As filed with the Securities and Exchange Commission on May 4, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
MOTOROLA, INC.
(Exact name of Registrant as specified in its charter)
Delaware
(State of other jurisdiction of
incorporation)
36-1115800
(I.R.S. Employer Identification No.)
1303 East Algonquin Road
Schaumburg, Illinois 60196
(847) 576-5000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
With a copy to:
Carl F. Koenemann
Executive Vice President and Chief
Financial Officer
1303 East Algonquin Road
Schaumburg, Illinois 60196
(847) 576-5000
Jeffrey A. Brown
Senior Corporate Counsel
1303 East Algonquin Road
Schaumburg, Illinois 60196
(847) 576-5014
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of 1933, please
check the following box and list the Securities Act registration statement
number of the earlier registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, please check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434 under the Securities Act of 1933, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Class Amount to be Maximum Maximum Amount of
Securities to be Registered Aggregate Offering Registration
Registered (1) Offering Price Price Fee
(2) Per Unit
Common Stock, par 3,408,075 $396,393,203.20 $116.31 $104,648.81
value $3 per share
(1) Includes preferred stock purchase rights relating to shares of Common
Stock for no separate consideration. Prior to the occurrence of
certain events, the preferred stock purchase rights will not be
evidenced separately from the Common Stock.
(2) Estimated solely for the purposes of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended,
and based on the average of the highest and lowest sales prices as
reported for the New York Stock Exchange Composite Transactions on
April 27, 2000.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
SUBJECT TO COMPLETION, DATED MAY 4, 2000
PROSPECTUS
3,408,075 Shares
MOTOROLA, INC.
Common Stock
These shares of Common Stock are being sold by the stockholders of
Motorola who are named on page 6 or their donee or pledgee. Motorola will
not receive any part of the proceeds from the sale.
The selling stockholders may offer their shares of Common Stock
through public or private transactions, on or off the United States
exchanges, at prevailing market prices, or at privately negotiated prices.
Motorola Common Stock is listed on the New York Stock Exchange and
the Chicago Stock Exchange and trades on U.S. exchanges with the ticker
symbol: "MOT". On April 27, 2000, the closing price of one share of
Motorola Common Stock on the New York Stock Exchange was $116.50.
These securities have not been approved by the Securities and
Exchange Commission or any state securities commission, nor have they
determined if this prospectus is accurate or complete. Any representation
to the contrary is a criminal offense.
Motorola has agreed to pay the cost of the registration of these
shares of Common Stock and the preparation of this prospectus and
registration statement under which it is filed. The expenses so payable by
Motorola are estimated to be approximately $120,000.
The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration statement
covering them has been declared effective by the SEC. This preliminary
prospectus is not an offer to sell these securities and we are not
soliciting offers to buy these securities in any state where the offer is
not permitted.
The date of this prospectus is ________, 2000.
TABLE OF CONTENTS
Section Page
Where You Can Find More Information 4
Incorporation of Certain Documents by Reference 4
The Company 5
Use of Proceeds 5
Selling Stockholders 6
Certain Relationships 6
Plan of Distribution 7
Legal Matters II-1
Experts II-1
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the
public over the Internet at the SEC's web site at http://www.sec.gov. You
may also read and copy any document we file with the SEC at its public
reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549.
You can also obtain copies of the documents at prescribed rates by writing
to the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference facilities. Our SEC
filings are also available at the office of the New York Stock Exchange.
For further information on obtaining copies of our public filings at the
New York Stock Exchange, you should call (212) 656-5060.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We "incorporate by reference" into this prospectus the information we
file with the SEC, which means that we can disclose important information
to you by referring you to those documents. The information incorporated
by reference is an important part of this prospectus and information that
we file subsequently with the SEC will automatically update this
prospectus. We incorporate by reference the documents listed below and any
filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 after the initial filing of the
registration statement that contains this prospectus and prior to the time
that we sell all the securities offered by this prospectus:
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999.
The Company's Current Report of Form 8-K, dated January 5, 2000, as
amended on March 17, 2000.
The Company's Current Report on Form 8-K, dated March 23, 2000, as
amended on March 24, 2000.
The description of the Common Stock included in the Registration
Statement on Form 8-B dated July 2, 1973, including any amendments or
reports filed for the purpose of updating such description.
The description of the Company's Preferred Stock Purchase Rights
included in the Registration Statement on Form 8-A dated November 5,
1998, as amended.
You may request a copy of these filings (other than exhibits, unless
that exhibit is specifically incorporated by reference into that filing) at
no cost, by writing to or telephoning us at the following address:
A. Peter Lawson
Secretary, Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Telephone: (847) 576-5000.
You should rely only on the information contained or incorporated by
reference in this prospectus or the applicable prospectus supplement. We
have not authorized anyone else to provide you with different information.
We may only use this prospectus to sell securities if it is accompanied by
a prospectus supplement. We are only offering these securities in states
where the offer is permitted. You should not assume that the information
in this prospectus or the applicable prospectus supplement is accurate as
of any date other than the dates on the front of those documents.
THE COMPANY
"Motorola" (which may be referred to as "we", "us", or "our") means
Motorola, Inc. or Motorola, Inc. and its subsidiaries, as the context
requires. "Motorola" is a registered trademark of Motorola, Inc.
Motorola is a global leader in providing integrated communications
solutions and embedded electronic solutions. These include:
Software-enhanced wireless telephone, two-way radio, messaging and
satellite communications products and systems, as well as networking
and Internet-access products, for consumers, network operators, and
commercial, government and industrial customers.
Embedded semiconductor solutions for customers in networking,
transportation, and wireless communications and imaging and
entertainment markets.
Embedded electronic systems for automotive, communications, imaging,
manufacturing systems, computer and industrial markets.
Digital and analog systems and set-top terminals for broadband cable
television operators.
Motorola is a corporation organized under the laws of the State of
Delaware as the successor to an Illinois corporation organized in 1928.
Motorola's principal executive offices are located at 1303 East Algonquin
Road, Schaumburg, Illinois 60196 (telephone number: (847) 576-5000).
USE OF PROCEEDS
All of the net proceeds from the sale of the Motorola shares will go
to the stockholders who offer and sell their shares. Accordingly, Motorola
will not receive any proceeds from sales of the Motorola shares.
SELLING STOCKHOLDERS
All of the shares of Common Stock offered hereby are being sold by
the stockholders listed below. From time to time, the selling stockholders
will determine the number of shares which they may sell. Beneficial
ownership of the common stock listed in the table has been determined in
accordance with the applicable rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended.
Shares Beneficially Shares Beneficially
Owned prior to the Owned after the
Offering Offering(1)
Shares to be
Percent of Sold in the Percent
Name Number Class Offering(1) Number of Class
Adelphia Communications
Corporation 187,022 * 187,022 0 0.0
Charter Investments, Inc. 167,763 * 167,763 0 0.0
Comcast Corporation(2) 749,998 * 749,998 0 0.0
Cox Communications, Inc. 566,756 * 566,756 0 0.0
MediaOne of Delaware, Inc. 264,488 * 264,488 0 0.0
Shaw Communications, Inc. 527,456 * 527,456 0 0.0
Time Warner Cable, a
Division of Time Warner
Entertainment
Company, L.P. 944,592 * 944,592 0 0.0
* Denotes less than one percent.
(1) The information set forth in these columns assumes the selling
stockholders will sell all of the shares being offered hereby.
(2) Includes shares beneficially owned by one or more wholly-owned
subsidiaries of such person.
CERTAIN RELATIONSHIPS
Set forth below is a description of any material relationships
between the Company and the selling stockholders during the past three
years. We have agreed to pay the cost of the registration of the shares
and the preparation of this prospectus and registration statement under
which it is filed. The selling stockholders are responsible for any
underwriting discounts and commissions relating to shares of common stock
to be sold by the selling stockholders.
All of the selling stockholders are customers of the Company.
The Company (as successor-in-interest to General Instrument
Corporation) has certain rights of first offer and rights of refusal
in connection with the shares being registered hereunder pursuant to
a Warrant Issuance Agreement between General Instrument and each of
the selling stockholders dated December 16, 1997.
PLAN OF DISTRIBUTION
The selling stockholders, including any donees or pledgees who
receive shares from a selling stockholder named above, may offer their
Motorola shares of Common Stock at various times in one or more of the
following transactions (which may involve block transactions, ordinary
brokerage transactions and transactions in which brokers solicit
purchases):
on any of the securities exchanges where our Common Stock is listed,
including the New York Stock Exchange or the Chicago Stock Exchange,
or in special offerings, exchange distributions or secondary
distributions pursuant to and in accordance with the rules of such
exchanges;
in the over-the-counter market;
in negotiated transactions or otherwise, including an underwritten
offering;
in connection with short sales of the shares of Common Stock;
by pledge to secure debts and other obligations;
in connection with the writing of non-traded and exchange-traded call
options, in hedge transactions and in settlement of other
transactions in standardized or over-the-counter options, if
permitted under the securities laws; or
in a combination of any of the above transactions.
The selling stockholders may sell their shares at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices.
The selling stockholders may sell their shares directly to purchasers
or may use broker-dealers to sell their shares. Broker-dealers who sell
the shares may receive compensation in the form of discounts, concessions,
or commissions from the selling stockholders or they may receive
compensation from purchasers of the shares for whom they acted as agents or
to whom they sold the shares as principal, or both. (The compensation as
to a particular broker-dealer might be in excess of customary commissions.)
The selling stockholders and these broker-dealers may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as
amended. Any commissions received by such broker-dealers and any profit on
the resale of the shares sold by them while acting as principals might be
deemed to be underwriting discounts or commissions under the Securities Act
of 1933.
Motorola will pay all fees and expenses incurred in connection with
preparing and filing this prospectus and the registration statement. The
selling stockholders will pay any brokerage commissions and similar selling
expenses, if any, attributable in connection with the sale of the shares of
Common Stock including stock transfer taxes due or payable in connection
with the sale of the shares.
Motorola will indemnify the selling stockholders and any underwriter
of a selling stockholder against certain liabilities, including liabilities
under the Securities Act of 1933. The selling stockholders, each
individually and not jointly, will indemnify Motorola against certain
liabilities, including liabilities under the Securities Act of 1933. The
selling stockholders may agree to indemnify any agent, dealer, or broker-
dealer that participates in transactions involving sales of the shares
against certain liabilities, including liabilities under the Securities Act
of 1933.
Selling stockholders also may resell all or a portion of the shares
in open market transactions in reliance upon Rule 144 under the Securities
Act of 1933 provided they meet the criteria and conform to the requirements
of Rule 144.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Jeffrey
A. Brown of the Company's Law Department and Kirkland & Ellis (a
partnership including professional corporations), Chicago, Illinois. As of
May 1, 2000, Mr. Brown owned approximately 200 shares of Common Stock and
held options to purchase 3,800 shares of Common Stock, of which options to
purchase 900 shares were currently exercisable.
EXPERTS
The consolidated financial statements and schedule, and the
supplemental consolidated financial statements and schedule, of Motorola,
Inc. and subsidiaries as of December 31, 1999 and 1998 and for each of the
years in the three-year period ended December 31, 1999 have been
incorporated by reference herein and in the registration statement in
reliance upon the reports of KPMG LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of
said firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate pursuant to instruction to Item 511 of
Regulation S-K, subject to future contingencies, of the expenses to be
incurred by the Registrant in connection with the issuance and distribution
of the securities being registered:
Securities and Exchange Commission
Registration Fee
$104,649
Legal Fees and Expenses
10,000
Accounting Fees and Expenses
5,000
Miscellaneous
351
Total
$120,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in
connection with litigation.
The Registrant's Restated Certificate of Incorporation and its
directors' and officers' liability insurance policy provide for
indemnification of its directors and officers against certain liabilities.
ITEM 16. EXHIBITS
The Exhibits to this Registration Statement are listed in the Exhibit
Index elsewhere herein.
ITEM 17. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement (i)
to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, (ii) to reflect in the prospectus any facts
or events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement,
notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from
the low or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement, and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) The Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Act.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer, or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer,
or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement, or amendment thereto, to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Village of Schaumburg
and the State of Illinois, on the 4th day of May, 2000.
MOTOROLA, INC.
By: /s/ Carl F. Koenemann
Carl F. Koenemann
Executive Vice
President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Carl F. Koenemann and Anthony Knapp
and each of them, as true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities to sign any and all amendments (including
pre-effective and post-effective amendments) to this Registration Statement
and any related Registration Statement filed pursuant to Rule 462(b) or any
successor regulation, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any
of them, or their or his substitute or substitutes may lawfully do or cause
to be done by virtue hereof.
* * * *
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and as of the dates indicated.
Signature Title Date
/s/Christopher B. Galvin Chairman of the Board and Chief May 4, 2000
Christopher B. Galvin Executive Officer
(Principal Executive Officer)
/s/ Carl F. Koenemann Executive Vice President and May 4, 2000
Carl F. Koenemann Chief Financial Officer
(Principal Financial Officer)
/s/ Anthony M. Knapp Senior Vice President and Controller May 4, 2000
Anthony M. Knapp (Principal Accounting Officer)
/s/ Ronnie C. Chan Director May 4, 2000
Ronnie C. Chan
/s/ H. Laurance Fuller Director May 4, 2000
H. Laurance Fuller
/s/ Robert W. Galvin Director May 4, 2000
Robert W. Galvin
/s/ Robert L. Growney Director May 4, 2000
Robert L. Growney
/s/ Anne P. Jones Director May 4, 2000
Anne P. Jones
/s/ Judy C. Lewent Director May 4, 2000
Judy C. Lewent
/s/ Dr. Walter E. Massey Director May 4, 2000
Dr. Walter E. Massey
/s/ Nicholas Negroponte Director May 4, 2000
Nicholas Negroponte
/s/ John E. Pepper, Jr. Director May 4, 2000
John E. Pepper, Jr.
/s/ Samuel C. Scott III Director May 4, 2000
Samuel C. Scott III
/s/ Gary L. Tooker Director May 4, 2000
Gary L. Tooker
/s/ B. Kenneth West Director May 4, 2000
B. Kenneth West
/s/ Dr. John A. White Director May 4, 2000
Dr. John A. White
EXHIBIT INDEX
Exhibit
Number Description
4.1 Restated Certificate of Incorporation, as amended (incorporated
by reference to Exhibit 3(i)(b) to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended April 2, 1994
(File No. 1-7221)).
4.2 Certificate of Designations, Preferences and Rights of Junior
Participating Preferred Stock, Series B (incorporated by
reference to Exhibit 3.3 to Motorola's Registration Statement on
Form S-3 dated January 20, 1999 (Registration No. 333-70827)).
4.3 By-Laws, as amended through May 2, 2000.
4.4 Rights Agreement, dated as of November 5, 1998 between Motorola,
Inc. and Harris Trust and Savings Bank, as Rights Agent
(incorporated by reference to Exhibit 1.1 to Registrant's
Registration Statement on Form 8-A/A dated March 16, 1999 (File
No. 1-7221)).
5 Opinion of Jeffrey A. Brown, Senior Corporate Counsel, Motorola
Corporate Law Department.
23.1 Consent of KPMG LLP.
23.2 Consent of Jeffrey A. Brown, Senior Corporate Counsel, Motorola
Corporate Law Department (included as part of Exhibit 5).
24 Powers of Attorney (included on signature page).
EXHIBIT 4.3
Revised as of May 2, 2000
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. Adjournment of Meetings. If less than a majority of the
outstanding shares are represented at a meeting of the shareholders, a
majority of the shares so represented may adjourn the meeting from time to
time without further notice. The chairman of a meeting of the shareholders
may adjourn the meeting from time to time without further notice, whether
or not less than a majority of the outstanding shares are represented at
the meeting. No notice of the time and place of adjourned meetings need be
given except as required by law. In no event shall the public announcement
of an adjournment of any meeting of the shareholders commence a new time
period for the giving of shareholder notice of nominations or proposals for
other business as described in Section 13 of Article III. 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 6. 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 7. 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 8. Postponement of Meetings. Any previously scheduled
meeting of the shareholders may be postponed by resolution of the Board of
Directors upon public notice given prior to the time previously scheduled
for such meeting of the shareholders. In no event shall the public
announcement of a postponement of any previously scheduled meeting of the
shareholders commence a new time period for the giving of shareholder
notice of nominations or proposals for other business as described in
Section 13 of Article III.
Section 9. Cancellation of Meetings. Any special meeting of the
shareholders may be canceled by resolution of the Board of Directors upon
public notice given prior to the time previously scheduled for such meeting
of the shareholders.
Section 10. 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 11. 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 12. 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 13. 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 11 of Article III), who
is entitled to vote at the meeting and who has complied with the notice
procedures set forth in this Section 13. 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 120th day
prior to the date of such meeting and (a) in the case of an annual meeting
of shareholders, at least 45 days before the date on which the Corporation
first mailed its proxy materials for the prior year's annual meeting of
shareholders and (b) in the case of a special meeting, 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 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 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 13 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 13. 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 13, "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 13 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 13, 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. Elected Officers. As determined by the Board of
Directors, the elected officers of the Company shall include a Chairman of
the Board, a Chief Executive Officer (the Chairman of the Board and the
Chief Executive Officer may be one person), a President and Chief Operating
Officer, 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 Board of Directors may elect such other
officers as may be necessary, including one or more Vice Chairmen of the
Board, one or more other Officers of the Board and a Chairman of the
Executive Committee. The elected officers of the Company shall be elected
annually by the Board of Directors and shall have such powers and duties as
generally pertain to their respective offices, subject to these Bylaws.
Any two or more offices may be held by the same person. 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.
Any officer elected by the Board of Directors serves at the pleasure of the
Board of Directors and may be removed by the Board of Directors for any
reason. Any elected officer other than the Chief Executive Officer, the
President and Chief Operating Officer, the Chief Financial Officer, the
Treasurer, the Secretary or the Controller may be removed by the Chairman
of the Board for any reason.
Section 2. The Chairman of the Board of Directors. The Board of
Directors shall annually 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 preside at all meetings of the Board of Directors and the
shareholders, and may at any time call any meeting of the Board of
Directors. He may also at his discretion call or attend any meeting of any
committee of the Board of Directors, whether or not a member of such
committee. 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. Absent any such election, a Vice Chairman of the Board shall
assume the duties of the Chairman of the Board. The Board of Directors may
remove or replace the Chairman of the Board at any time.
Section 3. The Vice Chairman of the Board of Directors. The Vice
Chairman of the Board of Directors ("Vice Chairman of the Board"), shall
perform such duties as may be prescribed by the Board of Directors or the
Chairman of the Board, from time to time. If there are two or more Vice
Chairmen of the Board, they shall preside at meetings as prescribed by the
Board of Directors or Chairman of the Board from time to time.
Section 4. The Chief Executive Officer. The Chief Executive Officer
("CEO") shall be the senior executive officer of the Company and shall in
general supervise and control all the business and affairs of the Company.
He shall direct the policy of the Company, including the appointment and
removal of all officers and employees of the Company for whose election or
appointment no other provision is made in these Bylaws or by the Board of
Directors and shall perform all other duties appropriate to the office or
as may be prescribed by the Board of Directors by resolution from time to
time. He may delegate powers to any other officer of the Company.
Section 5. The President and Chief Operating Officer. The President
and Chief Operating Officer shall have such duties as may be prescribed by
the Board of Directors by resolution from time to time. Prior to any
action by the Board of Directors, in the absence or disability of the CEO,
the President and Chief Operating Officer shall exercise the functions of
the CEO and shall have the authority of the CEO.
Section 6. Vice Presidents. A Vice President may be designated as an
Executive Vice President, a Senior Vice President, a Corporate Vice
President or such other designation as may be determined by the Board of
Directors. Vice Presidents shall have such duties as may be prescribed by
the Board of Directors by resolution from time to time.
Section 7. The Secretary. The Secretary shall give notice of, and
keep the minutes of, all meetings of the Board of Directors and the
shareholders. He shall in general perform all of the duties which are
incident to the office of secretary of a company, subject at all times to
the direction and control of the Board of Directors, and shall have such
other duties as may be prescribed by the Board of Directors by resolution
from time to time.
The Secretary may appoint one or more Assistant Secretaries, each of
whom shall have the power to affix and attest the corporate seal of the
Company, and to attest to the execution of documents on behalf of the
Company and perform such duties as may be assigned by the Secretary.
Section 8. The Chief Financial Officer. The Chief Financial Officer
shall be the senior financial officer of the Company and shall have such
duties as may be prescribed by the Board of Directors by resolution from
time to time.
Section 9. The Treasurer. The Treasurer shall have the custody of
all of the funds and securities of the Company and shall have such duties
as may be prescribed by the Board of Directors by resolution from time to
time. The Treasurer may appoint one or more Assistant Treasurers to
perform such duties as may be assigned by the Treasurer.
Section 10. The Controller. The Controller shall be the Chief
Accounting Officer of the Company and shall have such duties as may be
prescribed by the Board of Directors by resolution from time to time.
Section 11. Statutory Duties. Each respective officer shall
discharge any and all duties pertaining 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 12. Delegation of Duties. In case of the absence of any
officer of the Company, 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.
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 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 5
May 4, 2000
Motorola, Inc.
1303 E. Algonquin Road
Schaumburg, Illinois 60196
Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") to be filed by Motorola, Inc., a Delaware corporation
("Motorola"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. The Registration Statement relates to
the sale of 3,408,075 shares of Common Stock, $3 par value per share
("Motorola Common Stock"), of Motorola to be sold from time to time by the
stockholders named in the Registration Statement. This opinion relates to
the shares of Motorola Common Stock covered by the Registration Statement
(the "Subject Shares").
I am Senior Corporate Counsel in the Law Department of Motorola and
as such have acted as counsel to Motorola in connection with preparation of
the Registration Statement. As such counsel, it is my opinion that those
Subject Shares have been validly and legally issued and are fully paid and
nonassessable. In arriving at the foregoing opinion, I have examined and
relied upon, and am familiar with, originals or copies, certified or
otherwise identified to my satisfaction, of such documents, corporate
records, certificates of officers of Motorola and of public officials, and
other instruments as I have deemed necessary or appropriate for the
purposes of the opinion set forth above.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Opinion." In giving this consent, I do not admit that I am within the
category of persons whose consent is required by Section 7 of the
Securities Act of 1933.
Very truly yours,
/s/ Jeffrey A. Brown
Jeffrey A. Brown
Senior Corporate Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Motorola, Inc.
We consent to the incorporation by reference in this registration statement
on Form S-3 of Motorola, Inc. of our reports dated January 17, 2000, except
as to Note 15, which is as of March 17, 2000, and our reports dated March
17, 2000, with respect to the consolidated and supplemental consolidated
balance sheets of Motorola, Inc. and subsidiaries as of December 31, 1999
and 1998, and the related consolidated and supplemental consolidated
statements of operations, stockholders' equity, and cash flows and the
related consolidated and supplemental consolidated financial statement
schedule for each of the years in the three-year period ended December 31,
1999 which reports appear in or are incorporated by reference in the annual
report on Form 10-K of Motorola, Inc. for the year ended December 31, 1999,
or in the Form 8-K/A of Motorola, Inc. dated March 24, 2000 and to the
reference to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG LLP
Chicago, Illinois
May 3, 2000
