<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_____________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________________
ADOBE SYSTEMS INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 77-0019522
(State of Other Jurisdiction (IRS Employer
of Incorporation) Identification No.)
_____________________________
345 PARK AVENUE
SAN JOSE, CALIFORNIA 95110
(408) 536-6000
(Address and telephone number of principal executive offices)
_____________________________
ADOBE SYSTEMS INCORPORATED
1994 STOCK OPTION PLAN
(Full title of the plan)
P. JACKSON BELL
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND
CHIEF ADMINISTRATIVE OFFICER
ADOBE SYSTEMS INCORPORATED
345 PARK AVENUE
SAN JOSE, CALIFORNIA 95110
(408) 536-6000
(Name, address and telephone number, including area code, of agent for service)
Total Number of Pages: 58
Exhibit Index at Page: 6
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE REGISTRATION FEE(1)
(1)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Option and
Common Stock
(without par value) 5,600,000 $45.875 $256,900,000 $77,848
- --------------------------------------------------------------------------------------------
</TABLE>
- -----------------
(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The price is based upon the average of the high and low
prices of Common Stock on May 23, 1997 as reported on the National
Association of Securities Dealers Automated Quotations System.
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference in this registration
statement:
(a) The contents of the Registration Statement on Form S-8 (No. 33-83030,
effective August 18, 1994) previously filed with respect to the Adobe
Systems Incorporated 1994 Stock Option Plan (the "Plan"), along with
the Form S-8 for 3.6 million shares being filed on May 30, 1997
immediately prior to this Form S-8 with respect to the Plan.
(b) The Registrant's latest annual report on Form 10-K, filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") containing audited financial statements
for the Registrant's latest fiscal year ended November 29, 1996.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant document referred to in (b) above.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DOCUMENT
4.1 Certificate of Incorporation of Registrant.
4.2 Bylaws of Registrant.
4.3 1994 Stock Option Plan, as amended
4.4 Shareholder Rights Plan, as amended, is incorporated by reference to
Exhibit No. 4.1 filed with Registrant's Form 10-Q for the quarter
ended May 31, 1996.
4.5 Agreement and Plan of Merger dated May 30, 1997 by and between Adobe
Systems Incorporated, a California corporation, and Adobe Systems
(Delaware) Incorporated, a Delaware corporation.
5 Opinion of Gray Cary Ware & Freidenrich, a Professional Corporation,
as to the legality of securities being registered.
23.1 Consent of Gray Cary Ware & Freidenrich (contained in Exhibit 5
hereto)
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors
23.3 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney is contained on the signature page.
<PAGE>
SIGNATURES:
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable ground 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 San Jose, State of California, on
this 30th day of May, 1997.
ADOBE SYSTEMS INCORPORATED
(Registrant)
By /s/ P. JACKSON BELL
-----------------------------
P. Jackson Bell
Executive Vice President,
Chief Financial Officer and
Chief Administrative Officer
<PAGE>
POWER OF ATTORNEY
The officers and directors of Adobe Systems Incorporated whose
signatures appear below, hereby constitute and appoint John E. Warnock and P.
Jackson Bell, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments to this
registration statement on Form S-8, and each of the undersigned does hereby
ratify and confirm all that each of said attorney and agent, or their or his
substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities indicated on May 30, 1997.
Signature Title
- --------- -----
/s/ JOHN E. WARNOCK Chairman of the Board and
- ------------------------- Chief Executive Officer
John E. Warnock (Principal Executive Officer)
/s/ CHARLES M. GESCHKE President and Director
- -------------------------
Charles M. Geschke
/s/ P. JACKSON BELL Executive Vice President,
- ------------------------- Chief Financial Officer and
P. Jackson Bell Chief Administrative Officer
(Principal Financial Officer)
/s/ WILLIAM R. HAMBRECHT Director
- -------------------------
William R. Hambrecht
/s/ WILLIAM R. HAMBRECHT Director
- -------------------------
ROBERT SEDGEWICK
/s/ WILLIAM J. SPENCER Director
- -------------------------
William J. Spencer
/s/ GENE P. CARTER Director
- -------------------------
Gene P. Carter
/s/ DELBERT W. YOCAM Director
- -------------------------
Delbert W. Yocam
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
4.1 Certificate of Incorporation of Registrant.
4.2 Bylaws of Registrant.
4.3 1994 Stock Option Plan, as amended
4.4 Shareholder Rights Plan, as amended, is incorporated
by reference to Exhibit No. 4.1 filed with
Registrant's Form 10-Q for the quarter ended
May 31, 1996.
4.5 Agreement and Plan of Merger dated May 30, 1997
by and between Adobe Systems Incorporated, a
California corporation, and Adobe Systems (Delaware)
Incorporated, a Delaware corporation.
5 Opinion of Gray Cary Ware & Freidenrich, a
Professional Corporation, as to the legality of
securities being registered.
23.1 Consent of Gray Cary Ware & Freidenrich
(contained in Exhibit 5 hereto)
23.2 Consent of KPMG Peat Marwick LLP,
Independent Auditors
23.3 Consent of Ernst & Young LLP,
Independent Auditors
24.1 Power of Attorney is contained on the signature page.
<PAGE>
EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
ADOBE SYSTEMS (DELAWARE) INCORPORATED
The undersigned, a natural person (the "Sole Incorporator"), for the
purpose of organizing a corporation to conduct the business and promote the
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware hereby certifies that:
I.
The name of this corporation is Adobe Systems (Delaware) Incorporated.
II.
The address of the registered office of the corporation in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, and the
name of the registered agent of the corporation in the State of Delaware at such
address is Corporation Service Company.
III.
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
IV.
A. 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 the corporation is authorized to issue is Two Hundred Two
Million (202,000,000) shares. Two Hundred Million (200,000,000) shares shall be
Common Stock, each having a par value of one-hundredth of one cent ($0.0001),
and Two Million (2,000,000) shares shall be Preferred Stock, each having a par
value of one-hundredth of one cent ($0.0001).
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, by filing a certificate (a
"Preferred Stock Designation") pursuant to the Delaware General Corporation Law,
to fix or alter from time to time the designation, powers, preferences and
rights of the shares of each such series and the qualifications, limitations or
restrictions of any wholly unissued series of Preferred Stock, and to establish
from time to time the number of shares constituting any such series or any of
them; and to increase or decrease the number of shares of any series subsequent
to the issuance of
1.
<PAGE>
shares of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be decreased in
accordance with the foregoing sentence, the shares constituting such decrease
shall resume the status that they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
V.
For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A.
(1) The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
(2) Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the directors
shall be divided into two classes designated as Class I and Class II,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first
annual meeting of stockholders following November 30, 1997, the term of office
of the Class I directors shall expire and Class I directors shall be elected for
a full term of two years. At the second annual meeting of stockholders
following November 30, 1997, the term of office of the Class II directors shall
expire and Class II directors shall be elected for a full term of two years. At
each succeeding annual meeting of stockholders, directors shall be elected for a
full term of two years to succeed the directors of the class whose terms expire
at such annual meeting.
Notwithstanding the foregoing provisions of this Article, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
(3) Subject to the rights of the holders of any series of Preferred
Stock, the Board of Directors or any individual director may be removed from
office at any time with or without cause by the affirmative vote of the holders
of a majority of the voting power of all the then-outstanding shares of voting
stock of the corporation, entitled to vote at an election of directors (the
"Voting Stock").
(4) Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number
2.
<PAGE>
of directors, shall, unless the Board of Directors determines by resolution that
any such vacancies or newly created directorships shall be filled by the
stockholders, except as otherwise provided by law, be filled only by the
affirmative vote of a majority of the directors then in office, even though less
than a quorum of the Board of Directors, and not by the stockholders. Any
director elected in accordance with the preceding sentence shall hold office for
the remainder of the full term of the director for which the vacancy was created
or occurred and until such director's successor shall have been elected and
qualified.
B.
(1) Subject to paragraph (h) of Section 43 of the Bylaws, the Bylaws
may be altered or amended or new Bylaws adopted by the affirmative vote of a
majority of the voting power of all of the then outstanding shares of the Voting
Stock. The Board of Directors shall also have the power to adopt, amend or
repeal the Bylaws.
(2) The directors of the corporation need not be elected by written
ballot unless the Bylaws so provide.
(3) Following the filing with the Secretary of State of the State of
Delaware of the Agreement and Plan of Merger effecting the merger between the
corporation and Adobe Systems Incorporated, a California corporation, no action
shall be taken by the stockholders of the corporation except at an annual or
special meeting of stockholders called in accordance with the Bylaws.
(4) Special meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the President, (iii) 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 of Directors for
adoption) or (iv) by the holders of the shares entitled to cast not less that
ten percent (10%) of the votes at the meeting, and shall be held at such place,
on such date, and at such time as the Board of Directors shall fix.
(5) Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the corporation shall be given in the manner provided in the
Bylaws of the corporation.
VI.
A. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then
3.
<PAGE>
the liability of a director shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
B. Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
A. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, except as provided in paragraph B. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of a majority of the voting power of all of the then-outstanding shares
of the Voting Stock, voting together as a single class, shall be required to
alter, amend or repeal Articles V, VI, and VII.
VIII.
The name and the mailing address of the Sole Incorporator are as follows:
NAME MAILING ADDRESS
A. PAUL RIMAS Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
IN WITNESS WHEREOF, this Certificate has been subscribed this 8th day of
May, 1997 by the undersigned who affirms that the statements made herein are
true and correct.
/s/ A. Paul Rimas
-------------------------
A. PAUL RIMAS
Sole Incorporator
4.
<PAGE>
Exhibit 4.2
BYLAWS
OF
ADOBE SYSTEMS (DELAWARE) INCORPORATED
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
OFFICES . . . . . . . . . . . . . . . . 1
Section 1. Registered Office. . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices. . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CORPORATE SEAL. . . . . . . . . . . . . . . 1
Section 3. Corporate Seal . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE III
STOCKHOLDERS' MEETINGS. . . . . . . . . . . . . 1
Section 4. Place of Meetings. . . . . . . . . . . . . . . . . . . . 1
Section 5. Annual Meeting . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Special Meetings . . . . . . . . . . . . . . . . . . . . 3
Section 7. Notice of Meetings . . . . . . . . . . . . . . . . . . . 4
Section 8. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 9. Adjournment and Notice of Adjourned Meetings . . . . . . 5
Section 10. Voting Rights. . . . . . . . . . . . . . . . . . . . . . 5
Section 11. Joint Owners of Stock. . . . . . . . . . . . . . . . . . 5
Section 12. List of Stockholders . . . . . . . . . . . . . . . . . . 6
Section 13. Action Without Meeting . . . . . . . . . . . . . . . . . 6
Section 14. Organization . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
DIRECTORS. . . . . . . . . . . . . . . . 7
Section 15. Number and Term of Office. . . . . . . . . . . . . . . . 7
Section 16. Powers . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 17. Classes of Directors.. . . . . . . . . . . . . . . . . . 7
Section 18. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . 7
Section 19. Resignation. . . . . . . . . . . . . . . . . . . . . . . 8
Section 20. Removal. . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 21. Meetings . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Annual Meetings. . . . . . . . . . . . . . . . . . . . . 8
(b) Regular Meetings.. . . . . . . . . . . . . . . . . . . . 8
(c) Special Meetings . . . . . . . . . . . . . . . . . . . . 8
(d) Telephone Meetings . . . . . . . . . . . . . . . . . . . 8
(e) Notice of Meetings . . . . . . . . . . . . . . . . . . . 9
(f) Waiver of Notice . . . . . . . . . . . . . . . . . . . . 9
i.
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
Section 22. Quorum and Voting. . . . . . . . . . . . . . . . . . . . 9
Section 23. Action Without Meeting . . . . . . . . . . . . . . . . . 9
Section 24. Fees and Compensation. . . . . . . . . . . . . . . . . . 10
Section 25. Committees . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Executive Committee. . . . . . . . . . . . . . . . . . . 10
(b) Other Committees . . . . . . . . . . . . . . . . . . . . 10
(c) Term . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Meetings . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 26. Organization . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V
OFFICERS . . . . . . . . . . . . . . . . 12
Section 27. Officers Designated. . . . . . . . . . . . . . . . . . . 12
Section 28. Tenure and Duties of Officers. . . . . . . . . . . . . . 12
(a) General. . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Duties of Chairman of the Board of Directors . . . . . . 12
(c) Duties of Chief Executive Officer. . . . . . . . . . . . 12
(d) Duties of President. . . . . . . . . . . . . . . . . . . 13
(e) Duties of Vice Presidents. . . . . . . . . . . . . . . . 13
(f) Duties of Secretary. . . . . . . . . . . . . . . . . . . 13
(g) Duties of Chief Financial Officer. . . . . . . . . . . . 13
Section 29. Delegation of Authority. . . . . . . . . . . . . . . . . 14
Section 30. Resignations . . . . . . . . . . . . . . . . . . . . . . 14
Section 31. Removal. . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION. . . . . . . . . 14
Section 32. Execution of Corporate Instruments . . . . . . . . . . . 14
Section 33. Voting of Securities Owned by the Corporation. . . . . . 15
ARTICLE VII
SHARES OF STOCK . . . . . . . . . . . . . . 15
Section 34. Form and Execution of Certificates . . . . . . . . . . . 15
Section 35. Lost Certificates. . . . . . . . . . . . . . . . . . . . 16
Section 36. Transfers. . . . . . . . . . . . . . . . . . . . . . . . 16
ii.
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
Section 37. Fixing Record Dates. . . . . . . . . . . . . . . . . . . 16
Section 38. Registered Stockholders. . . . . . . . . . . . . . . . . 16
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION . . . . . . . . . 17
Section 39. Execution of Other Securities. . . . . . . . . . . . . . 17
ARTICLE IX
DIVIDENDS. . . . . . . . . . . . . . . . 17
Section 40. Declaration of Dividends . . . . . . . . . . . . . . . . 17
Section 41. Dividend Reserve . . . . . . . . . . . . . . . . . . . . 18
ARTICLE X
FISCAL YEAR . . . . . . . . . . . . . . . 18
Section 42. Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE XI
INDEMNIFICATION . . . . . . . . . . . . . . 18
Section 43. Indemnification of Directors, Executive Officers, Other
Officers, Employees and Other Agents . . . . . . . . . . 18
(a) Directors and Executive Officers . . . . . . . . . . . . 18
(b) Other Officers, Employees and Other Agents . . . . . . . 18
(c) Expenses . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Enforcement. . . . . . . . . . . . . . . . . . . . . . . 19
(e) Non-Exclusivity of Rights. . . . . . . . . . . . . . . . 20
(f) Survival of Rights . . . . . . . . . . . . . . . . . . . 20
(g) Insurance. . . . . . . . . . . . . . . . . . . . . . . . 20
(h) Amendments . . . . . . . . . . . . . . . . . . . . . . . 20
(i) Saving Clause. . . . . . . . . . . . . . . . . . . . . . 20
(j) Certain Definitions. . . . . . . . . . . . . . . . . . . 20
ARTICLE XII
NOTICES . . . . . . . . . . . . . . . . 22
Section 44. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 22
iii.
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
(a) Notice to Stockholders . . . . . . . . . . . . . . . . . 22
(b) Notice to Directors. . . . . . . . . . . . . . . . . . . 22
(c) Affidavit of Mailing . . . . . . . . . . . . . . . . . . 22
(d) Time Notices Deemed Given. . . . . . . . . . . . . . . . 22
(e) Methods of Notice. . . . . . . . . . . . . . . . . . . . 22
(f) Failure to Receive Notice. . . . . . . . . . . . . . . . 22
(g) Notice to Person with Whom Communication Is Unlawful . . 22
(h) Notice to Person with Undeliverable Address. . . . . . . 23
ARTICLE XIII
AMENDMENTS. . . . . . . . . . . . . . . . 23
Section 45. Amendments . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE XIV
LOANS TO OFFICERS. . . . . . . . . . . . . . 23
Section 46. Loans to Officers. . . . . . . . . . . . . . . . . . . . 23
ARTICLE XV
MISCELLANEOUS. . . . . . . . . . . . . . . 24
Section 47. Annual Report. . . . . . . . . . . . . . . . . . . . . . 24
iv.
<PAGE>
BYLAWS
OF
ADOBE SYSTEMS (DELAWARE) INCORPORATED
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the corporation
in the State of Delaware shall be in the City of Wilmington, County of New
Castle.
SECTION 2. OTHER OFFICES. The corporation shall also have and maintain
an office or principal place of business at such place as may be fixed by the
Board of Directors, and may also have offices at such other places, both within
and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
CORPORATE SEAL
SECTION 3. CORPORATE SEAL. The corporate seal shall consist of a die
bearing the name of the corporation and the inscription, "Corporate
Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
ARTICLE III
STOCKHOLDERS' MEETINGS
SECTION 4. PLACE OF MEETINGS. Meetings of the stockholders of the
corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the office of the corporation required to be
maintained pursuant to Section 2 hereof.
1.
<PAGE>
SECTION 5. ANNUAL MEETING.
(a) The annual meeting of the stockholders of the corporation,
for the purpose of election of directors and for such other business as may
lawfully come before it, shall be held on such date and at such time as may be
designated from time to time by the Board of Directors.
(b) 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: (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 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's notice must be delivered to or mailed and received
at the principal executive offices of the corporation not later than the close
of business on the sixtieth (60th) day nor earlier than the close of business on
the ninetieth (90th) day prior to the first anniversary of the preceding year's
annual meeting; PROVIDED, HOWEVER, that in the event that no annual meeting was
held in the previous year or the date of the annual meeting has been changed by
more than thirty (30) days from the date contemplated at the time of the
previous year's proxy statement, notice by the stockholder to be timely must be
so received not earlier than the close of business on the ninetieth (90th) day
prior to such annual meeting and not later than the close of business on the
later of the sixtieth (60th) day prior to such annual meeting or, in the event
public announcement of the date of such annual meeting is first made by the
corporation fewer than seventy (70) days prior to the date of such annual
meeting, the close of business on the tenth (10th) day following the day on
which public announcement of the date of such meeting is first made by the
corporation. A stockholder's notice to the Secretary 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 and
the reasons for conducting such business at 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, (iv) any material interest of
the stockholder in such business and (v) any other information that is required
to be provided by the stockholder pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), in his capacity as
a proponent to a stockholder proposal. Notwithstanding the foregoing, in order
to include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholder's meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934 Act.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this paragraph (b). The chairman of the annual meeting shall, if the
facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this paragraph (b), and, if he
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should so determine, he shall so declare at the meeting that any such business
not properly brought before the meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the
procedures set forth in this paragraph (c) shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders by or at the direction of
the Board of Directors or by any stockholder of the corporation entitled to vote
in the election of directors at the meeting who complies with the notice
procedures set forth in this paragraph (c). Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the corporation in accordance with
the provisions of paragraph (b) of this Section 5. Such stockholder's notice
shall set forth (i) as to each person, if any, whom the stockholder proposes to
nominate for election or re-election as a director: (A) the name, age, business
address and residence address of such person, (B) the principal occupation or
employment of such person, (C) the class and number of shares of the corporation
which are beneficially owned by such person, (D) 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
nominations are to be made by the stockholder, and (E) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the 1934 Act (including without limitation such
person's written consent to being named in the proxy statement, if any, as a
nominee and to serving as a director if elected); and (ii) as to such
stockholder giving notice, the information required to be provided pursuant to
paragraph (b) of this Section 5. At the request of the Board of Directors, any
person nominated by a stockholder for election as a director shall furnish to
the Secretary of the corporation that information required to be set forth in
the stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director of the corporation unless nominated
in accordance with the procedures set forth in this paragraph (c). The chairman
of the meeting shall, if the facts warrant, determine and declare at the meeting
that a nomination was not made in accordance with the procedures prescribed by
these Bylaws, and if he should so determine, he shall so declare at the meeting,
and the defective nomination shall be disregarded.
(d) For purposes of this Section 5, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press, Business Wire or comparable national news service or in a
document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
SECTION 6. SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the corporation may
be called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the President, (iii) 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
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authorized directorships at the time any such resolution is presented to the
Board of Directors for adoption) or (iv) by the holders of shares entitled to
cast not less than ten percent (10%) of the votes at the meeting, and shall be
held at such place, on such date, and at such time as the Board of Directors,
shall fix.
(b) If a special meeting is called by any person or persons
other than the Board of Directors, the request shall be in writing, specifying
the general nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic or other
facsimile transmission to the Chairman of the Board of Directors, the Chief
Executive Officer, or the Secretary of the corporation. No business may be
transacted at such special meeting otherwise than specified in such notice. The
Board of Directors shall determine the time and place of such special meeting,
which shall be held not less than thirty-five (35) nor more than one hundred
twenty (120) days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, the officer receiving the
request shall cause notice to be given to the stockholders entitled to vote, in
accordance with the provisions of Section 7 of these Bylaws. If the notice is
not given within sixty (60) days after the receipt of the request, the person or
persons requesting the meeting may set the time and place of the meeting and
give the notice. Nothing contained in this paragraph (b) shall be construed as
limiting, fixing, or affecting the time when a meeting of stockholders called by
action of the Board of Directors may be held.
SECTION 7. NOTICE OF MEETINGS. Except as otherwise provided by law or
the Certificate of Incorporation, written notice of each meeting of stockholders
shall be given not less than ten (10) days nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at such meeting,
such notice to specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of stockholders
may be waived in writing, signed by the person entitled to notice thereof,
either before or after such meeting, and will be waived by any stockholder by
his attendance thereat in person or by proxy, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Any stockholder so waiving notice of such meeting shall be
bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given.
SECTION 8. QUORUM. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person or by proxy duly authorized, of the
holders of a majority of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. In the absence of a
quorum, any meeting of stockholders may be adjourned, from time to time, either
by the chairman of the meeting or by vote of the holders of a majority of the
shares represented thereat, but no other business shall be transacted at such
meeting. The stockholders present at a duly called or convened meeting, at
which a quorum is present, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. Except as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, all action taken by the holders of a majority of
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the vote cast, excluding abstentions, at any meeting at which a quorum is
present shall be valid and binding upon the corporation; PROVIDED, HOWEVER, that
directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors. Where a separate vote by a class or classes or series is
required, except where otherwise provided by the statute or by the Certificate
of Incorporation or these Bylaws, a majority of the outstanding shares of such
class or classes or series, present in person or represented by proxy, shall
constitute a quorum entitled to take action with respect to that vote on that
matter and, except where otherwise provided by the statute or by the Certificate
of Incorporation or these Bylaws, the affirmative vote of the majority
(plurality, in the case of the election of directors) of the votes cast,
including abstentions, by the holders of shares of such class or classes or
series shall be the act of such class or classes or series.
SECTION 9. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting
of stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the shares
casting votes, excluding abstentions. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken.
At the adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than thirty (30) days or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 10. VOTING RIGHTS. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the stock
records of the corporation on the record date, as provided in Section 12 of
these Bylaws, shall be entitled to vote at any meeting of stockholders. Every
person entitled to vote shall have the right to do so either in person or by an
agent or agents authorized by a proxy granted in accordance with Delaware law.
An agent so appointed need not be a stockholder. No proxy shall be voted after
three (3) years from its date of creation unless the proxy provides for a longer
period.
SECTION 11. JOINT OWNERS OF STOCK. If shares or other securities having
voting power stand of record in the names of two (2) or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety, or otherwise, or if two (2) or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary is given
written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect: (a) if only
one (1) votes, his or her act binds all; (b) if more than one (1) votes, the act
of the majority so voting binds all; (c) if more than one (1) votes, but the
vote is evenly split on any particular matter, each faction may vote the
securities in question proportionally, or may apply to the Delaware Court of
Chancery for relief as provided in the General Corporation Law of Delaware,
Section 217(b). If the instrument filed with the Secretary shows that any such
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tenancy is held in unequal interests, a majority or even-split for the purpose
of subsection (c) shall be a majority or even-split in interest.
SECTION 12. LIST OF STOCKHOLDERS. The Secretary shall prepare and make,
at least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at said meeting, arranged in alphabetical
order, showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of meeting during the whole time thereof
and may be inspected by any stockholder who is present.
SECTION 13. ACTION WITHOUT MEETING. No action shall be taken by the
stockholders except at an annual or special meeting of stockholders called in
accordance with these Bylaws, and no action shall be taken by the stockholders
by written consent.
SECTION 14. ORGANIZATION.
(a) At every meeting of stockholders, the Chairman of the Board
of Directors, or, if a Chairman has not been appointed or is absent, the Chief
Executive Officer, or if the Chief Executive has not been appointed or is
absent, the President, or, if the President is absent, a chairman of the meeting
chosen by a majority in interest of the stockholders entitled to vote, present
in person or by proxy, shall act as chairman. The Secretary, or, in his or her
absence, an Assistant Secretary directed to do so by the President, shall act as
secretary of the meeting.
(b) The Board of Directors of the corporation shall be entitled
to make such rules or regulations for the conduct of meetings of stockholders as
it shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to stockholders of
record of the corporation and their duly authorized and constituted proxies and
such other persons as the chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with rules of parliamentary procedure.
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ARTICLE IV
DIRECTORS
SECTION 15. NUMBER AND TERM OF OFFICE. The authorized number of
directors of the corporation shall be fixed in accordance with the Certificate
of Incorporation. Directors need not be stockholders unless so required by the
Certificate of Incorporation. If for any cause, the directors shall not have
been elected at an annual meeting, they may be elected as soon thereafter as
convenient at a special meeting of the stockholders called for that purpose in
the manner provided in these Bylaws.
SECTION 16. POWERS. The powers of the corporation shall be exercised,
its business conducted and its property controlled by the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of
Incorporation.
SECTION 17. CLASSES OF DIRECTORS. Subject to the rights of the holders
of any series of Preferred Stock to elect additional directors under specified
circumstances, the directors shall be divided into two classes designated as
Class I and Class II, respectively. Directors shall be assigned to each class in
accordance with a resolution or resolutions adopted by the Board of Directors.
At the first annual meeting of stockholders following November 30, 1997, the
term of office of the Class I directors shall expire and Class I directors shall
be elected for a full term of two years. At the second annual meeting of
stockholders following November 30, 19997, the term of office of the Class II
directors shall expire and Class II directors shall be elected for a full term
of two years. At each succeeding annual meeting of stockholders, directors
shall be elected for a full term of two years to succeed the directors of the
class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this Section, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
SECTION 18. VACANCIES. Unless otherwise provided in the Certificate of
Incorporation, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by stockholders, be filled only
by the affirmative vote of a majority of the directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the director for which the vacancy was created or occurred and
until such director's successor shall have been elected and qualified. A
vacancy in the Board of Directors shall
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be deemed to exist under this Bylaw in the case of the death, removal or
resignation of any director.
SECTION 19. RESIGNATION. Any director may resign at any time by
delivering his written resignation to the Secretary, such resignation to specify
whether it will be effective at a particular time, upon receipt by the Secretary
or at the pleasure of the Board of Directors. If no such specification is made,
it shall be deemed effective at the pleasure of the Board of Directors. When
one or more directors shall resign from the Board of Directors, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office for the unexpired
portion of the term of the Director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
SECTION 20. REMOVAL.
Subject to the rights of the holders of any series of Preferred Stock, the
Board of Directors or any individual director may be removed from office at any
time with or without cause by the affirmative vote of the holders of a majority
of the voting power of all the then-outstanding shares of voting stock of the
corporation, entitled to vote at an election of directors (the "Voting Stock").
SECTION 21. MEETINGS.
(a) ANNUAL MEETINGS. The annual meeting of the Board of
Directors shall be held immediately before or after the annual meeting of
stockholders and may be at the place where such meeting is held. No notice of
an annual meeting of the Board of Directors shall be necessary and such meeting
shall be held for the purpose of electing officers and transacting such other
business as may lawfully come before it.
(b) REGULAR MEETINGS. Except as hereinafter otherwise provided,
regular meetings of the Board of Directors shall be held in the office of the
corporation required to be maintained pursuant to Section 2 hereof. Unless
otherwise restricted by the Certificate of Incorporation, regular meetings of
the Board of Directors may also be held at any place within or without the State
of Delaware which has been designated by resolution of the Board of Directors or
the written consent of all directors.
(c) SPECIAL MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation, special meetings of the Board of Directors may be
held at any time and place within or without the State of Delaware whenever
called by the Chairman of the Board, the President or any two of the directors.
(d) TELEPHONE MEETINGS. Any member of the Board of Directors,
or of any committee thereof, may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting
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can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
(e) NOTICE OF MEETINGS. Notice of the time and place of all
special meetings of the Board of Directors shall be orally or in writing, by
telephone, facsimile, electronic mail, telegraph or telex, during normal
business hours, at least twenty-four (24) hours before the date and time of the
meeting, or sent in writing to each director by first class mail, charges
prepaid, at least three (3) days before the date of the meeting. Notice of any
meeting may be waived in writing at any time before or after the meeting and
will be waived by any director by attendance thereat, except when the director
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
(f) WAIVER OF NOTICE. The transaction of all business at any
meeting of the Board of Directors, or any committee thereof, however called or
noticed, or wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum be present and if, either before
or after the meeting, each of the directors not present shall sign a written
waiver of notice. All such waivers shall be filed with the corporate records or
made a part of the minutes of the meeting.
SECTION 22. QUORUM AND VOTING.
(a) Unless the Certificate of Incorporation requires a greater
number and except with respect to indemnification questions arising under
Section 43 hereof, for which a quorum shall be one-third of the exact number of
directors fixed from time to time in accordance with the Certificate of
Incorporation, a quorum of the Board of Directors shall consist of a majority of
the exact number of directors fixed from time to time by the Board of Directors
in accordance with the Certificate of Incorporation; PROVIDED, HOWEVER, at any
meeting whether a quorum be present or otherwise, a majority of the directors
present may adjourn from time to time until the time fixed for the next regular
meeting of the Board of Directors, without notice other than by announcement at
the meeting.
(b) At each meeting of the Board of Directors at which a quorum
is present, all questions and business shall be determined by the affirmative
vote of a majority of the directors present, unless a different vote be required
by law, the Certificate of Incorporation or these Bylaws.
SECTION 23. ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
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SECTION 24. FEES AND COMPENSATION. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved, by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special
meeting of the Board of Directors and at any meeting of a committee of the Board
of Directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation therefor.
SECTION 25. COMMITTEES.
(a) EXECUTIVE COMMITTEE. The Board of Directors may by
resolution passed by a majority of the whole Board of Directors appoint an
Executive Committee to consist of one (1) or more members of the Board of
Directors. The Executive Committee, to the extent permitted by law and provided
in the resolution of the Board of Directors shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the corporation, including without limitation the power or
authority to declare a dividend, to authorize the issuance of stock and to adopt
a certificate of ownership and merger, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation.
(b) OTHER COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, from time to time appoint
such other committees as may be permitted by law. Such other committees
appointed by the Board of Directors shall consist of one (1) or more members of
the Board of Directors and shall have such powers and perform such duties as may
be prescribed by the resolution or resolutions creating such committees, but in
no event shall such committee have the powers denied to the Executive Committee
in these Bylaws.
(c) TERM. Each member of a committee of the Board of Directors
shall serve at the pleasure of the Board of Directors and until his or her
successors shall have been duly elected, unless sooner removed. The Board of
Directors, subject to the provisions of subsections (a) or (b) of this Bylaw may
at any time increase or decrease the number of
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members of a committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of his death or
voluntary resignation from the committee or from the Board of Directors. The
Board of Directors may at any time for any reason remove any individual
committee member and the Board of Directors may fill any committee vacancy
created by death, resignation, removal or increase in the number of members of
the committee. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee, and, in addition, in the absence or
disqualification of any member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
(d) MEETINGS. Unless the Board of Directors shall otherwise
provide, regular meetings of the Executive Committee or any other committee
appointed pursuant to this Section 25 shall be held at such times and places as
are determined by the Board of Directors, or by any such committee, and when
notice thereof has been given to each member of such committee, no further
notice of such regular meetings need be given thereafter. Special meetings of
any such committee may be held at any place which has been determined from time
to time by such committee, and may be called by any director who is a member of
such committee, upon written notice to the members of such committee of the time
and place of such special meeting given in the manner provided for the giving of
written notice to members of the Board of Directors of the time and place of
special meetings of the Board of Directors. Notice of any special meeting of
any committee may be waived in writing at any time before or after the meeting
and will be waived by any director by attendance thereat, except when the
director attends such special meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. A majority of the authorized number
of members of any such committee shall constitute a quorum for the transaction
of business, and the act of a majority of those present at any meeting at which
a quorum is present shall be the act of such committee.
SECTION 26. ORGANIZATION. At every meeting of the directors, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the Chief Executive Officer, or if the Chief Executive Officer is
absent, the President, or if the President is absent, the most senior Vice
President, or, in the absence of any such officer, a chairman of the meeting
chosen by a majority of the directors present, shall preside over the meeting.
The Secretary, or in his or her absence, an Assistant Secretary directed to do
so by the President, shall act as secretary of the meeting.
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ARTICLE V
OFFICERS
SECTION 27. OFFICERS DESIGNATED. The officers of the corporation shall
include, if and when designated by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer and the Treasurer, all of
whom shall be appointed at the annual organizational meeting of the Board of
Directors. The Board of Directors may also appoint other officers and agents
with such powers and duties as it shall deem necessary. Notwithstanding the
foregoing, the Board of Directors may empower the Chief Executive Officer of the
corporation to appoint such officers, other than Chairman of the Board,
President, Secretary or Chief Financial Officer, as the business of the
corporation may require. The Board of Directors may assign such additional
titles to one or more of the officers as it shall deem appropriate. Any one
person may hold any number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other compensation
of the officers of the corporation shall be fixed by or in the manner designated
by the Board of Directors or a designated committee of the Board of Directors.
SECTION 28. TENURE AND DUTIES OF OFFICERS.
(a) GENERAL. All officers shall hold office at the pleasure of
the Board of Directors and until their successors shall have been duly elected
and qualified, unless sooner removed. Any officer elected or appointed by the
Board of Directors may be removed at any time by the Board of Directors. If the
office of any officer becomes vacant for any reason, the vacancy may be filled
by the Board of Directors.
(b) DUTIES OF CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman
of the Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors
shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. If there is no Chief Executive Officer or
President, then the Chairman of the Board of Directors shall also serve as the
Chief Executive Officer of the corporation and shall have the powers and duties
prescribed in paragraph (c) of this Section 28.
(c) DUTIES OF CHIEF EXECUTIVE OFFICER. Subject to such
supervisory powers, if any, as may be given by the Board of Directors to the
Chairman of the Board, if there by such an officer, the Chief Executive Officer
shall be the general manager and chief executive officer of the corporation and
shall, subject to the control of the Board of Directors, have general
supervision, direction, and control of the business and officers of the
corporation. He or she shall preside at all meetings of the stockholders and
shall have the general powers and duties of management usually vested in the
office of chief executive officer of a corporation, and shall have other powers
and duties as may be prescribed by the Board of Directors.
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(d) DUTIES OF PRESIDENT. In the absence or disability of the
Chief Executive Officer, the President shall perform the duties of the Chief
Executive Officer and, when so acting, shall have all the powers of, and be
subject to all of the restrictions upon, the Chief Executive Officer. The
President shall have such other powers and perform such other duties as from
time to time may be prescribed for the President by the Board of Directors or
the Chief Executive Officer.
(e) DUTIES OF VICE PRESIDENTS. In the absence or disability of
the President, the Vice Presidents in order of their rank as fixed by the Board
of Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform the duties of the President, and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors, the Chief Executive Officer or the President.
(f) DUTIES OF SECRETARY. The Secretary shall keep, or cause to
be kept, a book of minutes in written form of the proceedings of the Board of
Directors, committees of the Board, and stockholders. Such minutes shall
include all waivers of notice, consents to the holding of meetings, or approvals
of the minutes of meetings executed pursuant to these Bylaws or the Delaware
General Corporation Law. The Secretary shall keep, or cause to be kept at the
principal executive office or at the office of the corporation's transfer agent
or registrar, a record of its stockholders, giving the name and addresses of all
stockholders and the number and class of shares held by each. The Secretary
shall give or cause to be given, notice of all meetings of the stockholders and
of the Board of Directors required by these Bylaws or by law to be given, and
shall keep the seal of the corporation in safe custody, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors, the Chief Executive Officer or the President.
(g) DUTIES OF CHIEF FINANCIAL OFFICER. The Chief Financial
Officer shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of account in written form or any other form
capable of being converted into written form. The Chief Financial Officer shall
deposit all monies and other valuables in the name and to the credit of the
corporation with such depositories as may be designated by the Board of
Directors. He or she shall disburse all funds of the corporation as may be
ordered by the Board of Directors, shall render to the President, Chief
Executive Officer and Directors, whenever they request it, an account of all of
his or her transactions as Chief Financial Officer and of the financial
condition of the corporation, shall perform other duties commonly incident to
his or her office and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors, the Chief Executive Officer or
the President. The Chief Executive Officer or President may direct the
Treasurer to assume and perform the duties of the Chief Financial Officer in the
absence or disability of the Chief Financial Officer, and the Treasurer shall
perform other duties commonly incident to his or her office and shall also
perform such other duties and have such other powers as the Board of Directors,
the Chief Executive Officer or the President shall designate from time to time.
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SECTION 29. DELEGATION OF AUTHORITY. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other officer
or agent, notwithstanding any provision hereof.
SECTION 30. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the person
or persons to whom such notice is given, unless a later time is specified
therein, in which event the resignation shall become effective at such later
time. Unless otherwise specified in such notice, the acceptance of any such
resignation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights, if any, of the corporation under any
contract with the resigning officer.
SECTION 31. REMOVAL. Any officer may be removed from office at any
time, either with or without cause, by the affirmative vote of a majority of the
directors in office at the time, or by the unanimous written consent of the
directors in office at the time, or by any committee or superior officers upon
whom such power of removal may have been conferred by the Board of Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
SECTION 32. EXECUTION OF CORPORATE INSTRUMENTS. The Board of Directors
may, in its discretion, determine the method and designate the signatory officer
or officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf of
the corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the corporation.
Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, promissory notes, deeds of trust, mortgages and other
evidences of indebtedness of the corporation, and other corporate instruments or
documents requiring the corporate seal, and certificates of shares of stock
owned by the corporation, shall be executed, signed or endorsed by the Chairman
of the Board of Directors, the Chief Executive Officer, or the President, Chief
Financial Officer or any Vice President. All other instruments and documents
requiring the corporate signature, but not requiring the corporate seal, may be
executed as aforesaid or in such other manner as may be directed by the Board of
Directors.
All checks and drafts drawn on banks or other depositaries on funds to the
credit of the corporation or in special accounts of the corporation shall be
signed by such person or persons as the Board of Directors shall authorize so to
do.
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Unless authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall have any power
or authority to bind the corporation by any contract or engagement or to pledge
its credit or to render it liable for any purpose or for any amount.
SECTION 33. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock
and other securities of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board of Directors, the Chief Executive Officer, the
President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
SECTION 34. FORM AND EXECUTION OF CERTIFICATES. Certificates for the
shares of stock of the corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. Every holder of stock in
the corporation shall be entitled to have a certificate signed by or in the name
of the corporation by the Chairman of the Board of Directors, the Chief
Executive Officer, or the President or any Vice President and by the Treasurer
or Assistant Treasurer or the Secretary or Assistant Secretary, certifying the
number of shares owned by him in the corporation. Any or all of the signatures
on the certificate may be facsimiles. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued with the same effect as if
he were such officer, transfer agent, or registrar at the date of issue. Each
certificate shall state upon the face or back thereof, in full or in summary,
all of the powers, designations, preferences, and rights, and the limitations or
restrictions of the shares authorized to be issued or shall, except as otherwise
required by law, set forth on the face or back a statement that the corporation
will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional, or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. Within a
reasonable time after the issuance or transfer of uncertificated stock, the
corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to this section or otherwise required by law or with respect to this
section a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Except as otherwise expressly provided by law, the rights and
obligations of the holders of certificates representing stock of the same class
and series shall be identical.
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SECTION 35. LOST CERTIFICATES. A new certificate or certificates shall
be issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require or to
give the corporation a surety bond in such form and amount as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen, or destroyed.
SECTION 36. TRANSFERS.
(a) Transfers of record of shares of stock of the corporation
shall be made only upon its books by the holders thereof, in person or by
attorney duly authorized, and upon the surrender of a properly endorsed
certificate or certificates for a like number of shares.
(b) The corporation shall have power to enter into and perform
any agreement with any number of stockholders of any one or more classes of
stock of the corporation to restrict the transfer of shares of stock of the
corporation of any one or more classes owned by such stockholders in any manner
not prohibited by the General Corporation Law of Delaware.
SECTION 37. FIXING RECORD DATES.
(a) In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
such meeting. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; PROVIDED, HOWEVER,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 38. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of Delaware.
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ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
SECTION 39. EXECUTION OF OTHER SECURITIES. All bonds, debentures and
other corporate securities of the corporation, other than stock certificates
(covered in Section 34), may be signed by the Chairman of the Board of
Directors, the Chief Executive Officer, the President or any Vice President, or
such other person as may be authorized by the Board of Directors, and the
corporate seal impressed thereon or a facsimile of such seal imprinted thereon
and attested by the signature of the Secretary or an Assistant Secretary, or the
Chief Financial Officer or Treasurer or an Assistant Treasurer; PROVIDED,
HOWEVER, that where any such bond, debenture or other corporate security shall
be authenticated by the manual signature, or where permissible facsimile
signature, of a trustee under an indenture pursuant to which such bond,
debenture or other corporate security shall be issued, the signatures of the
persons signing and attesting the corporate seal on such bond, debenture or
other corporate security may be the imprinted facsimile of the signatures of
such persons. Interest coupons appertaining to any such bond, debenture or
other corporate security, authenticated by a trustee as aforesaid, shall be
signed by the Chief Financial Officer, Treasurer or an Assistant Treasurer of
the corporation or such other person as may be authorized by the Board of
Directors, or bear imprinted thereon the facsimile signature of such person. In
case any officer who shall have signed or attested any bond, debenture or other
corporate security, or whose facsimile signature shall appear thereon or on any
such interest coupon, shall have ceased to be such officer before the bond,
debenture or other corporate security so signed or attested shall have been
delivered, such bond, debenture or other corporate security nevertheless may be
adopted by the corporation and issued and delivered as though the person who
signed the same or whose facsimile signature shall have been used thereon had
not ceased to be such officer of the corporation.
ARTICLE IX
DIVIDENDS
SECTION 40. DECLARATION OF DIVIDENDS. Dividends upon the capital stock
of the corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors pursuant to law
at any regular or special meeting. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the Certificate
of Incorporation.
SECTION 41. DIVIDEND RESERVE. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of
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Directors shall think conducive to the interests of the corporation, and the
Board of Directors may modify or abolish any such reserve in the manner in which
it was created.
ARTICLE X
FISCAL YEAR
SECTION 42. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
SECTION 43. INDEMNIFICATION OF DIRECTORS, EXECUTIVE OFFICERS, OTHER
OFFICERS, EMPLOYEES AND OTHER AGENTS.
(a) DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall
indemnify its directors and executive officers (for the purposes of this Article
XI, "executive officers shall have the meaning defined in Rule 3b-7 promulgated
under the 1934 Act) to the fullest extent not prohibited by the Delaware General
Corporation Law; PROVIDED, HOWEVER, that the corporation may modify the extent
of such indemnification by individual contracts with its directors and executive
officers; and, PROVIDED, FURTHER, that the corporation shall not be required to
indemnify any director or executive officer in connection with any proceeding
(or part thereof) initiated by such person unless (i) such indemnification is
expressly required to be made by law, (ii) the proceeding was authorized by the
Board of Directors of the corporation, (iii) 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 (iv) such
indemnification is required to be made under subsection (d).
(b) OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The corporation
shall have power to indemnify its other officers, employees and other agents as
set forth in the Delaware General Corporation Law.
(c) EXPENSES. The corporation shall advance to any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was a director or
executive officer of the corporation, or is or was serving at the request of the
corporation as a director or executive officer of another corporation,
partnership, joint venture, trust or other enterprise, prior to the final
disposition of the proceeding, promptly following request therefor, all expenses
incurred by any director or executive officer in connection with such proceeding
upon receipt of an undertaking by or on
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behalf of such person to repay said amounts if it should be determined
ultimately that such person is not entitled to be indemnified under this Bylaw
or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to
paragraph (e) of this Bylaw, no advance shall be made by the corporation to an
executive officer of the corporation (except by reason of the fact that such
executive officer is or was a director of the corporation in which event this
paragraph shall not apply) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, if a determination is reasonably and
promptly made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the proceeding, or (ii) if such
quorum is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, that
the facts known to the decision-making party at the time such determination is
made demonstrate clearly and convincingly that such person acted in bad faith or
in a manner that such person did not believe to be in or not opposed to the best
interests of the corporation.
(d) ENFORCEMENT. Without the necessity of entering into an
express contract, all rights to indemnification and advances to directors and
executive officers under this Bylaw shall be deemed to be contractual rights and
be effective to the same extent and as if provided for in a contract between the
corporation and the director or executive officer. Any right to indemnification
or advances granted by this Bylaw to a director or executive officer shall be
enforceable by or on behalf of the person holding such right in any court of
competent jurisdiction if (i) the claim for indemnification or advances is
denied, in whole or in part, or (ii) no disposition of such claim is made within
ninety (90) days of request therefor. The claimant in such enforcement action,
if successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting his claim. In connection with any claim for indemnification, the
corporation shall be entitled to raise as a defense to any such action that the
claimant has not met the standards of conduct that make it permissible under the
Delaware General Corporation Law for the corporation to indemnify the claimant
for the amount claimed. In connection with any claim by an executive officer of
the corporation (except in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
executive officer is or was a director of the corporation) for advances, the
corporation shall be entitled to raise a defense as to any such action clear and
convincing evidence that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
corporation, or with respect to any criminal action or proceeding that such
person acted without reasonable cause to believe that his conduct was lawful.
Neither the failure of the corporation (including its Board of Directors,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the corporation (including its Board of Directors, independent
legal counsel or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that claimant has not met the applicable standard of conduct. In any suit
brought by a director or executive officer to enforce a right to indemnification
or
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to an advancement of expenses hereunder, the burden of proving that the director
or executive officer is not entitled to be indemnified, or to such advancement
of expenses, under this Article XI or otherwise shall be on the corporation.
(e) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Bylaw shall not be exclusive of any other right which such person
may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The corporation is
specifically authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting indemnification and
advances, to the fullest extent not prohibited by the Delaware General
Corporation Law.
(f) SURVIVAL OF RIGHTS. The rights conferred on any person by
this Bylaw shall continue as to a person who has ceased to be a director,
officer, employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(g) INSURANCE. To the fullest extent permitted by the Delaware
General Corporation Law, the corporation, upon approval by the Board of
Directors, may purchase insurance on behalf of any person required or permitted
to be indemnified pursuant to this Bylaw.
(h) AMENDMENTS. Any repeal or modification of this Bylaw shall
only be prospective and shall not affect the rights under this Bylaw in effect
at the time of the alleged occurrence of any action or omission to act that is
the cause of any proceeding against any agent of the corporation.
(i) SAVING CLAUSE. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and executive officer to
the full extent not prohibited by any applicable portion of this Bylaw that
shall not have been invalidated, or by any other applicable law.
(j) CERTAIN DEFINITIONS. For the purposes of this Bylaw, the
following definitions shall apply:
The term "proceeding" shall be broadly construed and
shall include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and the giving
of testimony in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative.
(ii) The term "expenses" shall be broadly construed and
shall include, without limitation, court costs, attorneys' fees, witness
fees, fines, amounts
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paid in settlement or judgment and any other costs and expenses of any
nature or kind incurred in connection with any proceeding.
(iii) The term the "corporation" shall include, in addition
to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Bylaw with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
(iv) References to a "director," "executive officer,"
"officer," "employee," or "agent" of the corporation shall include, without
limitation, situations where such person is serving at the request of the
corporation as, respectively, a director, executive officer, officer,
employee, trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
(v) References to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation" as
referred to in this Bylaw.
ARTICLE XII
NOTICES
SECTION 44. NOTICES.
(a) NOTICE TO STOCKHOLDERS. Whenever, under any provisions of
these Bylaws, notice is required to be given to any stockholder, it shall be
given in writing, timely and duly deposited in the United States mail, postage
prepaid, and addressed to his last known post office address as shown by the
stock record of the corporation or its transfer agent.
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(b) NOTICE TO DIRECTORS. Any notice required to be given to any
director may be given by the method stated in subsection (a), or by facsimile,
telex or telegram, except that such notice other than one which is delivered
personally shall be sent to such address as such director shall have filed in
writing with the Secretary, or, in the absence of such filing, to the last known
post office address of such director.
(c) AFFIDAVIT OF MAILING. An affidavit of mailing, executed by
a duly authorized and competent employee of the corporation or its transfer
agent appointed with respect to the class of stock affected, specifying the name
and address or the names and addresses of the stockholder or stockholders, or
director or directors, to whom any such notice or notices was or were given, and
the time and method of giving the same, shall in the absence of fraud, be prima
facie evidence of the facts therein contained.
(d) TIME NOTICES DEEMED GIVEN. All notices given by mail, as
above provided, shall be deemed to have been given as at the time of mailing,
and all notices given by facsimile, telex or telegram shall be deemed to have
been given as of the sending time recorded at time of transmission.
(e) METHODS OF NOTICE. It shall not be necessary that the same
method of giving notice be employed in respect of all directors, but one
permissible method may be employed in respect of any one or more, and any other
permissible method or methods may be employed in respect of any other or others.
(f) FAILURE TO RECEIVE NOTICE. The period or limitation of time
within which any stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any director may
exercise any power or right, or enjoy any privilege, pursuant to any notice sent
him in the manner above provided, shall not be affected or extended in any
manner by the failure of such stockholder or such director to receive such
notice.
(g) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL.
Whenever notice is required to be given, under any provision of law or of the
Certificate of Incorporation or Bylaws of the corporation, to any person with
whom communication is unlawful, the giving of such notice to such person shall
not be required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to such person.
Any action or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action taken by
the corporation is such as to require the filing of a certificate under any
provision of the Delaware General Corporation Law, the certificate shall state,
if such is the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom communication
is unlawful.
(h) NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever
notice is required to be given, under any provision of law or the Certificate of
Incorporation or
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Bylaws of the corporation, to any stockholder to whom (i) notice of two
consecutive annual meetings, and all notices of meetings or of the taking of
action by written consent without a meeting to such person during the period
between such two consecutive annual meetings, or (ii) all, and at least two,
payments (if sent by first class mail) of dividends or interest on securities
during a twelve-month period, have been mailed addressed to such person at his
address as shown on the records of the corporation and have been returned
undeliverable, the giving of such notice to such person shall not be required.
Any action or meeting which shall be taken or held without notice to such person
shall have the same force and effect as if such notice had been duly given. If
any such person shall deliver to the corporation a written notice setting forth
his then current address, the requirement that notice be given to such person
shall be reinstated. In the event that the action taken by the corporation is
such as to require the filing of a certificate under any provision of the
Delaware General Corporation Law, the certificate need not state that notice was
not given to persons to whom notice was not required to be given pursuant to
this paragraph.
ARTICLE XIII
AMENDMENTS
SECTION 45. AMENDMENTS. Subject to paragraph (h) of Section 43 of the
Bylaws, the Bylaws may be altered or amended or new Bylaws adopted by the
affirmative vote of a majority of the voting power of all of the then-
outstanding shares of the Voting Stock. The Board of Directors shall also have
the power to adopt, amend, or repeal the Bylaws.
ARTICLE XIV
LOANS TO OFFICERS
SECTION 46. LOANS TO OFFICERS. 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 subsidiaries, including any officer or employee who
is a Director of the corporation or its subsidiaries, whenever, in the judgment
of the Board of Directors, such loan, guarantee or assistance may reasonably be
expected to benefit the corporation. The loan, guarantee 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 these Bylaws shall be deemed
to deny, limit or restrict the powers of guaranty or warranty of the corporation
at common law or under any statute.
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ARTICLE XV
MISCELLANEOUS
SECTION 47. ANNUAL REPORT.
(a) Subject to the provisions of paragraph (b) of this Bylaw,
the Board of Directors shall cause an annual report to be sent to each
stockholder of the corporation not later than one hundred twenty (120) days
after the close of the corporation's fiscal year. Such report shall include a
balance sheet as of the end of such fiscal year and an income statement and
statement of changes in financial position for such fiscal year, accompanied by
any report thereon of independent accountants, or if there is no such report,
the certificate of an authorized officer of the corporation that such statements
were prepared without audit from the books and records of the corporation.
When there are more than one hundred (100) stockholders of record of
the corporation's shares, as determined by Section 605 of the California
Corporations Code, additional information as required by Section 1501(b) of the
California Corporations Code shall also be contained in such report, provided
that if the corporation has a class of securities registered under Section 12 of
the 1934 Act, that Act shall take precedence. Such report shall be sent to
stockholders at least fifteen (15) days prior to the next annual meeting of
stockholders after the end of the fiscal year to which it relates.
(b) If and so long as there are fewer than 100 holders of record
of the corporation's shares, the requirement of sending of an annual report to
the stockholders of the corporation is hereby expressly waived.
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EXHIBIT 4.3
ADOBE SYSTEMS INCORPORATED
1994 STOCK OPTION PLAN
1. PURPOSE. The Adobe Systems Incorporated 1994 Stock Option Plan (the
"PLAN") is established to attract, retain and reward persons providing
services to Adobe Systems Incorporated and any successor corporation thereto
(collectively referred to as the "COMPANY"), and any present or future parent
and/or subsidiary corporations of such corporation (all of whom along with
the Company being individually referred to as a "PARTICIPATING COMPANY" and
collectively referred to as the "PARTICIPATING COMPANY GROUP"), and to
motivate such persons to contribute to the growth and profits of the
Participating Company Group in the future. For purposes of the Plan, a
parent corporation and a subsidiary corporation shall be as defined in
sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended
(the "CODE").
An option granted under the Plan (an "OPTION") may be either an
incentive stock option as defined in section 422 of the Code (an "INCENTIVE
STOCK OPTION") or a nonqualified stock option.
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company (the "BOARD") and/or by a duly appointed committee
of the Board having such powers as shall be specified by the Board. Any
subsequent references herein to the Board shall also mean the committee if
such committee has been appointed and, unless the powers of the committee
have been specifically limited, the committee shall have all of the powers of
the Board granted herein, including, without limitation, the power to
terminate or amend the Plan at any time, subject to the terms of the Plan and
any applicable limitations imposed by law. With respect to the participation
in the Plan of employees who are also officers or directors of the Company
subject to Section 16 of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), the Plan shall be administered by the Board or by a duly
appointed committee of the Board in compliance with the requirement, if any,
of Rule 16b-3, as promulgated under the Exchange Act, as amended from time to
time, or any successor rule or regulation ("RULE 16B-3"). Any officer of a
Participating Company shall have the authority to act on behalf of the
Company with respect to any matter, right, obligation, or election which is
the responsibility of or which is allocated to the Company herein, provided
the officer has apparent authority with respect to such matter, right,
obligation, or election.
In addition to any other powers set forth in the Plan and subject to the
provisions of the Plan, the Board shall have the full and final authority, in
its sole discretion:
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(a) to determine the persons to whom (an "OPTIONEE"), and the time or
times at which, Options shall be granted and the number of shares to be
represented by each Option;
(b) to designate the Options being granted as Incentive Stock Options
or nonqualified stock options;
(c) to determine the fair market value of the common stock of the
Company;
(d) to determine the terms and conditions of each Option granted (which
need not be identical), including, without limitation, the exercise price of
the Option, the method of payment for shares purchased upon exercise of the
Option, the method for satisfaction of any tax withholding obligation arising
in connection with the Option, including by the withholding or delivery of
shares of stock, the timing and terms of exercisability and vesting of the
Option, the time of expiration of the Option, the effect of the Optionee's
termination of employment or service, and all other terms and conditions of
the Option not inconsistent with the terms of the Plan;
(e) to approve one or more forms of stock option agreement for use
under the Plan;
(f) to modify or amend any Option, or to waive any restrictions or
conditions applicable to any Option or the exercise thereof;
(g) to accelerate, continue, extend or defer the exercisability and/or
vesting of any Option, including with respect to the period following an
Optionee's termination of employment or service with the Participating
Company Group;
(h) to delegate to the Chief Financial Officer the authority to grant
Options without further approval of the Board to any person eligible pursuant
to paragraph 3 below, other than a person who, at the time of the grant, is a
person subject to Section 16 under the Exchange Act; provided, however, that
(i) the Chief Financial Officer shall not grant Options to any one person for
more than 20,000 shares, (ii) the exercise price per share of each such
Option shall be equal to the closing sale price per share of the Company's
common stock on the date of grant as quoted on the Nasdaq National Market or
such other national securities exchange or market system constituting the
primary market for the common stock of the Company (or if the stock has not
traded on such date, on the last day preceding the date of grant on which the
stock was so traded), and (iii) each such Option shall be subject to the
terms and conditions of the appropriate standard form of stock option
agreement approved by the Board pursuant to paragraph 7 below and shall
conform to the provisions of the Plan and any guidelines established by the
Board;
(i) to authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Option;
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(j) to prescribe, amend or rescind rules, regulations and policies
relating to the Plan;
(k) to construe and interpret the Plan and any stock option agreement
used under the Plan and to define the terms employed herein and therein; and
(l) to make all other determinations and take such other action with
respect to the Plan and any Option granted hereunder as the Board may deem
advisable, to the extent permitted by applicable law.
All decisions, determinations and interpretations of the Board shall be
final and binding upon all persons having an interest in the Plan and/or any
Option.
3. ELIGIBILITY AND OPTION LIMITATIONS.
(a) PERSONS ELIGIBLE FOR OPTIONS. Options may be granted only to
employees (including officers and directors who are also employees) of the
Participating Company Group or to individuals who are rendering services as
consultants, advisors, or other independent contractors to the Participating
Company Group. For purposes of the foregoing sentence, "employees" shall
include prospective employees to whom Options are granted in connection with
written offers of employment with the Participating Company Group and
"consultants" or "advisors" shall include prospective consultants or advisors
to whom Options are granted in connection with written consulting or advising
offers with the Participating Company Group. The Board shall, in its sole
discretion, determine which persons shall be granted Options. An individual
who is rendering services as a consultant, advisor, or other independent
contractor or who is a prospective employee, consultant or advisor may only
be granted a nonqualified stock option. Eligible persons may be granted more
than one (1) Option.
(b) SECTION 162(m) GRANT LIMIT. Subject to adjustment as provided in
paragraph 9 below, at any such time as the Company is a "publicly held
corporation" within the meaning of Section 162(m) of the Code and any
applicable regulations thereunder, no employee shall be granted one or more
Options within any period of twelve consecutive months which in the aggregate
are for the purchase of more than one million two hundred thousand
(1,200,000) shares (the "SECTION 162(m) GRANT LIMIT"). An Option which is
canceled in the same fiscal year of the Company in which it was granted shall
continue to be counted against the Section 162(m) Grant Limit for such period.
4. SHARES SUBJECT TO OPTION. Options shall be for the purchase of
authorized but unissued or reacquired shares of the common stock of the
Company (the "STOCK"), subject to adjustment as provided in paragraph 9
below. Subject to the limitations described in this paragraph 4, the maximum
number of shares of Stock which may be issued under the Plan shall be
twenty-nine million two hundred
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thousand (29,200,000) shares (the "SHARE RESERVE"). Notwithstanding any
provision herein to the contrary, the Share Reserve determined at any time
shall be reduced by (a) the number of shares of Stock issued pursuant to the
exercise of options granted under the Adobe Systems Incorporated 1984 Stock
option Plan (the "1984 PLAN") and (b) the number of shares of Stock then
subject to outstanding options granted under the 1984 Plan. In the event
that any outstanding Option for any reason expires or is terminated or
canceled and/or shares of Stock subject to repurchase are repurchased by the
Company, the shares allocable to the unexercised portion of such Option, or
such repurchased shares, may again be subject to an Option grant.
5. TIME FOR GRANTING OPTIONS. All Options shall be granted, if at all,
prior to December 17, 2003, the tenth anniversary of the date on which the
Plan was initially adopted by the Board.
6. TERMS, CONDITIONS AND FORM OF OPTIONS. Options granted pursuant to
the Plan shall be evidenced by written agreements specifying the number of
shares of Stock covered thereby, in such form as the Board shall from time to
time establish, which agreements may incorporate all or any of the terms of
the Plan by reference and shall comply with and be subject to the following
terms and conditions:
(a) EXERCISE PRICE. The exercise price for each Option shall be
established in the sole discretion of the Board; provided, however, that (i)
the exercise price per share for an Option shall be not less than the fair
market value, as determined by the Board, of a share of Stock on the date of
the granting of the Option and (ii) no Incentive Stock Option granted to an
Optionee who at the time the Option is granted owns stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of a Participating Company within the meaning of section 422(b)(6) of
the Code (a "TEN PERCENT OWNER OPTIONEE") shall have an exercise price per
share less than one hundred ten percent (110%) of the fair market value, as
determined by the Board, of a share of Stock on the date of the granting of
the Option. Notwithstanding the foregoing, an Option (whether an Incentive
Stock Option or a nonqualified stock option) may be granted with an exercise
price lower than the minimum exercise price set forth above if such Option is
granted pursuant to an assumption or substitution for another option in a
manner qualifying with the provisions of section 424(a) of the Code.
(b) EXERCISE PERIOD OF OPTIONS. The Board shall have the power to
set the time or times within which each Option shall be exercisable or the
event or events upon the occurrence of which all or a portion of each Option
shall be exercisable and the term of each Option; provided, however, that (i)
no Option shall be exercisable after the expiration of eight (8) years after
the date such Option is granted and (ii) no Incentive Stock Option granted to
a Ten Percent Owner Optionee shall be exercisable after the expiration of
five (5) years after the date such Option is granted.
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(c) PAYMENT OF EXERCISE PRICE. Payment of the exercise price for
the number of shares of Stock being purchased pursuant to any Option shall be
made (i) in cash, by check, or cash equivalent, (ii) by tender to the Company
of shares of the Company's stock owned by the Optionee having a value, as
determined by the Board (but without regard to any restrictions on
transferability applicable to such stock by reason of federal or state
securities laws or agreements with an underwriter for the Company), not less
than the exercise price, (iii) by the assignment of the proceeds of a sale of
some or all of the shares being acquired upon the exercise of the Option
(including, without limitation, through an exercise complying with the
provisions of Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System), (iv) by the Optionee's recourse
promissory note, (v) by the withholding of shares being acquired upon
exercise of the Option having a value, as determined by the Board (but
without regard to any restrictions on transferability applicable to such
stock by reason of federal or state securities laws or agreements with an
underwriter for the Company), not less than the exercise price, (vi) by such
other consideration and method of payment as the Board, in its sole
discretion, may allow, or (vii) by any combination thereof.
The Board may at any time or from time to time, by adoption of or by
amendment to any of the standard forms of stock option agreement described in
paragraph 7 below, or by other means, grant Options which do not permit all
of the foregoing forms of consideration to be used in payment of the exercise
price and/or which otherwise restrict one (1) or more forms of consideration.
Notwithstanding the foregoing, an Option may not be exercised by tender to
the Company of shares of the Company's stock to the extent such tender of
stock would constitute a violation of the provisions of any law, regulation
and/or agreement restricting the redemption of the Company's stock.
Furthermore, no promissory note shall be permitted if an exercise using a
promissory note would be a violation of any law. Any permitted promissory
note shall be due and payable not more than five (5) years after the Option
is granted, and interest shall be payable at least annually and be at least
equal to the minimum interest rate necessary to avoid imputed interest
pursuant to all applicable sections of the Code. The Board shall have the
authority to permit or require the Optionee to secure any promissory note
used to exercise an Option with the shares of Stock acquired on exercise of
the Option and/or with other collateral acceptable to the Company.
(x) Unless otherwise provided by the Board, an Option may not be
exercised by tender to the Company of shares of the Company's stock pursuant
to clause (ii) of this paragraph 6(c) unless such shares of the Company's
stock either have been owned by the Optionee for more than six (6) months or
were not acquired, directly or indirectly, from the Company.
(y) Unless otherwise provided by the Board, in the event the
Company at any time is subject to the regulations promulgated by the Board of
Governors of the Federal Reserve System or any other governmental entity
affecting the extension of credit in connection with the Company's
securities, any promissory
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note shall comply with such applicable regulations, and the Optionee shall
pay the unpaid principal and accrued interest, if any, to the extent
necessary to comply with such applicable regulations.
(z) The Company reserves, at any and all times, the right, in the
Company's sole and absolute discretion, to establish, decline to approve
and/or terminate any program and/or procedures for the exercise of Options by
means of (A) an assignment of the proceeds of a sale of some or all of the
shares of Stock to be acquired upon such exercise pursuant to clause (iii) of
this paragraph 6(c) or (B) the withholding of shares of Stock to be acquired
upon such exercise pursuant to clause (v) of this paragraph 6(c).
(d) FAIR MARKET VALUE LIMITATION. To the extent that the aggregate
fair market value (determined at the time the Option is granted) of stock
with respect to which Incentive Stock Options are exercisable by an Optionee
for the first time during any calendar year (under all stock option plans of
the Company, including the Plan) exceeds One Hundred Thousand Dollars
($100,000), such options shall be treated as nonqualified stock options.
This paragraph shall be applied by taking Incentive Stock Options into
account in the order in which they were granted.
7. STANDARD FORMS OF STOCK OPTION AGREEMENT.
(a) INCENTIVE STOCK OPTIONS. Unless otherwise provided for by the
Board at the time an Option is granted, an Option designated as an "Incentive
Stock Option" shall comply with and be subject to the terms and conditions
set forth in the forms of incentive stock option agreement attached hereto as
EXHIBIT A (New Employee) and EXHIBIT B (Existing Employee), as appropriate,
and incorporated herein by reference.
(b) NONQUALIFIED STOCK OPTIONS. Unless otherwise provided for by
the Board at the time an Option is granted, an Option designated as a
"Nonqualified Stock Option" shall comply with and be subject to the terms and
conditions set forth in the forms of nonqualified stock option agreement
attached hereto as EXHIBIT C (New Employee) and EXHIBIT D (Existing
Employee), as appropriate, and incorporated herein by reference.
(c) STANDARD TERM FOR OPTIONS. Unless otherwise provided for by the
Board in the grant of an Option, any Option granted hereunder shall be
exercisable for a term of eight (8) years.
8. AUTHORITY TO VARY TERMS. The Board shall have the authority from time
to time to vary the terms of any of the standard forms of Stock Option
Agreement described in paragraph 7 above either in connection with the grant
of an individual Option or in connection with the authorization of a new
standard form or forms; provided, however, that the terms and conditions of
such revised or amended standard form or forms of stock option agreement
shall be in accordance with the
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terms of the Plan. Such authority shall include, but not by way of
limitation, the authority to grant Options which are immediately exercisable
subject to the Company's right to repurchase any unvested shares of Stock
acquired by an Optionee on exercise of an Option in the event such Optionee's
employment with the Participating Company Group is terminated for any reason,
with or without cause.
9. EFFECT OF CHANGE IN STOCK SUBJECT TO PLAN. In the event of any stock
dividend, stock split, reverse stock split, recapitalization, combination,
reclassification or similar change in the capital structure of the Company,
appropriate adjustments shall be made in the number and class of shares
subject to the Plan and to any outstanding Options, in the Section 162(m)
Grant Limit set forth in paragraph 3(b), and in the exercise price per share
of any outstanding Options. If a majority of the shares which are of the
same class as the shares that are subject to outstanding Options are
exchanged for, converted into, or otherwise become (whether or not pursuant
to a Transfer of Control, as defined in paragraph 10) shares of another
corporation (the "NEW SHARES"), the Board may unilaterally amend the
outstanding Options to provide that such Options are exercisable for New
Shares. In the event of any such amendment, the number of shares subject to,
and the exercise price per share of, the outstanding Options shall be
adjusted in a fair and equitable manner as determined by the Board, in its
sole discretion. Notwithstanding the foregoing, any fractional share
resulting from an adjustment pursuant to this paragraph 9 shall be rounded up
or down to the nearest whole number, as determined by the Board, and in no
event may the exercise price of any Option be decreased to an amount less
than the par value, if any, of the stock subject to the Option. The
adjustments determined by the Board pursuant to this paragraph shall be
final, binding and conclusive.
10. TRANSFER OF CONTROL. A "Transfer of Control" shall be deemed to have
occurred in the event any of the following occurs with respect to the Company:
(a) the direct or indirect sale or exchange by the shareholders of
the Company of all or substantially all of the stock of the Company where the
shareholders of the Company before such sale or exchange do not retain,
directly or indirectly, at least a majority of the beneficial interest in the
voting stock of the Company after such sale or exchange;
(b) a merger or consolidation in which the Company is not the
surviving corporation;
(c) a merger or consolidation in which the Company is the surviving
corporation where the shareholders of the Company before such merger or
consolidation do not retain, directly or indirectly, at least a majority of
the beneficial interest in the voting stock of the Company after such merger
or consolidation;
(d) the sale, exchange, or transfer of all or substantially all of
the assets of the Company (other than a sale, exchange, or transfer to one
(1) or more subsidiary corporations (as defined in paragraph 1 above) of the
Company); or
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(e) A liquidation or dissolution of the Company.
In the event of a Transfer of Control, the surviving, continuing,
successor, or purchasing corporation or parent corporation thereof, as the
case may be (the "ACQUIRING CORPORATION"), shall either assume the Company's
rights and obligations under outstanding Options or substitute for
outstanding Options substantially equivalent options for the Acquiring
Corporation's stock. In the event the Acquiring Corporation elects not to
assume or substitute for such outstanding Options in connection with the
Transfer of Control, the Board shall provide that any unexercisable and/or
unvested portion of the outstanding Options shall be immediately exercisable
and vested in full as of the date thirty (30) days prior to the date of the
Transfer of Control. The exercise and/or vesting of any Option that was
permissible solely by reason of this paragraph 10 shall be conditioned upon
the consummation of the Transfer of Control. Any Options which are neither
assumed or substituted for by the Acquiring Corporation in connection with
the Transfer of Control nor exercised as of the date of the Transfer of
Control shall terminate and cease to be outstanding effective as of the date
of the Transfer of Control.
11. PROVISION OF INFORMATION. Each Optionee shall be given access to
information concerning the Company equivalent to that information generally
made available to the Company's common shareholders.
12. TRANSFERABILITY OF OPTIONS. During the lifetime of the Optionee, the
Option shall be exercisable only by the Optionee. No Option shall be
assignable or transferable by the Optionee, except by will or by the laws of
descent and distribution. Notwithstanding the foregoing, a nonqualified
stock option shall be assignable or transferable to the extent permitted by
the Board and set forth in the stock option agreement evidencing such Option.
13. TERMINATION OR AMENDMENT OF PLAN AND OPTIONS. The Board, including
any duly appointed committee of the Board, may terminate or amend the Plan
and/or any Option at any time. However, subject to changes in applicable
law, regulations or rules that would permit otherwise, without the approval
of the Company's shareholders, there shall be (a) no increase in the maximum
aggregate number of shares of Stock that may be issued under the Plan (except
by operation of the provisions of paragraphs 4 and 9 above) and (b) no change
in the class of persons eligible to receive Incentive Stock Options. In any
event, no termination or amendment of the Plan may adversely affect any then
outstanding Option or any unexercised portion thereof, without the consent of
the Optionee, unless such termination or amendment is required to enable an
Option designated as an Incentive Stock Option to qualify as an Incentive
Stock Option or is necessary to comply with any applicable law, regulation or
rule.
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IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies
that the foregoing sets forth the Adobe Systems Incorporated 1994 Stock
Option Plan as duly adopted by the Board of Directors of the Company and
amended through December 18, 1996.
/s/ COLLEEN M. POULIOT
------------------------------------
Secretary
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PLAN HISTORY
December 17, 1993 Board adopts Plan with initial reserve of
20,000,000 shares (the aggregate reserve under
1984 Plan), reduced at any time by (i) shares
issued under 1984 Plan, (ii) options outstanding
under 1984 Plan, and (iii) shares available for
grant under 1984 Plan (zero after 1984 Plan
termination date of 10/16/94).
April 13, 1994 Shareholders approve Plan.
January 11, 1996 Board amends Plan to increase reserve by 3,600,000
shares.
April 10, 1996 Shareholders approve reserve increase of 3,600,000
shares.
December 18, 1996 Board amends Plan to increase reserve by 5,600,000
shares and to reduce the maximum term of any
option to 8 years.
April 9, 1997 Shareholders approve reserve increase of 5,600,000
shares.
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EXHIBIT 4.5
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of May 30, 1997, by and between ADOBE SYSTEMS
INCORPORATED, a California corporation ("Adobe California"), and ADOBE SYSTEMS
(DELAWARE) INCORPORATED, a Delaware corporation ("Adobe Delaware"). Adobe
California and Adobe Delaware are sometimes referred to as the "Constituent
Corporations."
The authorized capital stock of Adobe California consists of two hundred
million (200,000,000) shares of Common Stock, no par value, and two million
(2,000,000) shares of Preferred Stock, no par value. The authorized capital
stock of Adobe Delaware, upon effectuation of the transactions set forth in this
Merger Agreement, will consist of two hundred million (200,000,000) shares of
Common Stock, each having a par value of one-hundredth of one cent ($0.0001),
and two million (2,000,000) shares of Preferred Stock, each having a par value
of one-hundredth of one cent ($0.0001).
The directors of the Constituent Corporations deem it advisable and to the
advantage of the Constituent Corporations that Adobe California merge into Adobe
Delaware upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that Adobe California
shall merge into Adobe Delaware on the following terms, conditions and other
provisions:
I. TERMS AND CONDITIONS.
1.1 MERGER. Adobe California shall be merged with and into Adobe Delaware
(the "Merger"), and Adobe Delaware shall be the surviving corporation (the
"Surviving Corporation") effective upon the date when this Merger Agreement is
filed with the Secretary of State of Delaware (the "Effective Date").
1.2 NAME CHANGE. On the Effective Date, the name of Adobe Delaware shall
be Adobe Systems Incorporated.
1.3 SUCCESSION. On the Effective Date, Adobe Delaware shall continue its
corporate existence under the laws of the State of Delaware, and the separate
existence and corporate organization of Adobe California, except insofar as it
may be continued by operation of law, shall be terminated and cease.
1.4 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations; and all
and
1.
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singular rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, of each of the
Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; provided, however, that the liabilities of the Constituent
Corporations and of their shareholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired, and any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the Merger had not taken place
except as they may be modified with the consent of such creditors and all debts,
liabilities and duties of or upon each of the Constituent Corporations shall
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred or contracted
by it.
1.5 COMMON STOCK OF ADOBE CALIFORNIA AND ADOBE DELAWARE. On the Effective
Date, by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, each share of Common Stock of
Adobe California issued and outstanding immediately prior thereto shall be
converted into one (1) fully paid and nonassessable share of the Common Stock of
Adobe Delaware and each share of Common Stock of Adobe Delaware issued and
outstanding immediately prior thereto shall be canceled and returned to the
status of authorized but unissued shares.
1.6 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock or of the Preferred Stock of Adobe California shall be deemed for
all purposes to evidence ownership of and to represent the shares of Adobe
Delaware into which the shares of Adobe California represented by such
certificates have been converted as herein provided and shall be so registered
on the books and records of the Surviving Corporation or its transfer agents.
The registered owner of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to and to receive
any dividend and other distributions upon the shares of Adobe Delaware evidenced
by such outstanding certificate as above provided.
1.7 OPTIONS. On the Effective Date, the Surviving Corporation will assume
and continue Adobe California's Stock Option Plan, Restricted Stock Option Plan,
Outside Directors Plan, Performance and Restricted Stock Option Plan and any and
all other stock option plans of Adobe California and the outstanding and
unexercised portions of all options to purchase Common Stock of Adobe
California, including without limitation all options outstanding under such
stock plans and any other outstanding options, shall be converted into options
of Adobe Delaware, such that an option for one (1) share of Adobe California
shall be converted into an
2.
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option for one (1) share of Adobe Delaware, with no change in the exercise price
of the Adobe Delaware option. No other changes in the terms and conditions of
such options will occur. Effective on the Effective Date, Adobe Delaware hereby
assumes the outstanding and unexercised portions of such options and the
obligations of Adobe California with respect thereto.
1.8 EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving
Corporation shall assume all obligations of Adobe California under any and all
of Adobe California's employee benefit plans, including the Employee Stock
Purchase Plan, in effect as of such date. On the Effective Date, the Surviving
Corporation shall adopt and continue in effect all such employee benefit plans
upon the same terms and conditions as were in effect immediately prior to the
Merger and shall reserve that number of shares of Adobe Delaware Common Stock
with respect to each such employee benefit plan as is proportional to the number
of shares of Adobe California Common Stock (if any) so reserved on the Effective
Date.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Adobe Delaware in effect on the Effective Date shall
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation, except that Article I of the Certificate of Incorporation and
Bylaws of the Surviving Corporation shall, effective upon the filing of this
Merger Agreement with the Secretary of State of the State of Delaware, be
amended to read in its entirety as follows: "The name of this corporation is
Adobe Systems Incorporated."
2.2 DIRECTORS. The directors of Adobe California immediately preceding
the Effective Date shall become the directors of the Surviving Corporation on
and after the Effective Date to serve until the expiration of their terms and
until their successors are elected and qualified.
2.3 OFFICERS. The officers of Adobe California immediately preceding the
Effective Date shall become the officers of the Surviving Corporation on and
after the Effective Date to serve at the pleasure of its Board of Directors.
III. MISCELLANEOUS.
3.1 FURTHER ASSURANCES. From time to time, and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of Adobe California such deeds and other instruments,
and there shall be taken or caused to be taken by it such further and other
action, as shall be appropriate or necessary in order to vest or perfect in or
to conform of record or otherwise, in the Surviving Corporation the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Adobe California and otherwise
to carry out the purposes of this Merger Agreement, and the officers and
directors of the Surviving Corporation are fully authorized in the name and on
behalf of Adobe California or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
3.
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3.2 AMENDMENT. At any time before or after approval by the shareholders
of Adobe California, this Merger Agreement may be amended in any manner (except
that, after the approval of the Merger Agreement by the shareholders of Adobe
California, the principal terms may not be amended without the further approval
of the shareholders of Adobe California) as may be determined in the judgment of
the respective Board of Directors of Adobe Delaware and Adobe California to be
necessary, desirable, or expedient in order to clarify the intention of the
parties hereto or to effect or facilitate the purpose and intent of this Merger
Agreement.
3.3 CONDITIONS TO MERGER. The obligations of the Constituent Corporations
to effect the transactions contemplated hereby is subject to satisfaction of the
following conditions (any or all of which may be waived by either of the
Constituent Corporations in its sole discretion to the extent permitted by law):
(a) the Merger shall have been approved by the shareholders of Adobe
California in accordance with applicable provisions of the General Corporation
Law of the State of California; and
(b) Adobe California, as sole stockholder of Adobe Delaware, shall
have approved the Merger in accordance with the General Corporation Law of the
State of Delaware; and
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of Adobe California to be material to
consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. At any time before the Effective Date, this
Merger Agreement may be terminated and the Merger may be abandoned by the Board
of Directors of either Adobe California or Adobe Delaware or both,
notwithstanding the approval of this Merger Agreement by the shareholders of
Adobe California or Adobe Delaware, or the consummation of the Merger may be
deferred for a reasonable period of time if, in the opinion of the Boards of
Directors of Adobe California and Adobe Delaware, such action would be in the
best interest of such corporations. In the event of termination of this Merger
Agreement, this Merger Agreement shall become void and of no effect and there
shall be no liability on the part of either Constituent Corporation or its Board
of Directors or shareholders with respect thereto, except that Adobe California
shall pay all expenses incurred in connection with the Merger or in respect of
this Merger Agreement or relating thereto.
3.5 COUNTERPARTS. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original.
4.
<PAGE>
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by the Board of Directors of Adobe California and Adobe Delaware, is hereby
executed on behalf of each said corporation and attested by their respective
officers thereunto duly authorized.
ADOBE SYSTEMS INCORPORATED
A California corporation
By /s/ John E. Warnock
--------------------------------------
John E. Warnock
Chairman of the Board
and Chief Executive Officer
ATTEST:
/s/ Colleen M. Pouliot
- --------------------------------------
Colleen M. Pouliot
Vice President, General Counsel
and Secretary
ADOBE SYSTEMS (DELAWARE)
INCORPORATED
A Delaware corporation
By /s/ John E. Warnock
--------------------------------------
John E. Warnock
Chairman of the Board
and Chief Executive Officer
ATTEST:
/s/ Colleen M. Pouliot
- --------------------------------------
Colleen M. Pouliot
Vice President, General Counsel
and Secretary
5.
<PAGE>
EXHIBIT 5
[GRAY CARY WARE FREIDENRICH LETTERHEAD]
May 30, 1997
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
RE: ADOBE SYSTEMS INCORPORATED 1994 STOCK OPTION PLAN -- REGISTRATION
STATEMENT ON FORM S-8
Gentlemen and Ladies:
As legal counsel for Adobe Systems Incorporated, a Delaware corporation
(the "Company"), we are rendering this opinion in connection with the
registration under the Securities Act of 1933, as amended, of up to 5,600,000
shares of the Company's Common Stock which may be issued pursuant to the
exercise of options granted under the Adobe Systems Incorporated 1994 Stock
Option Plan (the "Plan").
We have examined all instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. 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
to the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our
examination of such laws and the rules and regulations of the authorities
administering such laws, all as reported in standard, unofficial
compilations. We have not obtained opinions of counsel licensed to practice
in jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 5,600,000
shares which may be issued upon the exercise of options granted under the
Plan are duly authorized shares of the Company's Common Stock, and, when
issued against payment of the purchase price therefor in accordance with the
provisions of the Plan, will be validly issued, fully paid and non-assessable.
<PAGE>
GRAY CARY WARE FREIDENRICH
Securities and Exchange Commission
May 30, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ GRAY CARY WARE FREIDENRICH
GRAY CARY WARE FREIDENRICH
A Professional Corporation
<PAGE>
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
INDEPENDENT AUDITORS
The Board of Directors
Adobe Systems Incorporated
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1994 Stock Option Plan of Adobe
Systems Incorporated ("Adobe") of our reports dated December 17, 1996,
relating to the consolidated balance sheets of Adobe and its subsidiaries as
of November 29, 1996 and December 1, 1995, and the related consolidated
statements of income, shareholders' equity, and cash flows for each of the
years in the three-year period ended November 29, 1996, and the related
schedule, which reports appear in the 1996 Annual Report on Form 10-K of
Adobe. As indicated in our report, for the year ended December 31, 1994, we
did not audit the consolidated financial statements of Frame Technology
Corporation and its subsidiaries, a company acquired by Adobe in a business
combination accounted for as a pooling-of-interests. Those statements were
audited by other auditors whose report has been furnished to us, and our
opinion, insofar as it relates to the amounts included for Frame Technology
Corporation, is based solely on the reports of the other auditors.
KPMG PEAT MARWICK LLP
San Jose, California
May 27, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP
INDEPENDENT AUDITORS
The Board of Directors
Adobe Systems Incorporated
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1994 Stock Option Plan of Adobe
Systems Incorporated of our report dated January 30, 1995 with respect to the
consolidated statement of operations, shareholders' equity and cash flows of
Frame Technology Corporation for the year ended December 31, 1994, and our
report dated May 31, 1995, except for Note 13, as to which the date is June
22, 1995 with respect to the supplemental consolidated statement of
operations, shareholders' equity and cash flows of Frame Technology
Corporation for the year ended December 31, 1994 included in the Annual
Report (Form 10-K) of Adobe Systems Incorporated for the year ended November
29, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
May 29, 1997
