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Registration No. 333-26493
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
DSP TECHNOLOGY INC.
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(Exact name of registrant as specified in its charter)
Delaware 94-2832651
__________________________________ ______________________________________
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
48500 Kato Road
Fremont, California 94538
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(Address of principal executive offices) (Zip code)
DSP Technology Inc.
1991 Stock Option Plan and
Stock Option Grants to Michael A. Ford
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(Full title of the plan)
Jose M. Millares, Jr.
Chief Financial Officer
DSP Technology Inc.
48500 Kato Road
Fremont, California 94538
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (510) 657-7555
This Post-Effective Amendment Number One, including all exhibits and
attachments, contains 30 pages. The Exhibit Index may be found on page 7 of
the consecutively numbered pages of the registration statement.
Pursuant to Rule 414 promulgated under the Securities Act of 1933, as amended
(the "Securities Act"), this registration statement is hereby expressly adopted
by the registrant as the successor to DSP Technology, Inc., a California
corporation ("DSP California" or "Predecessor"), as its own
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registration statement for all purposes under the Securities Act and under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________
No additional registration fee is due because no additional shares are being
registered.
______________________________________________________________________________
PART II
Item 3. Incorporation of Documents by Reference
- ---- -- ---------------------------------------
DSP Technology Inc., a Delaware corporation (the "Company"), hereby
incorporates by reference in this registration statement the following
documents:
(a) The latest annual report on Form 10-K for DSP California was
filed pursuant to Sections 13(a) or 15(d) of the Exchange Act, containing
audited financial statements for the Company's latest fiscal year ended January
31, 1997 as filed with the Securities and Exchange Commission ("Commission") on
May 1, 1997.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered have been sold or which deregisters all securities
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.
Item 4. Description of Securities
- ---- -- -------------------------
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
On September 12, 1997, DSP California, undertook a reorganization and
reincorporation for the purpose of changing its state of domicile from
California to Delaware. The reincorporation was accomplished by merging DSP
California into the Company, a wholly-owned subsidiary of DSP California.
Pursuant to the reincorporation merger, each share of Common Stock of DSP
California was converted into one share of Common Stock of the Company.
Furthermore, the Company assumed all of the obligations of DSP California under
the 1991 Stock Option Plan and the individual stock option agreements with
Michael Ford. The outstanding options assumed under the 1991 Stock Option Plan
and the individual stock option agreements with Michael Ford are exercisable for
shares of the Company's Common Stock.
Holders of shares of Common Stock, par value $.001 per share, are
entitled to one vote per share on all matters to be voted on by stockholders.
The holders of Common Stock are entitled to receive such dividends, if any, as
may be declared from time to time by the Board of Directors in its discretion
from funds legally available therefor. Upon liquidation or dissolution of
Registrant, the
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holders of Common Stock are entitled to receive all assets available for
distribution to the stockholders, subject to any preferential rights of the
Preferred Stock. The Common Stock has no preemptive or other subscription
rights, and there are no conversion rights or redemption or sinking fund
provisions with respect to such shares. All of the outstanding shares of Common
Stock are fully paid and nonassessable.
Item 5. Interests of Named Experts and Counsel
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Inapplicable.
Item 6. Indemnification of Directors and Officers
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Delaware law authorizes corporations to eliminate the personal liability
of directors to corporations and their stockholders for monetary damages for
breach or alleged breach of the directors' "duty of care." While the relevant
statute does not change directors' duty of care, it enables corporations to
limit available relief to equitable remedies such as injunction or rescission.
The statute has no effect on directors' duty of loyalty, acts or omissions not
in good faith or involving intentional misconduct or knowing violations of law,
illegal payment of dividends and approval of any transaction from which a
director derives an improper personal benefit.
The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The By-Laws of the Company provide for indemnification of its directors,
officers, employees and agents to the full extent permitted by the General
Corporation Law of the State of Delaware, the Company's state of incorporation,
including those circumstances in which indemnification would otherwise be
discretionary under Delaware law. Section 145 of the General Corporation Law of
the State of Delaware provides for indemnification in terms sufficiently broad
to indemnify such individuals, under certain circumstances, for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption From Registration Claimed
- ---- -- -----------------------------------
Inapplicable.
Item 8. Exhibits
- ---- -- --------
See Exhibit Index.
Item 9. Undertakings
- ---- -- ------------
(a) Rule 415 Offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sale are
being made, a post-effective amendment to this registration statement:
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(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
- -----------------
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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) Filing incorporating subsequent Exchange Act documents by
reference.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
(h) Request for acceleration of effective date or filing of
-------------------------------------------------------
registration statement on Form S-8.
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Insofar as indemnification for liabilities arises under the
Securities Act 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
Securities 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
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indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
5
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SIGNATURES
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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 Post-
Effective Amendment Number One to the registration statement to be signed by the
undersigned, thereunto duly authorized, in the City of Fremont, State of
California, on this 12 day of September, 1997.
DSP TECHNOLOGY INC.
By: /s/ F. Gil Troutman, Jr.
------------------------
F. Gil Troutman, Jr., President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment Number One to the registration statement has been
signed by the following persons in the capacities indicated on this 12 day of
September, 1997.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/F. GIL TROUTMAN, JR. President, Chief Executive Officer and Director
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F. GIL TROUTMAN, JR. (Principal Executive Officer)
/s/JOSE M. MILLARES, JR. Vice President, Finance, Chief Financial
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Jose M. Millares, Jr. Officer and Secretary (Principal Financial Officer
and Principal Accounting Officer)
HOWARD O. PAINTER, JR.* Chairman of the Board and Director
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Howard O. Painter, Jr.
MICHAEL A. FORD* Director
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Michael A. Ford
J. SCOTT KAMSLER* Director
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J. Scott Kamsler
*By: /s/ F. Gil Troutman, Jr.
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F. Gil Troutman, Jr.,
Attorney-in-fact
</TABLE>
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EXHIBIT INDEX OF
POST-EFFECTIVE AMENDMENT NUMBER ONE
TO FORM S-8
<TABLE>
<CAPTION>
Exhibit Number Exhibit Title
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<S> <C>
4.1 Certificate of Incorporation of the Company.
4.2 By-Laws of the Company.
5 Opinion regarding legality is incorporated by
reference to Predecessor's Registration Statement
on Form S-8 (File No. 333-26493), filed on May 5,
1997.
23.1 Consent of Counsel (included in Exhibit 5).
23.2 Consent of Independent Auditors is incorporated by
reference to Predecessor's Registration Statement
on Form S-8 (File No. 333-26493), filed on May 5,
1997.
24 Power of Attorney is incorporated by reference to
Predecessor's Registration Statement on Form S-8
(File No. 333-26493), filed on May 5, 1997.
</TABLE>
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EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF DSP TECHNOLOGY INC.
FIRST: The name of the Corporation is DSP Technology Inc. (hereinafter
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sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the State
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of Delaware is Incorporating Services, Ltd., 15 East North Street, in
the City of Dover, County of Kent. The name of the registered agent
at that address is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or
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activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH:
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A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Sixteen Million Shares
(16,000,000) consisting of:
1. Fifteen Million (15,000,000) shares of Common Stock, par value
one-tenth of one cent ($.001) per share (the "Common Stock"); and
2. One Million (1,000,000) shares of Preferred Stock, par value one-
tenth of one cent ($.001) per share (the "Preferred Stock").
B. The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of Preferred
Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to
time the number of shares to be included in each such series, and to
fix the designation, powers, preferences and rights of the shares of
each such series and any qualifications, limitations or restrictions
thereon. The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority
of the Common Stock without a vote of the holders of the Preferred
Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the certificate or certificates establishing the
series of Preferred Stock.
FIFTH: The following provisions are inserted for the management of the
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business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by
this Certificate of Incorporation or
-1-
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the By-Laws of the Corporation, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written ballot
unless the By-Laws so provide.
SIXTH:
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A. The number of directors shall initially be four (4) and thereafter
shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is
presented to the Board for adoption). All directors shall hold office
until the expiration of the term for which elected, and until their
respective successors are elected, except in the case of the death,
resignation, or removal of any director.
B. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation or other cause
(including removal from office by a vote of the stockholders) may be
filled only by a majority vote of the directors then in office, though
less than a quorum, or by the sole remaining director, and directors
so chosen shall hold office for a term expiring at the next annual
meeting of stockholders, and until their respective successors are
elected, except in the case of the death, resignation, or removal of
any director.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
- -------
repeal By-Laws of the Corporation. The stockholders shall also have
power to adopt, amend or repeal the By-Laws of the Corporation. Any
adoption, amendment or repeal of By-Laws of the Corporation by the
stockholders shall require, in addition to any vote of the holders of
any class or series of stock of the Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the holders
of a majority of the voting power of all of the 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.
EIGHTH: A director of the Corporation shall not be personally liable to the
- ------
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involved intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper
personal benefit.
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If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a
director, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article
EIGHTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any provision
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contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights
conferred upon stockholders are granted subject to this reservation;
provided, however, that, notwithstanding any other provision of this
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Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any vote
of the holders of any class or series of the stock of this Corporation
required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of a majority of the voting power of
all of the 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 amend or
repeal this Certificate of Incorporation.
TENTH Every stockholder entitled to vote at any election of directors of
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this company may cumulate his votes and give one candidate a number of
votes equal to the number of directors to be elected multiplied by the
number of votes to which his shares are entitled, or distribute his
votes on the same principle among as many candidates as he thinks fit.
The candidates receiving the highest number of votes up to the number
of directors to be elected are elected.
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EXHIBIT 4.2
AMENDED AND RESTATED BY-LAWS
OF DSP TECHNOLOGY INC.
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
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<C> <S> <C>
Page
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Article 1. Stockholders 1
1.1 Place of Meetings......................................... 1
1.2 Annual Meeting............................................ 1
1.3 Special Meetings.......................................... 1
1.4 Notice of Meetings........................................ 1
1.5 Voting List............................................... 1
1.6 Quorum.................................................... 2
1.7 Adjournments.............................................. 2
1.8 Voting and Proxies........................................ 2
1.9 Action at Meeting......................................... 3
1.10 Notice of Stockholder Business............................ 3
1.11 Conduct of Business....................................... 4
1.12 No Stockholder Action Without Meeting..................... 4
Article 2. Board of Directors 5
2.1 General Powers............................................ 5
2.2 Number and Term of Office................................. 5
2.3 Vacancies and Newly Created Directorships................. 5
2.4 Resignation............................................... 5
2.5 Regular Meetings.......................................... 5
2.6 Special Meetings.......................................... 6
2.7 Notice of Special Meetings................................ 6
2.8 Participation in Meetings by Telephone Conference Calls... 6
2.9 Quorum.................................................... 6
2.10 Action at Meeting......................................... 6
2.11 Action by Consent......................................... 6
2.12 Removal................................................... 7
2.13 Committees................................................ 7
2.14 Compensation of Directors................................. 7
2.15 Nomination of Director Candidates......................... 7
Article 3. Officers 8
3.1 Enumeration............................................... 8
3.2 Election.................................................. 9
3.3 Qualification............................................. 9
3.4 Tenure.................................................... 9
3.5 Resignation and Removal................................... 9
3.6 Chairman of the Board..................................... 9
3.7 President................................................. 9
3.8 Vice Presidents........................................... 9
3.9 Secretary and Assistant Secretaries....................... 10
</TABLE>
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<TABLE>
<CAPTION>
<C> <S> <C>
3.10 Chief Financial Officer................................... 10
3.11 Salaries.................................................. 10
3.12 Delegation of Authority................................... 10
Article 4. Capital Stock 11
4.1 Issuance of Stock......................................... 11
4.2 Certificates of Stock..................................... 11
4.3 Transfers................................................. 11
4.4 Lost, Stolen or Destroyed Certificates.................... 11
4.5 Record Date............................................... 12
Article 5. General Provisions 12
5.1 Fiscal Year............................................... 12
5.2 Corporate Seal............................................ 12
5.3 Waiver of Notice.......................................... 12
5.4 Actions with Respect to Securities of Other Corporations.. 12
5.5 Evidence of Authority..................................... 13
5.6 Certificate of Incorporation.............................. 13
5.7 Severability.............................................. 13
5.8 Pronouns.................................................. 13
5.9 Notices................................................... 13
5.10 Reliance Upon Books, Reports and Records.................. 13
5.11 Time Periods.............................................. 14
5.12 Facsimile Signatures...................................... 14
Article 6. Amendments 14
6.1 By the Board of Directors................................. 14
6.2 By the Stockholders....................................... 14
Article 7. Indemnification of Directors and Officers. 14
7.1 Right to Indemnification.................................. 14
7.2 Right of Claimant to Bring Suit........................... 15
7.3 Non-Exclusivity of Rights................................. 16
7.4 Indemnification Contracts................................. 16
7.5 Insurance................................................. 16
7.6 Effect of Amendment....................................... 16
</TABLE>
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AMENDED AND RESTATED BY-LAWS
OF DSP TECHNOLOGY INC.
Article 1. Stockholders
------------
1.1. Place of Meetings. All meetings of stockholders shall be held
-----------------
at such place within or without the State of Delaware as may be designated from
time to time by the Board of Directors or the President and Chief Executive
Officer or, if not so designated, at the registered office of the corporation.
1.2. Annual Meeting. The annual meeting of stockholders for the
--------------
election of directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on a date to be fixed by
the Board of Directors or the President and Chief Executive Officer at the time
and place to be fixed by the Board of Directors or the President and stated in
the notice of the meeting. If no annual meeting is held in accordance with the
foregoing provisions, the Board of Directors shall cause the meeting to be held
as soon thereafter as convenient.
1.3. Special Meetings. Special meetings of stockholders may be
----------------
called at any time only by the Board of Directors, the Chairman of the Board,
the President and Chief Executive Officer or the holders of 10% or more of the
outstanding voting power of the Corporation. Business transacted at any special
meeting of stockholders shall be confined to the purpose or purposes stated in
the notice of meeting.
1.4. Notice of Meetings. Written notice of each meeting of
------------------
stockholders, whether annual or special, shall be given not less than ten
(10) nor more than sixty (60) days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or as required by law (meaning here and hereafter, as required
from time to time by the Delaware General Corporation Law or the Certificate of
Incorporation). The notices of all meetings shall state the place, date and hour
of the meeting. The notice of a special meeting shall state, in addition, the
purpose or purposes for which the meeting is called. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
1.5. Voting List. The officer who has charge of the stock ledger
-----------
of the corporation shall prepare, at least ten (10) days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and 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, 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 of the meeting, and may be inspected by any stockholder who is
present. This list
<PAGE>
shall preemptively determine the identity of the stockholders entitled to vote
at the meeting and the number of shares held by each of them.
1.6. Quorum. Except as otherwise provided by law or these By-
------
Laws, the holders of a majority of the shares of the capital stock of the
corporation entitled to vote at the meeting, present in person or represented by
proxy, shall constitute a quorum for the transaction of business. If a quorum
shall fail to attend any meeting, the chairman of the meeting or the holders of
a majority of the shares of stock entitled to vote who are present, in person or
by proxy, may adjourn the meeting to another place, date or time.
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
1.7. Adjournments. Any meeting of stockholders may be adjourned
------------
to any other time and to any other place at which a meeting of stockholders may
be held under these By-Laws by the holders of a majority of the shares of stock
present or represented at the meeting and entitled to vote, although less than a
quorum, or, if no stockholder is present, by any officer entitled to preside at
or to act as Secretary of such meeting. When a meeting is adjourned to another
place, date or time, written notice need not be given of the adjourned meeting
if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the date of any adjourned
meeting is more than thirty (30) days after the date for which the meeting was
originally noticed, or if a new record date is fixed for the adjourned meeting,
written notice of the place, date, and time of the adjourned meeting shall be
given in conformity herewith. At the adjourned meeting, the corporation may
transact any business which might have been transacted at the original meeting.
1.8. Voting and Proxies. Each stockholder shall have one vote for
------------------
each share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
by law. Each stockholder of record entitled to vote at a meeting of
stockholders, may vote in person or may authorize any other person or persons to
vote or act for him by written proxy executed by the stockholder or his
authorized agent or by a transmission permitted by law and delivered to the
Secretary of the corporation. No stockholder may authorize more than one proxy
for his shares. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this Section may
be substituted or used in lieu of the original writing or transmission for any
and all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile transmission or other reproduction shall be a
complete reproduction of the entire original writing or transmission.
1.9. Action at Meeting. When a quorum is present at any meeting,
-----------------
any election shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election, and all other matters shall be
determined by a majority of the votes cast affirmatively or
<PAGE>
negatively on the matter (or if there are two or more classes of stock entitled
to vote as separate classes, then in the case of each such class, a majority of
each such class present or represented and voting affirmatively or negatively on
the matter) shall decide such matter, except when a different vote is required
by express provision of law, the Certificate of Incorporation or these By-Laws.
All voting, including on the election of directors, but excepting
where otherwise required by law, may be by a voice vote; provided, however, that
upon demand therefor by a stockholder entitled to vote or his or her proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots, each of
which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting. The corporation may, and to the
extent required by law, shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The corporation may designate one or more persons as an alternate
inspector to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding at
the meeting may, and to the extent required by law, shall, appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his or
her ability.
1.10. Notice of Stockholder Business. At an annual meeting of the
------------------------------
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (i) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (ii) properly
brought before the meeting by or at the direction of the Board of Directors, or
(iii) properly brought before an annual meeting by a stockholder. For business
to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder proposal to be presented at an
annual meeting shall be received at the Corporation's principal executive
offices not less than 120 calendar days in advance of the date that the
Corporation's (or the Corporation's predecessor's) proxy statement was released
to stockholders in connection with the previous year's annual meeting of
stockholders, except that if no annual meeting was held in the previous year or
the date of the annual meeting has been advanced by more than 30 calendar days
from the date contemplated at the time of the previous year's proxy statement,
notice by the stockholders to be timely must be received not later than the
close of business on the tenth day following the day on which the date of the
annual meeting is publicly announced.
A stockholder's notice to the Secretary of the Corporation shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business, (iii) the class and number of
shares of the Corporation which are beneficially owned by the stockholder, and
(iv) any material interest of the stockholder in such business.
<PAGE>
1.11. Conduct of Business. At every meeting of the stockholders,
-------------------
the Chairman of the Board, if there is such an officer, or if not, the person
appointed by the Board of Directors, shall act as Chairman. The Secretary of the
corporation or a person designated by the Chairman of the meeting shall act as
Secretary of the meeting. Unless otherwise approved by the Chairman of the
meeting, attendance at the stockholders' meeting is restricted to stockholders
of record, persons authorized in accordance with Section 1.8 of these By-Laws to
act by proxy, and officers of the corporation.
The Chairman of the meeting shall call the meeting to order,
establish the agenda, and conduct the business of the meeting in accordance
therewith or, at the Chairman's discretion, it may be conducted otherwise in
accordance with the wishes of the stockholders in attendance. The date and time
of the opening and closing of the polls for each matter upon which the
stockholders will vote at the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner,
rule on the precedence of, and procedure on, motions and other procedural
matters, and exercise discretion with respect to such procedural matters with
fairness and good faith toward all those entitled to take part. The Chairman may
impose reasonable limits on the amount of time taken up at the meeting on
discussion in general or on remarks by any one stockholder. Should any person in
attendance become unruly or obstruct the meeting proceedings, the Chairman shall
have the power to have such person removed from participation. Notwithstanding
anything in the By-Laws to the contrary, no business shall be conducted at a
meeting except in accordance with the procedures set forth in this Section 1.11
and Section 1.10 above. The Chairman of a meeting shall, if the facts warrant,
determine and declare to the meeting that any proposed item of business was not
brought before the meeting in accordance with the provisions of this Section
1.11 and Section 1.10, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
1.12 Stockholder Action by Written Consent. Any action which may
-------------------------------------
be taken at any annual or special meeting of stockholders may be taken without a
meeting and without prior notice, if a consent in writing, setting forth the
actions so taken, is signed by the holders of outstanding shares having not less
than the minimum number of votes which would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. All such consents shall be filed with the secretary of the
Corporation and shall be maintained in the corporate records. Prompt notice of
the taking of a corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
Article 2. Board of Directors
------------------
2.1. General Powers. The business and affairs of the corporation
--------------
shall be managed by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise provided by
law or the Certificate of Incorporation. In the event of a vacancy in the Board
of Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
<PAGE>
2.2. Number and Term of Office. The number of directors shall
-------------------------
initially be four (4) and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption). All directors shall hold
office until the expiration of the term for which elected and until their
respective successors are elected, except in the case of the death, resignation
or removal of any director.
2.3. Vacancies and Newly Created Directorships Subject to the
-----------------------------------------
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification or other cause (including removal from
office by a vote of the stockholders) may be filled only by a majority vote of
the directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the next annual meeting of stockholders
at which the term of office of the class to which they have been elected
expires. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
2.4. Resignation. Any director may resign by delivering his written
-----------
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
2.5. Regular Meetings. Regular meetings of the Board of Directors
----------------
may be held without notice at such time and place, either within or without the
State of Delaware, as shall be determined from time to time by the Board of
Directors; provided that any director who is absent when such a determination is
made shall be given notice of the determination. A regular meeting of the Board
of Directors may be held without notice immediately after and at the same place
as the annual meeting of stockholders.
2.6. Special Meetings. Special meetings of the Board of Directors
----------------
may be called at any time and place, within or without the State of Delaware, by
the Chairman of the Board, the President and Chief Executive Officer, two or
more directors, or by one director in the event that there is only a single
director in office.
2.7. Notice of Special Meetings. Notice of any special meeting of
--------------------------
directors shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone or
electronic voice message system at least 24 hours in advance of the meeting,
(ii) by sending a telegram, telecopy or telex, or delivering written notice by
hand, to his last known business or home address at least 24 hours in advance of
the meeting, or (iii) by mailing written notice to his last known business or
home address at least three (3) day in advance of the meeting. A notice or
waiver of notice of a meeting of the Board of Directors need not specify the
purposes of the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
<PAGE>
2.8. Participation in Meetings by Telephone Conference Calls.
-------------------------------------------------------
Directors or any members of any committee designated by the directors may
participate in a meeting of the Board of Directors or such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation by
such means shall constitute presence in person at such meeting.
2.9. Quorum. A majority of the total number of authorized directors
------
shall constitute a quorum at any meeting of the Board of Directors. In the
event one or more of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than one-third
(1/3) of the number so fixed constitute a quorum. In the absence of a quorum at
any such meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice other than announcement at the meeting,
until a quorum shall be present. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
at a meeting of a committee which authorizes a particular contract or
transaction.
2.10 Action at Meeting. At any meeting of the Board of Directors at
-----------------
which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law, the
Certificate of Incorporation or these By-Laws.
2.11. Action by Consent. Any action required or permitted to be
-----------------
taken at any meeting of the Board of Directors or of any committee of the Board
of Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing. Any such
written consents shall be filed with the minutes of proceedings of the Board or
committee.
2.12. Removal. Subject to the rights of the holders of any series
-------
of Preferred Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only by the affirmative
vote of the holders of at least a majority of the voting power of all of the
outstanding shares of capital stock entitled to vote generally in the election
of directors, voting together as a single class.
2.13. Committees. The Board of Directors may designate one or more
----------
committees, each committee to consist of one or more of the directors of the
corporation, with such lawfully delegated powers and duties as it therefor
confers, to serve at the pleasure of the Board. The Board 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. In the absence or
disqualification of a member of a committee, the member or members of the
committee 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. Any such committee, to the extent provided in the
resolution of the Board of Directors and subject to the provisions of the
General Corporation Law of the State of Delaware, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the
<PAGE>
corporation and may authorize the seal of the corporation to be affixed to all
papers which may require it. Each such committee shall keep minutes and make
such reports as the Board of Directors may from time to time request. Except as
the Board of Directors may otherwise determine, any committee may make rules for
the conduct of its business, but unless otherwise provided by such rules, its
business shall be conducted as nearly as possible in the same manner as is
provided in these By-Laws for the Board of Directors.
2.14. Compensation of Directors. Directors may be paid such
-------------------------
compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board of Directors may from time to the determine.
No such payment shall preclude any director from serving the corporation or any
of its parent or subsidiary corporations in any other capacity and receiving
compensation for such service.
2.15. Nomination of Director Candidates. Subject to the rights of
---------------------------------
holders of any class or series of Preferred Stock then outstanding, nominations
for the election of Directors may be made by the Board of Directors or a proxy
committee appointed by the Board of Directors or by any stockholder entitled to
vote in the election of Directors generally. However, any stockholder entitled
to vote in the election of Directors generally may nominate one or more persons
for election as Directors at a meeting only if timely notice of such
stockholder's intent to make such nomination or nominations has been given in
writing to the Secretary of the Corporation. To be timely, a stockholder
nomination for a director to be elected at an annual meeting shall be received
at the Corporation's principal executive offices not less than 120 calendar days
in advance of the date that the Corporation's (or the Corporation's
predecessor's) proxy statement was released to stockholders in connection with
the previous year's annual meeting of stockholders, except that if no annual
meeting was held in the previous year or the date of the annual meeting has been
changed by more than 30 calendar days from the date contemplated at the time of
the previous year's proxy statement, or in the event of a nomination for
director to be elected at a special meeting, notice by the stockholders to be
timely must be received not later than the close of business on the tenth day
following the day on which such notice of the date of the special meeting was
mailed or such public disclosure was made. Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
for the election of directors on the date of such notice and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) 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; (d) such other information regarding each nominee
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
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (e) the consent of each nominee to serve as a director
of the Corporation if so elected.
In the event that a person is validly designated as a nominee in
accordance with this Section 2.15 and shall thereafter become unable or
unwilling to stand for election to the
<PAGE>
Board of Directors, the Board of Directors or the stockholder who proposed such
nominee, as the case may be, may designate a substitute nominee upon delivery,
not fewer than five days prior to the date of the meeting for the election of
such nominee, of a written notice to the Secretary setting forth such
information regarding such substitute nominee as would have been required to be
delivered to the Secretary pursuant to this Section 2.15 had such substitute
nominee been initially proposed as a nominee. Such notice shall include a signed
consent to serve as a director of the Corporation, if elected, of each such
substitute nominee.
If the chairman of the meeting for the election of Directors
determines that a nomination of any candidate for election as a Director at such
meeting was not made in accordance with the applicable provisions of this
Section 2.15, such nomination shall be void; provided, however, that nothing in
this Section 2.15 shall be deemed to limit any voting rights upon the occurrence
of dividend arrearages provided to holders of Preferred Stock pursuant to the
Preferred Stock designation for any series of Preferred Stock.
Article 3. Officers
--------
3.1. Enumeration. The officers of the corporation shall consist of
-----------
a President and Chief Executive Officer, a Secretary, a Chief Financial Officer
and such other officers with such other titles as the Board of Directors shall
determine, including, at the discretion of the Board of Directors, a Chairman of
the Board, and one or more Vice Presidents and Assistant Secretaries. The Board
of Directors may appoint such other officers as it may deem appropriate.
3.2. Election. Officers shall be elected annually by the Board of
--------
Directors at its first meeting following the annual meeting of stockholders.
Officers may be appointed by the Board of Directors at any other meeting.
3.3. Qualification. No officer need be a stockholder. Any two or
-------------
more offices may be held by the same person.
3.4. Tenure. Except as otherwise provided by law, by the
------
Certificate of Incorporation or by these By-Laws, each officer shall hold office
until his successor is elected and qualified, unless a different term is
specified in the vote appointing him, or until his earlier death, resignation or
removal.
3.5. Resignation and Removal. Any officer may resign by delivering
-----------------------
his written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. Any officer may be removed at any time, with or without cause, by
the Board of Directors.
3.6. Chairman of the Board. The Board of Directors may appoint a
---------------------
Chairman of the Board. If the Board of Directors appoints a Chairman of the
Board, he shall perform such duties and possess such powers as are assigned to
him by the Board of Directors. Unless otherwise provided by the Board of
Directors, he shall preside at all meetings of the stockholders, and, if he is a
director, at all meetings of the Board of Directors.
<PAGE>
3.7. President. The President shall, subject to the direction of
---------
the Board of Directors, have responsibility for the general management and
control of the business and affairs of the Corporation and shall perform all
duties and have all powers which are commonly incident to the office of chief
executive or which are delegated to him or her by the Board of Directors. The
President shall be the Chief Executive Officer of the corporation. The President
shall perform such other duties and shall have such other powers as the Board of
Directors may from time to time prescribe. He or she shall have power to sign
stock certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation, other than the Chairman of
the Board.
3.8. Vice Presidents. Any Vice President shall perform such duties
---------------
and possess such powers as the Board of Directors or the President may from time
to time prescribe. In the event of the absence, inability or refusal to act of
the President, the Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors) shall perform the
duties of the President and when so performing shall have at the powers of and
be subject to all the restrictions upon the President. The Board of Directors
may assign to any Vice President the title of Executive Vice President, Senior
Vice President or any other title selected by the Board of Directors.
3.9. Secretary and Assistant Secretaries. The Secretary shall
-----------------------------------
perform such duties and shall have such powers as the Board of Directors or the
President may from time to time prescribe. In addition, the Secretary shall
perform such duties and have such powers as are incident to the office of the
Secretary, including, without limitation, the duty and power to give notices of
all meetings of stockholders and special meetings of the Board of Directors, to
keep a record of the proceedings of all meetings of stockholders and the Board
of Directors, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such
powers as the Board of Directors, the President or the Secretary may from time
to time prescribe. In the event of the absence, inability or refusal to act of
the Secretary, the Assistant Secretary (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any
meeting of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.10. Chief Financial Officer. Unless otherwise designated by the
-----------------------
Board of Directors, the Chief Financial Officer shall be the Treasurer. The
Chief Financial Officer shall perform such duties and shall have such powers as
may from time to time be assigned to him by the Board of Directors or the
President. In addition, the Chief Financial Officer shall perform such duties
and have such powers as are incident to the office of chief financial officer,
including without limitation, the duty and power to keep and be responsible for
all funds and securities of
<PAGE>
the corporation, to maintain the financial records of the Corporation, to
deposit funds of the corporation in depositories as authorized, to disburse such
funds as authorized, to make proper accounts of such funds, and to render as
required by the Board of Directors accounts of all such transactions and of the
financial condition of the corporation.
3.11. Salaries. Officers of the corporation shall be entitled to
--------
such salaries, compensation or reimbursement as shall be fixed or allowed from
time to time by the Board of Directors.
3.12. Delegation of Authority. The Board of Directors may from time
-----------------------
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Article 4. Capital Stock
-------------
4.1. Issuance of Stock. Unless otherwise voted by the stockholders
-----------------
and subject to the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any unissued balance of the authorized
capital stock of the corporation held in its treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board of Directors in such
manner, for such consideration and on such terms as the Board of Directors may
determine.
4.2. Certificates of Stock. Every holder of stock of the
---------------------
corporation shall be entitled to have a certificate, in such form as may be
prescribed by law and by the Board of Directors, certifying the number and class
of shares owned by him in the corporation. Each such certificate shall be signed
by, or in the name of the corporation by, the Chairman or Vice-Chairman, if any,
of the Board of Directors, or the President or a Vice President, and the Chief
Financial Officer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the By-
Laws, applicable securities laws or any agreement among any number of
shareholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
4.3. Transfers. Except as otherwise established by rules and
---------
regulations adopted by the Board of Directors, and subject to applicable law,
shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or authenticity of signature as the corporation or its transfer agent
may reasonably require. Except as may be otherwise required by law, by the
Certificate of Incorporation or by the By-Laws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock
<PAGE>
until the shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4. Lost, Stolen or Destroyed Certificates. The corporation may
--------------------------------------
issue a new certificate of stock in place of any previously saved certificate
alleged to have been lost, stolen, or destroyed, upon such terms and conditions
as the Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the giving of such
indemnity as the Board of Directors may require for the protection of the
corporation or any transfer agent or registrar.
4.5. Record Date. The Board of Directors may fix in advance a date
-----------
as a record date for the determination of the stockholders entitled to notice of
or to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights in respect of any
change, concession or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action to which such record date relates.
If no record date is fixed, 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 before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the day on
which the meeting is held. The record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed. The record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating to such purpose.
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.
Article 5. General Provisions
------------------
5.1. Fiscal Year. The fiscal year of the corporation shall be as
-----------
fixed by the Board of Directors.
5.2. Corporate Seal. The corporate seal shall be in such form as
--------------
shall be approved by the Board of Directors.
5.3. Waiver of Notice. Whenever any notice whatsoever is required to
----------------
be given by law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person entitled to such
notice or such person's duly authorized attorney, or by telecopy, telegraph,
cable or any other available method, whether before, at or
<PAGE>
after the time stated in such waiver, or the appearance of such person or
persons at such meeting in person or by proxy, shall be deemed equivalent to
such notice.
5.4. Actions with Respect to Securities of Other Corporations.
--------------------------------------------------------
Except as the Board of Directors may otherwise designate, the President or any
officer of the corporation authorized by the President shall have the power to
vote and otherwise act on behalf of the corporation, in person or proxy, and may
waive notice of, and act as, or appoint any person or persons to act as, proxy
or attorney-in-fact to this corporation (with or without power of
substitution) at any meeting of stockholders or shareholders (or with respect to
any action of stockholders) of any other corporation or organization, the
securities of which may be held by this corporation and otherwise to exercise
any and all rights and powers which this corporation may possess by reason of
this corporation's ownership of securities in such other corporation or other
organization.
5.5. Evidence of Authority. A certificate by the Secretary, or an
---------------------
Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
5.6. Certificate of Incorporation. All references in these By-Laws
----------------------------
to the Certificate of Incorporation shall be deemed to refer to the Certificate
of Incorporation of the corporation, as amended and in effect from time to time.
5.7. Severability. Any determination that any provision of these
------------
By-Laws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
5.8. Pronouns. All pronouns used in these By-Laws shall be deemed to
--------
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons may require.
5.9. Notices. Except as otherwise specifically provided herein or
-------
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by prepaid
telegram, mailgram, telecopy or commercial courier service. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice shall be deemed to be given shall be the
time such notice is received by such stockholder, director, officer, employee or
agent, or by any person accepting such notice on behalf of such person, if hand
delivered, or the time such notice is dispatched, if delivered through the mails
or be telegram or mailgram.
5.10. Reliance Upon Books, Reports and Records. Each director, each
----------------------------------------
member of any committee designated by the Board of Directors, and each officer
of the Corporation shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of
<PAGE>
account or other records of the Corporation, including reports made to the
Corporation by any of its officers, by an independent certified public
accountant, or by an appraiser selected with reasonable care.
5.11. Time Periods. In applying any provision of these By-Laws which
------------
require that an act be done or not done a specified number of days prior to an
event or that an act be done during a period of a specified number of days prior
to an event, calendar days shall be used, the day of the doing of the act shall
be excluded, and the day of the event shall be included.
5.12. Facsimile Signatures. In addition to the provisions for use
--------------------
of facsimile signatures elsewhere specifically authorized in these By-Laws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Article 6. Amendments
----------
6.1. By the Board of Directors. Except as is otherwise set forth in
-------------------------
these By-Laws, these By-Laws may be altered, amended or repealed or new By-Laws
may be adopted by the affirmative vote of a majority of the directors present at
any regular or special meeting of the Board of Directors at which a quorum is
present.
6.2. By the Stockholders. Except as otherwise set forth in these
-------------------
By-Laws, these By-Laws may be altered, amended or repealed or new By-Laws may be
adopted by the affirmative vote of the holders of a majority of the shares of
the capital stock of the corporation issued and outstanding and entitled to vote
at any annual meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment, repeal or adoption
--------
of new By-Laws shall have been stated in the notice of such special meeting.
Article 7. Indemnification of Directors and Officers.
-----------------------------------------
7.1. Right to Indemnification. Each person who was or is made a
------------------------
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation, or of a Partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by Delaware Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said Law permitted the Corporation to provide prior
to such amendment) against all expenses, liability and loss reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director, officer or
employee and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in
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<PAGE>
Section 7.2 of this Article 7, the Corporation shall indemnify any such person
seeking indemnity in connection with an action, suit or proceeding (or part
thereof) initiated by such person only if (a) such indemnification is expressly
required to be made by law, (b) the action, suit or proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation, (c) such
indemnification is provided by the Corporation, in its sole discretion, pursuant
to the powers vested in the Corporation under the Delaware General Corporation
Law, or (d) the action, suit or proceeding (or part thereof) is brought to
establish or enforce a right to indemnification under an indemnity agreement or
any other statute or law or otherwise as required under Section 145 of the
Delaware General Corporation Law. Such right shall be a contract right and shall
include the right to be paid by the Corporation expenses incurred in defending
any such proceeding in advance of its final disposition; provided, however,
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that, unless the Delaware General Corporation Law then so prohibits, the payment
of such expenses incurred by a director or officer of the Corporation in his or
her capacity as a director or officer (and not in any other capacity in which
service was or is tendered by such person while a director or officer,
including, without limitation. service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section or
otherwise.
7.2. Right of Claimant to Bring Suit. If a claim under Section 7.1
-------------------------------
is not paid in full by the Corporation within ninety (90) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other then 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 this 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 or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
has not met the applicable standard of conduct.
7.3. Indemnification of Employees and Agents. The Corporation may,
---------------------------------------
to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, and to the advancement of related expenses, to any
employee or agent of the Corporation to the fullest extent of the provisions of
this Article with respect to the indemnification of and advancement of expenses
to directors and officers of the Corporation.
<PAGE>
7.4. Non-Exclusivity of Rights. The rights conferred on any person
-------------------------
in Sections 7.1 and 7.2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
7.5. Indemnification Contracts. The Board of Directors is
-------------------------
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article 7.
7.6. Insurance. The Corporation shall maintain insurance to the
---------
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
7.7. Effect of Amendment. Any amendment, repeal or modification of
-------------------
any provision of this Article 7 by the stockholders and the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.
<PAGE>
CERTIFICATE OF SECRETARY
OF
DSP TECHNOLOGY INC.
(a Delaware corporation)
I, Jose M. Millares, the Secretary of DSP Technology Inc., a Delaware
corporation (the "Corporation"), hereby certify that (i) Proposals 4A, 4B, 4C,
4D and 4E to the Shareholders Annual Meeting of DSP Technology Inc., a
California corporation ("DSP California) and predecessor to the Corporation,
were not approved by the requisite vote of shareholders and (ii) pursuant to the
duly approved Agreement and Plan of Merger by and between the Corporation and
DSP California, the By-Laws to which this Certificate is attached are the
Amended and Restated By-Laws of the Corporation.
Executed effective on the 29 day of August, 1997.
\s\ Jose M. Millares
-----------------------------------
Jose M. Millares, Secretary
