake
faults. The ultimate impact on the Company, its significant suppliers
and the general infrastructure is unknown, but operating results could be
materially affected in the event of a major earthquake. The Company is
predominantly uninsured for losses and interruptions caused by
earthquakes.
Environmental. Certain of the Company's operations involve the use of
substances regulated under various federal, state, and international laws
governing the environment. It is the Company's policy to apply strict
standards for environmental protection to sites inside and outside the
U.S., even if not subject to regulations imposed by local governments.
The liability for environmental remediation and related costs is accrued
when it is considered probable and the costs can be reasonably estimated.
Environmental costs are presently not material to the Company's
operations or financial position.
<PAGE> 12
Year 2000. Many computer systems experience problems handling dates
beyond the year 1999. Therefore, some computer hardware and software
will need to be modified prior to the year 2000 in order to remain
functional. The Company is assessing both the readiness of its internal
computer systems and the compliance of its computer products and software
sold to customers for handling the year 2000. The Company expects to
implement successfully the systems and programming changes necessary to
address year 2000 issues, and does not believe that the cost of such
actions will have a material effect on the Company's results of
operations or financial condition. There can be no assurance, however,
that there will not be a delay in, or increased costs associated with,
the implementation of such changes, and the Company's inability to
implement such changes could have an adverse effect on future results of
operations or financial condition.
Certain hardware and software products currently installed at customer
sites will require upgrade or other remediation to become year 2000
compliant. The Company believes that it is not legally responsible for
costs incurred by its customers to achieve their year 2000 compliance.
However, the Company is taking steps to identify affected customers,
raise customer awareness related to non-compliance of the Company's older
products, and assist the customer base to assess their risks. The
Company may see increasing customer satisfaction costs related to these
actions over the next few years. Since customer satisfaction programs
are ongoing, year 2000 complications are not fully known, and potential
liability issues in certain countries are unclear, the potential impact
on the Company's financial condition and results of operations is not
known at this time.
The Company is also assessing and addressing the possible effects on the
Company's operations of the year 2000 readiness of key suppliers and
subcontractors. The Company's reliance on suppliers and subcontractors,
and therefore, on the proper functioning of their information systems and
software, means that failure to address year 2000 issues could have a
material impact on the Company's operations and financial results.
However, the potential impact and related costs are not known at this
time.
Quarterly Fluctuations and Volatility of Stock Prices. Although the
Company believes that it has the product offerings and resources needed
for continuing success, future revenue and margin trends cannot be
reliably predicted and may cause the Company to adjust its operations,
which could cause period-to-period fluctuations in operating results.
<PAGE> 13
The Company's stock price, like that of other technology companies, is
subject to significant volatility. The announcement of new products,
services or technological innovations by the Company or its competitors,
quarterly variations in the Company's results of operations, changes in
revenue or earnings estimates by the investment community and speculation
in the press or investment community are among the factors affecting the
Company's stock price. In addition, the stock price may be affected by
general market conditions and domestic and international macroeconomic
factors unrelated to the Company's performance. Because of the foregoing
reasons, recent trends should not be considered reliable indicators of
future stock prices or financial results.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
A discussion of the Company's exposure to, and management of, market risk
appears in Item 2 of this Form 10-Q under the heading "Factors That May
Affect Future Results".
PART II. OTHER INFORMATION
---------------------------
Item 2. Effective May 20, 1998, the Company changed its state of
incorporation from California to Delaware. The reincorporation
was accomplished through a merger (the "Merger") of Hewlett-
Packard Company, a California corporation ("HP California"), into
its wholly owned Delaware subsidiary of the same name ("HP
Delaware"). As a result of the Merger, each outstanding share of
HP California Common Stock, par value $1.00 per share, was
automatically converted into one share of HP Delaware Common
Stock, par value $0.01 per share. The reincorporation proposal
was approved by the Company's shareholders at the Company's
annual meeting of shareholders on February 24, 1998. See also
Item 6(b)(ii) below.
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 16 of this report.
(b) Reports on Form 8-K:
(i) Report on Form 8-K filed May 20, 1998, containing Hewlett-
Packard Company's news releases dated May 13 and May 15,
1998 with respect to its earning release for the second
quarter of fiscal 1998.
(ii) Report on Form 8-K filed May 20, 1998 with respect to
Hewlett-Packard Company's change in state of incorporation.
<PAGE> 14
<PAGE>
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 2, 1998 By:/s/ Robert P. Wayman
--------------------------
Robert P. Wayman
Executive Vice President,
Finance and Administration
(Chief Financial Officer)
<PAGE> 15
<PAGE>
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
EXHIBIT INDEX
-------------
Exhibits:
1. Not applicable.
2. None.
3(a). Certificate of Reincorporation.
3(b). By-Laws.
4. None.
5-9. Not applicable.
10. None.
11. Statement re computation of per share earnings.
12. Statement re ratio of earnings to fixed charges.
13-14. 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.
<PAGE> 16
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
Statement Regarding Computation of Per Share Earnings
Registrant's Basic and Diluted Earnings Per Share (in millions except
per share amounts)
Exhibit 11
----------
Three months ended Six months ended
April 30 April 30
------------------ -----------------
1998 1997 1998 1997
Basic earnings per share
Net earnings $ 685 $ 784 $1,614 $1,696
Number of shares on which basic
earnings per share is based:
Weighted average common shares
outstanding during the period 1,039 1,017 1,039 1,017
Basic earnings per share $0.66 $0.77 $1.55 $1.67
===== ===== ===== =====
Diluted earnings per share
Net earnings $ 685 $ 784 $1,614 $1,696
Adjustment for interest
expense, net 6 - 12 -
----- ----- ------ ------
Net earnings, adjusted $ 691 $ 784 $1,626 $1,696
Number of shares on which diluted
earnings per share is based:
Weighted average common shares
outstanding during the period 1,039 1,017 1,039 1,017
Weighted average dilutive
potential common shares:
Stock options 29 29 28 30
Convertible zero-coupon notes
due 2017 10 - 10 -
Number of shares and equivalents
on which diluted earnings per
share is based 1,078 1,046 1,077 1,047
Diluted earnings per share $0.65 $0.75 $1.51 $1.62
===== ===== ===== =====
HEWLETT-PACKARD COMPANY AND SUBSIDIARIES
Statement Regarding Computation of Ratio of Earnings to Fixed Charges (1)
(in millions, except ratios)
<TABLE>
<CAPTION> Exhibit 12
FOR THE SIX MONTHS ----------
ENDED APRIL 30 YEAR ENDED OCTOBER 31,
------------------ --------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Pre-tax income
from continuing
operations......... $2,274 $2,423 $4,455 $3,694 $3,632 $2,423 $1,783
Minority interest
in the income of
subsidiaries with
fixed charges...... 9 23 39 38 29 17 11
Undistributed
(earnings) or loss
of equity investees. 13 (4) (6) (62) (47) 4 6
Fixed charges:
Interest expense
and amortization
of debt discount
and premium on all
indebtedness..... 126 105 215 327 206 155 121
Interest included
in rent............ 78 66 139 126 111 104 102
------ ------ ------ ------ ------ ------ ------
Total fixed
charges.......... 204 171 354 453 317 259 223
Earnings before
income taxes,
minority interest,
undistributed
earnings or loss of
equity investees
and fixed charges.. $2,500 $2,613 $4,842 $4,123 $3,931 $2,703 $2,023
====== ====== ====== ====== ====== ====== ======
Ratio of earnings
to fixed charges... 12.3 15.3 13.7 9.1 12.4 10.4 9.1
====== ====== ====== ====== ====== ====== ======
(1) The ratio of earnings to fixed charges was computed by dividing earnings(income
from continuing operations before income taxes, adjusted for fixed charges,
minority interest in the income of subsidiaries with fixed charges and equity in
earnings or loss of equity investees) by fixed charges for the periods indicated.
Fixed charges include (i) interest expense and amortization of debt discount or
premium on all indebtedness, and (ii) a reasonable approximation of the interest
factor deemed to be included in rental expense.
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED CONDENSED 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-31-1998
<PERIOD-END> APR-30-1998
<CASH> 4,387
<SECURITIES> 650
<RECEIVABLES> 8,366
<ALLOWANCES> 0
<INVENTORY> 6,700
<CURRENT-ASSETS> 21,661
<PP&E> 12,163
<DEPRECIATION> 5,767
<TOTAL-ASSETS> 32,787
<CURRENT-LIABILITIES> 11,844
<BONDS> 2,448
<COMMON> 1,184
0
0
<OTHER-SE> 16,035
<TOTAL-LIABILITY-AND-EQUITY> 32,787
<SALES> 20,496
<TOTAL-REVENUES> 23,856
<CGS> 0
<TOTAL-COSTS> 16,061
<OTHER-EXPENSES> 5,619
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 126
<INCOME-PRETAX> 2,274
<INCOME-TAX> 660
<INCOME-CONTINUING> 1,614
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,614
<EPS-PRIMARY> 1.55
<EPS-DILUTED> 1.51
</TABLE>
CERTIFICATE OF INCORPORATION
OF
HEWLETT-PACKARD COMPANY
ARTICLE I
The name of this corporation is Hewlett-Packard Company (the
"Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of
New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted
by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
The Corporation is authorized to issue two classes of stock to be
designated, respectively, Preferred Stock, par value $0.01 per share
("Preferred"), and Common Stock, par value $0.01 per share ("Common").
The total number of shares of Common that the Corporation shall have
authority to issue is 4,800,000,000. The total number of shares of
Preferred that the Corporation shall have authority to issue is
300,000,000. The Preferred Stock may be issued from time to time in one
or more series.
The Corporation shall from time to time in accordance with the
laws of the State of Delaware increase the authorized amount of its
Common if at any time the number of Common shares remaining unissued and
available for issuance shall not be sufficient to permit conversion of
the Preferred.
The Board of Directors is hereby authorized, subject to limitations
prescribed by law and the provisions of this Article IV, by resolution to
provide for the issuance of the shares of Preferred in one or more series,
and to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, privileges,
preferences, and relative participating, optional or other rights, if any,
of the shares of each such series and the qualifications, limitations or
restrictions thereof.
The authority of the Board with respect to each series shall include,
but not be limited to, determination of the following:
A. The number of shares constituting that series (including
an increase or decrease in the number of shares of any such series
(but not below the number of shares in any such series then
outstanding)) and the distinctive designation of that series;
B. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends on shares of that series;
C. Whether that series shall have the voting rights (including
multiple or fractional votes per share) in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
D. Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such privileges, including
provision for adjustment of the conversion rate in such events as
the Board of Directors shall determine;
E. Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable, and
the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption rates;
F. Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms and the amount of such sinking funds;
G. The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
H. Any other relative rights, preferences and limitations
of that series.
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 IV.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation, of its directors and of its
stockholders or any class thereof, as the case may be, it is further
provided that:
A. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of
Directors. The number of directors of this Corporation shall not
be 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 an amendment to the
Bylaws duly adopted by the stockholders or by the Board of
Directors.
B. In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of
Directors is expressly authorized to make, alter, amend, or repeal
the Bylaws of the Corporation.
C. The directors of the Corporation need not be elected by
written ballot unless the Bylaws of the Corporation so provide.
D. Advance notice of stockholder nomination for the
election of directors and of any other business to be brought by
stockholders before any meeting of the stockholders of the
Corporation shall be given in the manner provided in the Bylaws of
the Corporation.
E. No action shall be taken by the stockholders of the
Corporation except at an annual or special meeting of the
stockholders called in accordance with the Bylaws and no action
shall be taken by the stockholders by written consent.
ARTICLE VII
At the election of directors of the Corporation, each holder of
stock of any class or series shall be entitled to cumulative voting
rights as to the directors to be elected by each class or series in
accordance with the provisions of Section 214 of the General Corporation
Law of the State of
Delaware.
ARTICLE VIII
The name and mailing address of the incorporator are as follows:
Marie Oh Huber
Hewlett-Packard Company
Corporate Legal Department
3000 Hanover Street
Palo Alto, California 94304-1185
ARTICLE IX
The Corporation reserves the right to amend, alter, change, or
repeal any provision contained in this Certificate of Incorporation, in
the manner now or hereafter prescribed by the laws of the State of
Delaware, and all rights conferred herein are granted subject to this
reservation.
ARTICLE X
A. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as may hereafter be amended, no
director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director.
B. The Corporation may indemnify to the fullest extent permitted
by law any person made or threatened to be made a party to an action or
proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a
director, officer or employee of the Corporation or any predecessor of
the Corporation or serves or served at any other enterprise as a
director, officer or employee at the request of the Corporation or any
predecessor to the Corporation.
C. Neither any amendment nor repeal of this Article X, nor the
adoption of any provision of the Corporation's Certificate of
Incorporation inconsistent with this Article X, shall eliminate or
reduce the effect of this Article X, with respect of any matter
occurring, or any action or proceeding accruing or arising or that, but
for this Article X, would accrue or arise, prior to such amendment,
repeal, or adoption of an inconsistent provision.
ARTICLE XI
Meetings of stockholders may be held within or without the State
of Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the laws of the State of
Delaware) outside of the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors or in the
Bylaws of the Corporation.
IN WITNESS WHEREOF, the undersigned incorporator hereby acknowledges
that the foregoing Certificate of Incorporation is her act and deed and
that the facts stated herein are true.
/s/ MARIE OH HUBER
------------------
Marie Oh Huber
Incorporator
Dated: February 11, 1998
BYLAWS
OF
HEWLETT-PACKARD COMPANY
(a Delaware Corporation)
ARTICLE I
CORPORATE OFFICES
1.1 Registered Office. The registered office of the corporation
shall be fixed in the Certificate of Incorporation of the corporation.
1.2 Other Offices. The board of directors may at any time
establish branch or subordinate offices at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the board
of directors. In the absence of any such designation, stockholders'
meetings shall be held at the registered office of the corporation.
2.1 Annual Meeting.
(a) The annual meeting of stockholders shall be held each
year on a date and at a time designated by the board of
directors. At the meeting, directors shall be elected,
and any other proper business may be transacted.
(b) At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly
brought before the meeting. To be properly brought
before an annual meeting, business must be: (A)
specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board of
directors, (B) otherwise properly brought before the
meeting by or at the direction of the board of
directors, or (C) otherwise properly brought before the
meeting by a stockholder. For business to be properly
brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in
writing to the secretary of the corporation. To be
timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices
of the corporation not less than one hundred twenty
(120) calendar days in advance of the date specified in
the corporation's proxy statement released to
stockholders in connection with the previous year's
annual meeting of stockholders; provided, however, that
in the event that no annual meeting was held in the
previous year or the date of the annual meeting has
been changed by more than thirty (30) days from the
date contemplated at the time of the previous year's
proxy statement, notice by the stockholder to be timely
must be so received not later than the close of
business on the later of one hundred twenty (120)
calendar days in advance of such annual meeting or ten
(10) calendar days following the date on which public
announcement of the date of the meeting is first made.
A stockholder's notice to the secretary shall set forth
as to each matter the stockholder proposes to bring
before the annual meeting: (i) a brief description of
the business desired to be brought before the annual
meeting and the reasons for conducting such business at
the annual meeting, (ii) the name and address, as they
appear on the corporation's books, of the stockholder
proposing such business, (iii) the class and number of
shares of the corporation which are beneficially owned
by the stockholder, (iv) any material interest of the
stockholder in such business, and (v) any other
information that is required to be provided by the
stockholder pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "1934
Act"), in his capacity as a proponent to a stockholder
proposal. Notwithstanding the foregoing, in order to
include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice
as required by the regulations promulgated under the
1934 Act. Notwithstanding anything in these Bylaws to
the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures
set forth in this paragraph (b). The chairman of the
annual meeting shall, if the facts warrant, determine
and declare at the meeting that business was not
properly brought before the meeting and in accordance
with the provisions of this paragraph (b), and, if he
should so determine, he shall so declare at the meeting
that any such business not properly brought before the
meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the
procedures set forth in this paragraph (c) shall be
eligible for election as directors. Nominations of
persons for election to the board of directors of the
corporation may be made at a meeting of stockholders by
or at the direction of the board of directors or by any
stockholder of the corporation entitled to vote in the
election of directors at the meeting who complies with
the notice procedures set forth in this paragraph (c).
Such nominations, other than those made by or at the
direction of the board of directors, shall be made
pursuant to timely notice in writing to the secretary
of the corporation in accordance with the provisions of
paragraph (b) of this Section 2.2. Such stockholder's
notice shall set forth (i) as to each person, if any,
whom the stockholder proposes to nominate for election
or re-election as a director: (A) the name, age,
business address and residence address of such person,
(B) the principal occupation or employment of such
person, (C) the class and number of shares of the
corporation which are beneficially owned by such
person, (D) a description of all arrangements or
understandings between the stockholder and each nominee
and any other person or persons (naming such person or
persons) pursuant to which the nominations are to be
made by the stockholder, and (E) any other information
relating to such person that is required to be
disclosed in solicitations of proxies for elections of
directors, or is otherwise required, in each case
pursuant to Regulation 14A under the 1934 Act
(including without limitation such person's written
consent to being named in the proxy statement, if any,
as a nominee and to serving as a director if elected);
and (ii) as to such stockholder giving notice, the
information required to be provided pursuant to
paragraph (b) of this Section 2.2. At the request of
the board of directors, any person nominated by a
stockholder for election as a director shall furnish to
the secretary of the corporation that information
required to be set forth in the stockholder's notice of
nomination which pertains to the nominee. No person
shall be eligible for election as a director of the
corporation unless nominated in accordance with the
procedures set forth in this paragraph (c). The
chairman of the meeting shall, if the facts warrants,
determine and declare at the meeting that a nomination
was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so
determine, he shall so declare at the meeting, and the
defective nomination shall be disregarded.
2.3 Special Meeting. A special meeting of the stockholders may be
called at any time by the board of directors, the chairman of the board,
the vice chairman of the board, the chairman of the executive committee,
or the president, but such special meetings may not be called by any
other person or persons. Only such business shall be considered at a
special meeting of stockholders as shall have been stated in the notice
for such meeting.
2.4 Organization. Meetings of stockholders shall be presided over
by the chairman of the board, if any, or in his or her absence by the
vice chairman of the board, if any, or in his or her absence by the
chairman of the executive committee, if any, or in his or her absence by
the president, if any, or in his or her absence by an executive vice
president, if any, or in his or her absence by a senior vice president,
if any, or in his or her absence by a vice president, or in the absence
of the foregoing persons by a chairman designated by the board of
directors, or in the absence of such designation by a chairman chosen at
the meeting by the vote of a majority in interest of the stockholders
present in person or represented by proxy and entitled to vote thereat.
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 corporation shall be entitled to make
such rules or regulations for the conduct of meetings of stockholders 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 stockholders of record of
the corporation 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 and
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 stockholders shall not be required to be held in accordance
with rules of parliamentary procedure.
2.5 Notice of Stockholders' Meetings. All notices of meetings of
stockholders shall be sent or otherwise given in accordance with Section
2.6 of these Bylaws not less than ten (10) nor more than sixty (60) days
before the date of the meeting. The notice shall specify the place, date,
and hour of the meeting and (i) in the case of a special meeting, the
general nature of the business to be transacted (no business other than
that specified in the notice may be transacted) or (ii) in the case of
the annual meeting, those matters which the board of directors, at the
time of giving the notice, intends to present for action by the
stockholders (but 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 name of any nominee or nominees who, at the
time of the notice, the board intends to present for election.
2.6 Manner of Giving Notice; Affidavit of Notice. Notice of any
meeting of stockholders shall be given either personally or by mail,
telecopy, telegram or other electronic or wireless means. Notices not
personally delivered shall be sent charges prepaid and shall be addressed
to the stockholder at the address of that stockholder appearing on the
books of the corporation or given by the stockholder to the corporation
for the purpose of notice. Notice shall be deemed to have been given at
the time when delivered personally or deposited in the mail or sent by
telecopy, telegram or other electronic or wireless means.
An affidavit of the mailing or other means of giving any notice of
any stockholders' meeting, executed by the secretary, assistant secretary
or any transfer agent of the corporation giving the notice, shall be
prima facie evidence of the giving of such notice or report.
2.7 Quorum. The holders of a majority in voting power of the
stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings
of the stockholders for the transaction of business except as otherwise
provided by statute or by the Certificate of Incorporation. If, however,
such quorum is not present or represented at any meeting of the
stockholders, then either (i) the chairman of the meeting or (ii) the
stockholders by the vote of the holders of a majority of the stock,
present in person or represented by proxy shall have power to adjourn the
meeting in accordance with Section 2.8 of these Bylaws.
When a quorum is present at any meeting, the vote of the holders of
a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of
the laws of the State of Delaware or of the Certificate of Incorporation
or these Bylaws, a vote of a greater number or voting by classes is
required, in which case such express provision shall govern and control
the decision of the question.
If a quorum be initially present, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum, if any action taken is
approved by a majority of the stockholders initially constituting the
quorum.
2.8 Adjourned Meeting; Notice. Any stockholders' meeting, annual
or special, whether or not a quorum is present, may be adjourned from
time to time by the vote of the majority of the voting power of the
shares represented at that meeting, either in person or by proxy. In the
absence of a quorum, no other business may be transacted at that meeting
except as provided in Section 2.7 of these Bylaws.
When any meeting of stockholders, either annual or special, is
adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place are announced at the meeting at
which the adjournment is taken. However, if a new record date for the
adjourned meeting is fixed or if the adjournment is for more than thirty
(30) days from the date set for the original meeting, then notice of the
adjourned meeting shall be given. Notice of any such adjourned meeting
shall be given to each stockholder of record entitled to vote at the
adjourned meeting in accordance with the provisions of Sections 2.5 and
2.6 of these Bylaws. At any adjourned meeting the corporation may
transact any business which might have been transacted at the original
meeting
2.9 Voting. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of
Section 2.12 of these Bylaws, subject to the provisions of Sections 217
and 218 of the General Corporation Law of Delaware (relating to voting
rights of fiduciaries, pledgers and joint owners, and to voting trusts
and other voting agreements).
Except as may be otherwise provided in the Certificate of
Incorporation, by these Bylaws or required by law, each stockholder shall
be entitled to one vote for each share of capital stock held by such
stockholder.
Any stockholder 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, except when the matter is the election of directors, may vote
them against the proposal; but if the stockholder fails to specify the
number of shares which the stockholder is voting affirmatively, it will
be conclusively presumed that the stockholder's approving vote is with
respect to all shares which the stockholder is entitled to vote.
2.10 Validation of Meetings; Waiver of Notice; Consent. The
transactions of any meeting of stockholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as
though they had been taken at a meeting duly held after regular call and
notice, if a quorum be present either in person or by proxy.
Attendance by a person at a meeting shall also constitute a waiver
of notice of and presence at that 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. Attendance at a
meeting is not a waiver of any right to object to the consideration of
matters required by law to be included in the notice of the meeting but
not so included, if that objection is expressly made at the meeting.
2.11 Action by Written Consent. Subject to the rights of the
holders of the shares of any series of Preferred Stock or any other class
of stock or series thereof having a preference over the Common Stock as
dividend or upon liquidation, any action required or permitted to be
taken by the stockholders of the corporation must be effected at a duly
called annual or special meeting of stockholders of the corporation and
may not be effected by any consent in writing by such stockholders.
2.12 Record Date for Stockholder Notice; Voting; Giving Consents.
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat, the board of directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than
ten (10) days before the date of any such meeting, and in such event only
stockholders of record on the date so fixed are entitled to notice and to
vote, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the
Certificate of Incorporation, by these Bylaws, by agreement or by
applicable law.
If the board of directors does not so fix a record date, the record
date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the business
day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the business day next preceding the
day on which the meeting is held.
A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of
the meeting unless the board of directors fixes a new record date for the
adjourned meeting, but the board of directors shall fix a new record date
if the meeting is adjourned for more than thirty (30) days from the date
set for the original meeting.
The record date for any other purpose shall be as provided in
Section 8.1 of these Bylaws.
2.13 Proxies. Every person entitled to vote for directors, or on
any other matter, shall have the right to do so either in person or by
one or more agents authorized by a written proxy, which may be in the
form of a telegram, cablegram, or other means of electronic transmission,
signed by the person and filed with the secretary of the corporation, but
no such proxy shall be voted or acted upon after three (3) years from its
date, unless the proxy provides for a longer period. A proxy shall be
deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission or otherwise)
by the stockholder or the stockholder's attorney-in-fact. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or by filing another
duly executed proxy bearing a later date with the secretary of the
corporation.
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.
2.14 Inspectors of Election. Before any meeting of stockholders,
the board of directors shall appoint an inspector or inspectors of
election to act at the meeting or its adjournment. The number of
inspectors shall be either one (1) or three (3). If any person appointed
as inspector fails to appear or fails or refuses to act, then the
chairman of the meeting may, and upon the request of any stockholder or a
stockholder's proxy shall, appoint a person to fill that vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting
power of each, the number of shares represented at the
meeting, the existence of a quorum, and the authenticity,
validity, and effect of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election
or vote with fairness to all stockholders.
The inspectors of election shall perform their duties impartially,
in good faith, to the best of their ability and as expeditiously as is
practical. If there are three (3) inspectors of election, the decision,
act or certificate of a majority is effective in all respects as the
decision, act or certificate of all. Any report or certificate made by
the inspectors of election is prima facie evidence of the facts stated
therein.
ARTICLE III
DIRECTORS
3.1 Powers. Subject to the provisions of the General Corporation
Law of Delaware and to any limitations in the Certificate of
Incorporation or these Bylaws relating to action required to be approved
by the stockholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers
shall be exercised by or under the direction of the board of directors.
3.2 Number and Term of Office. The authorized number of directors
shall be not less than eleven (11) nor more than twenty-one (21). Within
such limits, the exact number of directors shall be thirteen (13). An
indefinite number of directors may be fixed, or the definite number of
directors may be changed, by a duly adopted amendment to the Certificate
of Incorporation or by an amendment to this bylaw duly adopted by the
stockholders or board of directors.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office
expires. If for any cause, the directors shall not have been elected at
an annual meeting, they may be elected as soon thereafter as convenient
at a special meeting of the stockholders called for that purpose in the
manner provided in these Bylaws.
3.3 Election and Term of Office of Directors. Except as provided
in Section 3.4 of these Bylaws, directors shall be elected at each annual
meeting of stockholders to hold office until the next annual meeting.
Each director, including a director elected or appointed to fill a
vacancy, shall hold office until the expiration of the term for which
elected and until a successor has been elected and qualified.
Directors need not be stockholders unless so required by the
Certificate of Incorporation or by these Bylaws; wherein other
qualifications for directors may be prescribed.
3.4 Resignation and Vacancies. Any director may resign effective
on giving written notice to the chairman of the board, the president, the
secretary or the board of directors, unless the notice specifies a later
time for that resignation to become effective. If the resignation of a
director is effective at a future time, the board of directors may elect
a successor to take office when the resignation becomes effective.
Unless otherwise provided in the Certificate of Incorporation or by
these Bylaws, vacancies in the board of directors may be filled by a
majority of the remaining directors, even if less than a quorum, or by a
sole remaining director; however, a vacancy created by the removal of a
director by the vote of the stockholders or by court order may be filled
only by the affirmative vote of a majority of the voting power of shares
represented and voting at a duly held meeting at which a quorum is
present (which shares voting affirmatively also constitute a majority of
the required quorum). Each director so elected shall hold office until
the next annual meeting of the stockholders and until a successor has
been elected and qualified.
Unless otherwise provided in the Certificate of Incorporation or
these Bylaws:
(i) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all
of the stockholders having the right to vote as a single
class may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by
the provisions of the Certificate of Incorporation, vacancies
and newly created directorships of such class or classes or
series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or
by a sole remaining director so elected.
If at any time, by reason of death or resignation or other cause,
the corporation should have no directors in office, then any officer or
any stockholder or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for
the person or estate of a stockholder, may call a special meeting of
stockholders in accordance with the provisions of the Certificate of
Incorporation or these Bylaws, or may apply to the Court of Chancery for
a decree summarily ordering an election as provided in Section 211 of the
General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), then the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent (10%) of the
total number of the then outstanding shares having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office as aforesaid, which election shall
be governed by the provisions of Section 211 of the General Corporation
Law of Delaware as far as applicable.
3.5 Removal. Unless otherwise restricted by statute, by the
Certificate of Incorporation or by these Bylaws, any director or the
entire board of directors may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election
of directors; provided, however, that, if and so long as stockholders of
the corporation are entitled to cumulative voting, if less than the
entire board is to be removed, no director may be removed without cause
if the votes cast against his removal would be sufficient to elect him if
then cumulatively voted at an election of the entire board of directors.
3.6 Place of Meetings; Meetings by Telephone. Regular meetings of
the board of directors may be held at any place within or outside the
State of Delaware that has been designated from time to time by
resolution of the board of directors. In the absence of such a
designation, regular meetings shall be held at the principal executive
office of the corporation. Special meetings of the board of directors may
be held at any place within or outside the State of Delaware that has
been designated in the notice of the meeting or, if not stated in the
notice or if there is no notice, at the principal executive office of the
corporation.
Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another; and all such directors
shall be deemed to be present in person at the meeting.
3.7 Regular Meetings. Regular meetings of the board of directors
may be held without notice if the times of such meetings are fixed by the
board of directors.
3.8 Special Meetings; Notice. Special meetings of the board of
directors for any purpose or purposes 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.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by mail, telecopy,
telegram or other electronic or wireless means, charges prepaid,
addressed to each director at that director's address as it is shown on
the records of the corporation or if the address is not readily
ascertainable, notice shall be addressed to the director at the city or
place in which the meetings of directors are regularly held. If the
notice is mailed, it shall be deposited in the United States mail at
least four (4) days before the time of the holding of the meeting. If the
notice is delivered personally or by telephone, telecopy, telegram or
other electronic or wireless means, it shall be delivered personally or
by telephone or other electronic or wireless means or to the telegraph
company at least twenty-four (24) hours before the time of the holding of
the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the
director who the person giving the notice has reason to believe will
promptly communicate it to the director. If the meeting is to be held at
the principal executive office of the corporation, the notice need not
specify the place of the meeting. Moreover, a notice of special meeting
need not state the purpose of such meeting, and, unless indicated in the
notice thereof, any and all business may be transacted at a special
meeting.
3.9 Quorum. A majority of the authorized number of directors
shall constitute a quorum for the transaction of business, except to fill
vacancies in the board of directors as provided in Section 3.4 and to
adjourn as provided in Section 3.11 of these Bylaws. Every act or
decision done or made by a majority of the directors present at a duly
held meeting at which a quorum is present shall be regarded as the act of
the board of directors, subject to the provisions of the Certificate of
Incorporation and applicable 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 that meeting.
3.10 Waiver of Notice. Notice of a meeting need not be given to
any director (i) who signs a waiver of notice or a consent to holding the
meeting or an approval of the minutes thereof, whether before or after
the meeting, or (ii) who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such directors. 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. All such waivers shall be filed with the corporate
records or made part of the minutes of the meeting. A waiver of notice
need not specify the purpose of any regular or special meeting of the
board of directors.
3.11 Adjournment. A majority of the directors present, whether or
not constituting a quorum, may adjourn any meeting to another time and
place.
3.12 Notice of Adjournment. Notice of the time and place of
holding an adjourned meeting need not be given if announced unless the
meeting is adjourned for more than twenty-four (24) hours. If the meeting
is adjourned for more than twenty-four (24) hours, then notice of the
time and place of the adjourned meeting shall be given before the
adjourned meeting takes place, in the manner specified in Section 3.8 of
these Bylaws, to the directors who were not present at the time of the
adjournment.
3.13 Board Action by Written Consent Without a Meeting. Any action
required or permitted to be taken by the board of directors may be taken
without a meeting, provided that all members of the board of directors
individually or collectively consent in writing to that action. Such
action by written consent shall have the same force and effect as a
unanimous vote of the board of directors. Such written consent and any
counterparts thereof shall be filed with the minutes of the proceedings
of the board.
3.14 Organization. Meetings of the board of directors shall be
presided over by the chairman of the board, if any, or in his or her
absence by the vice chairman of the board, if any, or in his or her
absence by the chairman of the executive committee, if any, or in his or
her absence by the president, if any, or in his or her absence by the
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. The secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3.15 Fees and Compensation of Directors. Directors and members of
committees may receive such compensation, if any, for their services and
such reimbursement of expenses as may be fixed or determined by
resolution of the board of directors. This Section 3.15 shall not be
construed to preclude any director from serving the corporation in any
other capacity as an officer, agent, employee or otherwise and receiving
compensation for those services.
ARTICLE IV
COMMITTEES
4.1 Committees of Directors. The board of directors may designate
one (1) or more committees, each consisting of two or more directors, to
serve at the pleasure of the board of directors. The board of directors
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. Any committee, to the extent provided in the resolution of the
board, shall have all the authority of the board, but no such committee
shall have the power or authority to (i) approve or adopt or recommend to
the stockholders any action or matter that requires the approval of the
stockholders or (ii) adopt, amend or repeal any Bylaw of the corporation.
4.2 Meetings and Action of Committees. Meetings and actions of
committees shall be governed by, and held and taken in accordance with,
the provisions of Article III of these Bylaws, Section 3.6 (place of
meetings), Section 3.7 (regular meetings), Section 3.8 (special meetings
and notice), Section 3.9 (quorum), Section 3.10 (waiver of notice),
Section 3.11 (adjournment), Section 3.12 (notice of adjournment), and
Section 3.13 (action without meeting), with such changes in the context
of those Bylaws as are necessary to substitute the committee and its
members for the board of directors and its members; provided, however,
that the time of regular meetings of committees may be determined either
by resolution of the board of directors or by resolution of the
committee, that special meetings of committees may also be called by
resolution of the board of directors, and that notice of special meetings
of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of
directors may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
4.3 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 4.1 hereof) in
such manner as the executive committee may deem in the best interests of
the corporation.
ARTICLE V
OFFICERS
5.1 Officers. 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 Bylaws or the
board of directors.
5.2 Election of Officers. In addition to officers elected by the
board of directors in accordance with Sections 5.1 and 5.3, the
corporation may have one or more appointed vice presidents. Such vice
presidents may be appointed by the chairman of the board or the president
and shall have such duties as may be established by the chairman or
president. Vice presidents appointed pursuant to this Section 5.2 may be
removed in accordance with Section 5.4.
5.3 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.
5.4 Removal; Resignation of Officers 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 stockholders 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 a 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.
5.5 Chairman of the Board. The chairman of the board, if such an
officer be elected, shall have general supervision, direction and control
of the corporation's business and its officers, and, if present, preside
at meetings of the stockholders and the board of directors and exercise
and perform such other powers and duties as may from time to time be
assigned to him by the board of directors or as may be prescribed by
these Bylaws. The chairman of the board shall report to the board of
directors.
5.6 Vice Chairman of the Board. 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.
5.7 Chairman of Executive Committee. The chairman of the
executive committee, if there be one, shall have the power to call
meetings of the stockholders and also of the board of directors to be
held subject to the limitations prescribed by law or by these Bylaws, 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.
5.8 President. The powers and duties of the president are:
(a) To call meetings of the stockholders and also of the board of
directors to be held, subject to the limitations prescribed by law
or by these Bylaws, 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.
(c) To have such other powers and be subject to such other duties
as the board of directors may from time to time prescribe.
5.9 Vice Presidents. In case of the absence, disability or death
of the president, the elected vice president, or one of the elected vice
presidents, shall exercise all the powers and perform all the duties of
the president. If there is more than one elected vice president, the
order in which the elected vice presidents shall succeed to the powers
and duties of the president shall be as fixed by the board of directors.
The elected vice president or elected vice presidents shall have such
other powers and perform such other duties as may be granted or
prescribed by the board of directors.
Vice presidents appointed pursuant to Section 5.2 shall have such
powers and duties as may be fixed by the chairman or president, except
that such appointed vice presidents may not exercise the powers and
duties of the president.
5.10 Secretary. 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 stockholders 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 stockholders' meetings and the proceedings
thereof.
(b) To keep the seal of the corporation and affix the same to all
instruments which may require it.
(c) 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 stockholders and their addresses, the number of 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 8.5 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.
5.11 Chief Financial Officer. 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 account of the corporation at such
depositary as may be designated from time to time by the board of
directors.
(c) 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 VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
6.1 Indemnification of Directors and Officers. The corporation
shall, to the maximum extent and in the manner permitted by the General
Corporation Law of Delaware, indemnify each of its directors and officers
against expenses (including attorneys' fees), judgments, fines,
settlements and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact that such
person is or was an agent of the corporation; provided, however, that the
corporation may modify the extent of such indemnification by individual
contracts with its directors and executive officers and, provided,
further, that the corporation shall not be required to indemnify any
director or officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly
required to be made by law, (ii) the proceeding was authorized in advance
by the board of directors of the corporation, (iii) such indemnification
is provided by the corporation, in its sole discretion, pursuant to the
powers vested in the corporation under the General Corporation Law of
Delaware or (iv) such indemnification is required to be made pursuant to
an individual contract. For purposes of this Section 6.1, a "director" or
"officer" of the corporation includes any person (i) who is or was a
director or officer of the corporation, (ii) who is or was serving at the
request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, or
(iii) who was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another enterprise at
the request of such predecessor corporation.
6.2 Indemnification of Others. The corporation shall have the
power, to the maximum extent and in the manner permitted by the General
Corporation Law of Delaware, to indemnify each of its employees and
agents (other than directors and officers) against expenses (including
attorneys' fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding,
arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Section 6.2, an "employee" or "agent"
of the corporation (other than a director or officer) includes any person
(i) who is or was an employee or agent of the corporation, (ii) who is or
was serving at the request of the corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an employee or agent of a corporation which
was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation.
6.3 Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or her and incurred by him or
her in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or
her against such liability under the provisions of the General
Corporation Law of Delaware.
6.4 Expenses. The corporation shall advance to any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is
or was a director or officer of the corporation, or is or was serving at
the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, prior
to the final disposition of the proceeding, promptly following request
therefor, all expenses incurred by any director or officer in connection
with such proceeding, upon receipt of an undertaking by or on behalf of
such person to repay said amounts if it should be determined ultimately
that such person is not entitled to be indemnified under this Bylaw or
otherwise; provided, however, that the corporation shall not be required
to advance expenses to any director or officer in connection with any
proceeding (or part thereof) initiated by such person unless the
proceeding was authorized in advance by the board of directors of the
corporation.
Notwithstanding the foregoing, unless otherwise determined pursuant
to Section 6.5, no advance shall be made by the corporation to an officer
of the corporation (except by reason of the fact that such officer is or
was a director of the corporation in which event this paragraph shall not
apply) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, if a determination is reasonably and
promptly made (i) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to the proceeding, or
(ii) if such quorum is not obtainable, or, even if obtainable, a quorum
of disinterested directors so directs, by independent legal counsel in a
written opinion, that the facts known to the decision-making party at the
time such determination is made demonstrate clearly and convincingly that
such person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best interests of the corporation.
6.5 Non-Exclusivity of Rights. The rights conferred on any person
by this Bylaw shall not be exclusive of any other right which such person
may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding office. The
corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents
respecting indemnification and advances, to the fullest extent not
prohibited by the General Corporation Law of Delaware.
6.6 Survival of Rights. The rights conferred on any person by
this Bylaw shall continue as to a person who has ceased to be a director,
officer, employee or other agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
6.7 Amendments. Any repeal or modification of this Bylaw shall
only be prospective and shall not affect the rights under this Bylaw in
effect at the time of the alleged occurrence of any action or omission to
act that is the cause of any proceeding against any agent of the
corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 Maintenance and Inspection of Records. The corporation shall,
either at its principal executive office or at such place or places as
designated by the board of directors, keep a record of its stockholders
listing their names and addresses and the number and class of shares held
by each stockholder, a copy of these Bylaws as amended to date,
accounting books and other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have
the right during the usual hours for business to inspect for any proper
purpose the corporation's stock ledger, a list of its stockholders, and
its other books and records and to make copies or extracts therefrom. A
proper purpose shall mean a purpose reasonably related to such person's
interest as a stockholder. In every instance where an attorney or other
agent is the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing
that authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the corporation
at its registered office in Delaware or at its principal place of
business.
7.2 Inspection by Directory. Any director shall have the right to
examine the corporation's stock ledger, a list of its stockholders and
its other books and records for a purpose reasonably related to his or
her position as a director. The Court of Chancery is hereby vested with
the exclusive jurisdiction to determine whether a director is entitled to
the inspection sought. The Court may summarily order the corporation to
permit the director to inspect any and all books and records, the stock
ledger, and the stock list and to make copies or extracts therefrom. The
Court may, in its discretion, prescribe any limitations or conditions
with reference to the inspection, or award such other and further relief
as the Court may deem just and proper.
7.3 Representation of Shares of Other Corporations. The president
or any other officer of this corporation authorized by the board of
directors is authorized to vote, represent, and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted may be exercised either by such person directly
or by any other person authorized to do so by proxy or power of attorney
duly executed by such person having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 Record Date for Purposes Other than Notice and Voting. For
purposes of determining the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the
stockholders 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) days before any such action. In
that case, only stockholders of record at the close of business on the
date so fixed are entitled to receive the dividend, distribution or
allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date so fixed, except as otherwise provided
in the Certificate of Incorporation, by these Bylaws, by agreement or by
law.
If the board of directors does not so fix a record date, then the
record date for determining stockholders for any such purpose shall be at
the close of business on the day on which the board adopts the applicable
resolution or the sixtieth (60th) day before the date of that action,
whichever is later.
8.2 Checks; Drafts; Evidences of Indebtedness. From time to time,
the board of directors shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment
of money, notes or other evidences of indebtedness that are issued in the
name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
8.3 Corporate Contracts and Instruments; How Executed. The board
of directors, except as otherwise provided in these Bylaws, may authorize
any officer or officers, or agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors or
within the agency power of an officer, no officer, agent or employee
shall have any power or authority to bind the corporation by any contract
or engagement or to pledge its credit or to render it liable for any
purpose or for any amount.
8.4 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.
8.5 Stock Certificates. 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 of the
corporation shall be entitled to have a certificate signed by, or in the
name of the corporation by, the chairman or vice chairman of the board of
directors, or the president or a vice president, and by the treasurer or
an assistant treasurer, or the secretary or an assistant secretary of
such corporation representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate
has 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 he or she were such officer, transfer agent or registrar at
the date of issue.
8.6 Special Designation on Certificates. If the corporation is
authorized to issue more than one class of stock or more than one series
of any class, then the powers, the designations, the preferences, and the
relative, participating, optional or other special rights of each class
of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full
or summarized on the face or back of the certificate that the corporation
shall issue to represent such class or series of stock; provided,
however, that, except as otherwise provided in Section 202 of the General
Corporation Law of Delaware, in lieu of the foregoing requirements there
may be set forth on the face or back of the certificate that the
corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each
stockholder who so requests the powers, the designations, the
preferences, and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
8.7 Lost Certificates. The corporation may issue a new share
certificate or 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.
8.8 Construction; Definitions. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions
in the General Corporation Law of Delaware shall govern the construction
of these Bylaws. Without limiting the generality of this provision, the
singular number includes the plural, the plural number includes the
singular, and the term "person" includes both a corporation and a natural
person.
8.9 Provisions Additional to Provisions of Law. All restrictions,
limitations, requirements and other provisions of these Bylaws 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.
8.10 Provisions Contrary to Provisions of Law. Any article,
section, subsection, subdivision, sentence, clause or phrase of these
Bylaws which upon being construed in the manner provided in Section 8.9
hereof, shall be contrary to or inconsistent with any applicable
provisions 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 Bylaws, it being hereby
declared that these Bylaws 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.
8.11 Notices. Any reference in these Bylaws 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.
ARTICLE IX
AMENDMENTS
Subject to Section 6.7 hereof, the original or other bylaws of the
corporation may be adopted, amended or repealed by the stockholders
entitled to vote; provided, however, that the corporation may, in its
certificate of incorporation, confer the power to adopt, amend or repeal
bylaws upon the directors. The fact that such power has been so conferred
upon the directors shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal bylaws.
Whenever an amendment or new bylaw is adopted, it shall be copied
in the book of bylaws with the original bylaws, in the appropriate place.
If any bylaw is repealed, the fact of repeal with the date of the meeting
at which the repeal was enacted or the filing of the operative written
consent(s) shall be stated in said book.
<PAGE>
CERTIFICATE OF ADOPTION OF BYLAWS
OF
HEWLETT-PACKARD COMPANY
Adoption by Incorporator
The undersigned person appointed in the Certificate of Incorporation
as the Incorporator of Hewlett-Packard Company hereby adopts the foregoing
bylaws, comprising sixteen (16) pages, as the Bylaws of the corporation.
Executed this 11th day of February 1998
/S/ MARIE OH HUBER
------------------
Marie Oh Huber
Incorporator
<PAGE>
Certificate by Secretary of Adoption by Incorporator
The undersigned hereby certifies that he is the duly elected,
qualified, and acting Secretary of Hewlett-Packard Company and that the
foregoing Bylaws, comprising sixteen (16) pages, were adopted as the
Bylaws of the corporation on February 11, 1998, by the person appointed
in the Certificate of Incorporation as the Incorporator of the
corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
11th day of February 1998.
/S/ D. CRAIG NORDLUND
---------------------
D. Craig Nordlund
Secretary
