UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
Stratasys, Inc.
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(Name of Issuer)
Common Stock, $.01 Par Value
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(Title of Class of Securities)
862685104
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(CUSIP Number)
Donald D. Westfall
Associate General Counsel
Old Orchard Road (1C63), Armonk, NY 10504 (914) 765-4478
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
May 21, 1997
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(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934
(Act) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 862685104 Page ______ of ______ Pages
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
International Business Machines Corporation
13-0871985
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2 Check the Appropriate Box If a Member of a Group* a. |_|
b. |_|
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3 SEC Use Only
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4 Source of Funds*
N/A
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5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
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6 Citizenship or Place of Organization
New York
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7 Sole Voting Power
Number of
Shares 10,000 Shares
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting
Person --------------------------------------------------------
With 9 Sole Dispositive Power
10,000 Shares
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10 Shared Dispositive Power
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11 Aggregate Amount Beneficially Owned by Each Reporting Person
10,000 Shares
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12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |_|
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13 Percent of Class Represented By Amount in Row (11)
Less than 1%
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14 Type of Reporting Person*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
2 of 7
<PAGE>
Item 1. Security and Issuer
This statement relates to the common stock, par value $.01 per share
(the "Common Stock"), of Stratasys, Inc. (the "Company"), a Delaware corporation
with its principal executive offices at 14950 Martin Drive, Eden Prairie,
Minnesota 55344.
Item 2. Identity and Background
International Business Machines Corporation ("IBM") is a New York
corporation with its principal offices and business at Old Orchard Road, Armonk,
New York 10504. IBM develops, manufactures and sells advanced information
processing products, including computers and microelectronic technology,
software, networking systems and information technology-related services.
The attached Attachment I is a list of the directors and executive
officers of IBM which contains the following information with respect to each
such person:
(a) name;
(b) business address;
(c) present principal occupation or employment and the name,
principal business and address of any corporation or other organization in which
such employment is conducted; and
(d) citizenship.
During the last five years, neither IBM nor, to the best of IBM's
knowledge, any person named in Schedule I has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or has been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result
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Page 2
of which such person was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, Federal or state securities laws or finding any violations with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration
Not applicable. This Amendment No. 1 to Schedule 13D is being filed
by IBM to reflect certain dispositions of the Common Stock of Stratasys.
Item 4. Purpose of the Transaction.
Not applicable. This Amendment No. 1 to Schedule 13D is being filed
to reflect certain dispositions of the Common Stock of Stratasys.
Item 5. Interest in Securities of the Company
The only shares of the Company's Common Stock that IBM beneficially
owns are 10,000 shares of Common Stock, which shares represent less than 1% of
the outstanding Common Stock. IBM possesses the sole power to vote or direct the
vote and to dispose of or direct the disposition of all shares of Common Stock
beneficially owned by it, subject to its obligations described in Item 6.
Except as described above, neither IBM nor, to IBM's knowledge, any
person named in Schedule 1 beneficially owns any shares of Common Stock or has
effected any transactions in Common Stock during the past 60 days.
<PAGE>
Page 3
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Company
In connection with the original sale by Stratasys of the shares to
IBM, the Company and IBM entered into a Representations and Registration Rights
Agreement dated as of January 1, 1995 (the "Agreement"), which is annexed as an
Exhibit. Pursuant to the Agreement, IBM has certain rights to cause the Company
to register such shares for resale under the Securities Act of 1933. IBM's
registration rights may be exercised after January 1, 1998, or after January
1, 1998, or after January 1, 1997, in connection with a registration otherwise
filed by the Company, and such rights are subject to certain conditions and
limitations described in the Agreement. The Agreement also provides that prior
to selling or otherwise disposing of any of such shares (except (i) pursuant to
a registration statement under the Securities Act of 1993, (ii) in the case of a
transfer to an IBM subsidiary, (iii) in connection with a merger or
consolidation of the Company, (iv) in response to an offer for the Company's
common stock which is available to substantially all the holders thereof or (v)
to a transferee approved by the Company) IBM is required to give the Company the
opportunity to purchase the shares IBM desires to sell at the then current
market price.
Item 7. Material to be Filed as Exhibits
Exhibit 2. Representations and Registration Rights Agreement dated
as of January 1, 1995, between Stratasys, Inc. and International Business
Machines Corporation.
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Page 4
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: June 17, 1997
INTERNATIONAL BUSINESS MACHINES CORPORATION
by: /s/ John E. Hickey
----------------------------------------
Name: John E. Hickey
Title: Vice President, Secretary and
Assistant General Counsel
<PAGE>
ATTACHMENT I
DIRECTORS AND EXECUTIVE OFFICERS OF
INTERNATIONAL BUSINESS MACHINES CORPORATION
1. Directors and Executive Officers of IBM. The name, business address,
and present principal occupation or employment of each of the directors and
executive officers of IBM are set forth below. All such directors and executive
officers listed below are citizens of the United States except Juergen Dormann
(Germany), Lodewijk C. van Wachem (Netherlands) and John M. Thompson (Canada).
Unless otherwise indicated, the principal business address of each director or
executive officer is International Business Machines Corporation, Old Orchard
Road, Armonk, NY 10504.
Present Principal Occupation or
Name, Age and Business Address Employment
- ------------------------------ ----------
Louis V. Gerstner, Jr. (55) Chairman of the Board and Chief
Executive Officer of IBM.
Cathleen Black (53) Director of IBM since 1995. President,
The Hearst Corporation Hearst Magazines, a division of The
959 Eighth Avenue Hearst Corporation.
New York, NY 10019
Harold Brown (69) Director of IBM from 1972 to 1977 and
Center for Strategic and International since 1981. Counselor, Center for
Studies Strategic and International Studies,
Suite 400 Washington, DC, and a general partner
1800 K Street, NW in Warburg, Pincus & Company.
Washington, DC 20006
Juergen Dormann (57) Director of IBM since January 1996.
Hoechst AG Chairman of the Management Board,
Building F821 Hoechst AG.
Frankfurt G65926
Germany
<PAGE>
ATTACHMENT 1
Nannerl O. Keohane (56) Director of IBM since 1986. President
Office of the President and professor of political science
Duke University at Duke University.
207 Allen Building
Box 90001
Durham, NC 27708-0001
Charles F. Knight (61) Director of IBM since 1993. Chairman,
Emerson Electric Co. CEO and President, Emerson Electric
8000 West Florissant Avenue Co.
P.O. Box 4100
St. Louis, MO 63136-8506
Lucio A. Noto (59) Director of IBM since 1995. Chairman
Mobil Corporation and Chief Executive Officer of Mobil
3225 Gallows Road Corporation.
Fairfax, VA 22037
John B. Slaughter (63) Director of IBM since 1988.
Office of the President President of Occidental College.
Occidental College
1600 Campus Road
Los Angeles, CA 90041
Alex Trotman (63) Director of IBM since 1994. Chairman
Ford Motor Company and Chief Executive Officer of the
American Road Ford Motor Company.
Dearborn, MI 48121-1899
Lodewijk C. van Wachem (65) Director of IBM since 1992. Chairman
Royal Dutch Petroleum Company of the supervisory board of Royal Dutch
P.O. Box 162 Petroleum Company.
2501 AN The Hague
Netherlands
Charles M. Vest (55) Director of IBM since 1994. President
President's Office and professor of mechanical
Massachusetts Institute of Technology engineering at Massachusetts Institute
Room 3-208 of Technology.
77 Massachusetts Avenue
Cambridge, MA 02139
<PAGE>
ATTACHMENT I
J. Thomas Bouchard (56) Senior Vice President, Human
Resources, IBM
Nicholas M. Donofrio (51) Senior Vice President and Group
Executive, Servers, IBM
J. Bruce Harreld (46) Senior Vice President, Strategy, IBM
Paul M. Horn (50) Senior Vice President, Research, IBM
Ned C. Lautenbach (53) Senior Vice President & Group
Executive Sales and Distribution Group,
IBM
Lawrence R. Ricciardi (56) Senior Vice President & General
Counsel, IBM
Robert M. Stephenson (59) Senior Vice President & Group
Executive, Personal Systems and
Technology, IBM
G. Richard Thoman (52) Senior Vice President & Chief
Financial Officer, IBM
John M. Thompson (54) Senior Vice President & Group
Executive Software Group, IBM
Dennie M. Welsh (54) Senior Vice President & Group
Executive, IBM Global Services
John E. Hickey (53) Vice President, Assistant General
Counsel and Secretary, IBM
John R. Joyce (43) Vice President & Controller, IBM
Jeffrey D. Serkes (38) Vice President & Treasurer, IBM
<PAGE>
EXHIBIT INDEX
Page on Which
Number Document Exhibit Appears
------ -------- ---------------
1. Evidence of representative's authority to
sign on behalf of IBM:
Article VI Section 1 and Article V Section
11 of the Bylaws of IBM, as amended through
June 28, 1994
2. Representations and Registration Rights
Agreement dated as of January 1, 1995
between Stratasys, Inc. and International
Business Machines Corporation.
3. Schedule 13D dated January 10, 1995, to
which current Amendment No. 1 relates.
BY-LAWS
of
INTERNATIONAL BUSINESS MACHINES CORPORATION
Adopted April 29, 1958
As Amended Through
June 28, 1994
<PAGE>
TABLE OF CONTENTS
ARTICLE I
PAGE
Definitions ............................................. 1
ARTICLE II
MEETINGS OF STOCKHOLDERS
SEC. 1. Place of Meetings ............................. 1
SEC. 2. Annual Meetings ............................... 1
SEC. 3. Special Meetings .............................. 2
SEC. 4. Notice of Meetings ............................ 2
SEC. 5. Quorum ........................................ 2
SEC. 6. Organization .................................. 3
SEC. 7. Items of Business ............................. 3
SEC. 8. Voting ........................................ 3
SEC. 9. List of Stockholders .......................... 4
SEC. 10. Inspectors of Election ........................ 4
ARTICLE III
BOARD OF DIRECTORS
SEC. 1. General Powers ................................ 5
SEC. 2. Number; Qualifications; Election; Term of
Office ....................................... 5
SEC. 3. Place of Meetings ............................. 5
SEC. 4. First Meeting ................................. 5
SEC. 5. Regular Meetings .............................. 5
SEC. 6. Special Meetings .............................. 5
SEC. 7. Notice of Meetings ............................ 5
SEC. 8. Quorum and Manner of Acting ................... 6
SEC. 9. Organization .................................. 6
SEC. 10. Resignations .................................. 6
SEC. 11. Vacancies ..................................... 6
SEC. 12. Retirement of Directors ....................... 6
<PAGE>
ARTICLE VII
SHARES
SEC. 1. Stock Certificates ............................ 15
SEC. 2. Books of Account and Record of Stockholders ... 15
SEC. 3. Transfers of Stock ............................ 15
SEC. 4. Regulations ................................... 16
SEC. 5. Fixing of Record Date ......................... 16
SEC. 6. Lost, Destroyed or Mutilated Certificates ..... 16
SEC. 7. Inspection of Records ......................... 17
SEC. 8. Auditors ...................................... 17
ARTICLE VIII
OFFICES
SEC. 1. Principal Office .............................. 17
SEC. 2. Other Offices ................................. 17
ARTICLE IX
Waiver of Notice ........................................ 17
ARTICLE X
Fiscal Year ............................................. 18
ARTICLE XI
Seal .................................................... 18
ARTICLE XII
Amendments .............................................. 18
<PAGE>
BY-LAWS
OF
INTERNATIONAL BUSINESS
MACHINES CORPORATION
-------
ARTICLE I
DEFINITIONS
In these By-laws, and for all purposes hereof, unless there be something
in the subject or context inconsistent therewith:
(a) 'Corporation' shall mean International Business Machines
Corporation.
(b) 'Certificate of Incorporation' shall mean the restated
Certificate of Incorporation as filed on May 27, 1992, together with any and all
amendments and subsequent restatements thereto.
(c) 'Board' shall mean the Board of Directors of the Corporation.
(d) 'stockholders' shall mean the stockholders of the Corporation.
(e) 'Chairman of the Board', 'Vice-Chairman of the Board', 'Chairman
of the Executive Committee', 'Chief Executive Officer,' 'Chief Financial
Officer', 'Chief Accounting Officer', 'President', 'Executive Vice President',
'Senior Vice President', 'Vice President', 'Treasurer', 'Secretary',
'Controller', 'Assistant Treasurer', 'Assistant Secretary', or 'Assistant
Controller', as the case may be, shall mean the person at any given time
occupying the particular office with the Corporation.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of the stockholders of the
Corporation shall be held at such place either within or outside the State of
New York as may from time to time be fixed by the Board or specified or fixed in
the notice of any such meeting.
SECTION 2. Annual Meetings. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held on the last
Tuesday of April of each year, if not a legal holiday, or, if such day shall be
a legal holiday, then on the next succeeding day not a legal holiday. If any
annual meeting shall not be held on the day designated herein, or if the
directors to be elected at such annual meeting
[June 28, 1994] -1-
<PAGE>
shall not have been elected thereat or at any adjournment thereof, the Board
shall forthwith call a special meeting of the stockholders for the election of
directors to be held as soon thereafter as convenient and give notice thereof as
provided in these By-laws in respect of the notice of an annual meeting of the
stockholders. At such special meeting the stockholders may elect the directors
and transact other business with the same force and effect as at an annual
meeting of the stockholders duly called and held.
SECTION 3. Special Meetings. Special meetings of the stockholders, unless
otherwise provided by law, may be called at any time by the Chairman of the
Board or by the Board.
SECTION 4. Notice of Meetings. Notice of each meeting of the stockholders,
annual or special, shall be in writing and given in the name of the Chairman of
the Board, a Vice Chairman of the Board or the President or a Vice President or
the Secretary or an Assistant Secretary. Such notice shall state the purpose or
purposes for which the meeting is called and the date and hour when and the
place where it is to be held. A copy thereof shall either be served personally
upon, or sent by mail, postage prepaid, to all stockholders of record entitled
to vote at such meeting, and all stockholders of record who, by reason of any
action proposed to be taken at such meeting, would be entitled to have their
stock appraised if such action were taken, not less than ten or more than fifty
days before the day on which the meeting is called to be held. If mailed, such
copy shall be directed to each stockholder at the address listed on the record
of stockholders of the Corporation, or if the stockholder shall have filed with
the Secretary a written request that notices be mailed to some other address, it
shall be mailed to the address designated in such request. Nevertheless, notice
of any meeting of the stockholders shall not be required to be given to any
stockholder who shall waive notice thereof as hereinafter provided in Article IX
of these By-laws. Except when expressly required by law, notice of any adjourned
meeting of the stockholders need not be given nor shall publication of notice of
any annual or special meeting thereof be required.
SECTION 5. Quorum. Except as otherwise provided by law, at all meetings at
the stockholders, the presence of holders of record of a majority of the
outstanding shares of stock of the Corporation having voting power, in person or
represented by proxy and entitled to vote thereat, shall be necessary to
constitute a quorum for the transaction of business. In the absence of a quorum
at any such meeting or any adjournment or adjournments thereof, a majority in
voting interest of those present in person or represented by proxy and entitled
to vote thereat, or, in the absence of all the stockholders, any officer
entitled to preside at, or to act as secretary of, such meeting, may adjourn
such meeting from time to time without further notice, other than by
announcement at the meeting at which such adjournment shall be taken, until a
quorum shall be present thereat. At any adjourned meeting at which a quorum
shall be present any business may be transacted which might have been
transacted at the meeting as originally called.
[June 28, 1994] -2-
<PAGE>
SECTION 6. Organization. At each meeting of the stockholders, the Chairman
of the Board, or in the absence of the Chairman of the Board, the President, or
in the absence of the Chairman of the Board and the President, a Vice Chairman
of the Board, or if the Chairman of the Board, the President, and all Vice
Chairmen of the Board shall be absent therefrom, an Executive Vice President, or
if the chairman of the Board, the President, all Vice Chairmen of the Board and
all Executive Vice Presidents shall be absent therefrom, a Senior Vice President
shall act as chairman. The Secretary, or, if the Secretary shall be absent from
such meeting or unable to act, the person (who shall be an Assistant Secretary,
if any of them shall be present) whom the Chairman of such meeting shall appoint
secretary of such meeting shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 7. Items of Business. The items of business at all meetings of the
stockholders shall be, insofar as applicable, as follows:
-- Call to order.
-- Proof of notice of meeting or of waiver thereof.
-- Appointment of inspectors of election, if necessary.
-- A quorum being present.
-- Reports.
-- Election of directors.
-- Other business specified in the notice of the meeting.
-- Voting.
-- Adjournment
Any items of business not referred to in the foregoing may be taken up at
the meeting as the chairman of the meeting shall determine. The chairman of the
meeting shall determine all matters relating to the efficient conduct of the
meeting, including but not limited to the maintenance of order and decorum.
SECTION 8. Voting. Except as otherwise provided by law, each holder of
record of shares of stock of the Corporation having voting power shall be
entitled at each meeting of the stockholders to one vote for every share of such
stock standing in the stockholder's name on the record of stockholders of the
Corporation:
(a) on the date fixed pursuant to the provisions of Section 5 of Article
VII of these By-laws as the record date for the determination of the
stockholders who shall be entitled to vote at such meeting, or
[June 28, 1994] -3-
<PAGE>
(b) If such record date shall not have been so fixed, then at the
close of business on the day next preceding the day on which notice of such
meeting shall have been given, or
(c) if such record date shall not have been so fixed and if no
notice of such meeting shall have been given, then at the time of the call to
order of such meeting.
Any vote on stock of the Corporation at any meeting of the stockholders
may be given by the stockholder of record entitled thereto in person or by
proxy appointed by an instrument in writing, subscribed by such stockholder or
by the stockholder's attorney thereunto duly authorized and delivered to the
secretary of such meeting at or prior to the time designated in the order of
business for turning in proxies. At all meetings of the stockholders at which a
quorum shall be present, all matters (except where otherwise provided by law,
the Certificate of Incorporation or these By-laws) shall be decided by the vote
of a majority in voting interest of the stockholders present in person or
represented by proxy and entitled to vote thereat. Unless required by law, or
determined by the chairman of the meeting to be advisable, the vote on any
question need not be by ballot. On a vote by ballot, each ballot shall be signed
by the stockholder voting, or by the stockholder's proxy as such, if there be
such proxy.
SECTION 9. List of Stockholders. A list, certified by the Secretary, of
the stockholders of the Corporation entitled to vote shall be produced at any
meeting of the stockholders upon the request of any stockholder of the
Corporation pursuant to the provisions of applicable law, the Certificate of
Incorporation or these By-laws.
SECTION 10. Inspectors of Election. Prior to the holding of each annual or
special meeting of the stockholders, two inspectors of election to serve thereat
shall be appointed by the Board, or, if the Board shall not have made such
appointment, by the Chairman of the Board. If there shall be a failure to
appoint inspectors, or if, at any such meeting, any inspector so appointed shall
be absent or shall fail to act or the office shall become vacant, the chairman
at the meeting may, and at the request of a stockholder present in person and
entitled to vote at such meeting shall, appoint such inspector or inspectors of
election, as the case may be, to act thereat. The inspectors of election so
appointed to act at any meeting of the stockholders, before entering upon the
discharge of their duties, shall be sworn faithfully to execute the duties of
inspectors at such meeting, with strict impartiality and according to the best
of their ability, and the oath so taken shall be subscribed by them. Such
inspectors of election shall take charge of the polls, and, after the voting on
any question, shall make a certificate of the results of the vote taken. No
director or candidate for the office of director shall act as an inspector of an
election of directors. Inspectors need not be stockholders.
[June 28, 1994] -4-
<PAGE>
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed by the Board. The Board may exercise all such authority and
powers of the Corporation and do all such lawful acts and things as are not by
law, the Certificate of Incorporation or these By-laws, directed or required to
be exercised or done by the stockholders.
SECTION 2. Number; Qualifications; Election; Term of Office. The number of
directors of the Corporation shall be twelve, but the number thereof may be
increased to not more than twenty-five, or decreased to not less than nine, by
amendment of these By-laws. The directors shall be elected at the annual meeting
of the stockholders. At each meeting of the stockholders for the election of
directors at which a quorum is present, the persons receiving a plurality of the
votes at such election shall be elected. Each director shall hold office until
the annual meeting of the stockholders which shall be held next after the
election of such director and until a successor shall have been duly elected and
qualified, or until death, or until the director shall have resigned as
hereinafter provided in Section 10 of this Article III.
SECTION 3. Place of Meetings. Meetings of the Board shall be held at such
place either within or outside State of New York as may from time to time be
fixed by the Board or specified or fixed in the notice of any such meeting.
SECTION 4. First Meeting. The Board shall meet for the purpose of
organization, the election of officers and the transaction of other business, on
the same day the annual meeting of stockholders is held. Notice of such meeting
need not be given. Such meeting may be held at any other time or place which
shall be specified in a notice thereof given as hereinafter provided in Section
7 of this Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board shall be held
at times and dates fixed by the Board or at such other times and dates as the
Chairman of the Board shall determine and as shall be specified in the notice of
such meetings. Notice of regular meetings of the Board need not be given except
as otherwise required by law or these By-laws.
SECTION 6. Special Meetings. Special meetings of the Board may be called
by the Chairman of the Board.
SECTION 7. Notice of Meetings. Notice of each special meeting of the Board
(and of each regular meeting for which notice shall be required) shall be given
by the Secretary as hereinafter provided in this Section 7, in which notice
shall be stated the time, place and, if required by law or these By-laws, the
purposes of such meeting. Notice of each such meeting shall be mailed, postage
prepaid, to each director, by first-class mail, at least four days before the
day on which such meeting is to be held, or shall be sent by facsimile
transmission or comparable medium, or be delivered personally or by telephone,
at least twenty-four hours before the
[June 28, 1994] -5-
<PAGE>
time at which such meeting is to be held. Notice of any such meeting need not be
given to any director who shall waive notice thereof as provided in Article IX
of these By-laws. Any meeting of the Board shall be a legal meeting without
notice thereof having been given, if all the directors of the Corporation then
holding office shall be present thereat.
SECTION 8. Quorum and Manner of Acting. A majority of the Board shall be
present in person at any meeting of the Board in order to constitute a quorum
for the transaction of business at such meeting. Participation in a meeting by
means of a conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other shall constitute
presence in person at a meeting. Except as otherwise expressly required by laW
or the Certificate of Incorporation and except also as specified in Section 1,
Section 5, and Section 6 of Article IV, in Section 3 of Article V and in Article
XII of these By-laws, the act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board. In the
absence of a quorum at any meeting ot the Board, a majority of the directors
present thereat may adjourn such meeting from time to time until a quorum shall
be present thereat. Notice of any adjourned meeting need not be given. At any
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally called.
The directors shall act only as a Board and the individual directors shall have
no power as such.
SECTION 9. Organization. At each meeting of the Board, the Chairman of the
Board, or in the case of the Chairman's absence therefrom, the President, or in
tbe case of the President's absence therefrom, a Vice Chairman, or in the case
of the absence of all such persons, another director chosen by a majority of
directors present, shall act as chairman of the meeting and preside thereat. The
Secretary, or if the Secretary shall be absent from such meeting, any person
(who shall be an Assistant Secretary, if any of them shall be present at such
meeting) appointed by the chairman, shall act as secretary of the meeting and
keep the minutes thereof.
SECTION 10. Resignations. Any director of the Corporation may resign at
any time by giving written notice of resignation to the Board or the Chairman of
the Board or the Secretary. Any such resignation shall take effect at the time
specified therein, or if the time when it shall become effective shall not be
specified therein, then it shall take effect immediately upon its receipt; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 11. Vacancies. Any vacancy in the Board, whether arising from
death, resignation, an increase in the number of directors or any other cause,
may be filled by the Board.
SECTION 12. Retirement of Directors. The Board may prescribe a retirement
policy for directors on or after reaching a certain age,
[June 28, 1994] -6-
<PAGE>
provided, however, that such retirement shall not cut short the annual term for
which any director shall have been elected by the stockholders.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. Executive Committee. The Board, by resolution adopted by a
majority of the Board, may designate not less than four of the directors then in
office to constitute an Executive Committee, each member of which unless
otherwise determined by resolution adopted by a majority of the whole Board,
shall continue to be a member of such Committee until the annual meeting of the
stockholders which shall be held next after designation as a member of such
Committee or until the earlier termination as a director. The Chief Executive
Officer shall always be designated as a member of the Executive Committee. The
Board may by resolution appoint one member as the Chairman of the Executive
Committee who shall preside at all meetings of such Committee. In the absence of
said Chairman, the Chief Executive Officer shall preside at all such meetings.
In the absence of both the Chairman of the Executive Committee and the Chief
Executive Officer, the Chairman of the Board shall preside at all such meetings.
In the absence of the Chairman of the Executive Committee and the Chief
Executive officer and the Chairman of the Board, the President shall preside at
all such meetings. In the absence of all such persons, a majority of the members
of the Executive Committee present shall choose a chairman to preside at such
meetings. The Secretary, or if the Secretary shall be absent from such meeting,
any person (who shall be an Assistant Secretary, if any of them shall be present
at such meeting) appointed by the chairman, shall act as secretary of the
meeting and keep the minutes thereof.
SECTION 2. Powers of the Executive Committee. To the extent permitted by
law, the Executive Committee may exercise all the powers of the Board in the
management of specified matters where such authority is delegated to it by the
Board, and also, to the extent permitted by law, the Executive Committee shall
have, and may exercise, all the powers of the Board in the management of the
business and affairs of the Corporation (including the power to authorize the
seal of the Corporation to be affixed to all papers which may require it; but
excluding the power to appoint a member of the Executive Committee) in such
manner as the Executive Committee shall deem to be in the best interests of the
Corporation and not inconsistent with any prior specific action of the Board. An
act of the Executive Committee taken within the scope of its authority shall be
an act of the Board. The Executive Committee shall render in the form of minutes
a report of its several acts at each regular meeting of the Board and at any
other time when so directed by the Board.
SECTION 3. Meetings of the Executive Committee. Regular meetings of the
Executive Committee shall be held at such times, on such dates and at such
places as shall be fixed by resolution adopted by a majority of the
[June 28, 1994] -7-
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Executive Committee, of which regular meetings notice need not be given,
or as shall be fixed by the Chairman of the Executive Committee or in the
absence of the Chairman of the Executive Committee the Chief Executive Officer
and specified in the notice of such meeting. Special meetings of the Executive
Committee may be called by the Chairman of the Executive Committee or by the
Chief Executive Officer. Notice of each such special meeting of the Executive
Committee (and of each regular meeting for which notice shall be required),
stating the time and place thereof shall be mailed, postage prepaid, to each
member of the Executive Committee, by first-class mail, at least four days
before the day on which such meeting is to be held, or shall be sent by
facsimile transmission or comparable medium, or be delivered personally or by
telephone, at least twenty-four hours before the time at which such meeting is
to be held; but notice need not be given to a member of the Executive Committee
who shall waive notice thereof as provided in Article IX of these By-laws, and
any meeting of the Executive Committee shall be a legal meeting without any
notice thereof having been given, if all the members of such Committee shall be
present thereat.
SECTION 4. Quorum and Manner of Acting of the Executive Committee. Four
members of the Executive Committee shall constitute a quorum for the transaction
of business, and the act of a majority of the members of the Executive Committee
present at a meeting at which a quorum shall be present shall be the act of the
Executive Committee. Participating in a meeting by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other shall constitute presence at a meeting of the
Executive Committee. The members of the Executive Committee shall act only as a
committee and individual members shall have no power as such.
SECTION 5. Other Committees. The Board may, by resolution adopted by a
majority of the Board, designate members of the Board to constitute other
committees, which shall have, and may exercise, such powers as the Board may by
resolution delegate to them, and shall in each case consist of such number of
directors as the Board may determine; provided, however, that each such
committee shall have at least three directors as members thereof. Such a
committee may either be constituted for a specified term or may be constituted
as a standing committee which does not require annual or periodic
reconstitution. A majority of all the members of any such committee may
determine its action and its quorum requirements and may fix the time and place
of its meetings, unless the Board shall otherwise provide. Participating in a
meeting by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other shall
constitute presence at a meeting of such other committees.
In addition to the foregoing, the Board may, by resolution adopted by a
majority of the Board, create a committee of indeterminate membership and
duration and not subject to the limitations as to the membership, quorum and
manner of meeting and acting prescribed in these By-laws, which committee, in
the event of a major disaster or catastrophe or national
[June 28, 1994] -8-
<PAGE>
emergency which renders the Board incapable of action by reason of the death,
physical incapacity or inability to meet of some or all of its members, shall
have, and may exercise all the powers of the Board in the management of the
business and affairs of the Corporation (including, without limitation, the
power to authorize the seal of the Corporation to be affixed to all papers which
may require it and the power to fill vacancies in the Board). An act of such
committee taken within the scope of its authority shall be an act of the Board.
SECTION 6. Changes in Committees; Resignations; Removals; Vacancies. The
Board shall have power, by resolution adopted by a majority of the Board, at any
time to change or remove the members of, to fill vacancies in, and to discharge
any committee created pursuant to these By-laws, either with or without cause.
Any member of any such committee may resign at any time by giving written notice
to the Board or the Chairman of the Board or the Secretary. Such resignation
shall take effect upon receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, acceptance of such resignation
shall not be necessary to make it effective. Any vacancy in any committee,
whether arising from death, resignation, an increase in the number of committee
members or any other cause, shall be filled by the Board in the manner
prescribed in these By-laws for the original appointment of the members of such
committee.
ARTICLE V
OFFICERS
SECTION 1. Number and Qualifications. The officers of the Corporation
shall include the Chairman of the Board, the President, one or more Vice
Presidents (one or more of whom may be designated as Executive Vice Presidents
or as Senior Vice Presidents or by other designations), the Treasurer, the
Secretary and the Controller, and may include one or more Assistant Treasurers,
one or more Assistant Secretaries, and one or more Assistant Controllers. Such
officers shall be elected from time to time by the Board, each to hold office
until a successor shall have been duly elected and shall have qualified, or
until death, or until resignation as hereinafter provided in Section 2 of this
Article V, or until removed as hereinafter provided in Section 3 of this Article
V. The officers of the Corporation may include one or more Vice Chairmen of the
Board and the Board may from time to time elect such officers.
SECTION 2. Resignations. Any officer of the Corporation may resign at any
time by giving written notice of resignation to the Board, the Chairman of the
Board, the Chief Executive Officer or the Secretary. Any such resignation shall
take effect at the time specified therein, or, if the time when it shall become
effective shall not be specified therein, then it shall become effective upon
its receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
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<PAGE>
SECTION 3. Removal. Any officer of the Corporation may be removed, either
with or without cause, at any time, by a resolution adopted by a majority of the
Board at any meeting of the Board.
SECTION 4. Vacancies. A vacancy in any office, whether arising from death,
resignation, removal or any other cause, may be filled for the unexpired portion
of the term of office which shall be vacant, in the manner prescribed in these
By-laws for the regular election or appointment to such office.
SECTION 5. Chairman of the Board. The Chairman of the Board shall, if
present, preside at each meeting of the stockholders and of the Board and shall
perform such other duties as may from time to time be assigned by the Board. The
Chairman may sign certificates representing shares of the stock of the
Corporation pursuant to the provisions of Section 1 of Article VII of these
By-laws; sign, execute and deliver in the name of the Corporation all deeds,
mortgages, bonds, contracts or other instruments authorized by the Board, except
in cases where the signing, execution or delivery thereof shall be expressly
delegated by the Board or these By-laws to some other officer or agent at the
Corporation or where they shall be required by law otherwise to be signed,
executed and delivered; and affix the seal of the Corporation to any instrument
which shall require it. The Chairman of the Board shall in the absence or
incapacity of the President, perform all the duties and functions and exercise
all the powers of the President.
SECTION 6. Vice Chairman of the Board. Each Vice Chairman of the Board
shall assist the Chairman of the Board and have such other duties as may be
assigned by the Board or the Chairman of the Board. The Vice Chairman may sign
certificates representing shares of the stock of the Corporation pursuant to the
provisions of Section 1 of Article VII of these By-laws; sign, execute and
deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or
other instruments authorized by the Board, except in cases where the signing,
execution or delivery thereof shall be expressly delegated by the Board or these
By-laws to some officer or agent of the Corporation or where they shall be
required by law otherwise to be signed, executed and delivered; and affix the
seal of the Corporation to any instrument which shall require it.
SECTION 7. President. The President shall perform all such duties as from
time to time may be assigned by the Board or the Chairman of the Board. The
President may sign certificates representing shares of the stock of the
Corporation pursuant to the provisions of Section 1 of Article VII of these
By-laws; sign, execute and deliver in the name of the Corporation all deeds
mortgages, bonds, contracts or other instruments authorized by the Board, except
in cases where the signing, execution or delivery thereof shall be expressly
delegated by the Board or these By-laws to some other officer or agent of the
Corporation or where they shall be required by law otherwise to be signed,
executed and delivered, and affix the seal of the Corporation to any instrument
which shall require it; and, in general, perform all duties incident to the
office of President. The President shall in the absence or incapacity of the
Chairman of the Board, perform all the
[June 28, 1994] -10-
<PAGE>
duties and functions and exercise all the powers of the Chairman of the Board.
SECTION 8. Designated Officers. (a) Chief Executive Officer. Either the
Chairman of the Board, or the President, as the Board of Directors may
designate, shall be the Chief Executive Officer of the Corporation. The officer
so designated shall have, in addition to the powers and duties applicable to the
office set forth in Section 5 or 7 of this Article V, general and active
supervision over the business and affairs of the Corporation and over its
several officers, agents, and employees, subject, however, to the control of the
Board. The Chief Executive Officer shall see that all orders and resolutions of
the Board are carried into effect, be an ex officio member of all committees of
the Board (except the Audit Committee and committees specifically empowered to
fix or approve the Chief Executive Officer's compensation or to grant or
administer bonus, option or other similar plans in which the Chief Executive
Officer is eligible to participate), and, in general, shall perform all duties
incident to the position of Chief Executive Officer and such other duties as may
from time to time be assigned by the Board.
(b) Other Designated Officers. The Board of Directors may designate
officers to serve as Chief Financial Officer, Chief Accounting Officer and other
such designated positions and to fulfill the responsibilities of such designated
positions in addition to their duties as officers as set forth in this Article
V.
SECTION 9. Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents. Each Executive and Senior Vice President shall perform all such
duties as from time to time may be assigned by the Board or the Chairman of the
Board or a Vice Chairman of the Board or the President. Each Vice President
shall perform all such duties as from time to time may be assigned by the Board
or the Chairman of the Board or a Vice Chairman of the Board or the President or
an Executive or a Senior Vice President. Any Vice President may sign
certificates representing shares of stock of the Corporation pursuant to the
provisions of Section 1 of Article VII of these By-laws.
SECTION 10. Treasurer. The treasurer shall:
(a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation, and may invest the same in any securities, may
open, maintain and close accounts for effecting any and all purchase, sale,
investment and lending transactions in securities of any and all kinds for and
on behalf of the Corporation or any employee pension or benefit plan fund or
other fund established by the Corporation, as may be permitted by law;
(b) keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation;
[June 28, 1994] -11-
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(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositaries as may be designated by the board or the
Executive Committee;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investment of its funds, taking proper vouchers therefor;
(f) render to the Board, whenever the Board may require, an account
of all transactions as Treasurer; and
(g) in general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned by the
Board or the Chairman of the Board or a Vice Chairman of the Board or the
President or an Executive or Senior Vice President.
In case one or more Assistant Treasurers shall be elected, the Treasurer
may delegate to them the authority to perform such duties as the Treasurer may
determine.
Section 11. Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board, the Executive Committee and
other committees of the Board and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and
affix and attest the seal to all stock certificates of the Corporation and affix
and attest the seal to all other documents to be executed on behalf of the
Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and
(e) in general, perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned by the
Board or the Chairman of the Board or a Vice Chairman of the Board or the
President or an Executive or Senior Vice President.
In case one or more Assistant Secretaries shall be elected, the Secretary
may delegate to them authority to perform such duties as the Secretary may
determine.
[June 28, 1994] -12-
<PAGE>
SECTION 12. Controller. The Controller shall:
(a) have control of all the books of account of the Corporation;
(b) keep a true and accurate record of all property owned by it, of its
debts and of its revenues and expenses;
(c) keep all accounting records of the Corporation (other than the
accounts of receipts and disbursements and those relating to the deposits of
money and other valuables of the Corporation, which shall be kept by the
Treasurer);
(d) render to the Board, whenever the Board may require, an account of the
financial condition of the Corporation; and
(e) in general, perform all the duties incident to the office of
Controller and such other duties as from time to time may be assigned by the
Board or the Chairman of the Board or a Vice Chairman of the Board or the
President or an Executive or Senior Vice President.
In case one or more Assistant Controllers shall be elected, the Controller
may delegate to them authority to perform such duties as the Controller may
determine.
SECTION 13. Compensation. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board; provided, however,
that the Board may delegate to a committee the power to fix or approve the
compensation of any officers. An officer of the Corporation shall not be
prevented from receiving compensation by reason of being also a director of the
Corporation; but any such officer who shall also be a director shall not have
any vote in the determination of the amount of compensation paid to such
officer.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS,
BANK ACCOUNTS, ETC.
SECTION 1. Execution of Contracts. Except as otherwise required by law or
these By-laws, any contract or other instrument may be executed and delivered in
the name and on behalf of the Corporation by any officer (including any
assistant officer) of the Corporation. The Board or the Executive Committee may
authorize any agent or employee to execute and deliver any contract or other
instrument in the name and on behalf of the Corporation, and such authority may
be general or confined to specific instances as the Board or such Committee, as
the case may be, may by resolution determine.
SECTION 2. Loans. Unless the Board shall otherwise determine, the Chairman
of the Board or a Vice Chairman of the Board or the President or any Vice
President, acting together with the Treasurer or the Secretary, may effect loans
and advances at any time for the Corporation from any
[June 28, 1994] -13-
<PAGE>
bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances may make, execute and deliver
promissory notes, bonds or other certificates or evidences of indebtedness of
the Corporation, but in making such loans or advances no officer or officers
shall mortgage, pledge, hypothecate or transfer any securities or other property
of the Corporation, except when authorized by resolution adopted by the Board.
SECTION 3. Checks, Drafts, etc. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons and in such manner
as shall from time to time be authorized by the Board or the Executive Committee
or authorized by the Treasurer or any Assistant Treasurer, acting together with
either the General Manager of an operating unit or a nonfinancial Vice President
of the Corporation, which authorization may be general or confined to specific
instances.
SECTION 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositaries as the Board or the Executive
Committee may from time to time designate or as may be designated by any officer
or officers of the Corporation to whom such power of designation may from time
to time be delegated by the Board or the Executive Committee. For the purpose of
deposit and for the purpose of collection for the account of the Corporation,
checks, drafts and other orders for the payment of money which are payable to
the order of the Corporation may be endorsed, assigned and delivered by any
officer, employee or agent of the Corporation.
SECTION 5. General and Special Bank Accounts. The Board or the Executive
Committee may from time to time authorize the opening and keeping of general and
special bank accounts with such banks, trust companies or other depositaries as
the Board or the Executive Committee may designate or as may be designated by
any officer or officers of the Corporation to whom such power of designation may
from time to time be delegated by the Board or the Executive Committee. The
Board or the Executive Committee may make such special rules and regulations
with respect to such bank accounts, not inconsistent with the provisions of
these By-laws, as it may deem expedient.
SECTION 6. Indemnification. The Corporation shall, to the fullest extent
permitted by applicable law as in effect at any time, indemnify any person made,
or threatened to be made, a party to an action or proceeding whether civil or
criminal (including an action or proceeding by or in the right of the
Corporation or any other corporation of any type or kind, domestic or foreign,
or any partnership, joint venture, trust, employee benefit plan or other
enterprise, for which any director or officer of the Corporation served in any
capacity at the request of the Corporation, by reason of the fact that such
person or such person's testator or intestate was a director or officer of the
Corporation, or served such other
[June 28, 1994] -14-
<PAGE>
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in settlement
and reasonable expenses, including attorneys' fees actually and necessarily
incurred as a result of such action or proceeding, or any appeal therein. Such
indemnification shall be a contract right and shall include the right to be paid
advances of any expenses incurred by such person in connection with such action,
suit or proceeding, consistent with the provisions of applicable law in effect
at any time. Indemnification shall be deemed to be 'permitted' within the
meaning of the first sentence hereof if it is not expressly prohibited by
applicable law as in effect at the time.
ARTICLE VII
SHARES
SECTION 1. Stock Certificates. Each owner of stock of the Corporation
shall be entitled to have a certificate, in such form as shall be approved by
the Board, certifying the number of shares of stock of the Corporation owned.
The certificates representing shares of stock shall be signed in the name of the
Corporation by the Chairman of the Board or a Vice Chairman of the Board or the
President or a Vice President and by the Secretary or an Assistant Secretary and
sealed with the seal of the Corporation (which seal may be a facsimile, engraved
or printed); provided, however, that where any such certificate is signed by a
registrar, other than the Corporation or its employee, the signatures of the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Secretary, or Assistant Secretary, and transfer agent or a transfer clerk acting
on behalf of the Corporation upon such certificates may be facsimiles, engraved
or printed. In case any officer, transfer agent or transfer clerk acting on
behalf of the Corporation ceases to be such officer, transfer agent, or transfer
clerk before such certificates shall be issued, they may nevertheless be issued
by the Corporation with the same effect as if they were still such officer,
transfer agent or transfer clerk at the date of their issue.
SECTION 2. Books of Account and Record of Stockholders. There shall be
kept at the office of the Corporation correct books of account of all its
business and transactions, minutes of the proceedings of stockholders, Board,
and Executive Committee, and a book to be known as the record of stockholders,
containing the names and addresses of all persons who are stockholders, the
number of shares of stock held, and the date when the stockholder became the
owner of record thereof.
SECTION 3. Transfers of Stock. Transfers of shares of stock of the
Corporation shall be made on the record of stockholders of the Corporation only
upon authorization by the registered holder thereof, or by an attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all
[June 28, 1994] -15-
<PAGE>
taxes thereon. The person in whose name shares of stock shall stand on the
record of stockholders of the Corporation shall be deemed the owner thereof for
all purposes as regards the Corporation. Whenever any transfers of shares shall
be made for collateral security and not absolutely and written notice thereof
shall be given to the Secretary or to such transfer agent or transfer clerk,
such fact shall be stated in the entry of the transfer.
SECTION 4. Regulations. The Board may make such additional rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates of stock to bear the
signature or signatures of any of them.
SECTION 5. Fixing of Record Date. The Board shall fix a time not exceeding
fifty nor less than ten days prior to the date then fixed for the holding of any
meeting of the stockholders or prior to the last day on which the consent or
dissent of the stockholders may be effectively expressed for any purpose without
a meeting, as the time as of which the stockholders entitled to notice of and to
vote at such meeting or whose consent or dissent is required or may be expressed
for any purpose, as the case may be, shall be determined, and all persons who
were holders of record of voting stock at such time, and no others, shall be
entitled to notice of and to vote at such meeting or to express their consent or
dissent, as the case may be. The Board may fix a time not exceeding fifty days
preceding the date fixed for the payment of any dividend or the making of any
distribution or the allotment of rights to subscribe for securities of the
Corporation, or for the delivery of evidences of rights or evidences of
interests arising out of any change, conversion or exchange of capital stock or
other securities, as the record date for the determination of the stockholders
entitled to receive any such dividend, distribution, allotment, rights or
interests, and in such case only the stockholders of record at the time so fixed
shall be entitled to receive such dividend, distribution, allotment, rights or
interests.
SECTION 6. Lost, Destroyed or Mutilated Certificates. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
allege to have been lost or destroyed or which shall have been mutilated, and
the Corporation may, in its discretion, require such owner or the owner's legal
representatives to give to the Corporation a bond in such sum, limited or
unlimited, and in such form and with such surety or sureties as the Board in its
absolute discretion shall determine, to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss or destruction
of any such certificate, or the issuance of such new certificate. Anything to
the contrary notwithstanding, the Corporation, in its absolute discretion, may
refuse to
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<PAGE>
issue any such new certificate, except pursuant to legal proceedings under the
laws of the State of New York.
SECTION 7. Inspection of Records. The record of stockholders and minutes
of the proceedings of stockholders shall be available for inspection, within the
limits and subject to the conditions and restrictions prescribed by applicable
law.
SECTION 8. Auditors. The Board shall employ an independent public or
certified public accountant or firm of such accountants who shall act as
auditors in making examinations of the consolidated financial statements of the
Corporation and its subsidiaries in accordance with generally accepted auditing
standards. The auditors shall certify that the annual financial statements are
prepared in accordance with generally accepted accounting principles, and shall
report on such financial statements to the stockholders and directors of the
Corporation. The Board's selection of auditors shall be presented for
ratification by the stockholders at the annual meeting. Directors and officers,
when acting in good faith, may rely upon financial statements of the Corporation
represented to them to be correct by the officer of the Corporation having
charge of its books of account, or stated in a written report by the auditors
fairly to reflect the financial condition of the Corporation.
ARTICLE VIII
OFFICES
SECTION 1. Principal Office. The principal office of the Corporation shall
be at such place in the Town of North Castle, County of Westchester and State of
New York as the Board shall from time to time determine.
SECTION 2. Other Offices. The Corporation may also have an office or
offices other than said principal office at such place or places as the Board
shall from time to time determine or the business of the Corporation may
require.
ARTICLE IX
WAIVER OF NOTICE
Whenever under the provisions of any law of the State of New York, the
Certificate of Incorporation or these By-laws or any resolution of the Board or
any committee thereof, the Corporation or the Board or any committee thereof is
authorized to take any action after notice to the stockholders, directors or
members of any such committee, or after the lapse of a prescribed period of
time, such action may be taken without notice and without the lapse of any
period of time, if, at any time before or after such action shall be completed,
such notice or lapse of time shall be waived in writing by the person or persons
entitled to said notice or
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<PAGE>
entitled to participate in the action to be taken, or, in the case of a
stockholder, by an attorney thereunto authorized. Attendance at a meeting
requiring notice by any person or, in the case of a stockholder, by the
stockholder's attorney, agent or proxy, shall constitute a waiver of such notice
on the part of the person so attending, or by such stockholder, as the case may
be.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall end on the thirty-first day of
December in each year.
ARTICLE XI
SEAL
The Seal of the Corporation shall consist of two concentric circles with
the IBM logotype appearing in bold face type within the inner circle and the
words 'International Business Machines Corporation' appearing within the outer
circle.
ARTICLE XII
AMENDMENTS
These By-laws may be amended or repealed or new By-laws may be adopted by
the stockholders at any annual or special meeting, if the notice thereof
mentions that amendment or repeal or the adoption of new By-laws is one of the
purposes of such meeting. These By-laws, subject to the laws of the State of New
York, may also be amended or repealed or new By-laws may be adopted by the
affirmative vote of a majority of the Board given at any meeting, if the notice
thereof mentions that amendment or repeal or the adoption of new By-laws is one
of the purposes of such meeting; provided, however, that if any By-law
regulating an impending election of directors is adopted or amended or repealed
by the Board, there shall be set forth in the notice of the next meeting of the
stockholders for the election of directors the By-law so adopted or amended or
repealed, together with a concise statement of the changes made.
[June 28, 1994] -18-
<PAGE>
INTERNATIONAL BUSINESS
MACHINES CORPORATION
I, the undersigned, Secretary of International Business Machines
Corporation, do hereby certify that the foregoing is a true and complete copy of
the By-laws of said Corporation, including all amendments thereto, and the same
is in force at the date hereof.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of said Corporation, this day of 19 .
--------------------
Secretary
[June 28, 1994] -19-
EXHIBIT 2
REPRESENTATIONS AND REGISTRATION RIGHTS AGREEMENT (the
"Agreement") dated as of January 1, 1995 between STRATASYS, INC., a
Delaware corporation (the "Company"), and INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York corporation ("IBM").
In connection with the sale on the date hereof by the Company to IBM
of 500,000 shares of Common Stock, $.01 par value per share (the "Common
Stock"; and such 500,000 shares, the "Shares"), pursuant to the Assignment and
Sale of Rapid Prototyping Technology and Related Assets Agreement dated January
1, l995 (the "Technology Agreement"), the Company and IBM hereby agree as
follows:
1. Representations and Warranties of the Company. The Company hereby
represents and warrants to IBM that:
(a) Corporate Organization and Authority. The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; (ii) has the corporate power and authority to own its
property and conduct its business where such business is now conducted and to
carry on its business as now conducted; and (iii) has been duly qualified and is
in good standing to do business as a foreign corporation in each jurisdiction in
which the conduct of its business or ownership or leasing of its properties
requires qualification, except where failure so to qualify would not have a
material adverse effect on the business, properties or condition of the Company.
(b) Capitalization. On the date hereof, the authorized capital of
the Company consists of (i) 5,000,000 shares of Common Stock, of which 2,871,210
shares are validly issued, outstanding, fully paid and nonassessable, and (ii)
264,000 shares of preferred stock, $.01 par value per share, all of which are
issued and outstanding. Except as contemplated by this Agreement and the
Technology Agreement and except for 300,000 shares of Common Stock that have
been reserved for issuance under the Company's stock plans (of which 146,601
shares are subject to outstanding options) and up to 729,353 shares of Common
Stock that has been reserved for issuance upon exercise of warrants and options,
there are not outstanding subscriptions, warrants, options, conversion
privileges or other rights or agreements to purchase or otherwise acquire or
issue any shares of capital stock of the Company (or shares reserved for such
<PAGE>
2
purpose), and no preemptive rights or rights of first refusal exist with respect
to the issuance of Common Stock.
(c) Authorization. All corporate action on the part of the Company
necessary for the authorization, execution and delivery of this Agreement and
the Technology Agreement by the Company, the performance by the Company of all
its obligations under this Agreement and the Technology Agreement and the
issuance and delivery by the Company of the Shares has been duly taken, and this
Agreement and the Technology Agreement constitute the valid and binding
obligations of the Company. No consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental authority or any
other person is required to be obtained or made by the Company in connection
with the transactions contemplated hereby.
(d) Validity of Shares. When issued, sold and delivered in
accordance with the terms and for the consideration expressed in the Technology
Agreement, the Shares shall be duly authorized, validly issued, fully paid and
nonassessable.
(e) Disclosure. The Company's Registration Statement on Form SB-2
(Registration No. 33-83638C), a copy of which has been furnished to IBM and
which became effective on October 20, 1994, was true and complete in all
material respects as of its effective date and did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements contained therein, in light
of the circumstances under which there were made, not misleading.
(f) Changes in Condition. Since October 20, 1994, no event has
occurred respecting the Company except events that both individually and in the
aggregate would not have a material adverse effect on the financial condition,
results of operations or prospects of the Company.
(g) No Defaults, Violations or Conflicts. The Company is not in
violation with respect to any term or provision of (i) its certificate of
incorporation or by-laws or any indebtedness, mortgage, indenture, contract,
agreement, license, permit, judgment, decree or order to which it is a party or
(ii) any statue, ordinance, rule or regulation, which violation would have a
material adverse
<PAGE>
3
effect on the business, properties or condition of the Company.
(h) Private Offering. Neither the Company nor anyone acting on its
behalf has offered any of the Shares for sale to, or solicited offers to buy any
thereof from, or otherwise approached or negotiated with respect thereto with,
any prospective purchaser other than IBM. Neither the Company nor anyone acting
on its behalf has within the last twelve months issued, sold or offered any
security of the Company to any person or organization under circumstances that
would cause the issuance and sale of the Shares, as contemplated by this
Agreement and the Technology Agreement, to be subject to the registration
requirements of the Securities Act of 1933 (the "Securities Act"). The Company
agrees that neither the Company nor anyone acting on its behalf will offer the
Shares or any part thereof or any similar securities for issuance or sale to, or
solicit any offer to acquire any of the same from, anyone so as to make the
issuance and sale of the Shares subject to the registration requirements of
Section 5 of the Securities Act.
(i) Brokers and Finders. The Company has not retained any investment
banker, broker or finder in connection with the transactions contemplated by
this Agreement and the Technology Agreement.
(j) Blue Sky Compliance. The Company shall use its best efforts to
comply with all state securities or "Blue Sky" laws necessary to offer and sell
the Shares to IBM.
2. Representations and Warranties of IBM.
(a) Securities Act. IBM understands and acknowledges that the
offering of the Shares pursuant to this Agreement and the Technology Agreement
will not be registered under the Securities Act or qualified under any state
"Blue Sky" laws on the grounds that the offering and sale of the Shares are
exempt from registration and qualification, respectively, under the Securities
Act and the state "Blue Sky" laws, and that the Company's reliance upon such
exemption is predicated upon IBM's representations set forth in this Agreement.
IBM represents and warrants to the Company that IBM is acquiring the Shares for
investment only and not with a view to any distribution of all or any portion
thereof, and IBM will not offer to sell or otherwise
<PAGE>
4
dispose of all or any portion of the Shares in violation of any of the
registration requirements of the Securities Act. If, at any time in the future,
IBM should offer, sell, assign, pledge, hypothecate, transfer or otherwise
dispose of the Shares, it will do so only in accordance with the registration
requirements of the Securities Act or pursuant to an exemption therefrom.
(b) Accredited Investor. IBM represents and warrants to the Company
that IBM is an "accredited investor" as such term is defined in Regulation D
under the Securities Act.
(c) Conditions on Transfer. IBM covenants that, unless the Shares
have been registered pursuant to Section 3 hereof, IBM will not dispose of any
Shares unless and until (i) IBM shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition and (ii) IBM shall have
furnished the Company with an opinion of counsel (which may be an employee of
IBM) reasonably satisfactory in form and substance to the Company and the
Company's counsel to the effect that, or shall otherwise have satisfied the
Company that, such disposition will not require registration under the
Securities Act.
(d) Legends for the Shares. IBM acknowledges that the certificate or
certificates evidencing the Shares will bear a legend reading substantially as
follows:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE SECURITIES LAWS.
SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, NOR MAY SUCH SHARES BE SOLD OR
TRANSFERRED WITHOUT COMPLIANCE WITH THE AGREEMENT DATED JANUARY 1,
1995.
3. Registration Rights.
(a) Demand Registrations. At any time after the third anniversary of
the date hereof, if IBM is unable at any time for any reason to dispose of the
Shares pursuant to Rule 144(k) under the Securities Act, then upon the written
demand of IBM, the Company shall use its best efforts to
<PAGE>
5
effect the registration (a "Demand Registration") under the Securities Act of
such number of Registration Shares (as defined below) then beneficially owned by
IBM as shall be indicated in a written demand sent to the Company by IBM;
provided, however, that (i) the Company shall be obligated to effect a total of
no more than two Demand Registrations, (ii) a Demand Registration shall not
count as such until it has become effective, except that if, after it has become
effective, the offering of Registration Shares pursuant to such registration is
interfered with by any stop order, injunction or other order or requirement of
the Securities and Exchange Commission (the "SEC") or any other governmental
authority, such registration shall be deemed not to have been effected unless
such stop order, injunction or other order or requirement shall subsequently
have been vacated or otherwise removed and (iii) a Demand Registration shall not
count as such if the Company (or any other stockholder of the Company) offers
any of its securities pursuant to the registration in accordance with the next
sentence and IBM does not sell in the offering all Registration Shares it
requested to register. If a Demand Registration is initiated by IBM and the
Company (or any other stockholder of the Company with registration rights) then
wishes to offer any of its securities in connection with the registration, no
such securities may be offered by the Company or any other stockholder until
such time as all Registration Shares registered or to be registered pursuant to
IBM's written demand have been sold by IBM. Upon receipt of IBM's written
demand, the Company shall expeditiously effect the registration under the
Securities Act of the Registration Shares and use its best efforts to have such
registration become and remain effective as provided in Section 3(h). IBM shall
have the right to select the underwriters for a Demand Registration. As used in
this Agreement, "Registration Shares" shall mean the Shares and any shares of
Common Stock issued with respect thereto or in substitution therefor, whether by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise.
(b) Piggyback Registrations. (i) If at any time after the second
anniversary of the date hereof, the Company proposes to register any of its
securities under the Securities Act for sale for cash (otherwise than in
connection with the registration of securities issuable pursuant to an employee
stock option, stock purchase or similar plan or pursuant to a merger, exchange
offer or
<PAGE>
6
transaction of the type specified in Rule 145(a) under the Securities Act), the
Company shall give IBM notice of such proposed registration at least 25 days
prior to the filing of a registration statement. At the written request of IBM
delivered to the Company within 20 days after the receipt of the notice from the
Company, which request shall state the number of Registration Shares that IBM
wishes to sell or distribute publicly under the registration statement proposed
to be filed by the Company, the Company shall use its best efforts to register
under the Securities Act such Registration Shares, and to cause such
registration (a "Piggyback Registration") to become and remain effective as
provided in Section 3(h).
(ii) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters thereof
advise the Company in writing that in their opinion the number of securities
requested to be included in the registration exceeds the number which can be
sold in the offering, the Company shall include in the registration (i) first,
the securities the Company proposes to sell and (ii) second, the Registration
Shares IBM proposes to sell and the securities each other holder of the
Company's securities who has registration rights and has exercised such rights
proposes to sell in proportion to the number of shares each proposes to sell
pursuant to this clause (ii).
(iii) If a Piggyback Registration is a underwritten secondary
registration on behalf of holders of the Company's securities who have demand
registration rights and the managing underwriters thereof advise the Company in
writing that in their opinion the number of securities requested to be included
in the registration exceeds the number which can be sold in the offering, the
Company shall include in the registration (i) first, the securities of the
holders of the Company's securities who have exercised their demand registration
rights and (ii) second, the securities any other securityholders of the Company
(including any Registration Shares IBM desires to sell) propose to sell in
proportion to the number of securities each proposes to sell. In the event the
Company desires to participate in such a registration of securities, the Company
shall include in the registration (A) first, the securities of the holders of
the Company's securities who have exercised their demand registration rights and
(B) second, the securities the Company and any other securityholders of the
Company propose to sell (including any Registration Shares IBM desires to
<PAGE>
7
sell) in proportion to the number of shares each proposes to sell.
(c) Indemnification by the Company. In the event of any registration
of any Registration Shares under the Securities Act, the Company shall, and
hereby does, agree to indemnity and hold harmless IBM, its directors, officers
and employees, each other person who participates as an underwriter in the
offering or sale of such Registration Shares and each other person, if any, who
controls IBM or any such underwriter within the meaning of Section 15 of the
Securities Act against (i) any losses, claims, damages or liabilities, joint or
several, to which IBM or any such director or officer or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which the
Registration Shares were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which there were made not
misleading, (ii) any violation by the Company of the Securities Act or any rule
or regulation promulgated under the Securities Act applicable to the Company in
connection with any such registration and (iii) any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such losses, claims, liabilities, actions or proceedings which result from the
activities set forth in the foregoing clause (i) and (ii); provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by or on behalf of IBM
specifically stating that it is for use in the preparation thereof; and provided
further, however, that the Company shall not be liable to any person who
participates as an underwriter in the offering or sale
<PAGE>
8
of Registration Shares or any other person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
to the person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale
of Registration Shares to such person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of IBM or any
such director, officer or controlling person and shall survive the transfer of
the Registration Shares by IBM.
(d) Indemnification by IBM. The Company may require, as a condition
to including any Registration Shares in any registration statement filed
pursuant to Section 3(a) or 3(b), that the Company shall have received an
undertaking satisfactory to it from IBM to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 3(c)) the Company,
each director of the Company, each officer of the Company signing such
registration statement, any underwriter, and each other person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein or any amendment or
supplement thereto, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information about IBM as a stockholder of the Company furnished to the
Company through an instrument duly executed by IBM specifically stating that it
is for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement. Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such director, officer or controlling
person and shall survive the transfer by the seller of the securities of the
Company being registered.
(e) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim
<PAGE>
9
referred to in Section 3(c) or 3(d), such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give notice to the
latter of the commencement of such action; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 3(c) or 3(d) except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist or the indemnified
party may have defenses not available to the indemnifying party in respect of
such claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall be liable for any settlement of any action or proceeding effected
without its written consent. No indemnifying party shall, without the consent of
the indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(f) Other Indemnification. Indemnification similar to that specified
in this Section 3 (with appropriate modifications) shall be given by the Company
and IBM with respect to any required registration or other qualification of
Registration Shares under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(g) Indemnification Payments. The indemnification required by this
Section 3 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(h) Registration Covenants of the Company. In the event that any
Registration Shares are to be registered
<PAGE>
10
pursuant to Section 3(a) or 3(b), the Company covenants and agrees that it shall
use its best efforts to effect the registration and cooperate in the sale of the
Registration Shares to be registered and shall as expeditiously as possible:
(i) (A) prepare and file with the SEC a registration statement with
respect to the Registration Shares (as well as any necessary amendments or
supplements thereto) (a "Registration Statement") and (B) use its best
efforts to cause the Registration Statement to become effective; provided
that the Company shall be entitled to deter such filing for a period not
to exceed 120 days after receipt of IBM's written demand pursuant to
Section 3(a) if (A) the Company is contemplating an underwritten public
offering of its securities and, in the judgment of the managing
underwriter thereof, such filing would have a material adverse effect on
the contemplated offering, (B) the Company is in possession of material
information that it deems advisable not to disclose in a registration
statement or (C) the Company is prohibited (pursuant to the terms of an
underwriting agreement in connection with a public offering of its
securities effected within the previous six months) from filing such
registration statement prior to the end of such 120-day period;
(ii) prior to any filing described above in Section 3(a), furnish to
IBM copies of the Registration Statement and any amendments or supplements
thereto and any prospectus forming a part thereof proposed to be so filed,
which documents shall be subject to the review of counsel for IBM (but not
approval of such counsel except with respect to any statement in the
Registration Statement which relates to IBM);
(iii) notify IBM, promptly after the Company shall receive notice
thereof, of the time when the Registration Statement becomes effective or
when any amendment or supplement or any prospectus forming a part of the
Registration Statement has been filed;
(iv) notify IBM promptly of any request by the SEC for the amending
or supplementing of the Registration Statement or prospectus or for
additional information;
<PAGE>
11
(v)(A) advise IBM after the Company shall receive notice or
otherwise obtain knowledge of the issuance of any order by the SEC
suspending the effectiveness of the Registration Statement or any
amendment thereto or of the initiation or threatening of any proceeding
for that purpose and (B) promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal promptly if a stop
order should be issued;
(vi)(A) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus forming a
part thereof as may be necessary to keep the Registration Statement
effective for the lesser of (x) a period of time necessary to permit IBM
to dispose of all its Registration Shares and (y) the maximum period of
time permitted by law to keep effective a registration statement without
filing an amendment containing new audited financial statements and (B)
comply with the provisions of the Securities Act with respect to the
disposition of all Registration Shares covered by the Registration
Statement during such period in accordance with the intended methods of
disposition by IBM set forth in the Registration Statement;
(vii) furnish to IBM such number of copies of the Registration
Statement, each amendment and supplement thereto, the prospectus included
in the Registration Statement (including each preliminary prospectus) and
such other documents as IBM may reasonably request in order to facilitate
the disposition of the Registration Shares owned by IBM;
(viii) use its best efforts to register or qualify such Registration
Shares under such other securities or "Blue Sky" laws of such
jurisdictions as determined by the underwriters after consultation with
the Company and IBM and do any and all other acts and things which may be
reasonably necessary or advisable to enable IBM to consummate the
disposition in such jurisdictions of the Registration Shares (provided
that the Company shall not be required to (A) qualify generally to do
business in any jurisdiction in which it would not otherwise be required
to qualify but for this Section 3(h)(viii), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in
any such jurisdiction);
<PAGE>
12
(ix) notify IBM, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the Registration Statement would contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and, at the request of IBM, prepare a supplement or
amendment to the Registration Statement so that the Registration Statement
shall not, to the Company's knowledge, contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(x) provide a transfer agent and registrar, which may be a single
entity, for all the Registration Shares not later than the effective date
of the Registration Statement;
(xi) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other action, if any, as
IBM or the underwriters shall reasonably request in order to expedite or
facilitate the disposition of the Registration Shares pursuant to this
Section 3;
(xii)(A) make available for inspection by IBM, any underwriter
participating in any disposition pursuant to the Registration Statement
and any attorney, accountant or other agent retained by IBM or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and (B) cause the Company's
officers, directors and employees to supply all relevant information
reasonably requested by IBM or any such underwriter, attorney, accountant
or agent in connection with the Registration Statement; and
(xiii) cause the Company's independent public accountants to provide
a comfort letter in customary form and covering such matters of the type
customarily covered by comfort letters.
(i) Expenses. The Company shall pay, on behalf of IBM, all of the
expenses in connection with any Demand Registration pursuant to Section 3(a) or
Piggyback Registration pursuant to Section 3(b), including all
<PAGE>
13
registration, filing and NASD fees, all fees and expenses of complying with
securities or "Blue Sky" laws, all word processing, duplicating and printing
expenses, all messenger and delivery expenses, the fees and disbursements of
counsel for the Company and of its independent public accountants (including the
expenses of comfort letters required by or incident to such performance and
compliance) and any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, but excluding any underwriting discounts and
commissions and transfer taxes, if any. In any registration, IBM shall pay for
its own underwriting discounts and commissions, if any, and any fees and
disbursements of counsel and accountants employed by IBM.
(j) Assignment of Registration Rights. IBM may assign its rights
under this Section 3 to anyone (other than an affiliate of the Company) to whom
IBM sells, transfers or assigns all of its beneficial interest in at least
100,000 Registration Shares (as adjusted for stock splits, stock dividends and
stock combinations), other than in sales pursuant to Rule 144 under the
Securities Act or a Demand Registration or a Piggyback Registration effected
pursuant to this Section 3; provided, however, that no assignment shall increase
the Company's obligations to effect registrations or pay expenses thereof.
(k) Rule 144. The Company shall take all actions reasonably
necessary to enable IBM to sell the Registration Shares without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC, including
filing on a timely basis all reports required to be filed by the Securities
Exchange Act of 1934. Upon the request of IBM, the Company shall deliver to IBM
a written statement as to whether it has complied with such requirements.
(l) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
the Company or any holder of Registration Shares exercising its rights under
this Section 3 makes a claim for indemnification pursuant to Section 3(c) or
3(d), but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such
<PAGE>
14
indemnification may not be enforced in such case notwithstanding that Section
3(c) or 3(d) provides for indemnification in such case, then, the Company and
such holder of Registration Shares will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the holder of Registration Shares on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations or, it the allocation provided herein is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and any holder of Registration Shares
from the offering of the securities covered by such registration statement. The
relative fault of the Company on the one hand and of the holder of Registration
Shares on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact related to information supplied by the
Company on the one hand or by the holder of Registration Shares on the other;
provided, however, that, in any such case, (A) no such holder of Registration
Shares will be required to contribute any amount in excess of the proceeds
received by such holder of Registration Shares offered by it pursuant to such
registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
4. Right of First Offer
(a) Mechanics. Prior to selling or otherwise disposing of any of the
Shares, IBM shall first give the Company the opportunity to purchase the Shares
(the "Transfer First Offer Right") in the following manner:
(i) IBM shall give written notice to the Company of its intent to
dispose of the Shares, setting forth the number of Shares to be disposed of (the
"Transfer Notice").
(ii) The Transfer Notice shall constitute an offer by IBM to sell
all, but not less than all, of the Shares specified in the Transfer Notice to
the Company (or a
<PAGE>
15
purchaser designated by the Company) at a cash price per Share (the "Transfer
Price") equal to the Market Price on the most recent trading date preceding the
date of the Transfer Notice. Market Price shall mean the closing sales price for
a share of Common Stock on the principal national securities exchange on which
the Common Stock is listed, or, if the Common Stock is not listed on any
national securities exchange, the closing sales price for a share of Common
Stock as reported on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"), or, if such closing price shall not be reported on
NASDAQ, the average of the closing bid and asked prices of a share of Common
Stock as so reported, or, if such prices shall not be so reported, as the same
shall be reported by the National Quotation Bureau Incorporated, or, in all
other cases, the value set in good faith by the Company's Board of Directors.
(iii) The Transfer First Offer Right shall be exercisable by written
notice to IBM (the "Transfer Exercise Notice") within 10 calendar days after
receipt of the Transfer Notice.
(iv) If the Company exercises the Transfer First Offer Right, then
IBM shall sell the Shares specified in the Transfer Notice to the Company (or a
purchaser designated by the Company) at the Transfer Exercise Price. The closing
of the purchase and sale of the Shares shall take place on such date, no later
than 30 days after delivery to the Company of the Transfer Notice, as shall be
specified by the Company in the Transfer Exercise Notice.
(v) If the Company does not exercise the Transfer First Offer
Right, IBM may sell or otherwise dispose of the Shares specified in the Transfer
Notice.
(b) Exceptions. The Transfer First Offer Right shall not apply to
(i) any disposition to the Company or a person or persons approved by the
Company; (ii) in a sale pursuant to a Registration Statement in accordance with
Section 3; (iii) to a subsidiary of IBM which agrees in writing to comply with
the obligations of IBM in this Agreement; (iv) in a merger or consolidation of
the Company; or (v) in response to an offer to acquire the Shares which is
available to substantially all the holders of Common Stock.
<PAGE>
16
5. Miscellaneous.
(a) Entire Agreement; Successors and Assigns. This Agreement and the
Technology Agreement constitute the entire contract between the parties relative
to the subject matter hereof and no party shall be liable or bound to the other
in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Any previous agreement among the
parties with respect to the sale of the Shares is superseded by this Agreement.
The terms and conditions of this Agreement shall inure to the benefit of the
parties. Except as expressly provided in Section 3(j), nothing in this
Agreement, expressed or implied, is intended to confer upon any party, other
than the parties hereto, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
(b) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflict of laws principles of such State.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(d) Headings. The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
(e) Notices. Any notice or other communication required or permitted
hereunder shall be given in writing and shall be deemed effectively given when
delivered by hand, courier or overnight delivery service, five days after
deposit if sent by registered or certified mail, return receipt requested, or
when received if sent in the form of a telecopy, addressed to a party at its
address hereinafter shown or at such other address as such party may designate
by ten day's advance written notice to the other party. Any notice to the
Company shall be sent to Stratasys, Inc., 14950 Martin Drive, Eden Prairie,
Minnesota 55342, telecopy no.: (612) 937-0070, Attention: S. Scott Crump. Any
notice to IBM shall be sent to International Business Machines Corporation, Old
Orchard Road, Armonk, New York, 10504, telecopy no.: (914) 765-6006, Attention:
Donald D. Westfall.
<PAGE>
17
(f) Survival of Representations and Warranties. The representations
and warranties of the parties contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the issuance,
delivery and payment for the Shares.
(g) Severability. If any provision of this Agreement or the
application of such provision is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or invalidate or render unenforceable this
Agreement in any other jurisdiction. To the extent permitted by applicable law,
the parties waive any provision of law that renders any provision of this
Agreement invalid, illegal or unenforceable in any respect. The parties shall,
to the extent lawful and practicable, use their best reasonable efforts to enter
into arrangements to reinstate the intended benefits, net of the intended
burdens, of any such provision held invalid, illegal or unenforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
STRATASYS, INC.
by /s/ S. Scott Crump
------------------------------
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
by /s/ Lee A. Dayton
-------------------------------
Lee A. Dayton
General Manager, Real Estate and
Business Development
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ___)*
Stratasys, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 Par Value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
862685104
- --------------------------------------------------------------------------------
(CUSIP Number)
Donald D. Westfall
Associate General Counsel
Old Orchard Road [1C-65], Armonk, NY 10504 (914) 765-4478
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
January 1, 1995
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934
(Act) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 862685104 Page ______ of ______ Pages
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
International Business Machines Corporation
13-0871985
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group* a. |_|
b. |_|
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*
00
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
New York
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of
Shares 500,000 shares
Beneficially --------------------------------------------------------
Owned By 8 Shared Voting Power
Each
Reporting
Person --------------------------------------------------------
With 9 Sole Dispositive Power
500,000 shares
--------------------------------------------------------
10 Shared Dispositive Power
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
500,000 shares
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* |_|
- --------------------------------------------------------------------------------
13 Percent of Class Represented By Amount in Row (11)
14.8%
- --------------------------------------------------------------------------------
14 Type of Reporting Person*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
2 of 7
<PAGE>
Item 1. Security and Issuer
This statement relates to the common stock, par value $.01 per share
(the "Common Stock"), of Stratasys, Inc. (the "Company"), a Delaware corporation
with its principal executive offices at 14950 Martin Drive, Eden Prairie,
Minnesota 55344.
Item 2. Identity and Background
International Business Machines Corporation ("IBM") is a New York
corporation with its principal office and business at Old Orchard Road, Armonk,
New York 10504. IBM develops, manufactures and sells advanced information
processing products, including computers and microelectronic technology,
software, networking systems and information technology-related services.
The attached Schedule I is a list of the directors and executive
officers of IBM which contains the following information with respect to each
such person:
(a) name;
(b) business address;
(c) present principal occupation or employment and the name,
principal business and address of any corporation or other organization in which
such employment is conducted; and
(d) citizenship.
<PAGE>
2
During the last five years, neither IBM nor, to the best of IBM's
knowledge, any person named in Schedule I has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or has been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of which such person was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, Federal or state securities laws or finding
any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The 500,000 shares of Common Stock issued to IBM by the Company were
acquired as partial consideration for IBM entering into the arrangement
described in Item 4.
Item 4. Purpose of the Transaction
The 500,000 shares of Common Stock were issued to IBM in connection
with IBM's assignment to the Company of certain rapid prototyping technology
developed by the IBM Thomas J. Watson Research Center. The technology assets
assigned to the Company include patents and patent applications, copyrights,
know-how and related documentation. The Company also acquired from IBM
prototypes, components and other tangible personal property
<PAGE>
3
and was assigned contract rights. In addition to receiving the shares, IBM was
paid $285,284.64 in cash by the Company.
The shares were acquired by IBM for investment purposes. IBM does
not have any plans or proposals which relate to (a) the acquisition by any
person of additional securities of the Company, or the disposition of securities
of the Company, (b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its subsidiaries,
(c) a sale or transfer of a material amount of assets of the Company or any of
its subsidiaries, (d) any change in the present management of the Company or the
present Board of Directors of the Company, (e) any material change in the
present capitalization or dividend policy of the Company, (f) any other material
change in the Company's business or corporate structure, (g) changes in the
Company's charter or by-laws or other actions which may impede the acquisition
of control of the Company by any other person, (h) causing a class of securities
of the Company to cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association, (i) a class of
equity securities of the Company becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Exchange
<PAGE>
4
Act, or (j) any action similar to any of the foregoing actions.
IBM reserves the right, based on its continuing review of its
investment in the Company and subject to its obligations described in Item 6, to
dispose of any or all of the shares of Common Stock owned by it and otherwise to
change its intentions with respect to any or all of the matters referred to in
this Item 4.
Item 5. Interest in Securities of the Company
The only shares of the Company's Common Stock that IBM beneficially
owns are the 500,000 shares of Common Stock referred to in Item 4 which shares
represent approximately 14.83% of the outstanding Common Stock. IBM possesses
the sole power to vote or direct the vote and to dispose of or direct the
disposition of all shares of Common Stock beneficially owned by it, subject to
its obligations described in Item 6.
Except as described above, neither IBM nor, to IBM's knowledge, any
person named in Schedule I beneficially owns any shares of Common Stock or has
effected any transactions in Common Stock during the past 60 days.
<PAGE>
5
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Company.
In connection with the sale of the shares to IBM, the Company and
IBM entered into a Representations and Registration Rights Agreement dated as of
January 1, 1995 (the "Agreement"), which is annexed hereto as an Exhibit.
Pursuant to the Agreement, IBM has certain rights to cause the Company to
register such shares for resale under the Securities Act of 1933. IBM's
registration rights may be exercised after January 1, 1998, or after January 1,
1997, in connection with a registration otherwise filed by the Company, and such
rights are subject to certain conditions and limitations described in the
Agreement. The Agreement also provides that prior to selling or otherwise
disposing of any of such shares (except (i) pursuant to a registration statement
under the Securities Act of 1993, (ii) in the case of a transfer to an IBM
subsidiary, (iii) in connection with a merger or consolidation of the Company,
(iv) in response to an offer for the Company's common stock which is available
to substantially all the holders thereof or (v) to a transferee approved by the
Company) IBM is required to give the Company the opportunity to purchase the
shares IBM desires to sell at the then current market price.
<PAGE>
6
Item 7. Material to be Filed as Exhibits
Exhibit I. Representations and Registration Rights Agreement dated
as of January 1, 1995, between Stratasys, Inc. and International Business
Machines Corporation.
[Remainder of page intentionally left blank.]
<PAGE>
7
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: January 10, 1995
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
by /s/ John E. Hickey
-----------------------------------
Name: John E. Hickey
Title: Vice President, Secretary &
Assistant General Counsel
<PAGE>
SCHEDULE I
Each of the persons beside whose name an asterisk appears is a
director of IBM. Each of the persons named below is a citizen of the United
States of America, except Fritz Gerber (Switzerland), John M. Thompson (Canada)
and Lodewijk C. van Wachem (Netherlands). The business address of each person
whose principal employment is with IBM is Old Orchard Road, Armonk, New York
10504.
Business address and principal
Name occupation or employment
---- ------------------------------
Harold Brown* Counselor, Center for Strategic and
International Studies, (CSIS), 1800 K Street NW,
Suite 400, Washington D.C. 20006
James E. Burke* Retired Chairman of the Board, Johnson &
Johnson, One Johnson & Johnson Plaza New
Brunswick, NJ 08933.
Fritz Gerber* - Chairman and Chief Executive Officer of Roche
Switzerland Holding Ltd., Grenzacherstr. 124, CH 4002 Basel,
Switzerland.
Louis V. Gerstner, Jr.* Chairman of the Board and Chief Executive
Officer, IBM
Nannerl 0. Keohane* President and Professor of Political Science,
Duke University, 207 Allen Building, Box 90001,
Durham, NC 27708
Charles F. Knight* Chairman and Chief Executive Officer, Emerson
Electric Co., 8000 West Florissant Avenue, P.O.
Box 4100, St. Louis, MO 63136
<PAGE>
2
J. Richard Munro* Chairman of the Executive Committee, Time Warner
Inc., 75 Rockefeller Plaza, New York, NY 10019
Thomas S. Murphy* Chairman of the Board, Capital Cities/ABC, Inc
77 W. 66th Street, New York, NY 10023
John B. Slaughter* President, Occidental College, 1600 Campus Road,
Los Angeles, CA 90041
Lodewijk C. van Wachem* - Chairman of the Supervisory Board, Royal Dutch
Netherlands Petroleum Company, 30 Carel van Bylandtlasn,
2596 HR, The Hague, Netherlands
Dr. Charles N. Vest* President, Massachusetts Institute of
Technology, 77 Massachusetts Avenue, Cambridge,
MA 02139
Eldgar S. Woolard, Jr.* Chairman and Chief Executive Officer, E.I. du
Pont de Nemours and Company, Inc., 1007 Market
Street, Wilmington, Delaware 19898
Jerome B. York* Senior Vice President and Chief Financial
Officer, IBM
J. Thomas Bouchard Senior Vice President, IBM
James A. Cannavino Senior Vice President, IBM
Nicholas N. Donofrio** Senior Vice President, IBM
Donato A. Evangelista Senior Vice President and General Counsel, IBM
Ned C. Lautenbach Senior Vice President, IBM
John M. Thompson - Canada Senior Vice President, IBM
<PAGE>
3
G Richard Thoman Senior Vice President, IBM
Patrick A. Toole Senior Vice President, IBM
Jeffrey D. Serkes** Vice President and Treasurer
Richard F. Wallman Vice President and Controller
- ----------
** Position effective January 31, 1995
<PAGE>
EXHIBIT INDEX
Page on Which
Number Document Exhibit Appears
------ -------- ---------------
1. Evidence of representative's authority to sign on
behalf of IBM:
Article VI Section 1 and Article V Section 11 of the
Bylaws of IBM, as amended through June 28, 1994
2. Representations and Registration Rights Agreement
dated as of January 1, 1995 between Stratasys, Inc.
and International Business Machines Corporation.
