<PAGE> 1
As filed with the Securities and Exchange Commission on September 8, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GARTNER GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 06-3099750
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
P.O. Box 10212
56 Top Gallant Road
Stamford, CT 06904-2212
(203) 964-0096
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
Gartner Group, Inc. 1996 Long Term Stock Option Plan
(FULL TITLE OF THE PLAN)
John F. Halligan
Executive Vice President, Chief Financial Officer and Secretary
Gartner Group, Inc.
P.O. Box 10212
56 Top Gallant Road
Stamford, CT 06904-2212
(203) 964-0096
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
Frank J. Marco, Esq.
Shipman & Goodwin LLP
One American Row
Hartford, CT 06103
(860) 251-5000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE (1) FEE
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Class A, par 1,800,000 shares $20.86 $37,548,000 $11,378.18
value $0.0005
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h), the proposed maximum offering price per share is
based on the weighted average exercise price of outstanding options to
purchase 1,800,000 shares.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information statement being delivered by Gartner Group, Inc. (the
"Company") to participants in the Company's 1996 Long Term Stock Option Plan
(the "Plan"), as required by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), has been prepared in accordance with the
requirements of Form S-8 and relates to shares of common stock, par value
$0.0005 per share, (the "Shares") to be issued pursuant to the Plan. The
information with respect to the Plan required in the Section 10(a) prospectus is
included in documents being maintained and delivered by the Company as required
by Rule 428 under the Securities Act. The Company shall provide to participants
a written statement advising them of the availability without charge, upon
written or oral request, of documents incorporated by reference herein, as is
required by Item 2 of Part I of Form S-8.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed with the Commission, are
hereby incorporated by reference in this registration statement:
(a) The Company's Annual Report on Form 10-K for the year ended
September 30, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the document referred to in (a) above; and
(c) The description of the Shares contained in the Registration
Statement on Form 8-A filed on August 18, 1993, filed pursuant to Section 12(g)
of the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this registration
statement shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
This item is not applicable.
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<PAGE> 4
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
This item is not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("Delaware Law")
provides that a corporation may indemnify a director, officer, employee or
agent made a party to an action by reason of the fact that he was a director,
officer, employee or agent of the corporation, or was serving at the request of
the corporation, against expenses actually and reasonably incurred, including
attorneys' fees, in connection with such action, if he 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, had no
reasonable cause to believe his conduct was unlawful.
The Company's Certificate of Incorporation limits, to the maximum
extent permitted by Delaware Law, the personal liability of a director to the
Company or its shareholders for monetary damages for breach of fiduciary duty
as a director. The Company's By-laws provide that the Company shall indemnify
its officers and directors to the fullest extent permitted by Delaware Law
against all expense, liability and loss, including attorney's fees, actually
and reasonably incurred and may purchase and maintain insurance against any
liability asserted and incurred by reason of serving as such, whether or not the
Company has the power to indemnify against such liability. The Company has
entered into indemnification agreements with its officers and directors
containing provisions which are in some respects broader than the specific
indemnification provisions contained in Delaware Law and which require that, to
the extent the Company maintains liability insurance applicable to officers or
directors, each officer and director shall be covered by such policies to the
same extent as are accorded the most favorably insured of the Company's
officers or directors, as the case may be.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions and agreements, the Company
has been informed that in the opinion of the staff of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
This item is not applicable.
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<PAGE> 5
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement
or incorporated by reference herein:
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibits
- -------------- -----------------------
<S> <C>
4.1(a) Restated Certificate of Incorporation of the Company (filed as Exhibit 3.1
to the Company's Annual Report on Form 10-K (File No. 0-15144) for the year
ended September 30, 1995 and incorporated herein by reference).
4.1(b)* Amendment dated June 19, 1995 to Restated Certificate of Incorporation of the
Company.
4.1(c)* Amendment dated March 18, 1996 to Restated Certificate of Incorporation of the
Company.
4.2* Amended By-laws of the Company, as of April 24, 1997.
4.3 Form of certificate for the Company's common stock (filed as Exhibit 4.2 to
the Company's Registration Statement on Form S-1 (File No. 33-67576) and
incorporated herein by reference).
4.4 Gartner Group, Inc. 1996 Long Term Stock Option Plan, as amended and restated on
February 24, 1997 (filed as Exhibit 10.16 to the Company's Form 10-Q for the
quarter ended June 30, 1997 (File No. 0-15144) and incorporated herein by
reference).
5.1* Opinion of Shipman & Goodwin LLP.
23.1* Independent Auditors' Consent, KPMG Peat Marwick LLP.
23.2* Consent of Independent Accountants, Price Waterhouse LLP
23.3* Consent of Shipman & Goodwin LLP (included in Exhibit 5).
24.1* Powers of Attorney.
</TABLE>
- -------------
* Filed herewith.
II-3
<PAGE> 6
ITEM 9. UNDERTAKINGS.
(a) The undersigned 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
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.
(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 undersigned 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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) Insofar as indemnification of 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
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Stamford and State of Connecticut on the 8th
day of September, 1997.
GARTNER GROUP, INC.
BY /s/ MANUEL A. FERNANDEZ*
--------------------------------------
MANUEL A. FERNANDEZ
CHAIRMAN, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/Manuel A. Fernandez* Chairman, President and Chief September 8, 1997
- ------------------------------- Executive Officer (principal
MANUEL A. FERNANDEZ executive officer)
/s/John F. Halligan* Executive Vice President, Chief September 8, 1997
- ------------------------------ Financial Officer and Secretary
JOHN F. HALLIGAN (principal financial and
accounting officer)
/s/William O. Grabe* Director September 8, 1997
- ------------------------------
WILLIAM O. GRABE
/s/Max D. Hopper* Director September 8, 1997
- ------------------------------
MAX D. HOPPER
/s/John P. Imlay, Jr.* Director September 8, 1997
- ------------------------------
JOHN P. IMLAY, JR.
/s/Stephen G. Pagliuca* Director September 8, 1997
- ------------------------------
STEPHEN G. PAGLIUCA
</TABLE>
II-5
<PAGE> 8
<TABLE>
<S> <C> <C>
Director
- ------------------------------
DENNIS G. SISCO
/s/ Robert E. Weissman* Director September 8, 1997
- ------------------------------
ROBERT E. WEISSMAN
*By: /s/ John F. Halligan September 8, 1997
- ------------------------------
JOHN F. HALLIGAN
ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibits Sequentially
- -------------- ----------------------- Numbered Page
-------------
<S> <C> <C>
4.1(a) Restated Certificate of Incorporation of the Company
(filed as Exhibit 3.1 to the Company's Annual Report
on Form 10-K (File No. 0-15144) for the year ended
September 30, 1995 and incorporated herein by
reference).
4.1(b)* Amendment dated June 19, 1995 to Restated Certificate
of Incorporation of the Company.
.
4.1(c)* Amendment dated March 18, 1996 to Restated
Certificate of Incorporation of the Company.
4.2* Amended By-laws of the Company, as of April 24, 1997.
4.3 Form of certificate for the Company's common stock
(filed as Exhibit 4.2 to the Company's Registration
Statement on Form S-1 (File No. 33-67576) and
incorporated herein by reference).
4.4 Gartner Group, Inc. 1996 Long Term Stock Option Plan,
as amended and restated on February 24, 1997
(filed as Exhibit 10.16 to the Company's Form 10-Q
for the quarter ended June 30, 1997 (File No.
0-15144) and incorporated herein by reference).
5.1* Opinion of Shipman & Goodwin LLP.
23.1* Independent Auditors' Consent, KPMG Peat
Marwick LLP.
23.2* Consent of Independent Accountants, Price
Waterhouse LLP.
23.3* Consent of Shipman & Goodwin LLP (included in
Exhibit 5).
24.1* Powers of Attorney.
</TABLE>
- -------------
* Filed herewith.
<PAGE> 1
EXHIBIT 4.1(b)
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
GARTNER GROUP, INC.
Gartner Group, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That at a regular meeting of the Board of Directors of the
Corporation, resolutions were duly adopted in accordance with Section 141 of the
General Corporation Law of the State of Delaware setting forth the proposed
amendment of the Restated Certificate of Incorporation of the Corporation,
declaring said amendment to be advisable, and calling for the approval by the
stockholders of the Corporation entitled to vote thereon. The resolution setting
forth the proposed amendment is as follows:
RESOLVED: That, subject to stockholder approval, the first paragraph of
Article IV of the Restated Certificate of Incorporation of this
Corporation be amended to read as follows:
"This corporation is authorized to issue two classes of stock to be
designated, respectively, "common stock" and "preferred stock." The
total number of shares which this corporation is authorized to issue is
one hundred three million, three hundred thousand (103,300,000) shares.
One hundred million, eight hundred thousand (100,800,000) shares shall
be designated common stock (the "Common Stock"), of which one hundred
million (100,000,000) shares shall be designated Common Stock, Class A
(the "Class A Common") and eight hundred thousand (800,000) shares
shall be designated Common Stock, Class B (the "Class B Common"). Two
million, five hundred thousand (2,500,000) shares shall be designated
preferred stock (the "Preferred Stock"), all of which are presently
undesignated as to series. Each share of Preferred Stock shall have a
par value of $0.01 and each share of Common Stock shall have a par
value of $0.0005."
<PAGE> 2
SECOND: That thereafter, pursuant to a resolution of its Board of
Directors, the Board directed that the amendment be considered by the
stockholders of the Corporation, and by written consent (in accordance with
Section 228 of the General Corporation Law of the State of Delaware), holders of
the necessary number of shares of Common Stock, Class A and Common Stock, Class
B as required by statute and the Restated Certificate of Incorporation of the
Corporation were voted in favor of the adoption of said amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of said amendment.
THE UNDERSIGNED, being the President and the Chief Executive Officer,
does make this certificate, hereby declaring and certifying that this is his act
and deed and the facts herein stated are true, and accordingly, has hereunto set
his hand this 19th day of June, 1995.
GARTNER GROUP, INC.,
a Delaware corporation
By: /s/ Manuel A. Fernandez
------------------------------------------
Manuel A. Fernandez,
President and Chief Executive Officer
<PAGE> 1
EXHIBIT 4.1(c)
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GARTNER GROUP, INC.
Gartner Group, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST: That at a regular meeting of the Board of Directors of the
Corporation, resolutions were duly adopted in accordance with Section 141 of the
General Corporation Law of the State of Delaware setting forth the proposed
amendment of the Amended and Restated Certificate of Incorporation of the
Corporation, declaring said amendment to be advisable, and calling for the
approval by the stockholders of the Corporation entitled to vote thereon. The
resolution setting forth the proposed amendment is as follows:
RESOLVED: That, subject to stockholder approval, the first paragraph of
Article IV of the Amended and Restated Certificate of Incorporation of
this Corporation be amended to read as follows:
"This corporation is authorized to issue two classes of stock to be
designated, respectively, "common stock" and "preferred stock." The
total number of shares which this corporation is authorized to issue is
two hundred four million, one hundred thousand (204,100,000) shares.
Two hundred one million, six hundred thousand (201,600,000) shares
shall be designated common stock (the "Common Stock"), of which two
hundred million (200,000,000) shares shall be designated Common Stock,
Class A (the "Class A Common") and one million six hundred thousand
(1,600,000) shares shall be designated Common Stock, Class B (the
"Class B Common"). Two million, five hundred thousand (2,500,000)
shares shall be designated preferred stock (the "Preferred Stock"), all
of which are presently undesignated as to series. Each share of
Preferred Stock shall have a par value of $0.01 and each share of
Common Stock shall have a par value of $0.0005."
<PAGE> 2
SECOND: That thereafter, pursuant to a resolution of its Board of
Directors, the Board directed that the amendment be considered by the
stockholders of the Corporation, and by written consent (in accordance with
Section 228 of the General Corporation Law of the State of Delaware), holders of
the necessary number of shares of Common Stock, Class A and Common Stock, Class
B as required by statute and the Amended and Restated Certificate of
Incorporation of the Corporation were voted in favor of the adoption of said
amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of said amendment.
THE UNDERSIGNED, being the President and the Chief Executive Officer,
does make this certificate, hereby declaring and certifying that this is his act
and deed and the facts herein stated are true, and accordingly, has hereunto set
his hand this 15th day of March 1996.
GARTNER GROUP, INC.,
a Delaware corporation
By: /s/ Manuel A. Fernandez
------------------------------------------
Manuel A. Fernandez,
President and Chief Executive Officer
<PAGE> 1
EXHIBIT 4.2
BY-LAWS
OF
GARTNER GROUP, INC.
A Delaware Corporation
(as amended through April 24, 1997)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation
in the State of Delaware shall be located in the City of Dover, County of Kent
at such location as the Board of Directors may determine from time to time.
Section 2. Other Offices. The corporation 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
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the
stockholders shall be held each year at such price as shall be determined by the
board of directors of the corporation, for the purpose of electing directors
and, conducting such other proper business as may come before the meeting. The
date, time and place of the annual meeting shall be determined by the board.
Section 2. Special Meetings. Special meetings of stockholders may be
called for any purpose and may be held at such time and place, within or without
the State of Delaware, as shall be stated in a notice of meeting or in a duly
executed waiver of notice thereof. Such meetings may be called at any time by
the board of directors or the president. No business may be transacted at any
special meeting otherwise than as specified in the notice to stockholders of
such meeting.
Section 3. 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 executive office of the
corporation.
Section 4. Notice. Whenever stockholders are required or permitted to
take action at a meeting, written or printed notice stating the place, date,
time, and, in the case of special meetings, the purpose or purposes, of such
meeting, shall be given to each
<PAGE> 2
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. All such notices shall be delivered, either
personally or by mail, by or at the direction of the board of directors, the
president or the secretary, and if mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage prepaid, addressed
to the stockholder at his, her or its address as the same appears on the records
of the corporation. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends 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.
Section 5. Stockholders List. The officer having charge of the stock
ledger of the corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
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 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
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 6. Quorum. The holders of a majority of the outstanding shares
of capital stock, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders, except as otherwise provided by
statute or by the certificate of incorporation. If a quorum is not present, the
holders of a majority of the shares present in person or represented by proxy at
the meeting, and entitled to vote at the meeting, may adjourn the meeting to
another time and/or place.
Section 7. Adjourned Meetings. When a meeting is adjourned to another
time and 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 which
might have been transacted at the original meeting. If the adjournment is for
more than thirty 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 8. Vote Required. When a quorum is present, the affirmative
vote of the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless the question is one upon which by express provisions of an
applicable law or of the certificate of incorporation a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Where a separate vote by class is required, the
affirmative
2
<PAGE> 3
vote of the majority of shares of such class present in person or represented by
proxy at the meeting shall be the act of such class.
Section 9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by the certificate of incorporation
of the corporation or any amendments thereto and subject to Section 3 of Article
VI hereof, every stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of common stock held
by such stockholder. The holders of preferred stock will be entitled to vote as
provided by law and by the corporation's certificate of incorporation or any
amendments thereto.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him or her
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally. Any proxy is suspended when the person
executing the proxy is present at a meeting of stockholders and elects to vote,
except that when such proxy is coupled with an interest and the fact of the
interest appears on the face of the proxy, the agent named in the proxy shall
have all voting and other rights referred to in the proxy, notwithstanding the
presence of the person executing the proxy. At each meeting of the stockholders,
and before any voting commences, all proxies filed at or before the meeting
shall be submitted to and examined by the secretary or a person designated by
the secretary, and no shares may be represented or voted under a proxy that has
been found to be invalid or irregular.
Section 11. Action by Written Consent. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual or
special meeting of stockholders of the corporation, or any action which may be
taken at any annual or special meeting of such 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 and bearing the dates of
signatures of the stockholders who signed the consent or consents, shall be
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, or the corporation's principal place of business, or an
officer or agent of the corporation having custody of the book or books in which
proceedings of meetings of the stockholders are recorded. Delivery made to the
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. All consents properly delivered in accordance
with this section shall be deemed to be recorded when so delivered. No written
consent shall be effective to take the corporate action referred to therein
unless, within sixty (60) days of the
3
<PAGE> 4
earliest dated consent delivered to the corporation as required by this section,
written consents signed by the holders of a sufficient number of shares to take
such corporate action are so recorded. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing. Any action
taken pursuant to such written consent or consents of the stockholders shall
have the same force and effect as if taken by the stockholders at a meeting
thereof.
Section 12. Advance Notice of Stockholder Nominees and Stockholder
Business. To be properly brought before an annual meeting or special meeting,
nominations for the election of director or other business must be (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the board of directors, (b) otherwise properly brought before the
meeting by or at the direction of the board of directors, or (c) otherwise
properly brought before the meeting by a stockholder. For such nominations or
other business to be considered properly brought before the meeting by a
stockholder, such stockholder must have given timely notice and in proper form
of his intent to bring such business before such meeting. To be timely, such
stockholder's notice must be delivered or mailed to and received by the
secretary of the corporation not less than 90 days prior to the meeting;
provided, however, that in the event that less than 100 days notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made. To be in
proper form, a stockholder's notice to the secretary shall set forth:
(i) the name and address of the stockholder who intends to make the
nominations or propose the business, and, as the case may be, the name
and address of the person or persons to be nominated or the nature of
the business to be proposed;
(ii) a representation that the stockholder is a holder of record of
stock of the corporation entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice or introduce the
business specified in the notice;
(iii) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder;
(iv) such other information regarding each nominee or each matter
of business to be proposed by such stockholder as would be required to
be included in a proxy statement filed pursuant to the proxy rules of
the Securities and Exchange
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Commission had the nominee been nominated, or intended to be nominated,
or the matter been proposed, or intended to be proposed by the board
of directors; and
(v) if applicable, the consent of each nominee to serve as
director of the corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination
of any person or the proposal of any business not made in compliance with the
foregoing procedure.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of the board of directors.
Section 2. Number, Election and Term of Office. The number of directors
which shall constitute the board of directors shall be 9. The number of
directors may be established from time to time by resolution of the board of
directors or the stockholders. The directors shall be elected by a plurality of
the votes of the shares present in person or represented by proxy at the annual
meeting of stockholders and entitled to vote in the election of directors. The
directors shall be elected in this manner, except as provided in Section 4 of
this Article III. Each director elected shall hold office until a successor is
duly elected and qualified or until his or her earlier death, resignation or
removal as hereinafter provided.
Section 3. Removal and Resignation. Any director or the entire board of
directors may be removed at any time, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors.
Whenever the holders of any class or series are entitled to elect one or more
directors by the provisions of the corporation's certificate of incorporation,
the provisions of this section shall apply, in respect to the removal without
cause of a director or directors so elected, to the vote of the holders of the
outstanding shares of that class or series and not to the vote of the
outstanding shares as a whole. Any director may resign at any time upon written
notice to the corporation.
Section 4. Vacancies. Vacancies resulting from newly created
directorships resulting from any increase in the authorized number of directors
and vacancies resulting from the death, resignation or removal of a director
shall be filled by the Board of Directors. Each director so chosen shall hold
office until a successor is duly elected and qualified or until his or her
earlier death, resignation or removal as provided herein.
Section 5. Annual Meetings. The annual meeting of each newly elected
board of directors shall be held without other notice than this by-law
immediately after, and at the same place as, the annual meeting of stockholders.
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Section 6. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the board of directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the board. Special meetings of the board of directors may be called by or at the
request of the president or any two directors on at least 48 hours notice to
each director, either personally, by telephone, by mail or by telegraph.
Section 7. Quorum, Required Vote and Adjournment. A majority of the
total number of directors shall constitute a quorum for the transaction of
business. The vote of a majority of directors present at a meeting at which a
quorum is present shall be the act of the board of directors. If a quorum shall
not be present at any meeting of the board of directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 8. Committees. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation, which
to the extent provided in such resolution or these by-laws shall have and may
exercise the powers of the board of directors in the management and affairs of
the corporation except as otherwise limited by law. The board of directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors when required.
Section 9. Committee Rules. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the board of
directors designating such committee. Unless otherwise provided in such a
resolution, the presence of at least a majority of the members of the committee
shall be necessary to constitute a quorum. In the event that a member and that
member's alternate, if alternates are designated by the board of directors as
provided in Section 8 of this Article III, of such committee is or are absent or
disqualified, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in place of any such absent or disqualified member.
Section 10. Communications Equipment. Members of the board of directors
or any committee thereof may participate in and act at any meeting of such board
or committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
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Section 11. Waiver of Notice and Presumption of Assent. Any member of
the board of directors or any committee thereof who is present at a meeting
shall be conclusively presumed to have waived notice of such meeting except when
such member attends 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. Such member shall be conclusively presumed to have assented
to any action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless his or her written dissent to such action shall be filed
with the person acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to any member who voted in favor of such action.
Section 12. Action by Written Consent. Unless otherwise restricted by
the certificate of incorporation, 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 members of the board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be elected by
the board of directors and shall consist of a president, one or more
vice-presidents, a secretary, a treasurer, and such other officers and assistant
officers as may be deemed necessary or desirable by the board of directors. Any
number of offices may be held by the same person. In its discretion, the board
of directors may choose not to fill any office for any period as it may deem
advisable, except that the offices of president and secretary shall be filled as
expeditiously as possible.
Section 2. Election and Term of Office. The officers of the corporation
shall be elected annually by the board of directors at its first meeting held
after each annual meeting of stockholders or as soon thereafter as conveniently
may be. Vacancies may be filled or new offices created and filled at any meeting
of the board of directors. Each officer shall hold office until a successor is
duly elected and qualified or until his or her earlier death, resignation or
removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
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Section 4. Vacancies. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by the
board of directors for the unexpired portion of the term by the board of
directors then in office.
Section 5. Compensation. Compensation of all officers shall be fixed by
the board of directors, and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a director of the corporation.
Section 6. The President. The president shall be the chief executive
officer of the corporation; shall preside at all meetings of the stockholders
and board of directors at which he or she is present subject to the powers of
the board of directors, shall have general charge of the business, affairs and
property of the corporation, and control over its officers, agents and
employees; and shall see that all orders and resolutions of the board of
directors are carried into effect. The president shall execute bonds, mortgages
and other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the corporation. The
president shall have such other powers and perform such other duties as may be
prescribed by the board of directors or as may be provided in these by-laws.
Section 7. Vice-presidents. The vice-president, or if there shall be
more than one, the vice-presidents in the order determined by the board of
directors, shall, in the absence or disability of the president, act with all of
the powers and be subject to all the restrictions of the president. The
vice-presidents shall also perform such other duties and have such other powers
as the board of directors, the president or these by-laws may, from time to
time, prescribe.
Section 8. The Secretary and Assistant Secretaries. The secretary shall
attend all meetings of the board of directors, all meetings of the committees
thereof and all meetings of the stockholders and record all the proceedings of
the meetings in a book or books to be kept for that purpose. Under the
president's supervision, the secretary shall give, or cause to be given, all
notices required to be given by these by-laws or by law; shall have such powers
and perform such duties as the board of directors, the president or these
by-laws may, from time to time, prescribe; and shall have custody of the
corporate seal of the corporation. The secretary, or an assistant secretary,
shall have authority to affix the corporate seal to any instrument requiring it
and when so affixed, it may be attested by his or her signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his or her signature. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by the
board of directors, shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors, the
president or secretary may, from time to time, prescribe.
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Section 9. The Treasurer and Assistant Treasurer. The treasurer shall
have the custody of the corporate funds and securities; shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation; shall deposit all monies and other valuable effects in the name and
to the credit of the corporation as may be ordered by the board of directors;
shall cause the funds of the corporation to be disbursed when such disbursements
have been duly authorized, taking proper vouchers for such disbursements; and
shall render to the president and the board of directors, at its regular meeting
or when the board of directors so requires, an account of the corporation; shall
have such powers and perform such duties as the board of directors, the
president or these by-laws may, from time to time, prescribe. If required by the
board of directors, the treasurer shall give the corporation a bond (which shall
be rendered every six years) in such sums and with such surety or sureties as
shall be satisfactory to the board of directors for the faithful performance of
the duties of the office of treasurer and for the restoration to the
corporation, in case of death, resignation, retirement, or removal from office,
of all books, papers, vouchers, money, and other property of whatever kind in
the possession or under the control of the treasurer belonging to the
corporation. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors, shall in
the absence or disability of the treasurer perform the duties and exercise the
powers of the treasurer. The assistant treasurers shall perform such other
duties and have such other powers as the board of directors, the president or
treasurer may, from time to time, prescribe.
Section 10. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these by-laws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the board of directors.
Section 11. Absence or Disability of Officers. In the case of the
absence or disability of any officer of the corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the board of directors may by resolution delegate the powers and
duties of such officer to any other officer or to any director, or to any other
person whom it may select.
ARTICLE IV-A
APPOINTED OFFICERS
Section 1. Appointment of Officers. The Board of Directors may employ
the President or Chairman of the board to appoint such other vice presidents and
other officers as the business of Corporation may require, each of whom shall
hold office for such period, have such authority and perform such duties as are
provided in the bylaws or as the Board of Directors may from time to time
determine (or, in the absence of such determination by
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the Board of Directors, as the President or Chairman of the Board from time to
time determine).
Section 2. Removal. Any officer appointed in accordance with the
provisions of Section 1 may be removed by the Board of Directors or by the
President or Chairman of the Board (if appointed by such person) whenever in his
or her judgment the best interest of the Corporation would be served thereby,
provided that such removal shall be without prejudice to the contract rights, if
any of the persons so removed.
Section 3. Appointment Officers and Deemed Elected Officers. Officers
appointed pursuant to Section 1 hereof shall not be deemed to be elected
officers of the Corporation, and in particular but without limitation shall not
be deemed to be executive officers of the corporation for the purposes of the
Securities Exchange Act of 1934, as amended, or any successor statute.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Nature of Indemnity. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the representative, is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the corporation to the fullest extent which it is empowered to
do so unless prohibited from doing so by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment) against all expense,
liability and loss including attorneys' fees actually and reasonably incurred by
such person in connection with such proceeding, and such indemnification shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Section 2 hereof, the corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding initiated by such person only if such proceeding was authorized by
the board of directors of the corporation. The right to indemnification
conferred in this Article V shall be a contract right and, subject to sections 2
and 5 hereof, shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final disposition.
The corporation may, by action of its board of directors, provide
indemnification to employees and agents of the corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
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Section 2. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the corporation under Section 1 of
this Article V or advance of expenses under Section 5 of this Article V shall be
made promptly, and in any event within 30 days, upon the written request of the
director or officer. If a determination by the corporation that the director or
officer is entitled to indemnification pursuant to this Article V is required,
and the corporation fails to respond within 60 days to a written request for
indemnity, the corporation shall be deemed to have approved the request. If the
corporation denies a written request for indemnification or advancing of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within 60 days, the right to indemnification or advances as granted by
this Article V shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the corporation to indemnify the claimant for the amount claimed, but the burden
of such defense shall be on the corporation. 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 or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, 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, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 3. Article Not Exclusive. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article V shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the corporation or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by him
or her in any such capacity, whether or not the corporation would have the power
to indemnify such person against such liability under this Article V.
Section 5. Expenses. Expenses incurred by any person described in
Section 1 of this Article V in defending a proceeding shall be paid by the
corporation in advance of such
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proceeding's final disposition unless otherwise determined by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of the director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the corporation.
Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
Section 6. Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article V and who are or were employees or agents
of the corporation, or who are or were serving at the request of the corporation
as employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time or
from time to time by the board of directors.
Section 7. Contract Rights. The provisions of this Article V shall be
deemed to be a contract right between the corporation and each director or
officer who serves in any such capacity at any time while this Article V and the
relevant provisions of the General Corporation Law of the State of Delaware or
other applicable law are in effect, and any repeal or modification of this
Article V or any such law shall not affect any rights or obligations then
existing with respect to any state of facts or proceeding then existing.
Section 8. Merger or Consolidation. For purposes of this Article V,
references to "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 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 this Article V
with respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence had
continued.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Form. 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 president or a vice-president and the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by such holder in the
corporation. If such a certificate is countersigned (1) by a transfer agent or
an assistant transfer agent other than the corporation or its employee or (2) by
a registrar, other than the corporation or its employee, the signature of any
such president, vice-president, secretary, or assistant secretary may be
facsimiles. In case any officer or officers who have signed, or whose facsimile
signature or
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signatures have been used on, any such certificate or certificates shall cease
to be such officer or officers of the corporation whether because of death,
resignation or otherwise before such certificate or certificates have been
delivered by the corporation, such certificate or certificates may nevertheless
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the corporation.
All certificates for shares shall be consecutively numbered or otherwise
identified. The name 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
books of the corporation. Shares of stock of the corporation shall only be
transferred on the books of the corporation by the holder of record thereof or
by such holder's attorney duly authorized in writing, upon surrender to the
corporation of the certificate or certificates for such shares endorsed by the
appropriate person or persons, with such evidence of the authenticity of such
endorsement, transfer, authorization, and other matters as the corporation may
reasonably require, and accompanied by all necessary stock transfer stamps. In
that event, it shall be the duty of the corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate or certificates, and
record the transaction on its books. The board of directors may appoint a bank
or trust company organized under the laws of the United States or any state
thereof to act as its transfer agent or registrar, or both in connection with
the transfer of any class or series of securities of the corporation.
Section 2. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously 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. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against the corporation on account of the loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. 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 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 the close of business
on the next day 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
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apply to any adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
Section 4. Fixing a Record Date for Action by Written Consent. 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 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
statute, 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 the 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
statute, 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.
Section 5. Fixing a Record Date for Other Purposes. In order that the
corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purposes of any other lawful action, the board of directors
may fix 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 6. Registered Stockholders. Prior to the surrender to the
corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner. The corporation 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.
Section 7. Subscriptions for Stock. Unless otherwise provided for in
the subscription agreement, subscriptions for shares shall be paid in full at
such time, or in such
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installments and at such times, as shall be determined by the board of
directors. Any call made by the board of directors for payment on subscriptions
shall be uniform as to all shares of the same class or as to all shares of the
same series. In case of default in the payment of any installment or call when
such payment is due, the corporation may proceed to collect the amount due in
the same manner as any debt due the corporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1. 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 at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. 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
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 any other purpose,
and the directors may modify or abolish any such reserve in the manner in which
it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other
orders for the payment of money by or to the corporation and all notes and 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 be determined by resolution of the board of directors or a duly
authorized committee thereof.
Section 3. Contracts. The board of directors may authorize any officer
or officers, or any agent or agents, of the corporation to enter into any
contract or to 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 4. Loans. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiary, including any officer or employee who is a
director of the corporation or its subsidiary, whenever, in the judgment of the
directors such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured or secured in such manner as the board of
directors shall approve, including without limitation a pledge of shares of
stock of the corporation. Nothing in this section contained shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
15
<PAGE> 16
Section 6. Corporate Seal. The board of directors shall provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the corporation and the words "Corporate Seal, Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 7. Voting Securities Owned by Corporation. Voting securities in
any other corporation held by the corporation shall be voted by the president,
unless the board of directors specifically confers authority to vote with
respect thereto, which authority may be general or confined to specific
instances, upon some other person or officer. Any person authorized to vote
securities shall have the power to appoint proxies, with general power of
substitution.
Section 8. Inspection of Books and Records. Any stockholder of record,
in person or by attorney or other agent, shall, upon written demand under oath
stating the purpose thereof, have the right during the usual hours for business
to inspect for any proper purpose the corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean any purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the corporation at its registered
office in the State of Delaware or at its principal place of business.
Section 9. Section Headings. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any provision of
these by-laws is or becomes inconsistent with any provision of the certificate
of incorporation, the General Corporation Law of the State of Delaware or any
other applicable law, the provision of these by-laws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
ARTICLE VIII
AMENDMENTS
These by-laws may be amended, altered, or repealed and new by-laws
adopted at any meeting of the board of directors by a majority vote. The fact
that the power to adopt, amend, alter, or repeal the by-laws has been conferred
upon the board of directors shall not divest the stockholders of the same
powers.
16
<PAGE> 1
EXHIBIT 5.1
September 8, 1997
Gartner Group, Inc.
P.O. Box 10212
56 Top Gallant Road
Stamford, CT 06904-2212
Ladies and Gentlemen:
In connection with the proposed issuance by Gartner Group, Inc. (the
"Company") of up to 1,800,000 shares of its Common Stock, par value $0.0005 per
share (the "Shares"), pursuant to the Company's 1996 Long Term Stock Option Plan
(the "Plan"), we have examined, as counsel to the Company, the Registration
Statement on Form S-8 filed under the Securities Act of 1933 (the "Securities
Act") and such other documents as we have deemed necessary or appropriate in
order to express the opinion set forth below.
In connection with our opinion hereinafter given, we have examined and
relied upon originals, or copies, certified or otherwise, identified to our
satisfaction, of such agreements, documents, certificates and other statements
of government officials, corporate officers and representatives and other
documents as we have deemed relevant and necessary as a basis for such opinion.
In such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that when (i) the
Registration Statement shall have become effective, and (ii) the Shares shall
have been issued and delivered against payment therefor in accordance with the
terms of the Plan and as contemplated in the Registration Statement, the Shares
will be legally and validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ Shipman & Goodwin LLP
Shipman & Goodwin LLP
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Boards of Directors and Stockholders of
Gartner Group, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Gartner Group, Inc. of our report dated October 31, 1996, relating to the
consolidated balance sheet of Gartner Group, Inc. and subsidiaries as of
September 30, 1996 and the related consolidated statements of operations,
changes in stockholders' equity and cash flows for the year then ended, and the
related schedule, which report appears in the September 30, 1996 annual report
on Form 10-K of Gartner Group, Inc.
KPMG Peat Marwick LLP
Stamford, Connecticut
September 3, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 1, 1995 which is incorporated
by reference in Gartner Group Inc.'s Annual Report on Form 10-K for the year
ended September 30, 1996. We also consent to the incorporation by reference in
our report on the Financial Statement schedule, which appears in such Annual
Report on Form 10-K.
Price Waterhouse LLP
Stamford, CT
September 3, 1997
<PAGE> 1
EXHIBIT 24.1
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Manuel A. Fernandez and John F. Halligan
jointly and severally, his attorneys-in-fact, each with the power of
substitution for him in any and all capacities, to sign the this Registration
Statement filed by Gartner Group, Inc. on Form S-8 with respect to the Gartner
Group, Inc. 1996 Long Term Stock Option Plan, and any and all amendments
thereto, and to file the same, with exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
----------------------------
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/Manuel A. Fernandez Chairman, President and Chief July 24, 1997
- ------------------------------- Executive Officer (principal
MANUEL A. FERNANDEZ executive officer)
/s/John F. Halligan Executive Vice President, Chief July 24, 1997
- ------------------------------ Financial Officer and Secretary
JOHN F. HALLIGAN (principal financial and
accounting officer)
/s/William O. Grabe Director July 24, 1997
- ------------------------------
WILLIAM O. GRABE
/s/Max D. Hopper Director July 24, 1997
- ------------------------------
MAX D. HOPPER
/s/John P. Imlay, Jr. Director July 24, 1997
- ------------------------------
JOHN P. IMLAY, JR.
/s/Stephen G. Pagliuca Director July 24, 1997
- ------------------------------
STEPHEN G. PAGLIUCA
Director
- ------------------------------
DENNIS G. SISCO
/s/Robert E. Weissman Director July 24, 1997
- ------------------------------
ROBERT E. WEISSMAN
</TABLE>
