<PAGE> 1
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 QUARTERLY PERIOD ENDED SEPTEMBER 26, 1998
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 NO. 0-16538
MAXIM INTEGRATED PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-2896096
(State or Other Jurisdiction (I.R.S. Employer I.D. No.)
Incorporation or Organization)
120 SAN GABRIEL DRIVE,
SUNNYVALE, CA 94086
(Address of Principal Executives Offices) (Zip Code)
</TABLE>
Registrant's Telephone Number, Including Area Code:
(408) 737-7600
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, and (2) has been subject to such filing
requirements for the past 90 days:
YES [X] NO[ ]
<TABLE>
<S> <C>
CLASS: COMMON STOCK, OUTSTANDING AT OCTOBER 28, 1998
$.001 PAR VALUE 130,757,574 SHARES
</TABLE>
<PAGE> 2
MAXIM INTEGRATED PRODUCTS, INC.
INDEX
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
Consolidated Balance Sheets 3
As of September 26, 1998 and June 27, 1998
Consolidated Statements of Income 4
for the three months ended
September 26, 1998 and September 27, 1997
Consolidated Statements of Cash Flows 5
for the three months ended September 26,
1998 and September 27, 1997
Notes to Consolidated Financial Statements 6-8
ITEM 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9-12
PART II. OTHER INFORMATION
ITEM 6. Exhibits and Reports on Form 8-K 13
SIGNATURES 14
</TABLE>
2
<PAGE> 3
CONSOLIDATED BALANCE SHEETS
MAXIM INTEGRATED PRODUCTS, INC.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
September 26, June 27,
1998 1998
(Amounts in thousands) (unaudited)
================================================================================
<S> <C> <C>
ASSETS
- --------------------------------------------------------------------------------
Current assets:
Cash and cash equivalents $ 52,275 $ 16,739
Short-term investments 289,784 306,209
- --------------------------------------------------------------------------------
Total cash, cash equivalents and short-term
investments 342,059 322,948
- --------------------------------------------------------------------------------
Accounts receivable, net 99,479 101,921
Inventories 44,707 44,707
Deferred income taxes and other current assets 37,518 38,439
- --------------------------------------------------------------------------------
Total current assets 523,763 508,015
- --------------------------------------------------------------------------------
Property, plant and equipment, at cost, less
accumulated depreciation 262,614 255,453
Other assets 5,991 6,024
- --------------------------------------------------------------------------------
TOTAL ASSETS $ 792,368 $ 769,492
================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 26,075 $ 35,169
Income taxes payable 25,280 27,412
Accrued salaries 25,425 21,421
Accrued expenses 26,537 22,604
Deferred income on shipments to distributors 24,256 23,686
- --------------------------------------------------------------------------------
Total current liabilities 127,573 130,292
- --------------------------------------------------------------------------------
Other liabilities 4,000 4,000
Deferred income taxes 4,200 4,200
- --------------------------------------------------------------------------------
Stockholders' equity:
Common stock 131 131
Additional paid-in capital 56,614 81,118
Retained earnings 601,309 551,914
Translation adjustment (1,459) (2,163)
- --------------------------------------------------------------------------------
Total stockholders' equity 656,595 631,000
- --------------------------------------------------------------------------------
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $ 792,368 $ 769,492
================================================================================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
3
<PAGE> 4
CONSOLIDATED STATEMENTS OF INCOME
MAXIM INTEGRATED PRODUCTS, INC.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Three Months Ended
(Unaudited) September 26, September 27,
(Amounts in thousands, except per share data) 1998 1997
================================================================================
<S> <C> <C>
Net revenues $ 155,281 $ 125,000
Cost of goods sold 50,453 41,500
- --------------------------------------------------------------------------------
Gross margin 104,828 83,500
- --------------------------------------------------------------------------------
Operating expenses:
Research and development 21,051 15,480
Selling, general and administrative 13,487 10,934
- --------------------------------------------------------------------------------
Total operating expenses 34,538 26,414
- --------------------------------------------------------------------------------
Operating income 70,290 57,086
Interest income, net 4,551 3,466
- --------------------------------------------------------------------------------
Income before provision for
income taxes 74,841 60,552
Provision for income taxes 25,446 20,588
- --------------------------------------------------------------------------------
Net income $ 49,395 $ 39,964
================================================================================
Earnings per share:
Basic $ 0.38 $ 0.31
Diluted $ 0.33 $ 0.26
================================================================================
Shares used in the calculation of earnings per share:
Basic 130,581 128,564
Diluted 148,660 150,810
================================================================================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
4
<PAGE> 5
CONSOLIDATED STATEMENTS OF CASH FLOWS
MAXIM INTEGRATED PRODUCTS, INC.
<TABLE>
<CAPTION>
========================================================================================
For the three months ended
(Amounts in thousands)(Unaudited) September 26, September 27,
Increase (decrease) in cash and cash equivalents 1998 1997
========================================================================================
<S> <C> <C>
Cash flows from operating activities:
Net income $ 49,395 $ 39,964
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation, amortization and translation adjustment 4,787 3,445
Changes in assets and liabilities:
Accounts receivable 2,442 (4,120)
Inventories -- (180)
Deferred income taxes and other current assets 921 (972)
Accounts payable (9,094) 2,979
Income taxes payable 8,377 14,901
Deferred income on shipments to distributors 570 (1,303)
All other accrued liabilities 7,937 8,185
- ---------------------------------------------------------------------------------------
Net cash provided by operating activities 65,335 62,899
- ---------------------------------------------------------------------------------------
Cash flows from investing activities:
Additions to property, plant and equipment (11,244) (12,206)
Other assets 33 24
Purchases of available-for-sale securities (59,517) (104,267)
Proceeds from maturities of held-to-maturity securities -- 5,800
Proceeds from sales/maturities of available-for-sale
securities 75,942 50,747
- ---------------------------------------------------------------------------------------
Net cash provided by (used in) investing activities 5,214 (59,902)
- ---------------------------------------------------------------------------------------
Cash flows from financing activities:
Issuance of common stock 8,489 11,188
Repurchase of common stock (43,502) (10,550)
- ---------------------------------------------------------------------------------------
Net cash provided by (used in) financing activities (35,013) 638
- ---------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 35,536 3,635
Cash and cash equivalents:
Beginning of year 16,739 18,562
- ---------------------------------------------------------------------------------------
End of period $ 52,275 $ 22,197
=======================================================================================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
5
<PAGE> 6
MAXIM INTEGRATED PRODUCTS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1: BASIS OF PRESENTATION
The unaudited consolidated financial statements included herein have been
prepared by the Company pursuant to the rules and regulations of the Securities
and Exchange Commission. Certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such rules and
regulations. In the opinion of management, all adjustments (consisting of normal
recurring items) considered necessary for a fair presentation have been
included. The results of operations for the three months ended September 26,
1998 are not necessarily indicative of the results to be expected for the entire
year. These consolidated financial statements should be read in conjunction with
the consolidated financial statements and the notes thereto included in the
Annual Report on Form 10-K for the year ended June 27, 1998. Effective July 1,
1997, the Company adopted a 52-53 week fiscal year that will end on the last
Saturday in June, and in which each accounting quarter will end on the last
Saturday of the quarter.
NOTE 2: INVENTORIES
Inventories consist of (in thousands):
<TABLE>
<CAPTION>
September 26, June 27,
1998 1998
(unaudited)
------------- --------
<S> <C> <C>
Raw materials $ 4,469 $ 4,826
Work-in-process 29,746 29,575
Finished goods 10,492 10,306
-------- --------
$ 44,707 $ 44,707
======== ========
</TABLE>
6
<PAGE> 7
MAXIM INTEGRATED PRODUCTS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONT'D)
NOTE 3: EARNINGS PER SHARE
Beginning in the second quarter of fiscal 1998, the Company was required to
report two separate earnings per share numbers, basic and diluted, in compliance
with the Statement of Financial Accounting Standard No. 128 (SFAS 128) Earnings
Per Share which was issued in February 1997. Basic earnings per share is
calculated based only on weighted average common shares outstanding. Diluted
earnings per share is calculated based on the weighted average number of common
and dilutive common equivalent shares outstanding during each respective period.
The number of dilutive common equivalent shares which became issuable pursuant
to the grant of stock options has been calculated using the treasury stock
method. Diluted earnings per share is the same number the Company previously
reported as income per share.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Three Months Ended
September 26, September 27,
(Amounts in thousands) 1998 1997
================================================================================
<S> <C> <C>
Numerator for basic earnings per share
and diluted earnings per share
Net income $ 49,395 $ 39,964
================================================================================
Denominator for basic earnings per share 130,581 128,564
Effect of dilutive securities:
Stock options and warrants 18,079 22,246
Denominator for diluted earnings per share 148,660 150,810
================================================================================
Earnings per share:
Basic $ 0.38 $ 0.31
Diluted $ 0.33 $ 0.26
================================================================================
</TABLE>
7
<PAGE> 8
MAXIM INTEGRATED PRODUCTS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONT'D)
NOTE 4: SHORT-TERM INVESTMENTS
All short-term investment owned at September 26, 1998 are classified as
available-for-sale and consist of U.S. Treasury and Federal Agency debt
securities maturing within one year. Unrealized gains and losses, net of tax, on
securities in this category are reportable as a separate component of
stockholders' equity. Because of the short term to maturity and relative price
insensitivity to changes in market interest rates, amortized cost approximates
fair market value and no unrealized gains or losses have been recorded at
September 26, 1998. The cost of securities sold is based on the specific
identification method. Interest earned on securities is included in interest
income, net in the consolidated statements of income.
NOTE 5: COMPREHENSIVE INCOME
The Company has adopted Statement of Financial Accounting Standards No. 130
(SFAS 130) Reporting Comprehensive Income, as of the first quarter of fiscal
1999. SFAS No. 130 establishes standards for the reporting and disclosure of
comprehensive income and its components, however it has no impact on the
Company's consolidated results of operations, financial position or cash flows.
The difference between net income and comprehensive income is from foreign
currency translation adjustments.
The components of comprehensive income for the three months ended September 26,
1998 and September 27, 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
September 26, September 27,
1998 1997
------------- -------------
<S> <C> <C>
Net income $49,395 $39,964
Cumulative translation
adjustments 704 (643)
------- -------
Comprehensive income $50,099 $39,321
======= =======
</TABLE>
Accumulated other comprehensive income presented on the accompanying
consolidated balance sheets consists of cumulative translation adjustments.
8
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Net revenues for the three months ended September 26, 1998 increased 24.2% to
$155.3 million compared to $125.0 million the same period last year. The
increase is primarily attributable to higher unit shipments resulting from
continued introduction of new proprietary products and increased market
acceptance of the Company's proprietary and second-source products.
During the quarter, 59% of net revenues were derived from customers outside of
the United States. While the majority of these sales are denominated in US
dollars, the Company enters into foreign currency forward contracts to mitigate
its risks on firm commitments and net monetary assets denominated in foreign
currencies; as a result, the impact of changes in foreign exchange rates on
revenue and the Company's results of operations for the quarter was minimal.
Gross margin was 67.5% in the three months ended September 26, 1998, compared to
66.8% for the three months ended September 27, 1997. The increase in gross
margin for the three month period ended September 26, 1998 was due to production
efficiencies obtained through economies of scale offset to some extent by a $2.2
million increase in inventory reserves. The Company also recorded charges of
$2.3 million related to obsoleting of a 4-inch wafer fabrication facility which
was replaced by a 6-inch sub-micron facility acquired in November 1997. In
addition, the Company expensed approximately $2.8 million of negative
manufacturing variances.
Research and development expenses were 13.6% of net revenues in the three months
ended September 26, 1998, compared to 12.4% for the three months ended September
27, 1997. Research and development expenses increased approximately $5.6 million
in absolute dollars for the three month period ended September 26, 1998 over the
comparable period last year. The increase is attributable primarily to continued
investments in product development efforts.
Selling, general and administrative expenses remained constant at 8.7% of net
revenues for both the three months ended September 26, 1998 and September 27,
1997. Selling, general and administrative expenses increased in absolute dollars
primarily as a result of increased headcount and related employee expenses to
support the Company's higher revenues.
The Company's operating income decreased slightly to 45.3% of net revenues for
the three months ended September 26, 1998, compared to 45.7% for the three
months ended September 27, 1998.
Net interest income increased to $4.6 million in the three months ended
September 26, 1998 compared to $3.5 million for the comparable period a year ago
as a result of higher levels of invested cash, cash equivalents and short-term
investments.
The effective income tax rate for both the three months ended September 26, 1998
and September 27, 1997 was 34%. This rate differs from the federal statutory
rate primarily due to state income taxes and tax exempt earnings of the
Company's Foreign Sales Corporation.
9
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONT'D)
OUTLOOK
During the first quarter of fiscal 1999, shipments to customers remained at
fourth quarter 1998 levels despite global economic conditions and lower end
market bookings than in the previous quarter. Turns orders received during the
quarter increased 21% over the fourth quarter 1998 level and were approximately
$42.0 million (turns orders are customer orders that are for delivery within the
same quarter and may result in revenue within the same quarter if the Company
has available inventory that matches those orders).
In addition to the increased level of turns orders received during the quarter,
the Company also experienced a higher percentage of orders requesting near-term
delivery (customer orders for delivery in the first or second quarter of fiscal
1999). The Company attributes the prevalence of short-term orders to its reduced
lead times, and limited customer expectations for short-term improvement in
demand for end-market equipment. The Company also believes that the economic
uncertainty in the world markets is negatively affecting the inventory and
purchasing psychology of the Company's customers, resulting in less long-term
ordering.
Net bookings during the quarter were approximately $127 million, a 7% decline
from the fourth quarter of fiscal 1998. First quarter ending backlog shippable
within the next 12 months was approximately $143.2 million, a decline from
$181.0 million reported at the end of the fourth quarter of fiscal 1998. Eighty
percent of the ending first quarter backlog consists of orders that were
requested for shipment in the second quarter of fiscal 1999 or earlier.
The Company believes that current worldwide economic uncertainties are impacting
its customers' ability to predict the demand for their products. In this
environment, prudence dictates that the Company remain cautious about its
short-term revenue outlook. To maintain the Company's current revenue level, it
will need a continued increase in turns orders that match available supply and
an overall increase in the order rate from the first quarter of 1999. In the
first quarter of 1999, none of the geographic or end equipment markets broke out
of the downward booking trend of the last three quarters. The Company continues
to watch for a leading indicator predicting a change in the ordering rates from
the last nine months.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary sources of funds for the first three months of fiscal 1999
have been from net cash generated from operating activities of $65.3 million,
$16.4 million net proceeds from investment activities and the issuance of common
stock of $8.5 million associated with the Company's stock option programs.
The principal uses of funds have been the repurchase of $43.5 million of common
stock and the purchase of $11.2 million in property, plant and equipment.
The Company anticipates that it will spend approximately $70 million for capital
equipment in fiscal 1999 and believes that it possesses sufficient liquidity and
capital resources to fund these purchases and its operations for the foreseeable
future. In addition, the Company intends to continue to repurchase its common
stock from time to time consistent with its policy and practice of using the
proceeds or anticipated proceeds from the exercise of stock options and the
resulting tax benefit to repurchase its common stock.
10
<PAGE> 11
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONT'D)
YEAR 2000 ISSUE
As a result of certain computer programs being written using two digits rather
than four to define the applicable year, any of the Company's computer programs
that have date-sensitive software may recognize a date using "00" as the year
1900 rather than the year 2000 (the "Year 2000 Issue"). This could result in a
system failure or miscalculations causing disruptions of operations, including,
among other things, a temporary inability to process transactions, send
invoices, or engage in normal business activities.
The Company is in the process of evaluating the modifications to both new and
existing software and hardware required to mitigate the Year 2000 Issue. The
Company has also initiated formal communications with its significant suppliers
and large customers to determine the extent to which the Company is vulnerable
to those third parties' failure to minimize their own Year 2000 Issue. The
Company expects to have any required modifications completed prior to December
31, 1999. However, if such modifications are not made, or are not completed in a
timely fashion, the Year 2000 Issue could have a material impact on the
operations of the Company. In addition, there can be no assurance that the
systems of other companies on which the Company's systems rely will be timely
converted, or that a failure to convert by another company, or a conversion that
is incompatible with the Company's systems, would not have a material adverse
effect on the Company. The Company currently has no contingency plan in the
event it or third parties are unable to complete system modifications to address
the Year 2000 Issue. Costs incurred to date have been minimal. While the Company
has not fully completed the evaluation of its Year 2000 Issue, it does not
anticipate that the future cost of these efforts will be material.
The date on which the Company plans to complete any necessary Year 2000
modifications is based on management's best estimates, which were derived
utilizing numerous assumptions of future events, including the continued
availability of certain resources, third party modification plans, and other
factors. However, there can be no assurance that these estimates will be
achieved, and actual results could differ materially from those plans. Specific
factors that might cause such material differences include, but are not limited
to, the availability and cost of personnel trained in this area, the ability to
locate and correct all relevant computer codes, and similar uncertainties.
11
<PAGE> 12
FORWARD LOOKING INFORMATION
Forward-looking statements in this report, including this Management's
Discussion and Analysis section, involve risk and uncertainty. There are
numerous factors that could cause the Company's actual results to differ
materially from results predicted or implied in this report.
Important factors affecting the Company's ability to achieve future revenue
growth include whether, and the extent to which, demand for the Company's
products increases and reflects real end-user demand; whether customer
cancellations and delays of outstanding orders increase; and whether the Company
is able to manufacture in a correct mix to respond to orders on hand and new
orders received in the future; whether the Company is able to achieve its new
product development and introduction goals, including, without limitation, goals
for recruiting, retaining, training, and motivating engineers, particularly
design engineers, and goals for conceiving and introducing timely new products
that are well received in the marketplace; and whether the Company is able to
successfully commercialize its new technologies, such as its new
second-generation high frequency technologies, that it has been investing in by
designing and introducing new products based on these new technologies.
Other important factors that could cause actual results to differ materially
from those predicted include overall economic conditions, such as the currency
and other economic issues affecting Asian countries; demand for electronic
products and semiconductors generally; demand for the end-user products for
which the Company's semiconductors are suited; timely availability of raw
materials, equipment, supplies and services; unanticipated manufacturing
problems; technological and product development risks; competitors' actions; and
other risk factors described in the Company's filings with the Securities and
Exchange Commission and in particular its recent report on Form 10-K.
All forward-looking statements included in this document are made as of the date
hereof, based on the information available to the Company as of the date hereof,
and the Company assumes no obligation to update any forward-looking statement.
12
<PAGE> 13
PART II. OTHER INFORMATION
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<S> <C>
3.4 Bylaws of the Registrant as amended (Section 15 amended on September 28, 1998).
27 Financial Data Schedule.
</TABLE>
(b) No Reports on Form 8-K were filed during the quarter ended September
26, 1998.
ITEMS 1, 2, 3, 4 AND 5 HAVE BEEN OMITTED AS THEY ARE NOT APPLICABLE.
13
<PAGE> 14
SIGNATURES
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.
<TABLE>
<S> <C>
NOVEMBER 6, 1998 MAXIM INTEGRATED PRODUCTS, INC.
- ---------------- ----------------------------------
(Date) (Registrant)
/s/ Michael J. Byrd
----------------------------------
MICHAEL J. BYRD
Vice President and Chief Financial
Officer (For the Registrant and as
Principal Financial Officer)
/s/ Carl W. Jasper
----------------------------------
CARL W. JASPER
Corporate Controller (Principal
Accounting Officer)
</TABLE>
14
<PAGE> 15
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
3.4 Bylaws of the Registrant as amended (Section 15 amended on September 28, 1998).
27 Financial Data Schedule.
</TABLE>
15
<PAGE> 1
Exhibit 3.4
BYLAWS AS AMENDED THROUGH SEPTEMBER 28, 1998
OF
MAXIM INTEGRATED PRODUCTS, INC.
(a Delaware corporation)
<PAGE> 2
EXHIBIT 3.4
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the Corporation
in the State of Delaware shall be in the City of Dover, County of Kent.
Section 2. Other Offices. The Corporation shall also have and maintain
an office or principal place of business in Sunnyvale, California, or at such
other place as may be fixed by the Board of Directors, and may also have offices
at such other places, both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
Corporate Seal
Section 3. Corporate Seal. The Corporate seal shall consist of a die
bearing the name of the Corporation and the inscription, "Corporate
Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE III
Stockholders' Meetings
Section 4. Place of Meetings. Meetings of the stockholders of the
Corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the office of the Corporation required to be
maintained pursuant to Section 2 hereof.
Section 5. Annual Meeting. The annual meeting of the stockholders of
the Corporation, for the purpose of election of Directors and for such other
business as may lawfully come before it shall be held on such date and at such
time as may be designated from time to time by the Board of Directors, or, if
not so designated, then at 10 o'clock A.M. on the second Thursday in November in
each year if not a legal holiday, and, if a legal holiday, at the same hour and
place on the next succeeding day not a holiday.
Section 6. Special Meetings. Special meetings of the stockholders of
the Corporation may be called at any time, for any purpose or purposes, by the
Board of Directors or by the holders of outstanding stock of the Corporation
holding at least ten (10) percent of the voting power of the Corporation.
Section 7. Notice of Meetings. Except as otherwise provided by law or
the Certificate of Incorporation, written notice of each meeting of stockholders
shall be given not less than ten
<PAGE> 3
(10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting, such notice to specify the place,
date and hour and purpose or purposes of the meeting. Notice of the time, place
and purpose of any meeting of stockholders may be waived in writing, signed by
the person entitled to notice thereof, either before or after such meeting, and
will be waived by any stockholder by his attendance thereat in person or by
proxy, except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Any stockholder so
waiving notice of such meeting shall be bound by the proceedings of any such
meeting in all respects as if due notice thereof had been given.
Section 8. Quorum. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person or by proxy duly authorized, of the
holders of a majority of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. Any shares, the voting of
which at said meeting has been enjoined, or which for any reason cannot be
lawfully voted at such meeting, shall not be counted to determine a quorum at
such meeting. In the absence of a quorum any meeting of stockholders may be
adjourned, from time to time, by vote of the holders of a majority of the shares
represented thereat, but no other business shall be transacted at such meeting.
The stockholders present at a duly called or convened meeting, at which a quorum
is present, may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. Except as
otherwise provided by law, the Certificate of Incorporation or these Bylaws, all
action taken by the holders of a majority of the voting power represented at any
meeting at which a quorum is present shall be valid and binding upon the
Corporation.
Section 9. Adjournment and Notice of Adjourned Meetings. Any meeting of
stockholders, whether annual or special, may be adjourned from time to time by
the vote of a majority of the shares, the holders of which are present either in
person or by proxy. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business that might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 10. Voting Rights. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the stock
records of the Corporation on the record date, as provided in Section 12 of
these Bylaws, shall be entitled to vote at any meeting of stockholders. Every
person entitled to vote or execute consents shall have the right to do so either
in person or by an agent or agents authorized by a written proxy executed by
such person or his duly authorized agent, which proxy shall be filed with the
Secretary at or before the meeting at which it is to be used. An agent so
appointed need not be a stockholder. No proxy shall be voted after three (3)
years from its date of creation unless the proxy provides
2.
<PAGE> 4
for a longer period. All elections of Directors shall be by written ballot,
unless otherwise provided in the Certificate of Incorporation.
Section 11. Joint Owners of Stock. If shares or other securities having
voting power stand of record in the names of two (2) or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety, or otherwise, or if two (2) or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary is given
written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect: (a) if only
one (1) votes, his act binds all; (b) if more than one (1) votes, the act of the
majority so voting binds all; (c) if more than one (1) votes, but the vote is
evenly split on any particular matter, each faction may vote the securities in
question proportionally, or may apply to the Delaware Court of Chancery for
relief as provided in the General Corporation Law of Delaware, Section 217(b).
If the instrument filed with the Secretary shows that any such tenancy is held
in unequal interests, a majority or even split for the purpose of this
subsection (c) shall be a majority or even split in interest.
Section 12. List of Stockholders. The Secretary shall prepare and make,
at least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at said meeting, arranged in alphabetical
order, showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 13. Action without Meeting.
(a) Any action required by statute to be taken at any annual or special
meeting of the stockholders, or any action which may be taken at any annual or
special meeting of the stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, are signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted and shall be delivered to the Corporation by delivery to
its registered office in the State of Delaware, its principal place of business
or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent, and no written consent shall be effective to
take the corporate action referred to
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therein unless, within sixty (60) days of the earliest dated consent delivered
to the Corporation in the manner herein required, written consents signed by a
sufficient number of stockholders to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a Corporation's registered office shall be by hand or
by certified or registered mail, return receipt requested.
(c) No such action by written consent may be taken following the
effectiveness of the registration of any class of securities of the Corporation
under the Securities Exchange Act of 1934, as amended.
Section 14. Organization. At every meeting of stockholders, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the President, or, if the President is absent, the most senior Vice
President present, or in the absence of any such officer, a chairman of the
meeting chosen by a majority in interest of the stockholders entitled to vote,
present in person or by proxy, shall act as chairman. The Secretary, or, in his
absence, an Assistant Secretary directed to do so by the President, shall act as
secretary of the meeting.
ARTICLE IV
Directors
Section 15. Number and Term of Office. The number of Directors which
shall constitute the whole of the Board of Directors shall be four (4). The
number of authorized Directors may be modified from time to time by amendment of
this Bylaw in accordance with the provisions of Section 43 hereof. Except as
provided in Section 17, the Directors shall be elected by the stockholders at
their annual meeting in each year and shall hold office until the next annual
meeting and until their successors shall be duly elected and qualified, or until
their death, resignation or removal. Directors need not be stockholders unless
so required by the Certificate of Incorporation. If for any cause, the Directors
shall not have been elected at an annual meeting, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders called for
that purpose in the manner provided in these Bylaws.
Section 16. Powers. The powers of the Corporation shall be exercised,
its business conducted and its property controlled by the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of
Incorporation.
Section 17. Vacancies. Unless otherwise provided in the Certificate of
Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the Directors then in office, although less than a quorum, or by a sole
remaining Director, and each Director so elected shall hold office for the
unexpired portion of the term of the Director whose place shall be vacant and
until his
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successor shall have been duly elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this Section 17 in the case of the
death, removal or resignation of any Director, or if the stockholders fail at
any meeting of stockholders at which directors are to be elected (including any
meeting referred to in Section 19 below) to elect the number of Directors then
constituting the whole Board of Directors.
Section 18. Resignation. Any Director may resign at any time by
delivering his written resignation to the Secretary, such resignation to specify
whether it will be effective at a particular time, upon receipt by the Secretary
or at the pleasure of the Board of Directors. If no such specification is made,
it shall be deemed effective at the pleasure of the Board of Directors. When one
or more Directors shall resign from the Board of Directors, effective at a
future date, a majority of the Directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office for the unexpired
portion of the term of the Director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
Section 19. Removal. At a special meeting of stockholders called for
the purpose in the manner hereinabove provided, subject to the limitation set
forth in Section 141(k) of the General Corporation Law of Delaware, the Board of
Directors, or any individual Director, may be removed from office, with or
without cause, and a new Director or Directors elected by a vote of stockholders
holding a majority of the outstanding shares entitled to vote at an election of
Directors.
Section 20. Meetings.
(a) Annual Meetings. The annual meeting of the Board of Directors shall
be held immediately after the annual meeting of stockholders and at the place
where such meeting is held. No notice of an annual meeting of the Board of
Directors shall be necessary and such meeting shall be held for the purpose of
electing officers and transacting such other business as may lawfully come
before it.
(b) Regular Meetings. Except as hereinafter otherwise provided, regular
meetings of the Board of Directors shall be held at the office of the
Corporation required to be maintained pursuant to Section 2 hereof. Unless
otherwise restricted by the Certificate of Incorporation, regular meetings of
the Board of Directors may also be held at any place within or without the State
of Delaware which has been designated by resolution of the Board of Directors or
the written consent of all Directors.
(c) Special Meetings. Unless otherwise restricted by the Certificate of
Incorporation, special meetings of the Board of Directors may be held at any
time and place within or without the State of Delaware whenever called by the
Chairman of the Board or the President or any Vice President or the Secretary of
the Corporation or any two (2) Directors.
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(d) Telephone Meetings. Any member of the Board of Directors, or of any
committee thereof, may participate in a meeting by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting by such means
shall constitute presence in person at such meeting.
(e) Notice of Meetings. Notice of the date, time and place of all
meetings of the Board of Directors, other than regular meetings held pursuant to
Section 20(a) or (b) above shall be delivered personally, orally or in writing,
or by telephone or telegraph to each Director, at least forty-eight (48) hours
before the meeting, or sent in writing to each Director by first-class mail,
charges prepaid, at least four (4) days before the meeting. Such notice may be
given by the Secretary of the Corporation or by the person or persons who called
a meeting. Such notice need not specify the purpose of the meeting. Notice of
any meeting may be waived in writing at any time before or after the meeting and
will be waived by any Director by attendance thereat, except when the Director
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
(f) Waiver of Notice. The transaction of all business at any meeting of
the Board of Directors, or any committee thereof, however called or noticed, or
wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present and if, either before or after
the meeting, each of the Directors not present shall sign a written waiver of
notice, or a consent to holding such meeting, or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 21. Quorum and Voting.
(a) Quorum. Unless the Certificate of Incorporation requires a greater
number and except with respect to indemnification questions arising under
Section 41(a) hereof, for which a quorum shall be one-third of the exact number
of Directors fixed from time to time in accordance with Section 15 of these
Bylaws, but not less than one (1), a quorum of the Board ofDirectors shall
consist of a majority of the exact number of Directors fixed from time to time
in accordance with Section 15 of these Bylaws, but not less than one (1);
provided, however, at any meeting whether a quorum be present or otherwise, a
majority of the Directors present may adjourn from time to time until the time
fixed for the next regular meeting of the Board of Directors, without notice
other than by announcement at the meeting.
(b) Majority Vote. At each meeting of the Board of Directors at which a
quorum is present all questions and business shall be determined by a vote of a
majority of the Directors present, unless a different vote be required by law,
the Certificate of Incorporation or these Bylaws.
Section 22. Action without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all
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members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and such writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 23. Fees and Compensation. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special
meeting of the Board of Directors or any meeting of a committee of directors.
Nothing herein contained shall be construed to preclude any Director from
serving the Corporation in any other capacity as an officer, agent, employee, or
otherwise and receiving compensation therefor.
Section 24. Committees.
(a) Executive Committee. The Board of Directors may by resolution
passed by a majority of the whole Board of Directors, appoint an Executive
Committee to consist of one (1) or more members of the Board of Directors. The
Executive Committee, to the extent permitted by law and specifically granted by
the Board of Directors, shall have and may exercise when the Board of Directors
is not in session all powers of the Board of Directors in the management of the
business and affairs of the Corporation, including, without limitation, the
power and authority to declare a dividend or to authorize the issuance of stock,
except such committee shall not have the power or authority to amend the
Certificate of Incorporation, to adopt an agreement of merger or consolidation,
to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, to recommend to the
stockholders of the Corporation a dissolution of the Corporation or a revocation
of a dissolution or to amend these Bylaws.
(b) Other Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, from time to time appoint such
other committees as may be permitted by law. Such other committees appointed by
the Board of Directors shall consist of one (1) or more members of the Board of
Directors, and shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such committees, but in no
event shall such committee have the powers denied to the Executive Committee in
these Bylaws.
(c) Term. The members of all committees of the Board of Directors shall
serve a term coexistent with that of the Board of Directors which shall have
appointed such committee. The Board of Directors, subject to the provisions of
subsections (a) or (b) of this Section 24, may at any time increase or decrease
the number of members of a committee or terminate the existence of a committee.
The membership of a committee member shall terminate on the date of his death or
voluntary resignation. The Board of Directors may at any time for any reason
remove any individual committee member and the Board of Directors may fill any
committee vacancy created by death, resignation, removal or increase in the
number of members of the committee. The Board of Directors may designate one or
more Directors as alternate members
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of any committee, who may replace any absent or disqualified member at any
meeting of the committee, and, in addition, in the absence or disqualification
of any member of a committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
(d) Meetings. Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other committee appointed
pursuant to this Section24 shall be held at such times and places as are
determined by the Board of Directors, or by any such committee, and when notice
thereof has been given to each member of such committee, no further notice of
such regular meetings need be given thereafter. Special meetings of any such
committee may be held at the principal office of the Corporation required to be
maintained pursuant to Section 2 hereof, or at any place which has been
designated from time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any Director who is a
member of such committee, upon written notice to the members of such committee
of the time and place of such special meeting given in the manner provided for
the giving of written notice to members of the Board of Directors of the time
and place of special meetings of the Board of Directors. Notice of any special
meeting of any committee may be waived in writing at any time before or after
the meeting and will be waived by any Director by attendance thereat, except
when the Director attends such special meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. A majority of the
authorized number of members of any such committee shall constitute a quorum for
the transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of such committee.
Section 25. Organization. At every meeting of the Directors, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the President, or if the President is absent, the most senior Vice
President, or, in the absence of any such officer, a chairman of the meeting
chosen by a majority of the Directors present, shall preside over the meeting.
The Secretary, or in his absence, an Assistant Secretary directed to do so by
the President, shall act as secretary of the meeting.
ARTICLE V
Officers
Section 26. Officers Designated. The officers of the Corporation shall
be the Chairman of the Board of Directors, the President, one or more Vice
Presidents, the Secretary and the Chief Financial Officer, all of whom shall be
elected at the annual meeting of the Board of Directors. The order of the
seniority of the Vice Presidents shall be in the order of their nomination,
unless otherwise determined by the Board of Directors. The Board of Directors
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may also appoint such other officers and agents with such powers and duties as
it shall deem necessary. The Board of Directors may assign such additional
titles to one or more of the officers as it shall deem appropriate. Any one
person may hold any number of offices of the Corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other compensation of
the officers of the Corporation shall be fixed by or in the manner designated by
the Board of Directors.
Section 27. Tenure and Duties of Officers.
(a) General. All officers shall hold office at the pleasure of the
Board of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. If the office of any officer becomes vacant
for any reason, the vacancy may be filled by the Board of Directors.
(b) Duties of Chairman of the Board of Directors. The Chairman of the
Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors
shall perform the duties commonly incident to his office and shall also perform
such other duties and have such other powers as the Board of Directors shall
designate from time to time.
(c) Duties of President. The President shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present. The
President shall, subject to the control of the Board of Directors and unless
otherwise determined by the Board of Directors, serve as the Chief Executive
Officer of the Corporation and shall have general supervision, direction and
control of the business and officers of the Corporation. The President shall
perform other duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors and the
Chairman of the Board, if one has been appointed, shall designate from time to
time.
(d) Duties of Vice Presidents. The Vice Presidents, in the order of
their seniority, may assume and perform the duties of the President in the
absence or disability of the President or whenever the office of President is
vacant. The Vice Presidents shall perform other duties commonly incident to
their office and shall also perform such other duties and have such other powers
as the Board of Directors or the President shall designate from time to time.
(e) Duties of Secretary. The Secretary shall attend all meetings of the
stockholders and of the Board of Directors, and shall record all acts and
proceedings thereof in the minute book of the Corporation. The Secretary shall
give notice in conformity with these Bylaws of all meetings of the stockholders,
and of all meetings of the Board of Directors and any committee thereof
requiring notice. The Secretary shall perform all other duties given him in
these Bylaws and other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. The President may direct any Assistant
Secretary to assume and perform the duties of the Secretary in the
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absence or disability of the Secretary, and each Assistant Secretary shall
perform other duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors or the
President shall designate from time to time.
(f) Duties of Chief Financial Officer. The Chief Financial Officer
shall keep or cause to be kept the books of account of the Corporation in a
thorough and proper manner, and shall render statements of the financial affairs
of the Corporation in such form and as often as required by the Board of
Directors or the President. The Chief Financial Officer, subject to the order of
the Board of Directors, shall have the custody of all funds and securities of
the Corporation. The Chief Financial Officer shall perform other duties commonly
incident to his office and shall also perform such other duties and have such
other powers as the Board of Directors or the President shall designate from
time to time. The President may direct any Assistant Chief Financial Officer to
assume and perform the duties of the Chief Financial Officer in the absence or
disability of the Chief Financial Officer, and each Assistant Chief Financial
Officer shall perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time.
Section 28. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the person
or persons to whom such notice is given, unless a later time is specified
therein, in which event the resignation shall become effective at such later
time. Unless otherwise specified in such notice, the acceptance of any such
resignation shall not be necessary to make it effective.
Section 29. Removal. Any officer may be removed from office at any
time, either with or without cause, by the vote or written consent of a majority
of the Directors in office at the time, or by any committee or superior officers
upon whom such power of removal may have been conferred by the Board of
Directors.
ARTICLE VI
Execution of Corporate Instruments and Voting
of Securities Owned by the Corporation
Section 30. Execution of Corporate Instruments. The Board of Directors
may, in its discretion, determine the method and designate the signatory officer
or officers, or other person or persons, to execute on behalf of the Corporation
any corporate instrument or document, or to sign on behalf of the Corporation
the corporate name without limitation, or to enter into contracts on behalf of
the Corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the Corporation.
Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, promissory notes, deeds of trust, mortgages and other
evidences of indebtedness of the
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Corporation, and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the Corporation,
shall be executed, signed or endorsed by the Chairman of the Board of Directors,
the President or any Vice President, and by the Secretary or Treasurer or any
Assistant Secretary or Assistant Treasurer. All other instruments and documents
requiring the corporate signature, but not requiring the corporate seal, may be
executed as aforesaid or in such other manner as may be directed by the Board of
Directors.
All checks and drafts drawn on banks or other depositaries on funds to
the credit of the Corporation or in special accounts of the Corporation shall be
signed by such person or persons as the Board of Directors shall authorize so to
do.
Section 31. Voting of Securities Owned by the Corporation. All stock
and other securities of other Corporations owned or held by the Corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board of Directors, the President, or any Vice President.
ARTICLE VII
Shares of Stock
Section 32. Form and Execution of Certificates. Certificates for the
shares of stock of the Corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. Every holder of stock in
the Corporation shall be entitled to have a certificate signed by or in the name
of the Corporation by the Chairman of the Board of Directors, or the President
or any Vice President and by the Treasurer or Assistant Treasurer or the
Secretary or Assistant Secretary, certifying the number of shares owned by him
in the Corporation. Where such certificate is countersigned by a transfer agent
other than the Corporation or its employee, or by a registrar other than the
Corporation or its employee, any other signature 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 with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue. Each certificate shall state
upon the face or back thereof, in full or in summary, all of the designations,
preferences, limitations, restrictions on transfer and relative rights of the
shares authorized to be issued.
Section 33. Lost Certificates. A new certificate or certificates shall
be issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The Corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to advertise the same
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in such manner as it shall require or to give the Corporation a surety bond in
such form and amount as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen, or destroyed.
Section 34. Transfers. Transfers of record of shares of stock of the
Corporation shall be made only upon its books by the holders thereof, in person
or by attorney duly authorized, and upon the surrender of a properly endorsed
certificate or certificates for a like number of shares.
Section 35. Fixing Record Dates.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
such meeting. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix, in advance, a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which date shall not be more than ten (10) days
after the date upon which the resolution fixing the record date is adopted by
the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to
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exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date
shall be not more than sixty (60) days prior to such action. If no record date
is fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section 36. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VIII
Other Securities of the Corporation
Section 37. Execution of Other Securities. All bonds, debentures and
other corporate securities of the Corporation, other than stock certificates,
may be signed by the Chairman of the Board of Directors, the President or any
Vice President, or such other person as may be authorized by the Board of
Directors, and the corporate seal impressed thereon or a facsimile of such seal
imprinted thereon and attested by the signature of the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer; provided, however, that
where any such bond, debenture or other corporate security shall be
authenticated by the manual signature of a trustee under an indenture pursuant
to which such bond, debenture or other corporate security shall be issued, the
signatures of the persons signing and attesting the corporate seal on such bond,
debenture or other corporate security may be the imprinted facsimile of the
signatures of such persons. Interest coupons appertaining to any such bond,
debenture or other corporate security, authenticated by a trustee as aforesaid,
shall be signed by the Treasurer or an Assistant Treasurer of the Corporation or
such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer
who shall have signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon or on any such
interest coupon, shall have ceased to be such officer before the bond, debenture
or other corporate security so signed or attested shall have been delivered,
such bond, debenture or other corporate security nevertheless may be adopted by
the Corporation and issued and delivered as though the person who signed the
same or whose facsimile signature shall have been used thereon had not ceased to
be such officer of the Corporation.
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ARTICLE IX
Dividends
Section 38. Declaration of Dividends. Dividends upon the capital stock
of the Corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors pursuant to law
at any regular or special meeting. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the Certificate
of Incorporation.
Section 39. Dividend Reserve. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the Corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
Fiscal Year
Section 40. Fiscal Year. Unless otherwise fixed by resolution of the
Board of Directors, the fiscal year of the Corporation shall end on the last day
of June.
ARTICLE XI
Indemnification
Section 41. Indemnification of Officers, Directors, Employees and Other
Agents.
(a) Directors. The Corporation shall indemnify its directors to the
fullest extent permitted by the Delaware General Corporation Law.
(b) Officers, Employees and Other Agents. The Corporation shall have
power to indemnify its officers, employees and other agents as set forth in the
Delaware General Corporation Law.
(c) Good Faith.
(1) For purposes of any determination under this Bylaw, a
Director, or any member of a committee designated by the Board of Directors,
shall be deemed to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, to have had no reasonable
cause to believe that his conduct was unlawful, if he relied in good faith upon
the records of
14.
<PAGE> 16
the Corporation and upon such information, opinions, reports or statements
presented to the Corporation by any of the Corporation's officers or employees,
or committees of the Board of Directors, or by any other person as to matters
the Director reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Corporation.
(2) The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal proceeding, that
he had reasonable cause to believe that his conduct was unlawful.
(3) The provisions of this paragraph (c) shall not be deemed
to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth by the
Delaware General Corporation Law.
(d) Expenses. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all expenses
incurred by any Director in connection with such proceeding upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be indemnified under
this Bylaw or otherwise.
(e) Enforcement. Without the necessity of entering into an express
contract, all rights to indemnification and advances under this Bylaw shall be
deemed to be contractual rights and be effective to the same extent and as if
provided for in a contract between the Corporation and the Director who serves
in such capacity at any time while this Bylaw and other relevant provisions of
the Delaware General Corporation Law and other applicable law, if any, are in
effect. Any right to indemnification or advances granted by this Bylaw to a
Director shall be enforceable by or on behalf of the person holding such right
in any court of competent jurisdiction if (i) the claim for indemnification or
advances is denied, in whole or in part, or (ii) no disposition of such claim is
made within ninety (90) days of request therefor. The claimant in such
enforcement action, if successful in whole or in part, shall be entitled to be
paid also the expense of prosecuting his claim. The Corporation shall be
entitled to raise by pleading as an affirmative defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
connection with any proceeding in advance of its final disposition when the
required undertaking has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed. 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 claimant is proper in the circumstances because he 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 claimant has not met
such applicable standard of conduct,
15.
<PAGE> 17
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
(f) Non-Exclusivity of Rights. The rights conferred on any person by
this Bylaw shall not be exclusive of any other right which such person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The Corporation is specifically
authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the
fullest extent permitted by the Delaware General Corporation Law.
(g) Survival of Rights. The rights conferred on any person by this
Bylaw shall continue as to a person who has ceased to be a Director, officer,
employee or other agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(h) Insurance. To the fullest extent permitted by the Delaware General
Corporation Law, the Corporation, upon approval by the Board of Directors, may
purchase insurance on behalf of any person required or permitted to be
indemnified pursuant to this Bylaw.
(i) Amendments. Any repeal or modification of this Bylaw shall only be
prospective and shall not affect the rights under this Bylaw in effect at the
time of the alleged occurrence of any action or omission to act that is the
cause of any proceeding against any agent of the Corporation.
(j) Savings Clause. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director to the full extent
permitted by any applicable portion of this Bylaw that shall not have been
invalidated, or by any other applicable law.
(k) Certain Definitions. For the purposes of this Bylaw, the following
definitions shall apply:
(1) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement and appeal of any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative.
(2) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees, fines,
amounts paid in settlement or judgment and any other costs and expenses of any
nature or kind incurred in connection with any proceeding.
(3) The term the "Corporation" shall include, in addition to
the resulting corporation, any constituent Corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority
16.
<PAGE> 18
to indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Bylaw with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(4) References to a "director," "officer," "employee," or
"agent" of the Corporation shall include, without limitation, situations where
such person is serving at the request of the Corporation as a Director, officer,
employee, trustee or agent of another corporation, partnership, joint venture,
trust or other enterprise.
(5) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references to "serving at
the request of the Corporation" shall include any service as a Director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such Director, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Bylaw.
ARTICLE XII
Notices
Section 42. Notices.
(a) Notice to Stockholders. Whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder, it shall be given in
writing, personally or timely and duly deposited in the United States mail,
postage prepaid, and addressed to his last known post office address as shown by
the stock record of the Corporation or its transfer agent.
(b) Notice to Directors. Any notice required to be given to any
Director may be given by the method stated in subsection (e) of Section 20 of
these Bylaws except that such notice other than one which is delivered
personally shall be sent to such address as such Director shall have filed in
writing with the Secretary, or, in the absence of such filing, to the last known
post office address of such Director.
(c) Address Unknown. If no address of a stockholder or Director be
known, notice may be sent to the office of the Corporation required to be
maintained pursuant to Section 2 hereof.
17.
<PAGE> 19
(d) Affidavit of Mailing. An affidavit of mailing, executed by a duly
authorized and competent employee of the Corporation or its transfer agent
appointed with respect to the class of stock affected, specifying the name and
address or the names and addresses of the stockholder or stockholders, or
Director or Directors, to whom any such notice or notices was or were given, and
the time and method of giving the same, shall be conclusive evidence of the
statements therein contained.
(e) Time Notices Deemed Given. All notices given by mail, as above
provided, shall be deemed to have been given as at the time of mailing and all
notices given by telegram shall be deemed to have been given as at the sending
time recorded by the telegraph company transmitting the notices.
(f) Methods of Notice. It shall not be necessary that the same method
of giving notice be employed in respect of all directors, but one permissible
method may be employed in respect of any one or more, and any other permissible
method or methods may be employed in respect of any other or others.
(g) Failure to Receive Notice. The period or limitation of time within
which any stockholder may exercise any option or right, or enjoy any privilege
or benefit, or be required to act, or within which any Director may exercise any
power or right, or enjoy any privilege, pursuant to any notice sent him in the
manner above provided, shall not be affected or extended in any manner by the
failure of such stockholder or such Director to receive such notice.
(h) Notice to Person with Whom Communication Is Unlawful. Whenever
notice is required to be given, under any provision of law or of the Certificate
of Incorporation or Bylaws of the Corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the Corporation is
such as to require the filing of a certificate under any provision of the
Delaware General Corporation Law, the certificate shall state, if such is the
fact and if notice is required, that notice was given to all persons entitled to
receive notice except such persons with whom communication is unlawful.
ARTICLE XIII
Amendments
Section 43. Amendments. Except as otherwise set forth in paragraph
41(i) hereof, these Bylaws may be repealed, altered or amended or new Bylaws
adopted by the stockholders. In addition to any vote of the holders of any class
or series of stock of this Corporation required by law or by these Bylaws, the
affirmative vote of a majority of the voting power of all of the
18.
<PAGE> 20
then-outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class, shall
be required to adopt, amend or repeal any provisions of the Bylaws of the
Corporation. Except as otherwise set forth in paragraph 41(i) hereof, the Board
of Directors shall also have the authority, if such authority is conferred upon
the Board of Directors by the Certificate of Incorporation, to repeal, alter or
amend these Bylaws or adopt new Bylaws (including, without limitation, the
amendment of any Bylaw setting forth the number of Directors who shall
constitute the whole Board of Directors) subject to the power of the
stockholders to change or repeal such Bylaws and provided that the Board of
Directors shall not make or alter any Bylaws fixing the qualifications,
classifications, term of office or compensation of Directors.
19.
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