UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the period ending April 2, 1994
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the transition period from __________ to _________
Commission file number: 1-7221
MOTOROLA, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-1115800
(State of Incorporation) (I.R.S. Employer Identification No.)
1303 E. Algonquin Road, Schaumburg, Illinois 60196
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (708) 576-5000
Indicate by check mark whether the registrant (1) has
filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90
days.
Yes [X] No [ ]
The number of shares outstanding, adjusted for the 2-
for-1 stock split, payable April 18, 1994 to stockholders of
record as of March 15, 1994, of each of the issuer's classes
of common stock, as of the close of business on April 2,
1994:
Class Number of Shares
Common Stock; $3 Par Value 558,457,255
Motorola, Inc. and Consolidated Subsidiaries
Index
Part I
Financial Information Page
Item 1 Financial Statements
Statements of Consolidated Earnings
Three-Month Periods ended
April 2, 1994 and April 3, 1993 3
Condensed Consolidated Balance Sheets
April 2, 1994 and December 31, 1993 4
Statements of Condensed Consolidated Cash Flows
Three-Month Periods ended
April 2, 1994 and April 3, 1993 5
Notes to Condensed Consolidated Financial
Statements 6
Item 2 Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
Part II
Other Information
Item 1 Legal Proceedings 12
Item 2 Changes in Securities 12
Item 4 Submission of Matters to a Vote of Security
Holders 12
Item 6 Exhibits and Reports on Form 8-K 13
Part I - Financial Information
Motorola, Inc. and Consolidated Subsidiaries
Statements of Consolidated Earnings
(Unaudited)
(In millions, except per share amounts)
Three Months Ended
April 2, April 3,
1994 1993
Net sales $ 4,693 $ 3,626
Costs and expenses
Manufacturing and other costs of sales 2,908 2,235
Selling, general and
administrative expenses 986 797
Depreciation expense 310 258
Interest expense, net 37 36
Total costs and expenses 4,241 3,326
Earnings before income taxes 452 300
Income taxes provided on earnings 154 96
Net earnings $ 298 $ 204
Net earnings per common and common equivalent share (1,2)
Fully diluted:
Net earnings per common and common
equivalent share $ 1.03 $ 0.72
Average common and common equivalent shares
outstanding, fully diluted (in millions) 294.7 287.9
(1) Before 2-for-1 stock split payable in the form of a 100
percent stock dividend on April 18, 1994. After the
stock split, fully diluted earnings per common and
common equivalent share in the first quarter was 51
cents in 1994 and 36 cents in 1993.
(2) Primary net earnings per common and common equivalent
share for the first quarters ended April 2, 1994 and
April 3, 1993 before the 2-for-1 stock split payable
April 18, 1994 was $1.03 and 73 cents, respectively, and
after the stock split was 51 cents and 36 cents,
respectively. Average primary common and common
equivalent shares outstanding for the quarters ended
April 2, 1994 and April 3, 1993 before the 2-for-1 stock
split payable April 18, 1994 were 294.7 million and
287.7 million, respectively.
See accompanying notes to condensed consolidated financial
statements.
Motorola, Inc. and Consolidated Subsidiaries
Condensed Consolidated Balance Sheets
(Unaudited)
(In millions)
April 2, December 31,
1994 1993
Assets
Cash and cash equivalents $ 728 $ 886
Short-term investments 330 358
Accounts receivable, less allowance for
doubtful accounts (1994, $91; 1993, $91) 2,678 2,476
Inventories 2,211 1,864
Other current assets 1,214 1,129
Total current assets 7,161 6,713
Property, plant and equipment, less
accumulated depreciation
(1994, $4,409; 1993, $4,160) 5,716 5,547
Other assets(1) 1,424 1,238
Total Assets $14,301 $13,498
Liabilities and Stockholders' Equity
Notes payable and current portion of
long-term debt $ 809 $ 555
Accounts payable 1,333 1,338
Accrued liabilities 2,695 2,496
Total current liabilities 4,837 4,389
Long-term debt 1,373 1,360
Other liabilities 1,329 1,340
Stockholders' equity (1) 6,762 6,409
Total liabilities and stockholders' equity $14,301 $13,498
(1) The Company adopted SFAS #115, "Accounting for Certain
Investments in Debt and Equity Securities", which
increased other assets and stockholders' equity by
immaterial amounts.
See accompanying notes to condensed consolidated financial
statements.
Motorola, Inc. and Consolidated Subsidiaries
Statements of Condensed Consolidated Cash Flows
(Unaudited)
(In millions)
Three Months Ended
April 2, April 3,
1994 1993
Net cash provided by operations $ 82 $ 380
Investing
Payments for property, plant and equipment (480) (325)
Decrease in short-term investments 28 1
Other investing activities (39) (49)
Net cash used for investing activities (491) (373)
Financing
Increase (decrease) in notes payable and
current portion of long-term debt 254 (80)
Increase in long-term debt 14 147
Payment of dividends to stockholders (31) (30)
Other financing activities 14 73
Net cash provided by financing activities 251 110
Increase (decrease) in cash and
cash equivalents $ (158) $ 117
See accompanying notes to condensed consolidated financial
statements.
Motorola, Inc. and Consolidated Subsidiaries
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. Basis of Presentation
The Condensed Consolidated Balance Sheet as of April 2,
1994, the Statements of Consolidated Earnings for the
three-month periods ended April 2, 1994 and April 3,
1993, and the Statements of Condensed Consolidated Cash
Flows for the three-month periods ended April 2, 1994 and
April 3, 1993 have been prepared by the Company. In the
opinion of management, all adjustments (which include
reclassifications and normal recurring adjustments)
necessary to present fairly the financial position,
results of operations and cash flows at April 2, 1994 and
for all periods presented, have been made.
Certain information and footnote disclosures normally
included in the financial statements prepared in
accordance with generally accepted accounting principles
have been condensed or omitted. It is suggested that
these condensed consolidated financial statements be read
in conjunction with the financial statements and notes
thereto included in the Company's December 31, 1993
annual report to stockholders. The results of operations
for the three-month period ended April 2, 1994 are not
necessarily indicative of the operating results for the
full year.
Motorola adopted Statement of Financial Accounting
Standards (SFAS) No. 115, "Accounting for Certain
Investments in Debt and Equity Securities," effective
January 1, 1994, which increased Other Assets and
Stockholders' Equity on Motorola's unaudited condensed
consolidated balance sheet at April 2, 1994 by immaterial
amounts. Investments in debt and equity securities are
reported at fair value, except for debt securities the
Company intends to hold to maturity which are stated at
cost. Fair values are estimated based on quoted market
prices and interest rates as of the balance sheet date.
2. Inventories
Inventories consist of the following:
April 2, Dec. 31,
1994 1993
Finished goods $ 714 $ 584
Work in process and productions materials 1,497 1,280
$ 2,211 $ 1,864
3. Income Taxes
The Internal Revenue Service (IRS) has examined the
federal income tax returns for Motorola, Inc. through
1985 and the returns have been settled through 1983. In
connection with the audits for the years 1984 through
1987, the IRS has proposed adjustments to the Company's
income and tax credits for those years which would result
in substantial additional tax. The Company disagrees
with most of the proposed adjustments and is contesting
them. In the opinion of the Company's management, the
final disposition of these matters, and proposed
adjustments from other tax authorities, will not have a
material adverse effect on the consolidated business or
financial position of the Company.
4. Supplemental Cash Flows Information
Cash payments for income taxes were $169 million during the
first three months of 1994 and $43 million for the same
period a year earlier. Cash payments for interest expense
(net of amount capitalized) were $38 million and $36
million, for the first three-month periods of 1994 and 1993,
respectively.
Motorola, Inc. and Consolidated Subsidiaries
Management's Discussion and Analysis
of Financial Condition and Results of Operations
This commentary should be read in conjunction with the
sections of the following documents for a full understanding
of Motorola's financial position and results of operations:
from Motorola, Inc.'s 1993 Annual Report to Stockholders,
the Letter to Stockholders - Financial Results paragraph on
page 2, the Review of Operations section on pages 18 through
21, the Financial Review section on pages 22 through 24, and
the Consolidated Financial Statements and Footnotes to the
Consolidated Financial Statements, pages 26 through 37; and
from Motorola, Inc.'s Quarterly Report on Form 10-Q for the
period ending April 2, 1994, of which this commentary is a
part, the Condensed Consolidated Financial Statements and
Notes to the Condensed Consolidated Financial Statements,
pages 3 through 7.
Motorola, Inc. reported higher sales and earnings for the
first quarter of 1994. Sales rose to $4.69 billion in the
first quarter of 1994, up 29.4 percent from $3.63 billion a
year earlier. Earnings were $298 million, compared with
$204 million in the same period a year earlier. Primary and
fully diluted net earnings per common and common equivalent
share for the first quarter of 1994 were $1.03, before the 2-
for-1 stock split payable in the form of a 100 percent stock
dividend on April 18, 1994, to stockholders of record as of
March 15, 1994, and $.51 after the stock split. In the same
period a year earlier, primary earnings per common and
common equivalent share was $.73 before the 2-for-1 stock
split, and $.36 after the stock split; and, fully diluted
net earnings per common and common equivalent share was $.72
before the 2-for-1 stock split and $.36 after the stock
split. Motorola's net margin on sales (net earnings divided
by net sales) during the first quarter of 1994 was 6.4
percent compared to 5.6 percent a year earlier
Motorola's manufacturing and other costs of sales during the
first quarter of 1994 and 1993 were $2.91 billion, 62.0
percent of net sales, and $2.24 billion, 61.6 percent of net
sales, respectively. Motorola's wireless communications
businesses have been attracting significant price
competition for some time, which is expected to continue.
Motorola intends to protect and, if possible, improve its
market share in these businesses by utilizing its high
volume manufacturing capabilities. This may also mean
tolerating lower gross margins per unit. It is management's
current intention to budget selling, general and
administrative expense in line with this strategy.
Motorola's selling, general and administrative expenses
during the first quarter of 1994 were $986 million, 21.0
percent of sales, versus $797 million, 22.0 percent of
sales, a year ago. Included within these expenses for the
first quarter of 1994 was a higher level of expenses for
unique transactions, which included expenses pertaining to a
technology dispute and certain employee benefit programs.
Charges for these expenses, or other expenses, have been
incurred in varying degrees in most years and will likely
continue. Motorola's selling, general and administrative
expenses during the quarter also included a foreign exchange
loss, in comparison to a slight foreign exchange gain in the
year-earlier period.
Motorola adopted Statement of Financial Accounting Standards
(SFAS) No. 115, "Accounting for Certain Investments in Debt
and Equity Securities," effective January 1, 1994, which
increased Other Assets and Stockholders' Equity on
Motorola's unaudited condensed consolidated balance sheet at
April 2, 1994 by immaterial amounts.
Inventories at April 2, 1994 increased by 18.6 percent or
$347 million, compared to inventories at December 31, 1993.
The Government Systems and Technology Group was a primary
contributor to the increase in inventory due to material
requirements for the Iridium (TM/SM) global personal
communications system. In addition, a group within
Motorola's General System Sector increased inventory for
certain wireless products in order to improve responsiveness
to customer orders. Motorola's internal consumption of some
of its products, generally semiconductors, crystals, ceramic
filters and batteries, also grew in the first quarter of
1994. Because of this growth, a larger amount of these
products remained in the inventory of Motorola's wireless
businesses than had previously been experienced.
Motorola's Semiconductor Product Sector continues to
experience limits on the amount of orders it can accept for
certain types of products, due to capacity constraints.
These constraints may also restrict Motorola's ability to
ship cellular telephones and certain other products. If
customer demand for semiconductors and wireless
communications products remains strong, Motorola does not
expect that these capacity constraints will ease until its
new wafer fabrication capacity becomes available. This is
not expected to occur until late 1994.
Orders for the Company's products are used to plan its
future production needs. Motorola has a general practice of
including in its reported order growth only those contracts
or commitments which are written and firm, and which it
believes will result in a sale within one year. For long-
term contracts, only the portion to be funded within a year
generally is recorded as an order. For products and
contracts involving certain new technologies, Motorola's
general practice is to defer recognition of revenues and
profits until technological feasibility is established or
customer acceptance is obtained.
General Systems Sector's segment sales rose to $1.67
billion, an increase of 57 percent from the first quarter of
1993. Orders increased 62 percent and operating profits
were higher than in the first quarter of 1993. In Japan, an
agreement was reached with Nippon Idou Tsushin Corp. (IDO)
to begin expanding the service area for the Motorola TACS
system in the Tokyo and Nagoya areas.
Segment sales in the Semiconductor Products Sector increased
26 percent from the first quarter of 1993 to $1.62 billion,
the 21st consecutive quarter of growth. Orders increased 15
percent and operating profits were higher than in the first
quarter of 1993. Orders increased in all major market
regions, led by the Americas and Japan, and in all four of
the Sector's major product groups. Among key market
segments, demand was highest in automotive, communication
and computing. Distributor orders were up significantly.
Construction began on a new design and development center in
Sendai, Japan. The sector began production in the newly
acquired wafer fabrication facility in Irvine, California.
In the Communications Segment businesses, composed of the
Land Mobile Products Sector and the Paging Products and
Wireless Data Groups, segment sales increased 20 percent to
$1.24 billion and operating profits were higher from the
first quarter of 1993. Orders increased 1 percent from the
first quarter of 1993. Land Mobile Products orders were
lower, as a decline in international markets more than
offset an increase in the United States. Paging Products
Group orders were higher, with strong order growth in the
U.S., but lower international orders, due to lower orders in
China. The business of the Land Mobile Products Sector is
increasingly becoming focused on large system awards and
their associated subscriber equipment, which increases the
potential for volatility in orders from period to period.
Motorola, Clearnet, Inc. and Nextel Communications, Inc.
announced the execution of an agreement in principle that
would create an Enhanced Specialized Mobile Radio (ESMR)
network across Canada that would use Motorola Integrated
Radio System equipment. As part of this agreement, a
subsidiary of Motorola would transfer its 800 MHz
specialized mobile radio businesses, systems and licenses in
a region of Canada to a new entity, in return for stock in
that entity. A binding commitment to complete this
transaction is subject to a number of significant
conditions, including, among other items, agreement on
definitive documents, receipt of all necessary governmental
approvals and approvals by specified boards of directors and
stockholders.
In the Government and Systems Technology Group, segment
sales increased 10 percent from the first quarter of 1993 to
$138 million, orders increased 241% from the year-earlier
period and the operating loss increased. A significant
portion of the order growth is attributable to the Iridium
global communications system, which continued on schedule
during the quarter.
In the Automotive, Energy and Controls Group, sales
increased 58 percent, orders increased 60 percent and
operating profits were higher from the first quarter of
1993. Results were up across all of the Group's major
businesses, led by energy and component products and
continued strength in automotive electronics. In the
Information Systems Group, sales declined 7 percent and
orders were 11 percent lower from the first quarter of 1993.
An operating loss was incurred during the first quarter of
1994, versus a profit in the year-earlier period. Delays in
new product introduction and competitive pricing pressures
adversely affected this Group's results. The results for
both of these Groups are reported as part of the "Other
Products" segment.
Motorola's notes payable and current portion of its long-
term debt increased to $809 million at April 2, 1994, an
increase of approximately 45.8 percent from the amount at
December 31, 1993, primarily due to increased capital
expenditures and material requirements. Net debt to net
debt plus equity (includes short-term investments
categorized as cash equivalents) rose to 16.7 percent at
April 2, 1994 from 11.9 percent at December 31, 1993.
During the quarter, Motorola also called its 11.5 percent
Eurodollar notes due 1997, effective May 9, 1994, at a rate
of 101 percent of their principal amount. The Company's
short-term credit facilities totaled $2.2 billion at April
2, 1994, of which $1.5 billion remain unused versus total
short-term credit facilities at December 31, 1993 totaling
$1.9 billion of which $1.5 billion then remained unused.
Motorola's current ratio (the ratio of current assets to
current liabilities) was 1.48 at April 2, 1994, compared to
1.53 at December 31, 1993.
Motorola's research and development expense was $410 million
in the first quarter of 1994, compared to $344 million in
the first quarter of 1993. Motorola continues to believe
that a strong commitment to research and development drives
long-term growth. At April 2, 1994, the Company's fixed
asset expenditures for the first quarter totaled $613
million, compared to $325 million in the first quarter of
1993. The Company is currently anticipating that fixed
asset and research and development expenditures incurred
during 1994 could total approximately $2.9 billion, and
approximately $1.7 billion, respectively; however, these
amounts are only estimates, and the actual expenditures
incurred may vary. Total fixed asset and research and
development expenditures for the year ended December 31,
1993 were $2.1 billion and $1.5 billion, respectively.
Return on average invested capital (net earnings divided by
the sum of stockholders' equity, long-term debt, and notes
payable and the current portion of long-term debt, less
short-term investments and cash equivalents) was 15.8
percent based on the performance of the four preceding
fiscal quarters ending April 2, 1994, compared with 10.8
percent based on the performance of the four preceding
fiscal quarters ending April 3, 1993.
TM/SM Iridium is a trademark and service mark of Iridium,
Inc.
Information by Industry Segment (Unaudited)
Summarized below are the Company's segment sales as defined
by industry segment for the quarters ended April 2, 1994 and
April 3, 1993:
(In millions) Q1 1994 Q1 1993 % Change
General Systems Products $1,667 $1,059 57
Semiconductor Products 1,615 1,282 26
Communications Products 1,242 1,031 20
Government and Systems
Technology Products 138 125 10
Other Products 541 408 33
Adjustments and eliminations (510) (279) 83
Industry segment totals $4,693 $3,626 29
Information for 1993 has been reclassified to reflect the
realignment of various business units.
Part II - Other Information
Item 1 - Legal Proceedings.
There are currently five cases pending in Phoenix, Arizona
arising out of alleged ground water, soil and air pollution
in Phoenix and Scottsdale, Arizona. (See Item 3 of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1993.) In Lofgren et al. v. Motorola et al.,
plaintiffs have dismissed, without prejudice, their class
action allegations, and the Lofgren case has been
consolidated with Betancourt et al. v. Motorola et al. in
the Arizona Superior Court, Maricopa County. This
consolidated case now involves claims for personal injury by
approximately 70 individuals against Motorola and eleven
other defendants. In the opinion of management, the
ultimate disposition of these matters will not have a
material adverse effect on the business or financial
position of Motorola.
Item 2 - Changes in Securities.
The Company's Restated Certificate of Incorporation, which
defines the rights of the holders of the Company's common
stock, has been amended to increase the number of authorized
shares of the Company's common stock from 700,000,000 to
1,400,000,000. Such amendment generally permits the Board
of Directors of the Company to authorize the issuance of
additional shares of the Company's common stock without
further stockholder approval.
Item 3 - Defaults Upon Senior Securities.
Not applicable.
Item 4 - Submission of Matters to a Vote of Security Holders.
(a) and (c). The Company held its annual meeting of
stockholders on May 3, 1994, and the following matters were
voted on at that meeting:
1. The election of the following directors who will serve
until their successors are elected and qualified, or
their earlier death or resignation:
BROKER
DIRECTOR FOR WITHHELD NON-VOTES
Erich Bloch 235,672,627 876,825 0
David R. Clare 236,131,192 418,260 0
Wallace C. Doud 236,126,462 422,990 0
Christopher B. Galvin 236,118,086 431,366 0
Robert W. Galvin 236,120,954 428,497 0
John T. Hickey 235,667,758 881,694 0
Anne P. Jones 236,127,103 422,349 0
Donald R. Jones 236,676,908 872,544 0
Walter E. Massey 236,105,802 443,650 0
John F. Mitchell 236,130,895 418,557 0
Thomas J. Murrin 236,136,020 413,431 0
Samuel C. Scott III 236,130,763 418,689 0
Gary L. Tooker 236,132,860 416,592 0
Gardiner L. Tucker 235,674,005 875,446 0
William J. Weisz 235,681,369 868,083 0
B. Kenneth West 236,139,268 410,184 0
2. An amendment to the Company's Restated Certificate of
Incorporation to increase the authorized shares of common
stock, $3 par value, from 700,000,000 to 1,400,000,000
was approved by the following vote: For, 222,075,378 ;
Against, 13,247,266 ; Abstain, 1,226,808 and Broker Non-Votes, 0 .
3. The adoption of the Motorola Long Range Incentive Plan
of 1994 was approved by the following vote: For,
231,250,328 ; Against, 3,849,051 ; Abstain, 1,450,072 ;
and Broker Non-Votes, 0 .
4. A proposal concerning the creation of an independent
nominating committee was defeated by the following vote:
For, 21,594,925 ; Against, 178,444,754 ; Abstain,
9,794,178 ; and Broker Non-Votes, 26,715,594 .
Item 5 - Other Information.
Not applicable.
Item 6 - Exhibits and Reports on Form 8-K.
(a) Exhibits
3(i)(a) Certificate of Amendment of Restated
Certificate of Incorporation, filed May 5,
1994.
3(i)(b) Restated Certificate of Incorporation, as
amended through May 5, 1994, including
Certificate of Designation, Preferences and
Rights of Junior Participating Preferred
Stock, Series A.
3(ii) Bylaws of Motorola, Inc., as amended through
May 3, 1994.
11 Motorola, Inc. and Consolidated Subsidiaries
Primary and Fully Diluted Earnings Per Common
and Common Equivalent Share.
11.1 Motorola, Inc. and Consolidated Subsidiaries
Pro Forma Primary and Fully Diluted Earnings
Per Common and Common Equivalent Share Giving
Retroactive Effect to the March 15, 1994 2-
for-1 Stock Split.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the
first quarter of 1994.
Signature
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
MOTOROLA, INC.
(Registrant)
Date: May 9, 1994 By: /s/ Kenneth J. Johnson
Kenneth J. Johnson
Corporate Vice President and Controller
(Chief Accounting Officer and Duly
Authorized Officer of the Registrant)
EXHIBIT INDEX
Number Description of Exhibit Page No.
3(i)(a) Certificate of Amendment of Restated Certificate
of Incorporation, filed May 5, 1994. 16
3(i)(b) Restated Certificate of Incorporation, as
amended through May 5, 1994, including
Certificate of Designation, Preferences
and Rights of Junior Participating
Preferred Stock, Series A. 18
3(ii) Bylaws of Motorola, Inc., as amended through
May 3, 1994. 33
11 Motorola, Inc. and Consolidated Subsidiaries
Primary and Fully Diluted Earnings Per
Common and Common Equivalent Share. 48
11.1 Motorola, Inc. and Consolidated Subsidiaries
Pro Forma Primary and Fully Diluted Earnings
Per Common and Common Equivalent Share Giving
Retroactive Effect to the
March 15, 1994 2-for-1 Stock Split. 49
Exhibit 3(i)(a)
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
MOTOROLA, INC.
* * * * * * * * * *
MOTOROLA, INC., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Company"), DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of the Company, at a meeting duly called
and held on February 1, 1994, adopted a resolution proposing and declaring
advisable the following amendment to the Restated Certificate of Incorporation
of said corporation:
RESOLVED, that this Board of Directors hereby declares advisable, and proposes
to the stockholders and recommends that they adopt, an amendment to the first
paragraph of Article 4 of the Company's Restated Certificate of Incorporation
to increase the number of authorized shares of Common Stock, $3 par value, of
the Company from 700,000,000 shares to 1,400,000,000 shares; and declares that
such proposed amendment be submitted to a vote by the stockholders at the 1994
Annual Meeting of Stockholders; and that such proposed amendment be included
in the board of directors' proxy statement of the 1994 Annual Meeting of
Stockholders and the associated notices, proxy and voting instruction form.
SECOND: That thereafter pursuant to the resolution of its Board of Directors
the annual meeting of the stockholders of such corporation was duly called and
held on May 3, 1994, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting a majority of the
outstanding shares of Common Stock of the Company, the only class entitled to
vote thereon, voted in favor of the amendment.
THIRD: That the first paragraph of Article 4 of the Restated Certificate of
Incorporation is therefore amended to read as follows:
The number of shares which the corporation shall have authority to issue,
itemized by classes, par value of shares, shares without par value, and
series, if any within a class, is:
Par Value Per
Share or Statement
Series Number of that Shares Are
Class (If Any) Shares Without Par Value
Preferred To be issued 500,000 $100
in series
Common None 1,400,000,000 $3
FOURTH: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, Motorola, Inc. has caused this certificate to be signed by
A. Peter Lawson, its Corporate Vice President and attested by James K. Markey,
its Assistant Secretary, this 5th day May 1994.
MOTOROLA, INC.
By: /s/ A. Peter Lawson
Corporate Vice President
ATTEST:
By: /s/ James K. Markey
Assistant Secretary
Exhibit 3(i)(b)
RESTATED
CERTIFICATE OF INCORPORATION
OF
MOTOROLA, INC. AS AMENDED THROUGH MAY 5, 1994
ARTICLE 1
The name of the corporation is
MOTOROLA, INC.
ARTICLE 2
The address of the corporation's registered office in the State of Delaware is
1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of the corporation's registered agent at such address is The Corporation Trust
Company.
ARTICLE 3
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE 4
The number of shares which the corporation shall have authority to issue,
itemized by classes, par value of shares, shares without par value, and
series, if any within a class, is:
Par Value Per
Share or State-
ment that Shares
Series Number of are Without Par
Class (If any) Shares Value
Preferred To be issued 500,000 $100
in series
Common None 1,400,000,000 $3
The powers, preferences and rights, and the qualifications, limitations or
restrictions thereof relating to the Preferred Stock and the Common Stock are:
The Preferred Stock:
(1) The Preferred Stock may be issued from time to time in one or more series
and with such designation for each such series as shall be stated and
expressed in the resolution or resolutions providing for the issue of each
such series adopted by the Board of Directors. The Board of Directors in any
such resolution or resolutions is expressly authorized to state and express
for each such series:
(i) The voting powers, if any, of the holders of stock of such series;
(ii) The rate per annum and the times at and conditions upon which the holders
of stock of such series shall be entitled to receive dividends, and whether
such dividends shall be cumulative or noncumulative and if cumulative the
terms upon which such dividends shall be cumulative;
(iii) The price or prices and the time or times at and the manner in which the
stock of such series shall be redeemable;
(iv) The right to which the holders of the shares of stock of such series
shall be entitled upon any voluntary or involuntary liquidation, dissolution
or winding up of the corporation;
(v) The terms, if any, upon which shares of stock of such series shall be
convertible into, or exchangeable for, shares of stock of any other class or
classes or of any other series of the same or any other class or classes,
including the price or prices or the rate or rates of conversion or exchange
and the terms of adjustment, if any; and
(vi) Any other designations, preferences, and relative, participating,
optional or other special rights, and qualification, limitations or
restrictions thereof so far as they are not inconsistent with the provisions
of the Certificate of Incorporation, as amended, and to the full extent now or
hereafter permitted by the laws of Delaware.
(2) All shares of the Preferred Stock of any one series shall be identical to
each other in all respects, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon, if
cumulative, shall be cumulative.
The Common Stock:
(1) The Common Stock may be issued by the corporation from time to time for
such consideration and upon such terms as may be fixed from time to time by
the Board of Directors and as may be permitted by law, without action by any
stockholders.
(2) The holders of Common Stock shall be entitled to dividends only if, when
and as the same shall be declared by the Board of Directors and as may be
permitted by law.
(3) Each share of the Common Stock shall entitle the holder thereof to one
vote, in person or by proxy, at any and all meetings of the stockholders of
the corporation on all propositions before such meetings and on all elections
of Directors of the corporation.
ARTICLE 5
The number of directors of the corporation shall be fixed by the bylaws and
may be altered from time to time as may be provided therein, but in no event
shall the number of directors of the corporation be less than three.
ARTICLE 6
The following provisions are inserted for the regulation of the business and
for the conduct of the affairs of the corporation.
Section 1. The Board of Directors is expressly authorized to make, alter,
amend, or repeal the bylaws of the corporation and to adopt new bylaws.
Section 2. The stockholders and directors shall have power to hold their
meetings as the bylaws so provide, and keep books, documents and papers of the
corporation, outside of the State of Delaware, except as otherwise required by
the laws of Delaware.
Section 3. The corporation reserves the right to amend, alter or repeal any
provision contained in its Certificate of Incorporation in the manner now or
hereafter prescribed by the Statutes of Delaware, and all rights and powers
conferred on directors and stockholders herein are granted subject to this
reservation.
ARTICLE 7
Section 1. Elimination of Certain Liability of Directors. A director of the
corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to further
eliminate or limit the liability of a director, then a director of the
corporation, in addition to the circumstances in which a director is not
personally liable as set forth in the preceding paragraph, shall not be liable
to the fullest extent permitted by the amended Delaware General Corporation
Law.
Any repeal or modification of the foregoing two paragraphs by the stockholders
of the corporation shall not adversely affect any right or protection of a
director of the corporation existing at the time of such repeal or
modification.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director or
officer of the corporation or is or was serving (at such time as such person
is or was a director or officer of the corporation) at the request of the
corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans (hereinafter an "indemnitee"),
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity while
serving as a director, officer, employee or agent, shall be indemnified and
held harmless by the corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification rights
than said law permitted the corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in paragraph (b) hereof with respect to proceedings
to enforce rights to indemnification, the corporation shall indemnify any such
indemnitee seeking indemnification in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the corporation. The
right to indemnification conferred in this Section shall be a contract right
and shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter "advances"); provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by an
indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the corporation of an undertaking, by or on behalf
of such indemnitee, to repay all advances if it shall ultimately be determined
by final judicial decision that such indemnitee is not entitled to be
indemnified under this Section or otherwise. The corporation may, by
action of its Board of Directors or by action of any person to whom the Board
of Directors has delegated such authority, provide indemnification to
employees and agents of the corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of this
Section is not paid in full by the corporation within thirty days after a
written claim has been received by the corporation, the indemnitee may at any
time thereafter bring suit against the corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit or in
a suit brought by the corporation to recover advances, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such claim.
In any action brought by the indemnitee to enforce a right hereunder (other
than an action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking, if any, has been tendered to the corporation) it shall be a
defense that, and in any action brought by the corporation to recover advances
the corporation shall be entitled to recover such advances if, the indemnitee
has not met the applicable standard of conduct set forth in the Delaware
General Corporation Law. Neither the failure of the corporation (including its
Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the indemnitee is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall be a defense to an action brought by the indemnitee or create a
presumption that the indemnitee has not met the applicable standard of
conduct. In any action brought by the indemnitee to enforce a right hereunder
or by the corporation to recover payments by the corporation of advances, the
burden of proof shall be on the corporation.
(c) Non-Exclusivity of Rights. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF JUNIOR PARTICIPATING PREFERRED STOCK, SERIES A
of
MOTOROLA, INC.
Pursuant to Section 151 of the Corporation Law
of the State of Delaware
We, A. Peter Lawson, Corporate Vice President, and Victor R. Kopidlansky,
Assistant Secretary, of Motorola, Inc., a corporation organized and existing
under the Corporation Law of the State of Delaware, in accordance with the
provisions of Section 151 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of the said Corporation, the said Board of
Directors on November 9, 1988, adopted the following resolution creating a
series of one hundred and fifty thousand (150,000) shares of Preferred Stock
designated as Junior Participating Preferred Stock, Series A:
RESOLVED, that pursuant to the authority vested in the Board of Directors of
this Corporation in accordance with the provisions of its Certificate of
Incorporation a series of Preferred Stock of the Corporation be, and it hereby
is, created, and that the designation and amount thereof and the voting
powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Junior Participating Preferred Stock, Series A" (the "Series A
Preferred Stock") and the number of shares constituting such series shall be
150,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares of
any series of Preferred Stock ranking prior and superior to the shares of
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, $3 par
value per share, of the Corporation (the "Common Stock") and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the fifteenth day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share of Series A
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $250 or (b) subject to the provision for adjustment
hereinafter set forth, 1000 times the aggregate per share amount of all cash
dividends, and 1000 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since
the immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time on or after November 9, 1988, declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision of combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series
A Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on the Series A
Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during
the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $250 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
C) Dividends shall begin to accrue and be cumulative on outstanding shares of
Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of
Series A Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share
of Series A preferred Stock shall entitle the holder thereof to 1000 votes on
all matters submitted to a vote of the stockholders of the Corporation. In the
event the Corporation shall at any time on or after November 9, 1988, declare
or pay any dividend on Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled immediately prior
to such event shall be adjusted by multiplying such number by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of shares of
Series A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) Except as set forth herein, holders of Series A Preferred Stock shall have
no special voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable
on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series A Preferred Stock outstanding
shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, or make any other distributions on, any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series A
Preferred Stock, or any shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative rights and preferences
of the respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of
preferred stock and may be reissued as part of a new series of preferred stock
to be created by resolution or resolutions of the Board of Directors, subject
to the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation. Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made
(1) to the holders of shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A Preferred
Stock unless, prior thereto, the holders of shares of Series A Preferred Stock
shall have received $1000 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1000
times the aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time on
or after November 9, 1988 declare or pay any dividend on Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1) of
the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares
of Series A Preferred Stock then outstanding shall at the same time be
similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1000 times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall at any time
on or after November 9, 1988 declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
Section 9. Amendment. The Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of two-
thirds of the outstanding shares of Series A Preferred Stock, voting together
as a single class.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury as of the 27th day
of April, 1990.
/s/ A. Peter Lawson
Corporate Vice President
ATTEST:
/s/ Victor R. Kopidlansky
Assistant Secretary
Exhibit 3(ii)
Revised as of May 3, 1994
MOTOROLA, INC.
BYLAWS
ARTICLE I
Offices and Corporate Seal
The registered office of the Corporation required by the Delaware General
Corporation Law shall be 1209 Orange Street, Wilmington, Delaware, 19801, and
the address of the registered office may be changed from time to time by the
Board of Directors.
The principal business office of the Corporation shall be located in the
Village of Schaumburg, County of Cook, State of Illinois. The Corporation may
have such other offices, either within or without the State of Illinois, as
the Board of Directors may designate or as the business of the Corporation may
require from time to time.
The registered office of the Corporation required by the Illinois Business
Corporation Act may be, but need not be, the same as its place of business in
the State of Illinois, and the address of the registered office may be changed
from time to time by the Board of Directors.
The Board of Directors shall provide a corporate seal which shall be circular
in form and shall have inscribed thereon the name of the Corporation and the
state of incorporation and the words "Corporate Seal".
ARTICLE II
Board of Directors
Section 1. General Powers. The business and affairs of the Corporation shall
be managed by, or under the direction of, its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of directors of the
Corporation shall be sixteen (16), or such other number fixed from time to
time by the Board of Directors. Each director shall hold office until his
successor shall have been elected and qualified, or until his earlier death or
resignation.
Section 3. Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled for the remainder of the unexpired term by the affirmative vote of a
majority of the directors then in office although less than a quorum.
Section 4. Compensation. Directors who also are employees of the Corporation
shall not receive any additional compensation for services on the Board of
Directors. By resolution of the Board of Directors, a fixed sum may be
allowed directors who are not employees of the Corporation for attendance at
each regular or special meeting of the Board of Directors or any committee of
the Board of Directors, and by resolution of the Board of Directors an
additional fixed fee may be allowed directors who are not employees of the
Corporation in consideration of other services and continuous interest and
study of the affairs of the Corporation. Travel and other expenses actually
incurred may be allowed all directors for attendance at each regular or
special meeting of the Board of Directors or at any meeting of a committee of
the Board of Directors or in connection with their other services to the
Corporation. Nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 5. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees. Each committee shall consist of one or more of the directors of
the Corporation, as selected by the Board of Directors, and the Board of
Directors shall also designate a chairman of each committee and the members of
each committee shall designate a person to act as secretary of the committee
to keep the minutes of, and serve the notices for, all meetings of the
committee and perform such other duties as the committee may direct. Such
person may, but need not be a member of the committee. Any such committee, to
the extent provided in a resolution of the Board of Directors, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power and authority of the Board of
Directors in reference to amending the Certificate of Incorporation, adopting
an agreement of merger or consolidation under Section 251 or 252 of the
Delaware General Corporation Law, recommending to the shareholders the sale,
lease or exchange of all or substantially all of the Corporation's property
and assets, recommending to the shareholders a dissolution of the Corporation
or a revocation of a dissolution, or amending the Bylaws of the Corporation,
and, unless the resolution expressly so provides, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock or to adopt a certificate of ownership and merger pursuant to Section
253 of the Delaware General Corporation Law. Each committee of the Board of
Directors may establish its own rules of procedure. Except as otherwise
specified in a resolution designating a committee, one-third of the members of
a committee shall be necessary to constitute a quorum of that committee for
the transaction of business and the act of a majority of committee members
present at a meeting at which a quorum is present shall be the act of the
committee.
Section 6. Validity of Contracts. No contract or other transaction entered
into by the Corporation shall be affected by the fact that a director or
officer of the Corporation is in any way interested in or connected with any
party to such contract or transaction, or himself is a party to such contract
or transaction, even though in the case of a director the vote of the director
having such interest or connection shall have been necessary to obligate the
Corporation upon such contract or transaction; provided, however, that in any
such case (i) the material facts of such interest are known or disclosed to
the directors or shareholders and the contract or transaction is authorized or
approved in good faith by the shareholders or by the Board of Directors or a
committee thereof through the affirmative vote of a majority of the
disinterested directors (even though not a quorum), or (ii) the contract or
transaction is fair to the Corporation as of the time it is authorized,
approved or ratified by the shareholders, or by the Board of Directors, or by
a committee thereof.
ARTICLE III
Shareholders' Meetings
Section 1. Place of Meetings. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting called by the Board of
Directors. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal business office of the
Corporation in the State of Illinois.
Section 2. Annual Meetings. The annual meeting of the shareholders shall be
held on the first Tuesday in the month of May in each year, at the hour of
5:00 o'clock P.M., or at such other day and hour as may be fixed by or under
the authority of the Board of Directors, for the purpose of electing directors
and for the transaction of such other business as may come before the meeting.
If the day fixed for the annual meeting shall be a legal holiday in the state
where the meeting is to be held, such meeting shall be held on the next
succeeding business day. If the election of directors shall not be held on
the day designated herein for the annual meeting of the shareholders, or at
any adjournment thereof, the Board of Directors shall cause the election to be
held at a special meeting of the shareholders as soon thereafter as is
convenient.
Section 3. Special Meetings. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the Chairman of the Board or by the Board of Directors.
Section 4. Voting - Quorum. Each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting
of shareholders, except to the extent that the voting rights of any class or
classes are enlarged, limited or denied by the Certificate of Incorporation or
in the manner therein provided. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders. If a quorum is present, the affirmative vote of a majority of
the shares represented at the meeting and entitled to vote on the subject
matter shall be the act of the shareholders, except that directors shall be
elected by a plurality of the votes of the shares represented at the meeting
and entitled to vote on the election of directors, except as otherwise
required by Delaware law, the Certificate of Incorporation, or these Bylaws.
No matter shall be considered at a meeting of shareholders except upon a
motion duly made and seconded. If less than a majority of the outstanding
shares are represented at a meeting, a majority of the shares so represented
may adjourn the meeting from time to time without further notice. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally called.
Section 5. Proxies. At all meetings of shareholders, a shareholder may vote
by proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. No proxy shall be valid after three years from the date of
its execution, unless otherwise provided in the proxy.
Section 6. Notice of Meetings. Written notice stating the place, day and
hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
days (twenty days if the shareholders are to approve a merger or consolidation
or a sale, lease or exchange of all or substantially all the Corporation's
assets) nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the Chairman of the Board, or
the Secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the records of
the Corporation, with postage thereon prepaid.
Section 7. Voting Lists. The officer or agent having charge of the stock
ledger of the Corporation shall make, at least ten days before each meeting of
shareholders, a complete list of the shareholders entitled to vote at such
meeting, or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each; which list, for a period of
ten days prior to such meeting, shall be kept at the place where the meeting
is to be held, or at another place within the city where the meeting is to be
held, which other place shall be specified in the notice of meeting and the
list shall be subject to inspection by any shareholder for any purpose germane
to the meeting, at any time during usual business hours. Such list shall also
be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any shareholder during the whole time of the
meeting. The original stock ledger shall be prima facie evidence as to who
are the shareholders entitled to examine such list or ledger or to vote at any
meeting of shareholders.
Section 8. Fixing of Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or entitled to receive payment of any dividend, or
in order to make a determination of shareholders for any other proper purpose,
the Board of Directors of the Corporation may fix in advance a date as the
record date for any such determination of shareholders, such date in any case
to be not more than sixty days and, in case of a meeting of shareholders, not
less than ten days prior to the date on which the particular action, requiring
such determination of shareholders, is to be taken. If no record date is
fixed for the determination of shareholders entitled to notice of or to vote
at a meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the close of business on the date next preceding the date on which
notice of the meeting is mailed or the date on which the resolution of the
Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this Section, such determination shall apply to
any adjournment thereof; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 9. Voting of Shares by Certain Holders. Neither treasury shares nor
shares of the Corporation held by another corporation, if a majority of the
shares entitled to vote in the election of directors of such other corporation
is held, directly or indirectly, by the Corporation, shall be entitled to vote
or to be counted for quorum purposes. Nothing in this paragraph shall be
construed as limiting the right of the Corporation to vote its own stock held
by it in a fiduciary capacity.
Shares standing in the name of another corporation, domestic or foreign, may
be voted in the name of such corporation by any officer thereof or pursuant to
any proxy executed in the name of such corporation by any officer of such
corporation in the absence of express written notice filed with the Secretary
that such officer has no authority to vote such shares.
Shares held by an administrator, executor, guardian, conservator, trustee in
bankruptcy, receiver or assignee for creditors may be voted by him, either in
person or by proxy, without a transfer of such shares into his name. Shares
standing in the name of a fiduciary may be voted by him, either in person or
by proxy.
A shareholder whose shares are pledged shall be entitled to vote such shares
unless in the transfer by the pledgor on the books of the Corporation the
pledgor has expressly empowered the pledgee to vote thereon, in which case
only the pledgee, or his proxy, may represent such stock and vote thereon.
Section 10. Advance Notice of Shareholder Nominations and Proposals for other
Business. Nominations of persons for election to the Board of Directors and
the proposal of business to be transacted by the shareholders may be made at
an annual or special meeting of the shareholders only (a) pursuant to the
Corporation's notice with respect to such meeting, (b) by or at the direction
of the Board of Directors or (c) by any shareholder of the Corporation who was
a shareholder of record on the record date set with respect to such meeting as
provided for in Section 8 of Article III, who is entitled to vote at the
meeting and who has complied with the notice procedures set forth in this
Section 10. For nominations or proposals for other business to be properly
brought before an annual or special meeting by a shareholder pursuant to
clause (c) above, the shareholder must give timely notice thereof in writing
to the Secretary of the Corporation and such business must be a proper matter
for shareholder action under the Delaware General Corporation Law and a proper
matter for consideration at such meeting under the Certificate of
Incorporation and these Bylaws. For such notice to be timely, it must be
delivered to the Secretary at the principal business office of the Corporation
not earlier than the 90th day prior to the date of such meeting and not later
than the close of business on the later of (i) the 60th day prior to the date
of such meeting or (ii) the 10th day following the day on which public
announcement of the date of such meeting is first made. If such shareholder's
notice relates to a proposal by such shareholder to nominate one or more
persons for election or re-election as a director, it shall set forth all
information relating to each such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act") (including, if and to the extent so
required, such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected). If such shareholder's
notice relates to any other business that the shareholder proposes to bring
before the meeting, it shall set forth a brief description of such business,
the reasons for conducting such business at the meeting and any material
interest in such business of such shareholder and the beneficial owner, if
any, on whose behalf the proposal is made. Each such notice shall also set
forth as to the shareholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (i) the name and
address of such shareholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of capital stock
of the Corporation which are owned beneficially and of record by such
shareholder and such beneficial owner. Persons nominated by shareholders to
serve as directors of the Corporation who have not been nominated in
accordance with this Section 10 shall not be eligible to serve as directors.
Only such business shall be conducted at an annual or special meeting of
shareholders as shall have been brought before the meeting in accordance with
this Section 10. The chairman of the meeting shall determine whether a
nomination or any business proposed to be transacted by the shareholders has
been properly brought before the meeting and, if any proposed nomination or
business has not been properly brought before the meeting, the chairman shall
declare that such proposed business or nomination shall not be presented for
shareholder action at the meeting. For purposes of this Section 10, "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or a comparable national news service.
Notwithstanding any provision in this Section 10 to the contrary, requests for
inclusion of proposals in the Corporation's proxy statement made pursuant to
Rule 14a-8 under the Exchange Act shall be deemed to have been delivered in a
timely manner if delivered in accordance with such Rule. Notwithstanding
compliance with the requirements of this Section 10, the chairman presiding at
any meeting of the shareholders may, in his sole discretion, refuse to allow a
shareholder or shareholder representative to present any proposal which the
Corporation would not be required to include in a proxy statement under any
rule promulgated by the Securities and Exchange Commission.
ARTICLE IV
Board of Directors' Meetings
Section 1. Annual Meetings. An annual meeting of the Board of Directors
shall be held without other notice than this Bylaw immediately after, and at
the same place as, the annual meeting of shareholders.
Section 2. Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place, either within or without the State of
Delaware, as the place for holding any special meeting of the Board of
Directors called by them.
Section 3. Notice. Except as set forth in the next sentence, notice of any
special meeting shall be given at least 24 hours prior to the meeting by
written notice delivered or given personally (including by phone) or by mail
or telegram or other written communication to each director at his business
address or residence. If, however, the meeting is called by or at the request
of the Chairman of the Board and if the Chairman of the Board decides that
unusual and urgent business is to be transacted at the meeting (which decision
shall be conclusively demonstrated by his giving notice of the meeting less
than 24 hours prior to the meeting), then at least 2 hours' prior notice shall
be given. If notice is given by telegram or courier, such notice shall be
deemed to be given when the telegram is delivered to the telegraph company or
courier company and any personal notice shall be deemed given when given. Any
director may waive notice of any meeting. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting and objects thereat to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
Section 4. Quorum. One-third of the number of directors fixed by, or
pursuant to, Section 2 of Article II shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such one-third is present at a meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice.
Section 5. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the
Board of Directors.
Section 6. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
taken unless his dissent is entered in the minutes of the meeting or unless he
files his written dissent to such action with the person acting as the
secretary of the meeting before the adjournment thereof or forwards such
dissent by registered mail to the Secretary of the Corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply
to a director who voted in favor of such action.
Section 7. Action by Directors Without a Meeting. Any action required to be
taken at a meeting of directors, or at a meeting of a committee of directors,
or any other action which may be taken at a meeting, may be taken without a
meeting if a consent in writing setting forth the action so taken shall be
signed by all of the directors or members of the committee thereof entitled to
vote with respect to the subject matter thereof and filed with the minutes of
proceedings of the Board of Directors or committee and such consent shall have
the same force and effect as a unanimous vote.
Section 8. Participation in a Meeting by Telephone. Members of the Board of
Directors or any committee of directors may participate in a meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participating in a meeting pursuant to this Section 8 shall
constitute presence in person at such meeting.
ARTICLE V
Officers and Chairman of the Board
Section 1. Number, Election, Appointment, Removal, Vacancy. The elected
officers of the Corporation shall be one Vice Chairman of the Board and Chief
Executive Officer, a President, one or more Vice Presidents, a Chief Financial
Officer, a Treasurer, a Secretary and a Controller, each of whom shall be
elected by the Board of Directors. The appointed officers of the Corporation
shall be one or more Assistant Treasurers and Assistant Secretaries, each of
whom shall be appointed by the Vice Chairman and Chief Executive Officer and
shall serve at his pleasure. The Board of Directors may designate one or more
Vice Presidents as Senior Executive Vice President, one or more Vice
Presidents as Executive Vice President and one or more Vice Presidents as
Senior Vice President. Such other officers as may be necessary, including one
or more Vice Chairmen of the Board (in addition to the Vice Chairman of the
Board and Chief Executive Officer), one or more Officers of the Board and a
Chairman of the Executive Committee may be elected by the Board of Directors.
Any two or more offices may be held by the same person, except the offices of
President and Secretary, and the offices of President and Vice President. The
elected officers of the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each
annual meeting of the shareholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as
convenient. Each elected officer shall hold office until his successor shall
have been duly elected or until his death or until he shall resign or shall
have been removed in the manner hereinafter provided. Any officer elected by
the Board of Directors may be removed by the Board of Directors whenever in
its judgment the best interests of the Corporation would be served thereby,
but such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election shall not of itself create contract rights.
A vacancy in any elected office because of death, resignation, removal,
disqualification or otherwise, may be filled by the Board of Directors for the
unexpired portion of the term.
Section 2. Chairman of the Board of Directors. At its first meeting after
the annual meeting of shareholders, the Board of Directors shall elect one of
its own members to be the Chairman of the Board of Directors ("Chairman of the
Board"). The Chairman of the Board shall work with the Board of Directors to
define its structure, agenda and activities in order to fulfill its
responsibilities and shall work with senior management to help ensure that
matters for which management is responsible are appropriately reported to the
Board of Directors. He shall preside at all meetings of the shareholders and
of the Board of Directors and shall call and prescribe the content of such
meetings. The Chairman of the Board shall lead the Board of Directors in its
role of assessing the performance of the management of the Corporation. The
Chairman of the Board shall also counsel the members of the Chief Executive
Office, where appropriate, and shall perform such other duties as may be
prescribed by the Board of Directors from time to time. The Chairman of the
Board may designate one or more other directors to exercise the functions and
to have the authority of the Chairman of the Board during the absence or
disability of the Chairman of the Board and prior to any action by the Board
of Directors to fill any vacancy. The Board of Directors may remove or
replace the Chairman of the Board at any time and any vacancy in such position
because of death, resignation, removal, disqualification or otherwise, may be
filled by the Board of Directors for the unexpired portion of the term.
Section 3. The Vice Chairman of the Board of Directors and Chief Executive
Officer. The Vice Chairman of the Board of Directors and Chief Executive
Officer ("Vice Chairman of the Board and CEO") shall be the senior executive
officer of the Corporation and shall in general supervise and control all the
business and affairs of the Corporation. He shall direct the policy of the
Corporation; and he may delegate powers to any other officer of the
Corporation. Except where by law the signature of such other officer is
required, the Vice Chairman of the Board and CEO shall possess the same power
as such other officer to sign all certificates, contracts and other
instruments and documents of the Corporation which may be authorized by the
Board of Directors or otherwise, and shall possess the same power as such
other officer to take any action authorized by these Bylaws or by the Board of
Directors or otherwise. He shall also perform such duties as may be
prescribed by the Board of Directors or by the Chairman of the Board of
Directors acting for the Board of Directors from time to time. In addition,
the Board of Directors may appoint one or more other Vice Chairmen of the
Board, who shall not be the Vice Chairman of the Board and CEO, who shall
perform such other duties as may be prescribed by the Board of Directors, the
Vice Chairman of the Board and CEO and the President from time to time.
Section 4. The President. The President, in the absence or disability of the
Vice Chairman of the Board and CEO, shall exercise the functions and shall
have the authority of the Vice Chairman of the Board and CEO. The President
may sign, with the Secretary or other proper officer of the Corporation
thereunto authorized by the Board of Directors (if the signature of the
Secretary or such other officer is required), certificates for shares of the
Corporation, any deeds, mortgages, bonds, contracts, and other instruments and
documents which may be authorized by the Board of Directors or otherwise,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other officer
or agent of the Corporation, or shall be required by law to be otherwise
signed or executed; and in general, shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board of
Directors from time to time.
Section 5. The Chairman of the Executive Committee, Senior Executive Vice
Presidents, Executive Vice Presidents, Officers of the Board, Senior Vice
Presidents and the Corporate Vice Presidents. The Chairman of the Executive
Committee, Senior Executive Vice Presidents, Executive Vice Presidents,
Officers of the Board, Senior Vice Presidents and the Corporate Vice
Presidents, in the order designated by the Board of Directors or the Chairman
of the Board, shall exercise the functions and shall have the authority of the
President during the absence or disability of the President. The Chairman of
the Executive Committee, each Senior Executive Vice President, Executive Vice
President, Officer of the Board, Senior Vice President and Corporate Vice
President shall have such powers as may be designated and shall discharge such
duties as may be assigned to him from time to time by the Board of Directors
or the Chief Executive Office. In addition to the duties described in the
prior sentence, all these elected officers (except the Chairman of the
Executive Committee) are authorized to sign and execute all agreements,
contracts, leases, bids, proposals, deeds, assignments, powers of attorney,
guarantee undertakings, instruments, documents, claims, including claims
against the United States of America, and certifications of such claims, in
the ordinary course of business of the Corporation, and to redelegate that
authority in writing to others; provided, however, that only the Vice Chairman
and CEO, the President, the Chief Financial Officer and the Treasurer are
authorized to perform those activities set forth in the third sentence of the
first paragraph of Article V, Section 7, of these Bylaws.
Section 6. The Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors and the minutes of all meetings of the
shareholders, in books provided by the Corporation for such purpose. He shall
attend to giving and serving of all notices of the Corporation whereby
meetings of the Board of Directors and shareholders are assembled. He shall
provide lists of shareholders and their addresses required to be prepared by
the provisions of any present or future statute of the State of Delaware. He
may sign, with any other officer, in the name of the Corporation, all
contracts and other instruments requiring the seal of the Corporation and may
affix the seal thereto. He shall have charge of such books and papers as the
Board of Directors may direct. He shall in general perform all of the duties
which are incident to the office of secretary of a corporation, subject at all
times to the direction and control of the Board of Directors.
Section 7. The Chief Financial Officer and the Treasurer. The Chief
Financial Officer shall be the senior financial officer of the Corporation.
The Chief Financial Officer, the Vice Chairman and CEO, the President and the
Treasurer shall each individually have the power, which may be redelegated in
writing, on behalf of the Corporation, to borrow funds and to otherwise incur
liabilities, to sell or discount bills, receivables and other instruments and
rights, to enter into and deliver repurchase, credit, guarantee, surety, loan,
interest rate, currency and other agreements, which may contain covenants
restricting the Corporation's ability to take certain actions or require it to
take certain actions, to sign and deliver acceptances, notes and other
obligations, to buy and sell foreign exchange, whether for current or future
delivery, or options on foreign exchange, to purchase, sell, exchange or
otherwise deal in stock or other securities, to procure letters of credit,
travelers' checks or similar instruments, to open and close accounts with any
banking institution or other depository of funds, to sign, manually, by
facsimile signature or otherwise, checks, drafts or other orders for the
payment of funds (which each such institution is hereby authorized and
directed to honor), to issue written, telephonic, electronic or oral
instructions for the transfer of funds by wire or other electronic means or
otherwise, to enter into agreements or documents with any banking or financial
institution with respect to any services, including, without limitation,
electronic services, and to do all things in connection with any of these as
any of them sees fit. The Chief Financial Officer, the Vice Chairman and CEO,
the President and the Treasurer shall each individually also have the power,
which may be redelegated in writing, on behalf of the Corporation, to
guarantee, or to act as surety with respect to, any of the obligations of any
entity of which any of the outstanding stock or securities is owned, directly
or indirectly by the Corporation. In addition, the Chief Financial Officer,
as well as each of the Vice Chairman of the Board and CEO, the President and
the Treasurer, shall individually have the authority to vote all shares or
securities in any entity directly or indirectly owned by the Corporation and
to redelegate that authority in writing to others.
The Treasurer shall have the custody of all of the funds and securities of the
Corporation. He shall be empowered to endorse on behalf of the Corporation
all checks, notes or other obligations and evidences of the payment of money,
payable to the Corporation or coming into his possession, and shall deposit
the funds arising therefrom, together with all other funds of the Corporation,
coming into his possession, in such banks as may be selected as the
depositories of the Corporation, or properly care for them in such other
manner as the Board of Directors may direct. All checks and other instruments
drawn on or payable out of the funds of the Corporation and all bills, notes
or other evidence of indebtedness shall be signed by such officers and
employees as the Board of Directors may designate. Whenever required by the
Board of Directors so to do, he shall exhibit a complete and true statement of
property in his possession, custody or control. He shall provide for the
entry regularly, in records belonging to the Corporation, a full and accurate
account of all money received and paid on account of the Corporation, together
with all other business transactions. He shall, at all reasonable times
within the hours of business, exhibit his records and accounts to any
director. He shall perform all duties which are incident to the office of
treasurer of a corporation, subject, however, at all times to the direction
and control of the Board of Directors. If the Board of Directors shall so
require, he shall give bond, in such sum and with such securities as the Board
of Directors may direct, for the faithful performance of his duties and for
the safe custody of the funds and property of the Corporation coming into his
possession.
Section 8. The Controller. The Controller shall be the Chief Accounting
Officer of the Corporation and shall: (a) keep, or cause to be kept, correct
and complete books and records of account, including full and accurate
accounts of receipt and disbursements in books belonging to the Corporation;
and (b) in general, perform all duties incident to the office of Controller
and such other duties as from time to time may be assigned to him by the
Chairman of the Board or by the Board of Directors. In addition, the
Controller, the Chief Financial Officer and the Treasurer shall each
individually be authorized to sign powers of attorney on behalf of the
Corporation and to appoint agents and attorneys to represent the Corporation
in dealings before or with the Bureau of Customs.
Section 9. Statutory Duties. Each respective officer shall discharge any and
every duty, appertaining to his respective office, which is imposed on such
officer by the provisions of any present or future statute of the State of
Delaware.
Section 10. Delegation of Duties. In case of the absence of any officer of
the Corporation, the Chairman of the Board or the Board of Directors may
delegate, for the time being, the duties of such officer to any other officer
or to any director.
Section 11. Salaries. The salaries of the officers (except Assistant
Treasurers and Assistant Secretaries) shall be fixed from time to time by the
Board of Directors unless such authority has been delegated to a committee of
the Board of Directors, in which case, salaries shall be fixed by such
committee, subject to any limitations which may be contained in the resolution
delegating such authority. No officer shall be prevented from receiving such
salary by reason of the fact that he is also a director of the Corporation.
Section 12. Assistant Treasurers and Assistant Secretaries. The Vice
Chairman of the Board and CEO may appoint, from time to time, as he may see
fit, and may (but shall not be required to) fix the compensation of, one or
more Assistant Treasurers and Assistant Secretaries, each of whom shall hold
office during the pleasure of the Vice Chairman of the Board and CEO, and
shall perform such duties as he may assign.
ARTICLE VI
Certificates for Shares and Their Transfer
Section 1. Certificates for Shares. Certificates representing shares of the
Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the Vice Chairman of the
Board and CEO or President, and by the Treasurer or the Secretary. Any or all
of the signatures on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent,
or registrar at the date of issue. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock ledger of the
Corporation.
Section 2. Transfer of Certificate. Transfer of shares of the Corporation
shall be made only upon the records of the Transfer Agent appointed for this
purpose, by the owner in person or by the legal representative of such owner
and, upon such transfer being made, the old certificates shall be surrendered
to the Transfer Agent who shall cancel the same and thereupon issue a new
certificate or certificates therefor. Whenever a transfer is made for
collateral security, and not absolutely, the fact shall be so expressed in the
recording of the transfer.
Section 3. Transfer Agent and Registrar. The Board of Directors may appoint
a transfer agent and registrar of transfers and thereafter may require all
stock certificates to bear the signature of such transfer agent and such
registrar of transfers. The signature of either the transfer agent or the
registrar, but not both, may be a facsimile.
Section 4. Registered Holder. The Corporation shall be entitled to treat the
registered holder of any shares as the absolute owner thereof and,
accordingly, shall not be bound to recognize any equitable or other claim
thereto, or interest therein, on the part of any other person, whether or not
it shall have express or other notice thereof, save as expressly provided by
the statutes of the State of Delaware.
Section 5. Rules of Transfer. The Board of Directors also shall have the
power and authority to make all such rules and regulations as they may deem
expedient concerning the issue, transfer and registration of the certificates
for the shares of the Corporation.
Section 6. Lost Certificates. Any person claiming a certificate for shares
of this Corporation to be lost or destroyed, shall make affidavit of the fact
and lodge the same with the Secretary of the Corporation, accompanied by a
signed application for a new certificate. Such person shall give to the
Corporation, to the extent deemed necessary by the Secretary or Treasurer, a
bond of indemnity with one or more sureties satisfactory to the Secretary, and
in an amount which, in his judgment, shall be sufficient to save the
Corporation from loss, and thereupon the proper officer or officers may cause
to be issued a new certificate of like tenor with the one alleged to be lost
or destroyed. But the Secretary may recommend to the Board of Directors that
it refuse the issuance of such new certificate in the event that the
applicable provisions of the Uniform Commercial Code are not met.
ARTICLE VII
Contracts, Loans, Checks and Deposits
Section 1. Contracts. The Board of Directors may authorize, by these Bylaws
or any resolution, any officer or officers, agent or agents, to enter into any
contract or execute and deliver any instrument in the name of and on behalf of
the Corporation, and such authority may be general or confined to specific
instances.
Section 2. Loans. No loans shall be contracted on behalf of the Corporation
and no evidences of indebtedness shall be issued in its name unless authorized
by these Bylaws or a resolution of the Board of Directors. Such authority may
be general or confined to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name
of the Corporation, shall be signed by such officer or officers, agent or
agents, of the Corporation and in such manner as shall from time to time be
determined by these Bylaws or a resolution of the Board of Directors.
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 depositories as the Board of Directors may
select.
ARTICLE VIII
Books and Records
Section 1. Location. Complete books and records of account together with
minutes of the proceedings of the meetings of the shareholders and Board of
Directors shall be kept. A record of shareholders, giving the names and
addresses of all shareholders, and the number and class of the shares held by
each, shall be kept by the Corporation at its registered office or principal
place of business in the State of Illinois or at the office of a Transfer
Agent or Registrar.
ARTICLE IX
Notices
Section 1. Manner of Notice. Whenever, under the provisions of the
Certificate of Incorporation or of the Bylaws of the Corporation or of the
statutes of the State of Delaware, notice is required to be given to a
shareholder, to a director or to an officer, it shall not be construed to mean
personal notice, unless expressly stated so to be. And any notice so required
(other than notice by publication) may be given in writing by depositing the
same in the United States mail, postage prepaid, directed to the shareholder,
director or officer, at his, or her, address as the same appears on the
records of the Corporation, and the time when the same is mailed shall be
deemed the time of the giving of such notice.
Section 2. Waiver of Notice. Any shareholder, director or officer may, in
writing, waive the giving and the mailing of any notice required to be given
or mailed either by and under the statutes of the State of Delaware or by and
under the Bylaws.
ARTICLE X
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on
the 1st day of January and terminate on the 31st day of December.
ARTICLE XI
Emergency Bylaws
The Emergency Bylaws provided in this Article XI shall be operative upon (a)
the declaration of a civil defense emergency by the President of the United
States or by concurrent resolution of the Congress of the United States
pursuant to Title 50, Appendix, Section 2291 of the United States Code, or any
amendment thereof, or (b) upon a proclamation of a civil defense emergency by
the Governor of the State of Illinois which relates to an attack or imminent
attack on the United States or any of its possessions. Such Emergency Bylaws,
or any amendments to these Bylaws adopted during such emergency, shall cease
to be effective and shall be suspended upon any proclamation by the President
of the United States, or the passage by the Congress of a concurrent
resolution, or any declaration by the Governor of Illinois that such civil
defense emergency no longer exists.
Section 1. Board of Directors' Meetings. During any such emergency, any
meeting of the Board of Directors may be called by any officer of the
Corporation or by any director. Notice shall be given by such person or by
any officer of the Corporation. The notice shall specify the place of the
meeting, which shall be at the head office of the Corporation at the time if
feasible, and otherwise, any other place specified in the notice. The notice
shall also specify the time of the meeting. Notice may be given only to such
of the directors as it may be feasible to reach at the time and by such means
as may be feasible at the time, including publication or radio. If given by
mail, messenger, telephone, or telegram, the notice shall be addressed to the
director at his residence or business address, or such other place as the
person giving the notice shall deem most suitable. Notice shall be similarly
given, to the extent feasible in the judgment of the person giving the notice,
to the other directors. Notice shall be given at least two days before the
meeting, if feasible in the judgment of the person giving the notice, and
otherwise on any shorter time he may deem necessary.
Section 2. Change of Head Office. The Board of Directors, during any such
emergency may, effective in the emergency, change the head office or designate
several alternative head offices, or regional offices or authorize the
officers to do so.
ARTICLE XII
Director Emeritus
Section 1. Director Emeritus. The Board of Directors may at any time and
from time to time award to former members of the Board of Directors in
recognition of their past distinguished service and contribution rendered to
the Corporation the honorary title "Director Emeritus." The award of this
title shall not constitute an election or appointment to the Board of
Directors, nor to any office of the Corporation, nor the bestowal of any
duties, responsibilities or privileges associated therewith; and accordingly
no "Director Emeritus" shall be deemed a "Director" as that term is used in
these Bylaws. The title "Director Emeritus" shall carry no compensation, and
holders thereof shall not attend any meetings of the Board of Directors or
committees of the Board of Directors, except by written invitation, nor shall
they be specially privy to any confidential information arising from such
meeting.
ARTICLE XIII
Amendment of Bylaws
Section 1. Amendment of Bylaws. These Bylaws may be altered, amended or
repealed and new Bylaws may be adopted at any meeting of the Board of
Directors by a majority vote of the directors present at the meeting.
Exhibit 11
Motorola, Inc. and Consolidated Subsidiaries
Primary and Fully Diluted Earnings Per Common
and Common Equivalent Share
(In millions, except per share amounts)
Three Months Ended
April 2, April 3,
1994 1993
Net Income $ 298 $ 204
Add:
Interest on Zero coupon notes due 2009
and 2013, net of tax and effect of
executive incentive and employee
profit sharing plans 4 4
Adjusted net income $ 302 $ 208
Earnings per common and common equivalent
share - Primary:
Weighted average common shares outstanding 278.9 270.9
Common equivalent shares:
Stock options 6.5 4.8
Zero coupon notes due 2009 and 2013 9.3 12.0
Common and common equivalent
shares - primary (in millions) 294.7 287.7
Net earnings per share - primary $ 1.03 $ 0.73
Earnings per common and common equivalent
share - Fully Diluted:
Weighted average common shares outstanding 278.9 270.9
Common equivalent shares:
Stock options 6.5 5.0
Zero coupon notes due 2009 and 2013 9.3 12.0
Common and common equivalent
shares - fully diluted (in millions) 294.7 287.9
Net earnings per share - fully diluted $ 1.03 $ 0.72
Exhibit 11.1
Motorola, Inc. and Consolidated Subsidiaries
Pro Forma Primary and Fully Diluted Earnings Per Common and
Common Equivalent Share Giving Retroactive Effect to the
March 15, 1994 2-for-1 Stock Split
(In millions, except per share amounts)
Three Months Ended
April 2, April 3,
1994 1993
Net Income $ 298 $ 204
Add:
Interest on Zero coupon notes due 2009
and 2013, net of tax and effect of
executive incentive and employee
profit sharing plans 4 4
Adjusted net income $ 302 $ 208
Earnings per common and common equivalent
share - Primary:
Weighted average common shares outstanding 557.8 541.8
Common equivalent shares:
Stock options 12.9 9.6
Zero coupon notes due 2009 and 2013 18.6 23.9
Common and common equivalent
shares - primary (in millions) 589.3 575.3
Net earnings per share - primary $ 0.51 $ 0.36
Earnings per common and common equivalent
share - Fully Diluted:
Weighted average common shares outstanding 557.8 541.8
Common equivalent shares:
Stock options 12.9 10.1
Zero coupon notes due 2009 and 2013 18.6 23.9
Common and common equivalent
shares - fully diluted (in millions) 589.3 575.8
Net earnings per share - fully diluted $ 0.51 $ 0.36
