PAGE 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
/X/ Quarterly Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended October 1, 1995
/ / Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from ............ to ...............
Commission File Number 1-2833
RAYTHEON COMPANY
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-1760395
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
141 SPRING STREET, LEXINGTON, MASSACHUSETTS 02173
(Address of Principal Executive Offices) (Zip Code)
(617) 862-6600
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes x No
---- ----
NUMBER OF COMMON SHARES OUTSTANDING AT OCTOBER 1, 1995: 242,372,000<PAGE>
PAGE 2
RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
----------------------------------------------
BALANCE SHEETS (Unaudited)
Oct. 1, 1995 Dec. 31, 1994
------------ -------------
(In thousands)
ASSETS
Cash and marketable securities $ 207,251 $ 202,181
Accounts receivable 1,212,363 976,278
Federal and foreign income taxes,
including deferred 110,264 165,615
Contracts in process, less progress
payments 2,050,823 1,951,270
Inventories 1,760,858 1,499,458
Prepaid expenses 217,206 190,689
----------- ----------
Total current assets 5,558,765 4,985,491
Property, plant and equipment, net 1,661,386 1,360,780
Other assets, net 3,043,850 1,049,123
----------- ----------
$10,264,001 $7,395,394
=========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Notes payable and current
portion of long term debt $2,063,589 $1,033,081
Accounts payable 860,851 894,911
Advance payments, less contracts in
process 405,564 466,448
Accrued expenses 935,627 888,625
---------- ----------
Total current liabilities 4,265,631 3,283,065
Accrued retiree benefits 326,407 25,068
Federal and foreign income taxes,
including deferred -- 134,571
Long-term debt 1,480,379 24,522
Stockholders' equity 4,191,584 3,928,168
---------- ----------
$10,264,001 $7,395,394
========== ==========
The accompanying notes are an integral part of the financial statements.<PAGE>
PAGE 3
<TABLE>
RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
----------------------------------------------
STATEMENTS OF INCOME (Unaudited)
Three Months Ended Nine Months Ended
Oct. 1, 1995 Oct. 2, 1994 Oct. 1, 1995 Oct. 2, 1994
------------ ------------ ------------ ------------
(In thousands except per share data)
<S> <C> <C> <C> <C>
Net sales $3,152,718 $2,442,633 $8,355,906 $7,284,097
---------- ---------- ---------- ----------
Cost of sales 2,424,712 1,876,059 6,366,554 5,621,335
Administrative and selling expenses 294,057 225,200 808,475 665,892
Research and development expenses 79,619 68,238 244,496 201,445
Restructuring provision - - - 249,751
---------- ---------- ---------- ----------
Total operating expenses 2,798,388 2,169,497 7,419,525 6,738,423
---------- ---------- ---------- ----------
Operating income 354,330 273,136 936,381 545,674
---------- ---------- ---------- ----------
Interest expense 67,353 9,941 140,364 33,313
Interest and dividend income (12,063) (8,707) (29,023) (38,450)
Other (income) expense, net (6,471) (15,542) (43,594) (34,602)
---------- ---------- ---------- ----------
Non-operating (income) expense, net 48,819 (14,308) 67,747 (39,739)
---------- ---------- ---------- ----------
Income before taxes 305,511 287,444 868,634 585,413
Federal and foreign income taxes 104,780 95,500 298,473 194,274
---------- ---------- ---------- ----------
Net income $ 200,731 $ 191,944 $ 570,161 $ 391,139
=========== =========== ========== ==========
Earnings per common share(1) $0.82 $0.73 $2.33 $1.46
Average number of common shares
outstanding during period(1) 234,174 264,768 244,796 267,702
Dividends declared per common share $0.1875 $0.1875 $0.5625 $0.550
(1) Per share data has been restated for a two-for-one stock split on October 23, 1995.
The accompanying notes are an integral part of the financial statements.
/TABLE
<PAGE>
PAGE 4
RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
----------------------------------------------
STATEMENTS OF CASH FLOWS (Unaudited)
Nine Months Ended
Oct. 1, 1995 Oct.2, 1994
------------ ------------
(In thousands)
Cash flows from operating activities:
Net income $570,161 $391,139
Adjustments to reconcile net income to
net cash provided by operating activities
Depreciation 220,101 203,251
Restructuring provision - 249,751
Sale of commuter airlines
long-term receivables - 302,800
Other adjustments, net (256,292) (255,015)
-------- --------
Net cash provided by operating activities 533,970 891,926
-------- --------
Cash flows from investing activities:
Additions to property, plant and equipment (225,988) 9,672
Payment for purchase of acquired companies (2,341,522) -
All other, net (84,214) 46,557
--------- --------
Net cash used in investing activities (2,651,724) (184,991)
---------- --------
Cash flows from financing activities:
Change in short-term debt 987,118 (256,404)
Change in long-term debt 1,455,857 -
Dividends (137,363) (146,412)
Purchase of treasury shares (223,520) (277,928)
Proceeds under common stock plans 43,959 30,993
All other, net (4,101) (2,506)
-------- --------
Net cash provided by (used in)
financing activities 2,121,950 (652,257)
--------- --------
Effect of foreign exchange rates on cash 652 3,990
-------- --------
Net increase (decrease) in cash and
cash equivalents 4,848 58,668
Cash and cash equivalents at beginning
of year 200,938 190,121
-------- --------
Cash and cash equivalents at end of
third quarter $205,786 $248,789
======== ========
The accompanying notes are an integral part of the financial statements.<PAGE>
PAGE 5
RAYTHEON COMPANY AND SUBSIDIARIES CONSOLIDATED
----------------------------------------------
NOTES TO FINANCIAL STATEMENTS (Unaudited)
(1) Details of certain balance sheet accounts are as follows:
Oct. 2, 1995 Dec. 31, 1994
------------ -------------
(In thousands)
Cash and marketable securities
Cash and cash equivalents $ 205,786 $ 200,938
Marketable securities 1,465 1,243
---------- ----------
Total cash and marketable securities $ 207,251 $ 202,181
========== ==========
Inventories
Finished goods $ 680,699 $ 666,654
Work in process 786,518 632,390
Materials and purchased parts 473,069 379,842
Excess of current cost over LIFO values (179,428) (179,428)
---------- ----------
Total inventories $1,760,858 $1,499,458
========== ==========
Property, plant and equipment
At cost $4,349,852 $3,691,001
Accumulated depreciation and amortization (2,688,466) (2,330,221)
---------- ----------
Net property, plant and equipment $1,661,386 $1,360,780
========== ==========
Stockholders' equity
Preferred stock, no outstanding shares $ - $ -
Common stock, outstanding shares 242,372 246,644
Additional paid-in capital 246,211 209,468
Equity adjustments 716 (9,463)
Retained earnings 3,702,285 3,481,519
---------- ----------
Total stockholders' equity $4,191,584 $3,928,168
========== ==========<PAGE>
PAGE 6
(2) The company recorded in the first quarter of 1994 a restructuring
provision of $249.8 million before tax. The restructuring was
driven by the significant reductions in the defense budget and
increasing commercial competition. Approximately 65 percent of
the restructuring costs are attributable to Raytheon's defense
business and the remainder to its commercial business. Cash flow
expenditures, net of tax recovery of $87 million, were $67 million
in 1994 and will be $32 million in 1995 and are funded by the
company's cash flow from operating activities. The restructuring
plan, when fully implemented, will result in annual savings of
$280 million, which will help the company's competitive position
in a shrinking defense market and improve productivity in its
commercial businesses. During the first quarter of 1995 the
company concluded that certain originally approved actions would
not be implemented due to a revision in the restructuring plan for
the Electronics segment. The revised plan includes additional
actions for the consolidation of the defense-related business and
funds available from the original restructuring were allocated to
the additional actions with no change to the original provision of
$249.8 million. Through the third quarter of 1995 $217.8 million
of restructuring costs have been incurred, of which $96.8 million
was employee related costs and $121.0 million was related
principally to asset disposals and idle facilities. The spending
is expected to be completed by the end of 1995.
(3) Common shares outstanding and all per share data have been
restated for the two-for-one stock split on October 23, 1995.
(4) In May 1995 the company purchased the outstanding stock of
E-Systems, Inc., and the financial results of E-Systems are
included in the company's consolidated financial statements
commencing in May 1995. The purchase method of accounting was
used to record the acquisition. The following unaudited pro forma
financial information combines Raytheon and E-Systems results of
operations as if the acquisition had taken place on January 1,
1995 and on January 1, 1994. The pro forma results are not
necessarily indicative of what the results of operations actually
would have been if the transaction had occurred on the applicable
dates indicated and are not intended to be indicative of future
results of operations.
Nine Months Ending
------------------
In millions except earnings per share
October 1, 1995 October 2, 1994*
--------------- -----------------
Net sales $9,037 $8,759
Net income 572 375
Earnings per share 2.34 1.40
* Includes after tax restructuring provision of $162.3 million or $.61 per
share.<PAGE>
PAGE 7
(5) During the third quarter of 1995 the company signed an agreement
to sell its non-core educational publishing unit, D. C. Heath, to
Houghton Mifflin of Boston for $455 million in cash. The sale was
completed October 31 and will be reflected in the fourth quarter
results.
(6) The information furnished has been prepared from the accounts
without audit. In the opinion of management, the information
reflects all adjustments, which are of a normal recurring nature,
necessary for a fair presentation of the financial statements for
the interim periods.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
Third Quarter 1995 versus 1994
------------------------------
Raytheon Company reported third quarter earnings of $200.7 million, driven
by the solid performances of Raytheon Aircraft and Raytheon Engineers &
Constructors as well as profits resulting from the recent acquisition of
E-Systems and from Raytheon's commercial electronics operations.
Raytheon's Massachusetts-based defense operations continued to feel the
effects of reduced defense spending and increased competition for
remaining defense funding. Sales and profits in these Massachusetts
defense operations were down in the quarter.
In September 1995 Raytheon's Board of Directors approved a two-for-one
split in the company's common stock. The additional shares resulting from
the stock split were distributed on October 23 to stockholders of record
October 9.
Raytheon Company's third quarter earnings per share were $0.82 ($1.65
pre-stock split). Sales were $3.2 billion. In the same period last year,
net income was $191.9 million, or $0.73 per share (pre-split $1.45) on
sales of $2.4 billion.
The Engineering and Construction segment reported record third quarter
sales and profits due primarily to improved margins on foreign contracts.
The Aircraft segment had record third quarter sales and profits due to
increased shipments of general aviation and regional aircraft.
The Major Appliances segment had record sales in the third quarter while
profits were up slightly despite strong competitive price pressure on home
appliance margins during the quarter.
The Electronics segment had increased overall third quarter sales and
profits due to the contribution of E-Systems and strong commercial
electronics sales and profits, which helped to offset the decline in sales
and profits at Raytheon's Massachusetts-based defense operations.<PAGE>
PAGE 8
Sales to the U. S. government were $1.272 billion in the third quarter of
1995, an increase of $349 million (37.8 percent) from the comparable
quarter of 1994. U.S. government sales were 40.3 percent of consolidated
net sales in the third quarter of 1995 compared with 37.7 percent in the
comparable quarter of 1994. Commercial sales to U.S. customers were
$1.238 billion or 39.3 percent of consolidated sales in the third quarter
of 1995 versus $998 million or 40.9 percent reported in the comparable
quarter of 1994. Sales in the third quarter of 1995 to customers outside
the U.S. were $643 million or 20.4 percent of consolidated sales versus
$522 million or 21.4 percent reported in the comparable quarter of 1994.
Operating income for the third quarter of 1995 was $354.3 million or 11.2
percent of sales versus $273.1 million or 11.2 percent of sales in 1994.
Non-operating expense was $48.8 million for 1995 versus $14.3 million of
non-operating income in 1994. This was due principally to increased
interest expense in 1995 from the increased debt incurred in connection
with the acquisition of E-Systems.
The 1995 effective tax rate of 34.3 percent reflects the statutory tax
rate of 35 percent reduced principally by foreign tax credits.
As a result of the above, net income increased by $8.8 million or 4.6
percent from 1994.
Earnings per common share increased to $0.82 for the third quarter of 1995
from $0.73 for the third quarter of 1994. The average number of shares
outstanding during the 1995 third quarter was 243.2 million versus 264.8
million in 1994. During the quarter outstanding shares were increased by
530,000 due to the exercise of employee stock options. This was offset by
the repurchase of 530,000 shares in the open market at a cost of $21.5
million. The company also repurchased in the open market an additional
1,532,000 shares at a cost of $62.1 million. All share data have been
restated for the two-for-one stock split.
Nine months 1995 versus 1994
----------------------------
Consolidated net sales during the first nine months of 1995 increased 14.7
percent to $8.4 billion from $7.3 billion in 1994. Sales increased in all
business segments.
Sales to the U. S. government were $3.314 billion in the first nine months
of 1995 versus $2.991 billion in the comparable period of 1994 and were
39.7 percent of consolidated net sales in the first nine months of 1995
versus 41.1 percent in the comparable period of 1994. Sales to customers
outside the U.S. were $1.767 billion or 21.1 percent of consolidated net
sales in the first nine months of 1995 versus $1.335 billion or 18.3
percent of consolidated net sales in the comparable period of 1994.
Commercial sales in the first nine months of 1995 to U.S. customers were
$3.275 billion or 39.2 percent of consolidated net sales versus $2.958
billion or 40.6 percent of sales in the comparable period of 1994.<PAGE>
PAGE 9
Operating income was $936.4 million or 11.2 percent of sales versus $795.4
million or 10.9 percent in 1994. The 1994 results exclude the effect of
the restructuring provision discussed below. Operating income for 1994
after the restructuring provision was $545.7 million or 7.5 percent of
sales.
The company recorded in the first quarter of 1994 a restructuring
provision of $249.8 million before tax. The restructuring was driven by
the significant reductions in the defense budget and increasing commercial
competition. Approximately 65 percent of the restructuring costs are
attributable to Raytheon's defense business and the remainder to its
commercial business. Cash flow expenditures, net of tax recovery of $87
million, were $67 million in 1994 and will be $32 million in 1995 and are
funded by the company's cash flow from operating activities. The
restructuring plan, when fully implemented, will result in annual savings
of $280 million, which will help the company's competitive position in a
shrinking defense market and improve productivity in its commercial
businesses. During the first quarter of 1995 the company concluded that
certain originally approved actions would not be implemented due to a
revision in the restructuring plan for the Electronics segment. The
revised plan includes additional actions for the consolidation of the
defense-related business and funds available from the original
restructuring were allocated to the additional actions with no change to
the original provision of $249.8 million. Through the third quarter of
1995 $217.8 million of restructuring costs have been incurred, of which
$96.8 million was employee related costs and $121.0 million was related
principally to asset disposals and idle facilities. The spending is
expected to be completed by the end of 1995.
Non-operating expense was $67.8 million in 1995 versus $39.7 million of
non-operating income in 1994. Interest expense increased to $140.4
million in 1995 versus $33.3 million in 1994 due principally to the
acquisition of E-Systems and higher interest rates for commercial paper.
Interest and dividend income for 1995 declined to $29.0 million versus
$38.5 million in 1994 due to lower levels of long-term receivables in 1995
and an interest payment on a federal income tax refund in 1994. Other
income (net) increased to $43.6 million in 1995 from $34.5 million in
1994. The increase is due principally to a first quarter gain on the sale
of stock held as an investment.
The effective tax rate for 1995 of 34.4 percent reflects the statutory
rate reduced principally by foreign tax credits.
As a result of the above, net income for 1995 increased by $16.7 million
or 3.0 percent to $570.2 million from 1994 net income of $553.5 million
excluding the effect of the 1994 restructuring provision. Net income for
1994 after the restructuring provision was $391.1 million.
Earnings per common share increased to $2.33 for the first nine months of
1995 versus $2.07 for the comparable 1994 period excluding the 1994
restructuring provision. The 1994 earnings per share were $1.46 including<PAGE>
PAGE 10
the restructuring provision. The average number of common shares
outstanding was 244.8 million for the first nine months of 1995 versus
267.7 million for the comparable 1994 period. During the first nine
months of 1995 outstanding shares were increased by 1.7 million shares due
to the exercise of employee stock options. This was offset by the
repurchase of 1.7 million shares in the open market at a cost of $64.4
million. The company also repurchased an additional 4.2 million shares at
a cost of $159.1 million.
On February 23, 1994 the Board of Directors authorized the repurchase of
up to 24 million shares of the company's common stock. In 1994 23.4
million shares were purchased under this authorization, and the balance
was purchased during the first quarter of 1995.
On February 22, 1995 the Board of Directors authorized the repurchase of
up to 12 million shares of the company's common stock. During the first
nine months of 1995 3.8 million shares were purchased under this
authorization.
The book value of common shares outstanding at the end of the 1995
nine-month period was $17.29 as compared with $15.92 at December 31, 1994
and $16.34 at October 2, 1994.
All share data have been restated for the two-for-one stock split. <PAGE>
PAGE 11
Backlog consisted of the following at:
October 1, December 31, October 2,
1995 1995 1994
---------- ------------ ----------
(In millions)
Electronics $ 7,189 $5,311 $4,389
Engineering and Construction 1,907 1,522 1,594
Aircraft 1,070 1,203 860
Major Appliances 64 34 43
------- ------ ------
Total Backlog $10,230 $8,070 $6,886
U.S. government backlog
included above $ 5,069 $3,641 $3,541
The backlog at the end of this year's third quarter reflects the inclusion
of E-Systems strong third quarter backlog of $2.8 billion.
During the first nine months of 1995 cash flows from operating activities
were $534.0 million as compared to $891.9 million during the comparable
1994 period. Cash flow during 1994 included the initial sale of $302.8
million of commuter airline receivables to a bank syndicate. During the
first nine months of 1995 funds were used for additions to property, plant
and equipment of $226.0 million, for dividend payments of $137.4 million
and for the purchase of treasury shares of $179.6 million, net of the
proceeds received.
Additionally during 1995, $2.342 billion was expended for acquired
companies, principally the acquisition of E-Systems. These funds were
provided by increasing long-term debt by $1.456 billion and short-term
debt by $987.1 million.
In the third quarter of 1995 the company issued $1.125 billion of debt
securities in a public offering comprised of $750 million of notes due
2005, which have a coupon rate of 6 1/2 percent, and $375 million of
debentures due 2025 which have a coupon of 7 3/8 percent. The notes are
not redeemable prior to maturity, and the debentures are not redeemable
prior to July 15, 2005.
Debt, net of cash and marketable securities, was $3.337 billion at October
1, 1995 as compared with $855 million at December 31, 1994 and $389.8
million at October 2, 1994. Net debt as a percentage of total
capitalization was 44.3 percent at October 1, 1995 as compared with 17.9
percent at December 31, 1994 and 8.3 percent at October 2, 1994. The
company expects that the cash flow from operations and available debt
financing will be sufficient to meet its funding requirements in 1995.
Accounts receivable increased to $1.212 billion at October 1, 1995 from
$976.3 million at December 31, 1994 due to the acquisition of E-Systems
and increased commercial receivables.
Inventories increased to $1.761 billion at October 1, 1995 from $1.499<PAGE>
PAGE 12
billion at December 31, 1994 due to the acquisition of E-Systems and
increased commercial inventories.
Property, plant and equipment increased to $1.661 billion at October 1,
1995 from $1.361 billion at December 31, 1994 due principally to the
acquisition of E-Systems.
Other assets (net) increased to $3.044 billion at October 1, 1995 from
$1.049 billion at December 31, 1994 due principally to the goodwill
arising from the acquisition of E-Systems.
Capital expenditures were $226.0 million in the first nine months of 1995
versus $194.7 million in 1994. Capital expenditures in 1995 are expected
to be slightly above the 1994 level, excluding the effect of acquisitions.
Dividends declared to stockholders during the first nine months of 1995
were $137.4 million versus $146.4 million in 1994. The quarterly dividend
rate was $.1875 for the first three quarters of 1995 versus $.175 in the
first quarter of 1994 and $.1875 for the second and third quarters of 1994
(on a post-split basis).
Total employment was 74,600 at October 1, 1995 as compared with 60,200 at
December 31, 1994 and 59,300 at October 2, 1994. The increase in
employment is principally due to the acquisition of E-Systems.
On July 26, 1995 the company completed the acquisition of Litwin Engineers
and Constructors. Litwin employs approximately 1,300 people, generated
sales of $269 million and was profitable in 1994.
During the third quarter of 1995 the company signed an agreement to sell
its non-core educational publishing unit, D.C. Heath, to Houghton Mifflin
of Boston for $455 million in cash. The sale was completed on October 31,
1995, and will be reflected in the fourth quarter results.
The company enters into interest rate swaps and locks and foreign currency
forward agreements with commercial and investment banks to reduce the
impact of changes in interest rates and foreign exchange rates on
purchase, sales and financing arrangements with lenders, vendors and
customers and foreign subsidiaries. The company meets its working capital
requirements mainly with variable rate short-term financing. Interest
rate swaps are primarily used to provide purchasers of the company's
products with fixed financing terms over extended time periods. The
company also enters into foreign exchange forward contracts to minimize
fluctuations in the value of payments due to international vendors and the
value of foreign currency denominated receipts. The hedges used by the
company are directly related to a particular asset, liability or
transaction for which a firm commitment is in place. Swaps and foreign
exchange contracts are normally held to maturity and no exchange traded or
over-the-counter instruments have been purchased. In order to lock in
favorable rates, interest rate swaps and locks were entered into six weeks
prior to and unwound in connection with the recent issuance of $750
million ten-year notes and $375 million thirty-year debentures. The<PAGE>
PAGE 13
impact on the financial position, liquidity and results of operations from
likely changes in foreign exchange and interest rates is immaterial due to
the minimizing of risk through the hedging of transactions related to
specific assets, liabilities or commitments.
Recurring costs associated with the company's environmental compliance
program are not material and are expensed as incurred. Capital
expenditures in connection with environmental compliance are immaterial.
The company is involved in various stages of investigation and cleanup
relative to remediation of various sites. All appropriate costs incurred
in connection therewith have been expensed. Due to the complexity of
environmental laws and regulations, the varying costs and effectiveness of
alternative cleanup methods and technologies, the uncertainty of insurance
coverage, and the unresolved extent of the company's responsibility, it is
difficult to determine the ultimate outcome of these matters. However, in
the opinion of management, any additional liability will not have a
material effect on the company's financial position, liquidity, or results
of operations after giving effect to amounts already recorded.
PART II. OTHER INFORMATION
ITEM 4. Submission of Matters to a Vote of Security Holders
A Special Meeting of Stockholders of the Company was held on September
20, 1995. At the meeting, stockholders approved an amendment to the
Company's Restated Certificate of Incorporation increasing the number of
authorized shares of Common Stock, par value $1.00 per share, from
200,000,000 to 400,000,000. The following votes were cast upon this
matter: 87,762,103 votes FOR; 6,285,580 votes AGAINST; 436,001
ABSTENTIONS; 1,630 broker non-votes.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3(i) Raytheon Company Restated Certificate of Incorporation, as
amended through September 20, 1995, filed herewith.
3(ii) Raytheon Company Amended and Restated Bylaws dated October
25, 1995, filed herewith.
10.3 Raytheon Company 1995 Stock Option Plan, filed as an exhibit
to Raytheon's Registration Statement No. 33-60635 on Form S-
8, is hereby incorporated by reference.
(b) Reports on Form 8-K
None<PAGE>
PAGE 14
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RAYTHEON COMPANY (Registrant)
By: /s/ Peter R. D'Angelo
Peter R. D'Angelo
Executive Vice President
Chief Financial Officer
November 14, 1995<PAGE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000082267
<NAME> RAYTHEON COMPANY
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> QTR-3
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JUL-03-1995
<PERIOD-END> OCT-01-1995
<CASH> 205,786
<SECURITIES> 1,465
<RECEIVABLES> 1,212,363
<ALLOWANCES> 0
<INVENTORY> 1,760,858
<CURRENT-ASSETS> 5,558,765
<PP&E> 4,349,852
<DEPRECIATION> 2,688,466
<TOTAL-ASSETS> 10,264,001
<CURRENT-LIABILITIES> 4,265,631
<BONDS> 1,088,902
<COMMON> 242,372
0
0
<OTHER-SE> 3,949,212
<TOTAL-LIABILITY-AND-EQUITY> 10,264,001
<SALES> 8,355,906
<TOTAL-REVENUES> 8,355,906
<CGS> 6,366,554
<TOTAL-COSTS> 6,366,554
<OTHER-EXPENSES> 244,496
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 140,364
<INCOME-PRETAX> 868,634
<INCOME-TAX> 298,473
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 570,161
<EPS-PRIMARY> 2.33
<EPS-DILUTED> 0.00
<PAGE>
</TABLE>
PAGE 1
EXHIBIT 3(I)
RAYTHEON COMPANY
Restated Certificate of Incorporation
Dated August 26, 1987
As Amended By
Certificate of Amendment
Dated September 27, 1995
Introductory:
The present name of this Corporation is Raytheon Company. It was originally
incorporated under the name Raytheon Manufacturing Company, its original
Certificate of Incorporation having been filed with the Secretary of State on
May 22, 1928. This Restated Certificate of Incorporation was duly adopted by
the Board of Directors of Raytheon Company in accordance with the provisions
of Section 245 of the Delaware Corporation Law on August 26, 1987. It only
restates and integrates the provisions of Raytheon Company's Certificate of
Incorporation and does not further amend the provisions of the Corporation's
Certificate of Incorporation as heretofore amended or supplemented. There is
no discrepancy between those provisions and the provisions of this Restated
Certificate.
First: The name of this corporation is Raytheon Company.
Second: The principal office of the Corporation in the State of Delaware
is located at No. 1209 Orange Street in the City of Wilmington, County of New
Castle. The name and address of its resident agent is The Corporation Trust
Company, No. 1209 Orange Street, Wilmington, Delaware.
Third: The nature of the business and the objects and purposes to be
transacted, promoted or carried on by the Corporation are:
1. To invent, make, manufacture, purchase, or otherwise acquire, hold,
own, sell, pledge, transfer, export, import, invest and trade and deal in
goods, wares, merchandise, materials, machinery, apparatus and appliances of
every character and description; including, but without limitation of the
generality of the foregoing purpose, the business of manufacturing, buying,
selling, designing, developing, disposing of, leasing and otherwise dealing
in, availing of and turning to account, machinery, apparatus, appliances,
devices, supplies, articles, parts and accessories and systems of every kind,
including those appertaining to or in any wise connected with radio,
phonographs, group address systems, railway signalling, wire transmission,
electrical amplification, adaptation or rectification, and with gas tube
devices, or with the generation, receipt, transmission, amplification,
adaptation, regulation, control, application or use of electromagnetic waves,
electrical variations and impulses, inductions and emanations, electricity,
gas, sound, heat or any other agent or for the purpose of the transmission of
sound, energy, intelligence, images, signals, or for the purpose of light,
heat, cold, power, locomotion, or for any other use or purpose.<PAGE>
PAGE 2
2. To broadcast, rebroadcast, transmit, retransmit, relay, receive,
deliver and disseminate signals, messages, programs, announcements, music,
instruction, news, entertainment, plays, photographs and/or pictures or images
or any other form of entertainment or intelligence by means of radio, wire,
wired radio, wired or wireless telephone and/or telegraph, including
television, facsimile broadcasting, and any and all other types of
broadcasting, rebroadcasting and/or relaying, mobile, fixed and point to point
communications or other methods or means of transmitting, delivering or
receiving music, sounds, words, images, pictures or other forms of
entertainment or intelligence; to originate, arrange, produce, provide, lease,
buy, sell and distribute, with or without compensation, broadcast programs,
announcements and signals by means of electricity, light beams, magnetism or
electromagnetic waves, variations, impulses or otherwise, to contract with and
for, and buy and sell the services of, and act as booking agent for, speakers,
musicians, entertainers and announcers of every kind and nature; to purchase
and otherwise acquire and obtain exclusive and other interests in copyrights
and rights of presentation and representation, and any other rights of or in
plays, music, songs, speeches, pictures, and any other literary, artistic or
entertaining compositions; and generally to own, use, buy, sell, distribute,
lease, repair, install, construct, operate, maintain and generally to deal in
transmitting, receiving, signalling, radio broadcasting, relay and reflector
stations of every kind and description, and wire or wireless telegraph and
telephone apparatus, equipment, devices and materials and all things employed
therewith.
3. To acquire, as a going concern or otherwise, and pay for in cash,
stock or bonds of this Corporation or otherwise, the whole or any part of the
business, good will, rights, or other assets and to undertake or assume the
whole or any part of the obligations or liabilities of any person, firm,
trust, association or corporation, and to continue the business so acquired,
if one lawful for the Corporation to engage in, in its own name or otherwise.
4. To apply for, obtain, purchase, lease or otherwise to acquire and to
hold, use, own and introduce, and to sell, assign and otherwise deal in and
dispose of, any trademarks, trade names, patents and applications for patents,
copyrights, licenses, improvements, processes and secret formulae used in
connection with, or secured under letters patent of the United States or
elsewhere or otherwise, and whether or not in any way relating to any of the
businesses aforesaid, and to use, exercise, develop and grant licenses in
respect of or otherwise turn to account, any such trademarks, patents,
licenses, processes and the like of any such copyrights.
5. To acquire, by purchase, subscription or otherwise, and to invest in,
hold, sell, exchange or otherwise dispose of, pledge, hypothecate and deal in
and with stocks, bonds, notes or other securities, and all other interests in
and claims upon any person, firm, association, trust, joint stock company or
corporation, public, private or municipal of this, or any other state,
territory or country; and to issue stocks, bonds, or other obligations of this
Corporation in exchange therefor; and to exercise any and all rights of
ownership thereof including the right to vote thereon.
6. To borrow money and otherwise contract indebtedness, and to issue its
bonds, notes, debentures, or other evidences of indebtedness therefor, and to<PAGE>
PAGE 3
secure the same by mortgage, pledge, or deed of trust of, or lien upon, any or
all of its property, rights and franchises then owned, or afterwards acquired.
7. To purchase, hold, sell and transfer the shares of its own capital
stock; provided it shall not use its funds or property for the purchase of its
own shares of capital stock when such use would cause any impairment of its
capital and provided further that shares of its own capital stock belonging to
it shall not be voted upon directly or indirectly.
8. To aid by loan, subsidy or otherwise, any corporation, joint stock
company, trust, association, any obligation of which or any interest in which
is held by this Corporation or in the affairs or prosperity of which this
Corporation has a lawful interest, and to do all acts and things designed to
protect, preserve, improve or enhance the value of such obligations or
interest, to guarantee or become surety in respect to the contracts,
dividends, stocks, bonds, notes and other obligations of such corporations,
joint stock companies, trusts, or associations, and to secure the performance
or payments of the same by mortgage of or lien upon any or all of the assets
of this Corporation.
9. To cause to be organized under the laws of any state a corporation or
corporation for the purpose of accomplishing any or all of the purposes for
which this Corporation is organized, and to cause the same to be dissolved,
wound up, liquidated, merged or consolidated; and to sell or lease to any such
corporation or to any other corporation or joint stock company, trust or
association, the whole or any part of the property and assets of this
Corporation, including its good will and the right to assume its name and to
receive and accept in payment or exchange therefor, stocks, bonds, securities
or other obligations of the transferee, or of other corporations, joint stock
companies, trusts or associations; to consolidate, on such terms and
conditions as may be agreed upon, by purchase or lease from, or sale or lease
to, or by any other lawful method with any other corporation, joint stock
company, trust or association of this or any other state or country.
10. To act as agent or representative, broker or factor, for
governments, corporations, joint stock companies, trusts, associations, firms
or individuals; and to undertake and carry on the business of management.
11. To have one or more offices, to carry on all or any of its
operations and business, whether alone or in association with others, and
without restriction or limit as to amount to purchase or otherwise acquire,
hold, own, mortgage, sell, convey, or otherwise dispose of real and personal
property of every class and description in any of the States, Districts,
Territories or Colonies of the United States, and in any and all foreign
countries, subject to the laws of such State, District, Territory, Colony or
Country.
12. In general, to carry on any other business in connection with the
foregoing, whether manufacturing or otherwise and to have and exercise all the
powers conferred upon corporations by the laws of the State of Delaware as in
force from time to tlme, and to do any or all of the things hereinbefore set
forth to the same extent as natural persons might or could do.<PAGE>
PAGE 4
Notwithstanding anything herein to the contrary, nothing herein
contained shall be deemed to authorize the Corporation to engage in or
conduct, in the State of Illinois, the business of a banking, insurance or
building and loan corporation, or to act as an executor, guardian, conservator
or in any other like fiduciary capacity, or otherwise to engage in any
business the transaction of which is prohibited to it by the laws of the State
of Illinois; or to carry on within the Commonwealth of Massachusetts any of
the businesses enumerated in the first sentence of Section 2, Chapter 156 of
the General Laws of Massachusetts as now amended, or to engage in or conduct
the business of a common carrier.
The foregoing clauses shall be construed both as objects and power; and
it is hereby expressly provided that the foregoing enumeration of specific
powers shall not be held to limit or restrict in any manner the powers of the
Corporation.
Fourth: The total number of shares of stock of all classes which the
Corporation shall have the authority to issue is 203,000,000 shares. Of such
shares 200,000,000 shall be Common Stock, $1.00 par value, and 3,000,000
shares shall be Serial Preferred Stock without par value.
The minimum amount of capital with which the Corporation will commence
business shall not be less than $1000.
Shares of any series of Serial Preferred Stock which have been issued
and reacquired in any manner and not held as uncancelled treasury shares,
including shares redeemed or purchased (whether through the operation of a
retirement or sinking fund or otherwise) and shares which, if convertible or
exchangeable, have been converted into or exchanged for shares of stock of any
other class or classes, will have the status of authorized and unissued Serial
Preferred Stock and may be reissued as a part of the series of which they were
originally a part or may be reclassified into and reissued as part of a new
series or as a part of any other series, all subject to the protective
conditions or restrictions of any outstanding series of Serial Preferred
Stock.
1. Authorization of Board of Directors to Establish Series of Serial Preferred
Stock
The Board of Directors is hereby expressly authorized, within the
limitations and restrictions stated herein, to provide from time to time for
the issue of Serial Preferred Stock, in series, and is hereby expressly
authorized with respect to each series, by resolution or resolutions providing
for the issuance of each such series, to:
(a) issue one or more series of the Corporation's Serial Preferred Stock;
(b) fix the number of shares which will constitute any such series and the
distinctive designation of each series;
(c) fix the stated value, if any, for such series, the consideration for which
shares of such series may be issued and the amount of such consideration which<PAGE>
PAGE 5
shall be credited to the capital account;
(d) determine the voting rights, if any, of each series of Serial Preferred
Stock which voting rights may be either general, limited or both;
(e) determine whether or not the shares of such series will be redeemable, and
if redeemable, the price and terms and conditions on which shares of such
series are redeemable;
(f) determine whether or not the shares of such series shall be subject to the
operation of a retirement or sinking fund, and, if so subject, the extent to
and the manner in which it shall be applied to the purchase or redemption of
the shares of such series, and the terms and provisions relative to the
operation thereof;
(g) determine the rate of dividends of such series of stock and the conditions
of payment and the preferences or relations to the dividends payable on any
other class or classes of stock or any other series of the same class and
whether and the extent to which such dividends shall be cumulative or
noncumulative;
(h) determine, for such series of stock, the rights upon the dissolution of,
or upon any distribution of the assets of, the Corporation;
(i) determine if shares of such series of stock are to be convertible into or
exchangeable for, shares of any other class or classes or of any other series
of the same or any other class or classes of stock of the Corporation and, for
each series which is convertible or exchangeable, to determine the price or
prices or rates of exchange and the terms and conditions on which shares of
such series may be converted or exchanged;
(j) determine for shares of any such series, such other preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions as shall not be inconsistent with the terms and
provisions of this Article Fourth.
2. Rank
Each series of Serial Preferred Stock shall have such preferences as to
dividends and assets and amounts distributable on liquidation, dissolution or
winding up as shall be declared by the resolution or resolutions of the Board
of Directors establishing such series; provided that all shares of Serial
Preferred Stock shall be preferred over shares of common stock as to
dividends. All shares of any one series shall rank equally.
3. Dividends
(a) The holders of Serial Preferred Stock shall be entitled to receive cash
dividends when and as declared by the Board of Directors at such rate per
share per annum, cumulatively if so provided, and with such preferences, as
shall have been fixed by the Board of Directors, and not more, before any
dividends shall be declared or paid upon or set apart for, the common stock or
any other class of stock ranking junior to the Serial Preferred Stock, and<PAGE>
PAGE 6
such dividends on each series of the Serial Preferred Stock shall cumulate, if
at all, from and after the dates fixed by the Board of Directors with respect
to such cumulation. Accrued dividends shall bear no interest.
(b) If dividends on the Serial Preferred Stock are not declared in full then
dividends shall be declared ratably on all shares of stock of each series of
equal preference in proportion to the respective unpaid cumulative dividends,
if any, to the end of the then current dividend period. No ratable
distribution shall be declared or set apart for payment with respect to any
series until accumulated dividends in arrears in full have been declared and
paid on any series standing senior in preference.
(c) Unless dividends on all outstanding shares of series of the Serial
Preferred Stock having cumulative dividend rights shall have been fully paid
for all past quarterly dividend periods, and unless all required sinking fund
payments, if any, shall have been made or provided for no dividend (except a
dividend payable in common stock and/or any other class of stock ranking
junior to the Serial Preferred Stock) shall be paid upon or declared or set
apart for the common stock or any other class of stock ranking junior to the
Serial Preferred Stock.
(d) Subject to the foregoing provisions, the Board of Directors may declare
and pay dividends on the common stock and on any class of stock ranking junior
to the Serial Preferred Stock, to the extent permitted by law.
4. Liquidation, Dissolution, or Winding Up
(a) In the event of any liquidation or dissolution or winding up of the
Corporation ("liquidation") the holders of the Serial Preferred Stock shall be
entitled to receive in cash out of the assets of the Corporation full payment
of any applicable liquidation preference fixed for each series, pursuant to
subparagraph (h) of Section 1 of this Article Fourth, by the resolution or
resolutions of the Board of Directors establishing such series, together with
unpaid cumulative dividends thereon to the date of liquidation, and no more.
(b) If upon liquidation the assets of the Corporation available for
distribution to stockholders shall be insufficient to permit the payment in
full of any preferential amounts payable to the holders of the Serial
Preferred Stock, then ail such assets shall be distributed ratably among the
holders of all shares of stock of each series of equal preference in
proportion to the respective amounts that would be payable per share if such
assets were sufficient to permit payment in full. No ratable distribution
shall be made with respect to any series until distributions in full have been
paid to the holders of all series standing senior in preference.
(c) After satisfaction of any preferential requirements of any series of
Serial Preferred Stock upon any liquidation of the Corporation, the holders of
common stock, the holders of any other class of stock ranking junior to the
series of Serial Preferred Stock that have a liquidation preference and the
holders of any series of Serial Preferred Stock with no liquidation
preference, shall be entitled to share ratably in the distribution of all
remaining assets of the Corporation available for distribution.<PAGE>
PAGE 7
(d) A consolidation or merger of the Corporation with or into any other
corporation or corporations, or the sale or conveyance (whether for cash,
securities, or other property) of all or substantially all of the assets of
the Corporation as an entirety, shall not be deemed or construed to be a
liquidation of the Corporation for the purpose of the foregoing provisions of
this Section 4 of this Article Fourth.
5. Pre-emptive Rights
No holder of any stock of the Corporation of any class shall be entitled
as a matter of right to subscribe for, purchase or receive any shares of stock
of the Corporation of any class (or any obligation convertible into. or
warrant or other instrument entitling the holder to purchase any stock of the
Corporation of any class) which the Corporation may issue or sell whether out
of the number of shares now authorized or hereafter authorized or out of
shares of stock of the Corporation reacquired by it after issuance.
6. Voting Rights
(a) The holders of the common stock shall be entitled to one vote for each
share held by them of record on the books of the Corporation. Subject to the
provisions of this Section 6, the holders of the Serial Preferred Stock,
whether voting generally or as a class, shall have such voting rights as shall
be provided for in the resolution or resolutions of the Board of Directors
establishing each series.
(b) If and whenever accrued dividends on any series of the Serial Preferred
Stock shall not have been paid (or declared and a sum sufficient for the
payment thereof set aside) in an amount equivalent to six (6) quarterly
dividends or three (3) semiannual dividends on all shares of such series of
the Serial Preferred Stock at the time outstanding, then and in such event,
the holders of all series of the Serial Preferred Stock, voting separately as
a class, shall be entitled, at any annual meeting of the stockholders or
special meeting held in place thereof, or at a special meeting of the holders
of the Serial Preferred Stock called as hereinafter provided, to increase the
authorized number of directors of the Corporation by two (2) and to elect such
two (2) directors in the manner hereinafter provided. At any time after such
power shall have so vested in the holders of the Serial Preferred Stock and
prior to the termination of such power as hereinafter provided, the Secretary
of the Corporation may, and upon the written request of the holders of record
of ten percent (10%) or more in voting rights of the Serial Preferred Stock
then outstanding, addressed to him at the principal office of the Corporation
in the Commonwealth of Massachusetts shall, call a special meeting of the
holders of the Serial Preferred Stock for the election of the two (2)
directors to be elected by them as hereinafter provided, to be held within
sixty (60) days after delivery of such request and at the place and upon the
notice provided by law and in the Bylaws for the holding of meetings of
stockholders; provided, however, that the Secretary shall not be required to
call such special meeting in the case of any such request received less than
ninety (90) days before the date fixed for the next ensuing annual meeting of
stockholders. No such special meeting and no adjournment thereof shall be held
on a date less than thirty (30) days before the annual meeting of the<PAGE>
PAGE 8
stockholders or special meeting held in place thereof next succeeding the time
when the holders of the Serial Preferred Stock become entitled to elect
directors as above provided. If at any such annual or special meeting or any
adjournment thereof, the holders of at least a majority of the Serial
Preferred Stock then outstanding shall be present or represented by Proxy,
then, by vote of the holders of at least a majority of the Serial Preferred
Stock present or so represented at such meeting, the then authorized number of
directors of the Corporation shall be increased by two (2), and the holders of
the Serial Preferred Stock shall be entitled to elect the additional directors
so provided for. The directors so elected shall serve until the next annual
meeting or until their respective successors shall be elected and qualified,
unless all of the accrued and unpaid dividends on all of the outstanding
shares of Serial Preferred Stock shall have been paid in full (or declared and
a sum sufficient for the payment thereof set aside), whereupon the terms of
office of the said two directors shall forthwith terminate, the number of the
Board of Directors shall be reduced accordingly, and the holders of the Serial
Preferred Stock voting as a group shall cease to be entitled to elect two
directors except in the event that an amount equivalent to the six quarterly
dividends or three semiannual dividends as the case may be, as hereinabove
provided shall not have been paid (or declared and a sum sufficient for the
payment thereof set aside), in which case the holders of the Serial Preferred
Stock shall again be entitled to elect two directors in the manner hereinabove
provided.
(c) If one or both of the two directors elected as above provided shall
resign, die or be removed prior to the expiration of his term or their term,
the vacancy or vacancies thereby created may be filled by the affirmative vote
of a majority of the remaining directors then in office. If such vacancy or
vacancies are not so filled within sixty (60) days after the creation thereof,
the Secretary of the Corporation shall call a special meeting of the holders
of the Serial Preferred Stock and such vacancy or vacancies shall be filled at
such special meeting. Any director elected to fill any such vacancy by the
remaining directors then in office may be removed from office by vote of the
holders of a majority of the shares of the Serial Preferred Stock. The
Secretary of the Corporation shall, within ten (10) days after delivery to the
Corporation at its principal office in the Commonwealth of Massachusetts of a
request for a special meeting for the purpose of removing such director,
signed by holders of at least ten percent (10%) of the voting rights of the
Serial Preferred Stock, call a special meeting for such purpose to be held
within sixty (60) days after delivery of such request; provided, however, that
the Secretary shall not be required to call such a special meeting in the case
of any such request received less than ninety (90) days before the date fixed
for the next ensuing annual meeting of stockholders.
(d) So long as any shares of Serial Preferred Stock shall be outstanding, the
Corporation shall not, withstand the affirmative vote of the holders of at
least two-thirds of the Serial Preferred Stock at the time outstanding, by an
amendment to the Articles of Incorporation or Bylaws or by merger or
consolidation,
(i) authorize any new class of stock which will rank either as to payment of
dividends or distribution of assets senior to the Serial Preferred Stock, or<PAGE>
PAGE 9
(ii) alter materially the rights of the Serial Preferred Stock, so as to
directly and adversely affect its dividend rates, amounts payable upon
voluntary or involuntary liquidation, conversion rights, redemption prices or
similar preferences, special rights or powers given to the Serial Preferred
Stock;
provided, however, that no such vote or written consent of the Serial
Preferred Stock shall be required if, at or prior to the time when the
issuance of any such senior stock is to be made or any such change is to take
effect, as the case may be, provision is made for the redemption of all shares
of Serial Preferred Stock at the time outstanding.
(e) So long as any shares of Serial Preferred Stock shall be outstanding, the
Corporation shall not, without the affirmative vote of the holders of at least
a majority of the Serial Preferred Stock at the time outstanding, by an
amendment to the Certificate of Incorporation or Bylaws, or by merger or
consolidation, authorize any class of stock which will rank either as to
payment of dividends or distribution of assets on a parity with the Serial
Preferred Stock; provided, that no such vote or written consent of the holders
of the Serial Preferred Stock shall be required if, at or prior to the time
when the issuance of any such stock on a parity with the Serial Preferred
Stock is to be made, provision is made for the redemption of all shares of
Serial Preferred Stock at the time outstanding.
(f) Nothing in paragraphs (d) or (e) of this Section 6 of this Article Fourth
shall require a two-thirds or majority class vote or consent of the holders of
the outstanding Serial Preferred Stock in connection with:
(i) any increase in the total number of authorized shares of common stock;
(ii) the issuance of any one or more series of the Serial Preferred Stock, or
an increase in the issued number of shares of any such series;
(iii) the fixing of any of the relative rights, preferences or powers of any
one or more series of the Serial Preferred Stock that may be fixed by the
Board of Directors pursuant to Section 1 of this Article Fourth;
(iv) any changes in, or conversion of, the outstanding common stock of the
Corporation or any other class of stock ranking junior to the Serial Preferred
Stock;
(v) the authorization, or increase in the number of shares authorized, of
common stock or any other class of stock ranking junior to the Serial
Preferred Stock
(g) In any election in which the holders of the Serial Preferred Stock, voting
as a class, are exercising their rights to elect two directors as hereinabove
provided, the holders of such class of stock shall not be entitled to vote
such stock with the holders of the common stock or any other stock entitled to
vote in the election of any other directors.
Fifth: The Corporation shall have perpetual existence.<PAGE>
PAGE 10
Sixth: The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
Seventh: Except to the extent anything to the contrary is provided in Section
6 of Article Fourth hereof:
(a) The number of directors of the Corporation shall be not less than five
(5) nor more than fifteen (15). The number shall be fixed from time to time
within such limits by or pursuant to the Bylaws of the Corporation. The
directors other than those who may be elected by the holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation, shall be classified, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, as shall be provided in the manner specified in the Bylaws of the
Corporation, one class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 1986, another class to be
originally elected for a term expiring at the annual meeting of stockholders
to be held in 1987 and another class to be originally elected for a term
expiring at the annual meeting of stockholders to be held in 1988, with each
member of each class to hold office until his successor is elected and
qualified. At each annual meeting of the stockholders of the Corporation
beginning in 1986, the successors of the class of directors whose term expires
at that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election and when successors shall have been elected and qualified.
(b) Advance notice of stockholder nominations for the election of directors
shall be given in the manner provided in the Bylaws of the Corporation.
(c) Newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining 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 class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
(d) Any director may be removed from office, but only with cause and by the
affirmative vote of the holders of a majority of the voting power of all the
shares of the Corporation then entitled to vote generally in the election of
directors.
(e) Notwithstanding anything contained elsewhere in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
75 percent of the voting power of all the shares of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend or repeal this Article Seventh
or to adopt any provision inconsistent therewith.<PAGE>
PAGE 11
(f) The directors of the Corporation need not be stockholders therein.
Eighth: Any shares of stock of any class, herein authorized or hereafter
increased or created may be issued or purchased and sold, or any shares of
stock of any other corporation may be purchased or otherwise acquired and sold
from time to time by the Corporation, under authority or with the approval of
the Board of Directors to any or all of the employees, including officers and
directors, of the Corporation or of any corporation, trust or association in
which or in the welfare of which the Corporation shall have any interest, and
those actively engaged in the conduct of the business of the Corporation, or
to a trustee or trustees on their behalf, on such basis of classification and
eligibility, with payment at such price, at one time, or in such installments
and with such credits, contributions, compensation for services or otherwise
and on such other terms and conditions as may be determined from time to time
by the Board of Directors.
If and as provided by the Bylaws, the Board of Directors may from time
to time provide and carry out and revise or change a plan or plans for the
participation by all or any of the employees, including directors and officers
of the Corporation or of any corporation in which or in the welfare of which
the Corporation has any interest, and those actively engaged in the conduct of
the Corporation's business, in the profits of the Corporation or of any branch
or division thereof, as part of the Corporation's legitimate expenses. The
Board of Directors may also in its discretion, subject to any provision of the
Bylaws applicable thereto, provide for the furnishing to said employees and
persons or any of them, at the Corporation's expense, of medical services,
insurance against accident, sickness or death, pensions during old age,
disability or unemployment, education, housing, social services, recreation or
other similar aids for their relief or general welfare, in such manner and
upon such terms and conditions as may be determined by the Board of Directors.
Ninth: The following provisions are hereby adopted for the regulation of the
business and conduct of the affairs of the Corporation and for the purpose of
creating, defining and regulating of powers of the directors and of the
stockholders.
1. The Board of Directors shall have the power to determine what portion
of the consideration received for any of the shares of the capital stock of
the Corporation shall be capital and what portion thereof shall be surplus, to
make and alter the Bylaws of the Corporation, to fix from time to time the
amount to be reserved as working capital or for other purposes, over and above
its paid-in capital, and authorize and cause to be executed mortgages and
liens upon the real and personal property of the Corporation.
2. The Board of Directors shall have power to determine from time to
time whether and to what extent, and at what times and places, and under what
conditions and regulations, the accounts and books of this Corporation (other
than the stock ledger), or any of them, shall be open to inspection of
stockholders; and no stockholder shall have any right of inspecting any
account, book or document of the Corporation except as conferred by statute,
unless authorized by a resolution of the stockholders or directors.<PAGE>
PAGE 12
3. The Board of Directors shall have power of resolution or resolutions,
passed by a majority of the whole Board, to designate one or more committees,
each committee to consist of two or more of the directors of the Corporation,
which, to the extent provided in said resolution or resolutions or in the
Bylaws of the Corporation, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and may have power to authorize the seal of the Corporation to be affixed to
all papers which may require it. Such committee or committees shall have such
name or names as may be stated in the Bylaws of the Corporation or as may be
determined from time to time by resolution adopted by the Board of Directors.
4. The Board of Directors shall have plenary power and discretion to
sell, lease, or otherwise dispose of, from time to time, any part or parts of
the properties of the Corporation, and to sell or conduct the business
connected therewith and again to resume the same, as it may deem best.
5. The Board of Directors shall have power, pursuant to the affirmative
vote of the holders of at least a majority of the stock issued and
outstanding, having voting power, given at a stockholders meeting duly called
for that purpose, or when authorized by the written consent of the holders of
a majority of the voting stock issued and outstanding, to sell, lease or
exchange all of the property and assets of the Corporation, including its good
will and its corporate franchises, upon such terms and conditions as it deems
expedient for the best interests of the Corporation.
6. Both stockholders and directors shall have power, if the Bylaws so
provide, to hold their meetings, and to have one or more offices within or
without the State of Delaware, and to keep the books of the Corporation
(subject to the provisions of the statutes) outside of the State of Delaware
at such places as may be from time to time designated by the Board of
Directors.
7. Any officer elected or appointed by the Board of Directors may be
removed at any time and in such manner as shall be provided in the Bylaws of
the Corporation.
8. Elections shall be by ballot whenever requested by any person
entitled to vote, but unless so requested may be conducted in any way approved
at the meeting, whether of the stockholders or directors, at which such
election is held.
9. The Corporation may in its Bylaws confer powers upon its directors in
addition to the foregoing, and in addition to the powers and authorities
expressly conferred upon them by the statute.
10. In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the Board of Directors may exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation; subject, nevertheless, to the provisions of the laws of the State
of Delaware and this Certificate, and of the Bylaws of the Corporation.
11. No director shall be personally liable to the Corporation or its<PAGE>
PAGE 13
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director
shall be liable to the extent provided by applicable law (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or ommissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) pursuant to 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 Corporation Law
hereafter is amended to authorize, with the approval of a Corporation's
stockholders, further reductions in the liability of the Corporation's
directors for breach of fiduciary duty, then a director of the Corporation
shall not be liable for any such breach to the fullest extent permitted by the
Delaware Corporation Law as so amended. No amendment to alter or repeal this
subparagraph 11 shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts
or omissions of such director occurring prior to such amendment.
Tenth: No contract or other transaction between the Corporation and any other
corporation and no act of the Corporation shall be in any way affected or
invalidated by the fact that any of the directors of the Corporation are
pecuniarily and otherwise interested in, or are directors or officers of, such
other corporation; any director individually, or any firm of which any
director may be a member, may be a party to, or may be pecuniarily or
otherwise interested in, any contract or transaction of the Corporation
provided that the fact that he or such firm is so interested shall be
disclosed, or shall have been known to the Board of Directors or a majority
thereof; and any director of the Corporation who is also a director or officer
of such other corporation or who is so interested may be counted in
determining the existence of a quorum at any meeting of the Board of Directors
of the Corporation which shall authorize any such contract or transaction, and
may vote thereat to authorize any such contract or transaction with like force
and effect as if he were not such director or officer of such other
corporation or not so interested.
Eleventh: In addition to any affirmative vote required by law or any other
provision of this Certificate of Incorporation or the Bylaws of the
Corporation, the affirmative vote of the holders of not less than 75 percent
of the Voting Stock shall be required for the approval or authorization of any
Business Transaction with, or proposed by or on behalf of, a Related Person,
or any Business Transaction in which a Related Person has an interest (except
proportionately as a stockholder of the Corporation), or any Business
Transaction of the type described in clause (f) of the definition of "Business
Transaction"; provided, however, that the 75 percent voting requirement shall
not be applicable if (i) Continuing Directors at the time constitute at least
a majority of the entire Board of Directors of the Corporation and have
expressly approved the Business Transaction, either specifically or as a
transaction within an approved category of transactions, by at least a
majority vote of such Continuing Directors, or (ii) all of the following
conditions are satisfied.
1. The Business Transaction is a merger or consolidation, or liquidation
or dissolution, or sale, lease, exchange, transfer or other disposition of<PAGE>
PAGE 14
substantially all of the assets of the Corporation, and (a) the cash or fair
market value (at the date of consummation of such Business Transaction) of the
property, securities or other consideration to be received per share by
holders of common stock of the Corporation (other than such Related Person) in
connection with such Business Transaction is at least equal in value to such
Related Person's Highest Purchase Price and such per share consideration is in
cash or the same form as such Related Person has previously paid to acquire
the largest number of shares of common stock of the Corporation acquired by
such Related Person prior to such Business Transaction; and (b) the cash or
fair market value (at the date of consummation of such Business Transaction)
of the property, securities or other consideration to be received per share by
holders of any class of Voting Stock other than common stock in connection
with such Business Transaction is at least equal in value to the higher of
such Related Person's Highest Purchase Price for such other class of stock or
the highest preferential amount per share to which the holders of such class
of Voting Stock are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
2. After such Related Person has become the Beneficial Owner of not less
than 10 percent of the Voting Stock and prior to the consummation of such
Business Transaction, such Related Person shall not have become the Beneficial
Owner of any additional shares of Voting Stock, except (i) as a part of the
transaction which resulted in such Related Person becoming a Related Person or
(ii) as a result of a pro rata stock dividend or stock split; and
3. Prior to the consummation of such Business Transaction, such Related
Person shall not have, directly or indirectly, (i) received the benefit
(except proportionately as a stockholder of the Corporation) of any loans,
advances, guarantees, pledges or other financial assistance or tax credits or
other tax advantages provided by the Corporation or any of its subsidiaries,
or (ii) caused any material change in the Corporation's business, capital
structure, including, without limitation, the issuance of shares of capital
stock of the Corporation to any third party, or common stock dividend rate or
policy (except as approved by a majority of the Continuing Directors).
4. A proxy or information statement describing the proposed Business
Transaction and complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (the Act") (or any subsequent
provisions replacing such Act, rules or regulations) shall have been mailed to
all stockholders of the Corporation at least 30 days prior to the consummation
of such Business Transaction (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions). The proxy or information statement shall contain on the first
page thereof, in a prominent place, any statement as to the advisability (or
inadvisability) of the Business Transaction that the Continuing Directors, or
any of them, may choose to make and, if deemed advisable by a majority of the
Continuing Directors, the opinion of an investment banking firm selected by a
majority of the Continuing Directors as to the fairness (or not) of the terms
of the Business Transaction from a financial point of view to the holders of
the outstanding shares of Voting Stock other than the Related Person, such
investment banking firm to be paid a reasonable fee for its services by the
Corporation.<PAGE>
PAGE 15
For the purposes of this Article Eleventh:
1. The term "Business Transaction" shall mean (a) any merger or
consolidation involving the Corporation or a subsidiary of the Corporation,
(b) whether in one transaction or a series of transactions, any sale, lease,
exchange, transfer or other disposition, including, without limitation, a
mortgage or any other security device, of all or any Substantial Part of the
assets either of the Corporation or of a subsidiary of the Corporation, (c)
whether in one transaction or a series of transactions, any sale, lease,
exchange, transfer, mortgage, pledge or other disposition of all or any part
of the assets of an entity to the Corporation or a subsidiary of the
Corporation if such assets would constitute a Substantial Part of the assets
of the Corporation or such subsidiary immediately following consummation of
such transaction, (d) the issuance, sale, exchange, transfer or other
disposition by the Corporation or a subsidiary of the Corporation, of any
securities of the Corporation or any subsidiary of the Corporation, except
proportionately to the stockholders of the Corporation or of such subsidiary,
(e) any recapitalization or reclassification of the securities of the
Corporation (including, without limitation, any reverse stock split) or other
transaction that would have the effect of increasing the proportionate voting
power of a Related Person, (f) any liquidation, spin-off, split-up or
dissolution of the Corporation, or any amendment to the Corporation's Bylaws,
and (g) any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Transaction.
2. The term "Related Person" shall mean and include (a) any individual,
corporation, partnership, group (within the meaning of Rule 13d-5 under the
Securities Exchange Act of 1934, as in effect on January 1, 1985), association
or other person or entity which, together with its Affiliates and Associates,
(i) is or has announced or publicly disclosed a plan or intention to become
the Beneficial Owner of not less than 10 percent of the Voting Stock or (ii)
was the Beneficial Owner of not less than 10 percent of the Voting Stock (x)
at the time (or within one year prior to the time) the definitive agreement
providing for the Business Transaction (including any amendment thereof) was
entered into, (y) at the time (or within one year prior to the time) a
resolution approving the Business Transaction was adopted by the Board of
Directors of this Corporation or (z) as of the record date of this Corporation
(or within one year prior to such record date) for the determination of
stockholders entitled to notice of and to vote on, or consent to, the Business
Transaction, and (b) any Affiliate or Associate of any such individual,
corporation, partnership, group, association or other person or entity;
provided, however, and notwithstanding anything in the foregoing to the
contrary, the term "Related Person" shall not include this Corporation, a
wholly owned subsidiary of this Corporation, any employee stock ownership or
other employee benefit plan of this Corporation or of any wholly owned
subsidiary of this Corporation, or any trustee of, or fiduciary with respect
to, any such plan when acting in such capacity.
3. The term "Beneficial Owner" shall be defined by reference to Rule
13d-3 under the Securities Exchange Act of 1934, as in effect on January 1,
1985; provided, however, that any individual, corporation, partnership, group,
association or other person or entity which has the right to acquire or vote<PAGE>
PAGE 16
any Voting Stock at any time in the future, whether such right is contingent
or absolute, pursuant to any agreement, arrangement or understanding or upon
exercise of conversion rights, warrants or options, or otherwise, shall be
deemed the Beneficial Owner of such Voting Stock for purposes of determining
whether such Beneficial Owner is a Related Person. For the purposes of
determining whether a person is a Related Person pursuant to the preceding
Paragraph 2, the number of shares of Voting Stock deemed to be outstanding
shall include shares deemed beneficially owned by such person through
application of this Paragraph 3, but shall not include any other shares of
Voting Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
4. The term "Highest Purchase Price" shall mean the higher of (i)
highest amount of consideration paid by such Related Person for a share of
common stock of the Corporation (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) at any time on, or within two years prior
to, the date such Related Person, including its Affiliates and Associates
first became a Related Person and during any time while such Related Person
was a Related Person or (ii) the fair market value per share of common stock
on the date the Business Transaction is first publicly announced; provided,
however, that the Highest Purchase Price shall be determined after appropriate
adjustment to reflect the occurrence of any reclassification,
recapitalization, stock split, reverse stock split or other readjustment in
the number of outstanding shares of common stock of the Corporation, or the
payment of a stock dividend thereon.
5. The term "Substantial Part" shall mean more than 5 percent of the
book value of the total assets of the entity in question, as reflected on the
most recent fiscal year-end consolidated balance sheet of such entity existing
at the time a resolution approving the Business Transaction involving the
assets constituting any such Substantial Part was adopted by the Board of
Directors of the Corporation.
6. In the event of a merger in which the Corporation is the surviving
corporation, or in the event of a sale, lease, exchange, transfer or other
disposition of substantially all of the assets of the Corporation, the phrase
"property, securities or other consideration to be received" shall include,
without limitation, common and other capital stock of the Corporation retained
by its stockholders (other than such Related Person).
7. The term "Voting Stock" shall at any time mean all outstanding shares
of capital stock of the Corporation then entitled to vote generally in the
election of directors, considered for the purpose of this Article Eleventh as
one class; provided, however, that if the Corporation has shares of Voting
Stock entitled to more or less than one vote for any such share, for purposes
of determining the number of outstanding shares of Voting Stocks each such
share shall be deemed to be that number of shares of Voting Stock equal to the
number of votes entitled to be cast by the holder thereof in respect of such
shares; and provided further that if any of the Serial Preferred Stock
authorized by Article Fourth is issued and outstanding with the right to vote
as a class, the rights of the holders of said Serial Preferred Stock shall not<PAGE>
PAGE 17
be affected by the vote of the Voting Stock unless the holders of said Serial
Preferred Stock voting as a class have also voted in favor of the Business
Transaction by any requisite majority and otherwise in accordance with the
terms of said Serial Preferred Stock.
8. The term "Continuing Director" shall mean a director who either was a
member of the Board of Directors of the Corporation prior to the time the
Related Person in question, including its Affiliates and Associates, first
became a Related Person or who subsequently became a director of the
Corporation and whose election, or nomination for election by the
Corporation's stockholders, was approved by a vote of at least a majority of
the Continuing Directors then on the Board; provided, however, that in no
event shall a director be considered a "Continuing Director" if such director
is a Related Person (or an agent or other representative of a Related Person
and the Business Transaction to be voted upon is with, or proposed by or on
behalf of, such Related Person or is one in which such Related Person
otherwise has an interest (except proportionately as a stockholder of the
Corporation).
9. The term "Affiliate", used to indicate a relationship to a specified
person, shall mean a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such specified person.
10. The term "Associate", used to indicate a relationship with a
specified person, shall mean (a) any corporation, partnership or other
organization of which such specified person is an officer or partner or is,
directly or indirectly, the Beneficial Owner of 10 percent or more of any
class of equity securities, (b) any trust or other estate in which such
specified person has a substantial beneficial interest or as to which such
specified person serves as trustee or in a similar fiduciary capacity, (c) any
relative or spouse of such specified person, or any relative of such spouse,
who has the same home as such specified person or who is a director or officer
of the Corporation or any of its parents or subsidiaries and (d) any person
who is a director or officer of such specified person or any of its parents or
subsidiaries (other than the Corporation or any wholly owned subsidiary of the
Corporation).
For the purpose of this Article Eleventh, if the Continuing Directors
constitute at least a majority of the entire Board of Directors of the
Corporation, then a majority of such Continuing Directors shall have the power
to make a good faith determination (which determination shall be final), on
the basis of information known to them, of all questions arising under this
Article Eleventh, including, without limitation, (a) the number of shares of
Voting Stock of which any person is the Beneficial Owner, (b) whether a person
is an Affiliate or Associate of another, (c) whether a person has an
agreement, arrangement or understanding with another as to the matters
referred to in the definition of Beneficial Owner herein, (d) whether the
assets subject to any Business Transaction constitute a Substantial Part, (e)
whether any Business Transaction is one in which a Related Person has an
interest (except proportionately as a stockholder of the Corporation), (f)
whether a Related Person has, directly or indirectly, received the benefits of<PAGE>
PAGE 18
or caused any of the changes referred to in the first subparagraph 3 of this
Article Eleventh, (g) whether the cash and/or the fair market value of the
consideration other than cash to be received per share by holders of common
stock of the Corporation in connection with a Business Transaction described
in the first subparagraph 1 of this Article Eleventh is at least equal in
value to the Related Person's Highest Purchase Price, and (h) such other
matters with respect to which a determination is required under this Article
Eleventh.
The fact that any Business Transaction is one to which the 75 percent
voting requirement of this Article Eleventh is not applicable shall not be
construed to impose any fiduciary duty, obligation or responsibility on the
Board of Directors, or any member thereof, to approve such Business
Transaction or recommend its adoption or approval to the stockholders of the
Corporation, nor shall such compliance limit, prohibit or otherwise restrict
in any manner the Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to such Business
Transaction.
For the purposes of this Article Eleventh, a Business Transaction or any
proposal to amend, repeal or adopt any provision of this Certificate of
Incorporation inconsistent with this Article Eleventh (collectively, "Proposed
Action") is presumed to have been proposed by, or on behalf of, a Related
Person if (1) after the Related Person became such, the Proposed Action is
proposed following the election of any director of the Corporation who with
respect to such Related Person, would not qualify to serve as a Continuing
Director or (2) such Related Person votes for or consents to the adoption of
any such Proposed Action, unless as to such Related Person a majority of the
Continuing Directors makes a good faith determination that such Proposed
Action is not proposed by or on behalf of such Related Person, based on
information known to them after reasonable inquiry.
Nothing contained in this Article Eleventh shall be construed to relieve
any Related Person of any fiduciary obligation imposed by law.
Notwithstanding any other provisions of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding that a
lesser percentage may be specified by law, this Certificate of Incorporation
or the Bylaws of the Corporation), the provisions of this Article Eleventh may
not be repealed or amended in any respect, nor may any provision of the
Certificate of Incorporation or Bylaws be adopted inconsistent with this
Article Eleventh, unless such action is approved by the affirmative vote of
the holders of not less than 75 percent of the Voting Stock; provided,
however, that this paragraph shall not apply, and such 75 percent vote shall
not be required for, any amendment, repeal or adoption unanimously recommended
by the Board of Directors if all of such directors are persons who would be
eligible to serve as Continuing Directors.
Twelfth: The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.<PAGE>
PAGE 19
We, Thomas L. Phillips and Charles H. Resnick, hereby certify that we
are respectively Chairman of the Board of Directors and Secretary of Raytheon
Company; that at a meeting of the Board of Directors of said Corporation duly
called and held on August 26, 1987, at which a quorum was present and acting
throughout, the foregoing Restated Certificate of Incorporation was
unanimously adopted as the Certificate of Incorporation of Raytheon Company.
IN WITNESS WHEREOF we have hereunto set our hands as such Chairman of
the Board of Directors and Secretary and affixed the seal of said Raytheon
Company this 26th day of August, 1987.
Thomas L. Phillips
Raytheon Company Chairman of the Board of Directors
1928
Delaware ATTEST: Charles H. Resnick
Secretary
CORPORATE SEAL<PAGE>
PAGE 20
COMMONWEALTH OF MASSACHUSETTS
ss.
COUNTY OF MIDDLESEX
BE IT REMEMBERED that on this 26th day of August, 1987, personally came
before me, Michael J. Hally, Jr., a Notary Public in and for the County and
Commonwealth aforesaid, Thomas L. Phillips, Chairman of the Board of Directors
of Raytheon Company, a corporation of the State of Delaware, the Corporation
described in and which executed the foregoing certificate, known to me
personally to be such, and he, the said Thomas L. Phillips as such Chairman of
the Board of Directors, duly executed said certificate before me and
acknowledged the said certificate to be his act and deed and the act and deed
of said Corporation; that the signatures of the said Chairman of the Board of
Directors and of the Secretary of said Corporation to said foregoing
certificate are in the handwriting of the said Chairman of the Board of
Directors and Secretary of said Corporation respectively, and that the seal
affixed to said certificate is the common or corporate seal of
said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
Michael J. Hally, Jr. Michael J. Hally, Jr.
Notary Public Notary Public
My commission expires December 17, 1993
Commonwealth of Massachusetts
NOTARIAL SEAL<PAGE>
PAGE 21
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF CORPORATION
Raytheon Company, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
FIRST Set forth below are resolutions duly adopted by the Board of
Directors of the Corporation at a meeting duly called and held
June 28, 1995 and at which a quorum was present and acted
throughout, which resolutions were amended by the Executive
Committee of the Corporation by unanimous written consent dated
August 1, 1995:
WHEREAS, the Board of Directors deems it advisable and in the best
interests of the Corporation to amend its Restated Certificate of
Incorporation to increase the number of authorized shares of
common stock, par value $1.00 per share, from 200,000,000 to
400,000,000.
NOW, THEREFORE, BE IT VOTED, That subject to approval of the
stockholders of the Corporation entitled to vote thereon, the
first paragraph of Article Fourth of the Corporation's Restated
Certificate of Incorporation be, and it hereby is, amended in its
entirety to be and read as follows:
"Fourth: The total number of shares of stock of all classes which
the Corporation shall have the authority to issue is 403,000,000
shares. Of such shares, 400,000,000 shall be Common Stock, $1.00
par value, and 3,000,000 shares shall be Serial Preferred Stock
without par value."
and further
VOTED, that the officers of the Corporation be, and they hereby
are, authorized and directed to call a special meeting of the
stockholders entitled to vote in respect of the foregoing
amendment for the consideration of such amendment; and further
VOTED, that subject to the approval by the holders of a majority
or the shares of outstanding stock entitled to vote thereon, the
officers of the Corporation be, and they hereby are, authorized
and directed to prepare and file or cause to be prepared and filed
with the Secretary of State of the Stare of Delaware a Certificate
of Amendment to the Restated Certificate of Incorporation of the
Corporation reflecting the above authorized amendment and to do
and take or cause to be done or taken all such further things and
acts as any of them shall deem necessary or desirable in order to
carry out the intent and purposes of the foregoing votes,<PAGE>
PAGE 22
including without limitation filing supplemental listing
applications with each exchange on which the Corporation's stock
is listed.
SECOND That pursuant to vote of the Board of Directors a Special Meeting
of Stockholders of the Corporation was duly called and held, upon
notice in accordance with Section 222 of the General Corporation
Law of the State of Delaware, at which meeting the necessary
number of shares as required by the statute were voted in favor of
the amendment.
THIRD That the amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate of
amendment to be signed by Thomas D Hyde, its Vice President and General
Counsel, this 27th day of September, 1995.
Raytheon Company
/s/ Thomas D. Hyde
Vice President and General Counsel<PAGE>
PAGE 1
EXHIBIT 3(ii)
RAYTHEON COMPANY
AMENDED AND RESTATED BY-LAWS
ARTICLE 1
OFFICES
SECTION 1.1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be in the City of Dover, County of
Kent.
SECTION 1.2. Other Offices. The Corporation may have such other
offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
SECTION 1.3. Books and Records. The books and records of the
Corporation may be kept outside the State of Delaware at such place or places
as may from time to time be designated by the Board of Directors.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.1. Place of Meetings. Each meeting of stockholders of the
Corporation shall be held at such place as the Board of Directors may
designate in the notice of such meeting, but if no such designation is made,
then at the principal business office of the Corporation.
SECTION 2.2. Annual Meetings. (a) An annual meeting of stockholders
for the purpose of electing directors and transacting such other business as
may properly be brought before the meeting shall be held on (i) on the fourth
Wednesday in May of each year at 2:00 p.m. (local time) unless such day is a
legal holiday in which case the meeting shall be held on the next succeeding
week day that is not a legal holiday or (ii) on such other date and at such
other time as the Board of Directors may determine.
(b) If for any reason any annual meeting shall not be held at the time
herein provided, it may be held at any time thereafter, upon notice as
provided in Section 2.4 of these By-Laws, or the business thereof may be
transacted at any special meeting of stockholders called for that purpose.
SECTION 2.3. Special Meetings. Unless otherwise required by statute
and subject to the rights of holders of any class of preferred stock of the
Corporation ("preferred stock"), special meetings of stockholders may be
called only by (a) the Chairman of the Board of Directors (the "Chairman"),
(b) the Secretary at the written request of the Chairman or (c) the Board of
Directors pursuant to a resolution duly adopted by a majority of the total
number of directors which the Corporation would have if there were no
vacancies (the "Whole Board"). Business transacted at any special meeting<PAGE>
PAGE 2
shall be confined to the purpose or purposes stated in the notice of such
special meeting.
SECTION 2.4. Notice of Stockholders' Meetings. Notice of each meeting
of stockholders, stating the date, time and place, and, in the case of special
meetings, the purpose or purposes for which such meeting is called, shall be
given to each stockholder entitled to vote thereat not less than 10 nor more
than 60 days before the date of the meeting unless otherwise required by
statute. Such notice shall be in writing and delivered to stockholders as
their addresses appear on the records of the Corporation. Any previously
scheduled meeting of the stockholders may be postponed, and (unless the
Certificate of Incorporation otherwise provides) any special meeting of the
stockholders may be canceled, by resolution of the Board of Directors upon
public notice given prior to the date previously scheduled for such meeting of
stockholders.
SECTION 2.5. 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, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of shares
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a future date as the record date, which shall not be more than 60
days (and, in the case of a meeting of stockholders, not less than 10 days)
before the date of such meeting or any other action requiring a determination
of stockholders.
(b) If a record date has not been fixed as provided in preceding
subsection (a), then:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders of the Corporation 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; and
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(c) Only those who are stockholders of record on the record date so
fixed shall be entitled to such notice of, and to vote at, such meeting and
any adjournment thereof, or to receive payment of such dividend or other
distribution, or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding the transfer of any shares on the
books of the Corporation after the applicable record date.
SECTION 2.6. List of Stockholders. The Secretary shall make, before
each meeting of stockholders, an alphabetical list of stockholders entitled to
vote thereat, showing the address of and number of shares registered in the
name of each stockholder. Such list shall be open to the examination of any
such stockholder or such stockholder's agent or attorney authorized in writing<PAGE>
PAGE 3
("stockholder agent") for any purpose germane to the meeting, during ordinary
business hours for a period of at least 10 days prior to the meeting for which
the list was prepared and continuing through the meeting, either at a place in
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place where said
meeting is to be held. Such list shall be produced and kept at the time and
place of meeting during the whole time thereof for inspection by any such
stockholder or stockholder agent who is present.
SECTION 2.7. Quorum and Adjournments. The holders of a majority of the
outstanding shares of the Corporation entitled to vote generally in the
election of directors ("Voting Stock"), present in person or by proxy, shall
constitute a quorum of stockholders for all purposes unless the representation
of a different proportion is required by statute or by the Corporation's
Certificate of Incorporation and, in such cases, the representation of the
proportion so required shall constitute a quorum. Whether or not there is
such a quorum, the person presiding at the meeting or the stockholders present
or represented by proxy representing a majority of the shares present or
represented may adjourn the meeting from time to time without notice (except
as may be required by law) other than an announcement at the meeting. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the original
meeting.
SECTION 2.8. Voting by Stockholders. Except as may be provided in the
Certificate of Incorporation, with respect to two or more classes or series of
stock, stockholders entitled to vote shall have one vote for each share of
stock entitled to vote that is registered in the stockholder's name on the
record date for the meeting and a proportionate vote for each fractional
share. Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by ballot whenever requested by any
stockholder entitled to vote thereat, but unless so requested elections may be
conducted in any manner approved at the meeting at which such election is
held. Except as otherwise set forth in the Certificate of Incorporation with
respect to the right of the holders of any class or series of preferred stock
to elect additional directors under specified circumstances, directors shall
be elected by a plurality of the votes cast. Action on a matter other than
the election of directors submitted to stockholders entitled to vote thereon
at any meeting shall be approved if the votes cast favoring the action exceed
the votes cast opposing the action, unless a different number of affirmative
votes is required by statute or the Certificate of Incorporation.
SECTION 2.9. Proxies. Each stockholder entitled to vote at a meeting
of stockholders may authorize another person or persons to act for such
stockholder by proxy, provided the proxy is in writing, signed by the
stockholder or such stockholder's authorized representative and delivered to
the Secretary. No proxy shall be voted after three years from its date,
unless said proxy provides for a longer period.
SECTION 2.10. Inspectors. The Board of Directors, before each meeting
of the stockholders, shall appoint one or more inspectors of the vote. Such
inspector(s) shall first take and subscribe an oath or affirmation faithfully<PAGE>
PAGE 4
to execute the duties of inspector at such meeting with strict impartiality
and according to the best of their ability. If no inspectors have been
appointed in advance of any such meeting by the Board of Directors or the
appointed inspectors fail or refuse to act, then one or more inspectors, as
the case may be, shall be appointed for the meeting by the person presiding
thereat. Such inspector(s) shall be responsible for tallying and certifying
the vote taken on any matter at each meeting which is required to be tallied
and certified by them in the resolution of the Board of Directors appointing
them or the appointment of the person presiding at such meeting, as the case
may be. Except as otherwise provided by these By-Laws or required by statute,
such inspector(s) shall also decide all questions touching upon the
qualification of voters, the validity of proxies and ballots and the
acceptance and rejection of votes. The Board of Directors shall have the
authority to make rules establishing presumptions as to the validity and
sufficiency of proxies.
SECTION 2.11. Presiding Officer. The Chairman shall preside as
chairman of stockholder meetings and shall determine (a) the order and conduct
of business, (b) all matters of procedure and (c) whether a nomination or any
business proposed to be brought before the meeting was made in accordance with
the procedures set forth in Section 2.12 of these By-Laws. In the absence of
the Chairman, the officer chosen by the Board of Directors shall assume the
duties of the Chairman specified in this Section 2.11.
SECTION 2.12. Stockholder Nominations and Proposals.
(a) Annual Meetings of Stockholders. (i) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (A) pursuant to the Corporation's notice of meeting, (B) by or
at the direction of the Board of Directors or (C) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this By-Law, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this By-Law.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(i) of this By-Law, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on
the 60th day nor earlier than the close of business on the 90th day prior to
the first anniversary of the preceding year's annual meeting; provided,
however, that if the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the 90th
day prior to such annual meeting and not later than the close of business on
the later of the 60th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made by the Corporation. In no event shall the public announcement of
an adjournment of an annual meeting commence a new time period for the giving<PAGE>
PAGE 5
of a stockholder's notice as described above. Such stockholder's notice shall
set forth (A) as to each person whom the stockholder proposes to nominate for
election or re-election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 14a-11 thereunder (including such
person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected) as they may from time to time be
amended or supplemented; (B) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (I) the name
and address of such stockholder, as they appear on the Corporation's books,
and of such beneficial owner and (II) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner.
(iii) Notwithstanding anything in the second sentence of paragraph
(a) (ii) of this By-Law to the contrary, if the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least
70 days prior to the first anniversary of the preceding year's annual meeting,
a stockholder's notice required by this By-Law shall also be considered
timely, but only with respect to nominees for any new positions created by
such increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on
the 10th day following the day on which such public announcement is first made
by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be elected pursuant
to the Corporation's notice of meeting (i) by or at the direction of the Board
of Directors or (ii) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law. If the
Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(ii) of this By-Law is delivered
to the Secretary at the principal executive offices of the Corporation not
earlier than the close of business on the 90th day prior to such special<PAGE>
PAGE 6
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which
public announcement is first made of the date of the special meeting and of
the nominees proposed by the Board of Directors to be elected at such meeting.
In no event shall the public announcement of an adjournment of a special
meeting commence a new time period for the giving of a stockholder's notice as
described above.
(c) General. (i) Only such persons who are nominated in accordance
with the procedures set forth in this By-Law shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-Law. Except as otherwise provided by law,
the chairman of the meeting shall have the power and duty to determine whether
a nomination or any business proposed to be brought before the meeting was
made or proposed, as the case may be, in accordance with the procedures set
forth in this By-Law and, if any proposed nomination or business is not in
compliance with this By-Law, to declare that such defective proposal or
nomination shall be disregarded.
(ii) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press 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.
(iii) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights (A) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(B) of the holders of any series of preferred stock to elect directors under
specified circumstances.
ARTICLE 3
DIRECTORS
SECTION 3.1. Powers. The business of the Corporation shall be managed
by the Board of Directors which may exercise all powers of the Corporation and
do all lawful acts and things which are not by statute or by the Certificate
of Incorporation or these By-Laws directed or required to be exercised or done
by the stockholders.
SECTION 3.2. Number, Election and Terms of Office. (a) Subject to the
rights of the holders of any class or series of preferred stock to elect
additional directors under specified circumstances, the number of directors
shall be fixed from time to time within the limits provided by the Certificate
of Incorporation by the affirmative vote of a majority of the Whole Board.
(b) The directors, other than those who may be elected by the holders<PAGE>
PAGE 7
of any class or series of preferred stock, shall be divided, with respect to
the time for which they severally hold office, into three classes, each class
being as nearly equal as possible. At each annual meeting of stockholders,
directors elected to succeed those directors whose terms then expire shall be
elected for a term of office to expire at the third succeeding annual meeting
of stockholders after their election.
(c) All directors so elected shall hold office until their respective
successors are elected and qualified or until their earlier death, resignation
or removal.
SECTION 3.3. Vacancies. Except where the terms of any class or series
of preferred stock require the election of one or more directors by the
holders of such preferred stock voting as a single class and except to the
extent the Board of Directors determines otherwise, vacancies occurring on the
Board of Directors and newly-created directorships resulting from any increase
in the number of directors may be filled only by the affirmative vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director, and any director so chosen shall hold office for a
term expiring at the annual meeting of stockholders at which the term of
office of the class of directors to which such director has been elected
expires and until his or her successor is duly elected and qualified or until
the earlier of his or her death, resignation or removal in a manner permitted
by statute or these By-Laws. No decrease in the number of authorized
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION 3.4. Removal. Subject to the rights of the holders of any
class or series of preferred stock, any director or the entire Board of
Directors may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least a majority of all of the
then outstanding shares of Voting Stock.
SECTION 3.5. Resignation. Any director may resign at any time upon
written notice to the Corporation. A resignation shall be effective as of the
time specified in the notice without acceptance thereof unless otherwise
specified in such notice.
SECTION 3.6. Place of Meetings. The place of any meeting of the Board
of Directors may be either in or outside the State of Delaware.
SECTION 3.7. Annual Meetings. Annual meetings of the Board of
Directors shall be held without notice other than this By-Law each year on the
same day and at the same place as the stockholders' annual meeting for such
year.
SECTION 3.8. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such dates, times and places as the Board of
Directors may by resolution from time to time determine without other notice
than such resolution.
SECTION 3.9. Special Meetings. Special meetings of the Board of<PAGE>
PAGE 8
Directors shall be called at the request of the Chairman or a majority of the
directors then in office. The person or persons authorized to call special
meetings of the Board of Directors may fix the date, time and place of the
meetings.
SECTION 3.10. Notice of Meetings. (a) Notice of each special meeting
of the Board of Directors shall be given to each director at his or her
address appearing on the records of the Corporation in accordance with the
provisions of this Section 3.10.
(b) Notices to directors shall be delivered personally or given by
telegram, cable, telephone, facsimile, wireless, first class mail or an
overnight delivery service.
(i) Notice to directors by first class mail shall be deemed
adequately given when deposited in the United States mails at least 5 business
days before the meeting.
(ii) Notice to directors by overnight delivery service shall be
deemed adequately given when the notice is delivered to the overnight delivery
service at least one day before the meeting.
(iii) Notice to directors by personal delivery, telegram, cable,
telephone, facsimile or wireless shall be given a reasonable time before the
meeting but in no event less than one hour before the meeting. Notice by
telegram or cable shall be deemed to be adequately given when the telegram or
cable addressed to the director is delivered to the telegraph company. Notice
by telephone, facsimile or wireless shall be deemed to be adequately given
when transmitted by telephone, facsimile or wireless to the telephone number,
facsimile number or wireless call designation appearing on the records of the
Corporation for the director (regardless of whether the director shall have
personally received such telephone call, facsimile or wireless message).
(c) Meetings of the Board of Directors may be held at any time and for
any purpose without notice when all members of the Board of Directors are
present or if those not present waive notice of the meeting in accordance with
Section 4.1.
SECTION 3.11. Quorum and Voting. (a) Except as provided in Section
3.3, a whole number of directors equal to at least a majority of the Whole
Board shall constitute a quorum for the transaction of business at all
meetings of the Board of Directors. If a quorum is not present at any meeting
of the Board of Directors, the directors present may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum is present. (b) The act of the majority of directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors. Directors present at a meeting at which a quorum initially is
present may continue to transact business until adjournment, notwithstanding
the withdrawal of enough directors to leave less than a quorum.
SECTION 3.12. Informal Action. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at<PAGE>
PAGE 9
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all directors or
by all members of such committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the Board of Directors or of such
committee.
SECTION 3.13. Attendance by Conference Telephone. Unless otherwise
restricted by the Certificate of Incorporation, members of the Board of
Directors or any committee designated by the Board of Directors may
participate in a meeting by means of conference telephone or similar
communications equipment which permits all persons participating in the
meeting to hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.14. Committees. (a) The Board of Directors may from time to
time, in its discretion, by resolution passed by a majority of the Whole
Board, designate and appoint from the directors committees of two or more
persons which shall have and may exercise such lawfully delegable powers and
duties conferred or authorized by the resolutions of designation and
appointment. The Board of Directors shall have power at any time to change
the members of any such committee, to fill vacancies and to discharge any such
committee.
(b) There shall be an Executive Committee of the Board of Directors
consisting of not less than three nor more than eight members of the Board, as
the Board shall from time to time determine. The Executive Committee 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 except to the
extent limited by resolution of the Board of Directors or by statute. The
Executive Committee shall report its actions to the Board of Directors, which
shall have the right to amend, modify or rescind any resolution of the
Executive Committee with prospective effect.
(c) The Board of Directors may make rules for the holding and conduct
of meetings of its committees, but no such rule shall provide that less than
two members of the Executive Committee shall constitute a quorum for the
transaction of business at a meeting thereof.
SECTION 3.15. Compensation of Directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of
Directors and at each meeting of a committee of the Board of Directors of
which they are members. The Board of Directors shall fix compensation of all
directors for their services to the Corporation as directors and for their
services to the Corporation as members of committees of the Board of
Directors.
ARTICLE 4
WAIVER OF NOTICE
SECTION 4.1. Waiver of Notice. Whenever any notice is required, a
waiver thereof signed by the person entitled to such notice, whether before or<PAGE>
PAGE 10
after the time stated therein, shall be deemed equivalent thereto. Attendance
of any person at any meeting of stockholders or directors shall constitute a
waiver of notice of such meeting, except when such person attends only for the
express purpose of objecting, at the beginning of the meeting (or in the case
of a director's meeting, promptly upon such director's arrival), to the
transaction of any business at the meeting and does not thereafter vote for or
assent to action taken at the meeting.
ARTICLE 5
OFFICERS
SECTION 5.1. Designation; Number; Election. (a) The Board of
Directors shall elect a chairman of the Board of Directors, a chief financial
officer, general counsel and a secretary. The Board may elect such other
officers and agents as the Board deems necessary or appropriate. The Chairman
shall be chosen from the directors.
(b) In addition to the officers elected by the Board of Directors, the
Chairman at any time may appoint a controller, a treasurer, and one or more
vice presidents, assistant controllers, assistant treasurers, assistant
general counsel and assistant secretaries.
(c) One person may hold more than one office at the same time.
SECTION 5.2. Term of Office; Removal; Vacancies. (a) The term of each
officer elected by the Board of Directors shall be one year and continue until
his or her successor is chosen and qualified or until his or her earlier
death, resignation or removal. Any officer elected by the Board of Directors
may be (i) suspended, at any time, by the Chairman until the Board of
Directors convenes, and (ii) removed at any time by the affirmative vote of
the Whole Board. Vacancies occurring among officers elected by the Board of
Directors may be filled at any time by the Board of Directors.
(b) Appointed officers shall serve at the pleasure of the Chairman.
(c) All agents and representatives of the Corporation shall hold office
only during the pleasure of the Board of Directors or the officer appointing
them.
SECTION 5.3. Compensation of Officers. The Board of Directors shall
have the authority to fix compensation of the officers elected by it. The
Chairman and/or such officers as the Chairman may designate shall have the
authority to fix compensation of all other officers of the Corporation.
SECTION 5.4. Chairman of the Board of Directors. (a) Subject to
control and supervision by the Board of Directors, the Chairman shall have
general management and oversight of the administration and operation of the
Corporation's business and general supervision of its policies and affairs.
He or she shall see that all orders and resolutions of the Board of Directors
and of any committee thereof are carried into effect.<PAGE>
PAGE 11
(b) The Chairman shall (i) be the chief executive officer of the
Corporation and have the powers and perform the duties incident to that
position; (ii) have power to appoint officers for any operating division who,
as such, shall not be officers of the Corporation; and (iii) have such other
powers and perform such other duties provided in these By-Laws or as may be
assigned by the Board of Directors.
SECTION 5.5. Chief Financial Officer. Subject to control and
supervision by the Board of Directors and the Chairman, the Chief Financial
Officer shall have the powers and duties assigned by the Board of Directors or
the Chairman and have the usual powers and duties pertaining to the office.
SECTION 5.6. General Counsel. Subject to control and supervision by
the Board of Directors and the Chairman, the General Counsel shall be chief
legal officer of the Corporation; have such other powers and duties provided
in these By-Laws or assigned by the Board of Directors or the Chairman; and
have the usual powers and duties pertaining to the office.
SECTION 5.7. Assistant General Counsel. The assistant general counsel
shall have the power and duties provided in these By-Laws or assigned by the
Chairman or General Counsel. In the absence or disability of the General
Counsel, they shall have all his or her powers and duties.
SECTION 5.8. Secretary. Subject to control and supervision by the
Board of Directors and by the Chairman or such officer as the Chairman may
designate, the Secretary shall attend and record proceedings of meetings of
stockholders and directors; have such other powers and duties provided in
these By-Laws or assigned by the Board of Directors or the Chairman or such
officer as the Chairman may designate; and have the usual powers and duties
pertaining to the office.
SECTION 5.9. Assistant Secretaries. The assistant secretaries shall
have the powers and duties provided in these By-Laws or assigned by the
Chairman or the Secretary. In the absence or disability of the Secretary,
they shall have all his or her powers and duties.
SECTION 5.10. President. Subject to control and supervision by the
Board of Directors and the Chairman, the President shall have the powers and
duties provided in these By-Laws or assigned by the Board of Directors or the
Chairman and have the usual powers and duties pertaining to the office.
SECTION 5.11. Vice Presidents. Each vice president shall have the
powers and duties provided in these By-Laws or assigned by the Board of
Directors, the Chairman or the President. The Chairman may designate one or
more of such vice presidents as executive, senior or assistant vice
presidents.
SECTION 5.12. Controller. Subject to control and supervision by the
Board of Directors and the Chairman or such officer as the Chairman may
designate, the Controller shall be in charge of the accounts of the
Corporation and its subsidiaries and maintain adequate records of all assets,
liabilities and business transactions; have such other powers and duties<PAGE>
PAGE 12
provided in these By-Laws or assigned by the Board of Directors or the
Chairman or such officer as the Chairman may designate; and have the usual
powers and duties pertaining to the office.
SECTION 5.12. Assistant Controllers. The assistant controllers shall
have the powers and duties provided in these By-Laws or assigned by the
Chairman or Controller. In the absence or disability of the Controller, they
shall have all his or her powers and duties.
SECTION 5.13. Treasurer. Subject to control and supervision by the
Board of Directors, the Chairman or such officer as the Chairman may
designate, the Treasurer shall propose financial policies, negotiate loans and
have custody of the funds and securities of the Corporation; have such other
powers and duties provided by these By-Laws or assigned by the Board of
Directors or the Chairman or such officer as the Chairman may designate; and
have the usual powers and duties pertaining to the office.
SECTION 5.14. Assistant Treasurers. The assistant treasurers shall
have the powers and duties provided in these By-Laws or assigned by the
Chairman or the Treasurer. In the absence or disability of the Treasurer,
they shall have all his or her powers and duties.
SECTION 5.16. Delegation. The Board of Directors may from time to time
assign or delegate the powers, authorities or duties of the Chairman, the
President or any officer or agent to any other officers or agents,
notwithstanding any other provision hereof.
ARTICLE 6
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 6.1. Stock Certificates. (a) Certificates for shares of stock
of the Corporation shall be signed by the either the Chairman or the President
or any executive or senior vice president and by the Treasurer or an assistant
treasurer or the Secretary or an assistant secretary and shall not be valid
unless so signed. Such certificates shall be appropriately numbered and
contain the name of the registered holder, the number of shares and the date
of issue. If such certificate is countersigned by a transfer agent other than
the Corporation or its employee, or by a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile.
(b) In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he, she
or it were such officer, transfer agent or registrar at the date of issue.
(c) During any period when more than one class of shares of the
Corporation is authorized, there shall be set forth on the face or back of
certificates issued to represent each class or series of shares a statement
that the Corporation will furnish without charge to each stockholder who so
requests the designation, preferences and relative, participating, optional
or<PAGE>
PAGE 13
other special rights of each class of shares or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
SECTION 6.2. Transfer of Shares. Upon surrender to the Corporation or
to a transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation or such
transfer agent to issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction. No certificate shall
be issued in exchange for any certificate until the former certificate for the
same number of shares of the same class and series shall have been surrendered
and canceled, except as provided in Section 6.4.
SECTION 6.3. Regulations. The Board of Directors shall have authority
to make rules and regulations concerning the issue, transfer and registration
of certificates for shares of the Corporation.
SECTION 6.4. Lost, Stolen and Destroyed Certificates. The Corporation
may issue a new certificate or certificates for shares in place of any issued
certificate alleged to have been lost, stolen or destroyed upon such terms and
conditions as the Board of Directors may prescribe.
SECTION 6.5. Registered Stockholders. The Corporation shall be
entitled to treat the holder of record (according to the books of the
Corporation) of any share or shares as the holder in fact thereof 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 party whether or not the Corporation
shall have express or other notice thereof, except as expressly required by
statute.
SECTION 6.6. Transfer Agents and Registrars. The Board of Directors
may from time to time appoint a transfer agent and a registrar in one or more
cities, may require all certificates evidencing shares of the Corporation to
bear the signatures of a transfer agent and a registrar, may provide that such
certificates shall be transferable in more than one city and may provide for
the functions of transfer agent and registrar to be combined in one agency.
ARTICLE 7
INDEMNIFICATION
SECTION 7.1. Litigation Brought By Third Parties. The Corporation
shall indemnify 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, formal or informal
(other than an action by or in the right of the Corporation) (an "Action") by
reason of the fact that he or she is or was a director or officer of the
Corporation (a "Corporate Person"), or is or was serving at the request of the
Corporation as a director, officer, employee, agent, partner, trustee or
member or in another authorized capacity (collectively, an "Authorized
Capacity") of or for another corporation, unincorporated association, business
trust, partnership, joint venture, employee benefit plan, individual or other<PAGE>
PAGE 14
legal entity, whether or not organized or formed for profit (collectively,
"Another Entity"), against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such Action ("Expenses") if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any Action by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe his or her
conduct was unlawful.
SECTION 7.2. Litigation by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any Action by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he or she is or was
a Corporate Person, or is or was serving at the request of the Corporation in
an Authorized Capacity of or for Another Entity against Expenses actually and
reasonably incurred by him or her in connection with the defense or settlement
of such Action if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for willful negligence or misconduct in the performance of his or her
duty to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such Action was
pending shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery of equity or other court shall deem proper.
SECTION 7.3. Successful Defense. To the extent that a person who is or
was a Corporate Person or who is or was serving in an Authorized Capacity of
or for Another Entity at the request of the Corporation and has been
successful on the merits or otherwise in defense of any Action referred to in
Section 7.1 or 7.2 of this Article, or in defense of any claim, issue or
matter therein, he or she shall be indemnified against Expenses actually and
reasonably incurred by him or her in connection therewith.
SECTION 7.4. Determination of Conduct. Any indemnification under
Section 7.1 or 7.2 of this Article (unless ordered by a court) shall be made
by the Corporation only upon a determination that indemnification of the
person is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in said Sections 7.1 or 7.2. Such determination
shall be made (a) by the Board of Directors by a majority vote consisting of
directors not at the time parties to such action, suit or proceeding, even
though less than a quorum, or (b) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (c)
by the stockholders. <PAGE>
PAGE 15
SECTION 7.5. Advance Payment. The Corporation shall advance Expenses
reasonably incurred by any Corporate Person in any Action in advance of the
final disposition thereof upon the undertaking of such party to repay the
advance unless it is ultimately determined that such party is entitled to
indemnification hereunder, if (a) the indemnitee furnishes the Corporation a
written affirmation of his or her good faith belief that he or she has
satisfied the standard of conduct in Section 7.1 or 7.2 and (b) a
determination is made by those making the decision pursuant to Section 7.4
that the facts then known would not preclude indemnification under these
By-Laws.
SECTION 7.6. By-Law Not Exclusive. The indemnification provided by
this Article 7 shall not be deemed exclusive of any other rights to which any
person may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, agent or participant and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 7.7. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Corporate Person or is or
was serving at the request of the Corporation in an Authorized Capacity of or
for Another Entity against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of this
Article or the General Corporation Law of the State of Delaware.
SECTION 7.8. Further Indemnification. The Chairman may grant to any
employee or agent of the Corporation or its affiliates rights to
indemnification and to be paid expenses incurred in defending any proceeding
in advance of its final disposition.
SECTION 7.9. Definition of Corporation. For purposes of this Article
7, references to "the Corporation" shall include, in addition to the surviving
or 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 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 Article 7 with respect to the surviving
or resulting corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
SECTION 7.10. Change in Law. Notwithstanding the foregoing provisions
of Article 7, the Corporation shall indemnify any person who is or was a
Corporate Person or is or was serving at the request of the Corporation in an
Authorized Capacity of or for Another Entity to the full extent permitted by
the General Corporation Law of the State of Delaware or by any other<PAGE>
PAGE 16
applicable law, as may from time to time be in effect.
SECTION 7.11. Jurisdiction in Court of Chancery. The Delaware Court of
Chancery is hereby vested with exclusive jurisdiction to hear and determine
all actions for advancement of expenses or indemnification brought under
Section 145, Chapter 1, Title 8, Delaware Code or these By-Laws or under any
agreement, vote of stockholders or disinterested directors, or otherwise. The
Delaware Court of Chancery may summarily determine the Corporation's
obligation to advance Expenses.
ARTICLE 8
GENERAL
SECTION 8.1. Fiscal Year. The fiscal year of the Corporation shall
begin on January 1 and end on December 31 each year.
SECTION 8.2. Voting and Transfer of Stock in Other Corporations.
Unless the Board of Directors shall have otherwise provided generally, or in a
specific instance, the Chairman, the President or any Vice President acting
singly may (i) execute and deliver on behalf of the Corporation proxies on
stock owned by the Corporation appointing a person or persons to represent and
vote such stock at any meeting of stockholders, with full power of
substitution, and alter or rescind such appointment; (ii) attend and vote at
any meeting of stockholders of any corporation in which the Corporation holds
stock; (iii) exercise any and all rights and powers incident to the ownership
of such stock, which, as the owner thereof, the Corporation might have
possessed and exercised if present; and (iv) execute and deliver such forms of
transfer or assignment customary or necessary to effect a transfer of stock or
other securities standing in the name of the Corporation.
SECTION 8.3. Employee Welfare and Benefit Plans. The Board of
Directors may provide, alter or terminate welfare and benefit plans for the
directors, officers and employees of the Corporation and its affiliates.
SECTION 8.4. Severability. If any provision of these By-Laws, or its
application thereof to any person or circumstances, is held invalid, the
remainder of these By-Laws and the application of such provision to other
persons or circumstances shall not be affected thereby.
SECTION 8.5. Amendments. These By-Laws may be altered, amended, or
repealed at any meeting of the Board of Directors or of the stockholders,
provided notice of the proposed change was given in the notice of the meeting
and, in the case of a meeting of the Board of Directors, in a notice given not
less that two days prior to the meeting; provided, however, that, in the case
of amendments by stockholders, notwithstanding any other provisions of these
By-Laws 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 capital stock of the Corporation required by
law, the Certificate of Incorporation or these By-Laws, the affirmative vote
of the holders of at least 80 percent of the voting power of all the then
outstanding shares of the Voting Stock, voting together as a single class,
shall be required to alter, amend or repeal any provision of these By-Laws.<PAGE>
PAGE 1
INDEX TO EXHIBITS
3(i) Certificate of Incorporation
3(ii) Bylaws
10.3 1995 Stock Option Plan Incorporated by Reference<PAGE>
