AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 2, 1996
REGISTRATION NO. 33-60380
---------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT
NO. 8
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERLINK ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 3679 77-0056625
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
546 FLYNN ROAD
CAMARILLO, CALIFORNIA 93012
(805) 484-8855
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
E. MICHAEL THOBEN, III
INTERLINK ELECTRONICS
546 FLYNN ROAD
CAMARILLO, CALIFORNIA 93012
(805) 484-8855
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
John J. Halle
Stoel Rives LLP
900 SW Fifth Avenue
Portland, Oregon 97204
(503) 224-3380
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 check the following box. / X /
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
INTERLINK ELECTRONICS, INC.
This Post-Effective Amendment No. 8 to Form S-1 (Registration No.
33-60380) is filed pursuant to Rule 414 under the Securities Act of 1933
(the "1933 Act"), as amended, by Interlink Electronics, Inc., a Delaware
Corporation ("Interlink Delaware"), as the successor to Interlink
Electronics, a California Corporation ("the Predecessor"). On June 9, 1994,
the shareholders of the Predecessor, approved the reincorporation of the
Predecessor in Delaware via merger of the Predecessor with Interlink
Delaware, which merger was effected on July 26, 1996. Pursuant to Rule
414(d) under the 1933 Act, Interlink Delaware, as successor to the
Predecessor, hereby adopts the Registration Statement as its own
Registration Statement for all purposes of the 1933 Act and Securities
Exchange Act of 1934.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides:
No director of the [Company] shall be personally liable to the
[Company] or its stockholders for monetary damages for conduct as a
director, provided that this Article shall not eliminate the liability
of a director for any act or omission for which such elimination of
liability is not permitted under the Law.
As authorized by Section 102 of the Delaware General Corporation Law
(the "General Corporation Law"), this provision eliminates the liability of
a director for breach of fiduciary duty but does not eliminate the personal
liability of any director based upon breach of the duty of loyalty to the
Company or to its stockholders, acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, any violation
of Section 174 of the General Corporation Law (relating to the declaration
of dividends and the purchase or redemption of shares in violation of the
General Corporation Law), or any transaction from which the director
derived an improper personal benefit.
The Company's bylaws provide:
No director of the [Company] shall be personally liable to the
[Company] or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided that the liability of a
director shall not be eliminated (i) for any breach of the director's
duty of loyalty to the [Company] or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit.
These limitations on director liability do not change the duty of care
owed by a director to the Company and its shareholders. They do, however,
eliminate the personal liability of directors for monetary damages in the
event of litigation against the director alleging a breach of that duty.
These limitations on director liability have no effect on the availability
of equitable remedies, such as an injunction or rescission based upon a
director's breach of the duty of care, although in certain instances such
equitable relief may be impractical, for example, due to the passage of
time since the director's alleged actions occurred.
<PAGE>
The limitations on the liability of directors apply only to claims
against a director arising out of his or her role as a director and not in
the case of a director who also serves as an officer, to claims against the
person in the capacity of an officer or in any other non-director capacity,
and applies only to derivative actions and not to third party claims. This
means that actions brought by the Company's customers, discharged employees
or regulatory agencies, for example, would not be affected. These
provisions does not eliminate or limit a director's liability based on a
breach of the director's duty of loyalty to the Company or its shareholders
(which generally concerns directors' self-interested dealings with respect
to the Company) or to liability arising under federal or state securities
laws or federal or state laws regulating banks or bank holding companies.
At present there is no pending or threatened litigation or proceeding of
which the Company is aware involving a director of the Company in his
capacity as such.
The Company's Certificate of Incorporation also provides:
The [Company] shall indemnify any current or former director or
officer and may indemnify any current or former employee or agent of
the [Company] to the fullest extent not prohibited by law, who is
made, or threatened to be made, a party to an action, suit or
proceeding, whether civil, criminal, administrative, investigative or
other (including an action, suit or proceeding by or in the right of
the [Company]), by reason of the fact that such person is or was a
director, officer, employee or agent of the [Company] or a fiduciary
within the meaning of the Employee Retirement Income Security Act of
1974 with respect to any employee benefit plan of the [Company], or
serves or served at the request of the [Company] as a director,
officer, employee or agent, or as a fiduciary of an employee benefit
plan, of another corporation, partnership, joint venture, trust or
other enterprise. The [Company] shall pay for or reimburse the
reasonable expenses incurred by any such current or former director or
officer and may pay for or reimburse the reasonable expenses incurred
by any such current or former employee or agent, in any such
proceeding in advance of the final disposition of the proceeding if
the person sets forth in writing (i) the person's good faith belief
that the person is entitled to indemnification under this Article and
(ii) the person's agreement to repay all advances if it is ultimately
determined that the person is not entitled to indemnification under
this Article. No amendment to this Article that limits the [Company's]
obligation to indemnify any person shall have any effect on such
obligation for any act or omission that occurs prior to the later of
the effective date of the amendment or the date notice of the
amendment is given to the person. This Article shall not be deemed
exclusive of any other provisions for indemnification or advancement
of expenses of directors, officers, employees, agents and fiduciaries
that may be included in any statute, bylaw, agreement, general or
specific action of the Board of Directors, vote of shareholders or
other document or arrangement.
<PAGE>
The Company's bylaws provide:
The [Company] shall indemnify to the fullest extent then
permitted by the law any person who is made, or threatened to be made,
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, investigative or
otherwise (including an action, suit or proceeding by or in the right
of the [Company]) by reason of the fact that the person is or was a
director or officer of the [Company], or serves or served at the
request of the [Company] as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise
against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonably incurred in
connection therewith. Expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding shall be paid
by the [Company] in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately
be determined that he or she is not entitled to be indemnified by the
[Company] as authorized in this Article. The indemnification provided
hereby shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any statute, bylaw, agreement,
vote of stockholders or directors or otherwise, both as to action in
any official capacity and as to action in another capacity while
holding an office, and shall continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such person.
Any person other than a director or officer who is or was an
employee or agent of the [Company], or fiduciary within the meaning of
the Employee Retirement Income Security Act of 1974 with respect to
any employee benefit plans of the [Company], or is or was serving at
the request of the [Company] as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise may
be indemnified to such extent as the board of directors in its
discretion at any time or from time to time may authorize.
Unless ordered by a court, any indemnification provided to officers or
directors must be authorized in each specific case by any one of the
following: (i) a majority vote of a quorum of directors who are not parties
to the proceeding; (ii) if such quorum is not obtainable, by independent
legal counsel in a written opinion; or (iii) by the stockholders of the
Company.
The Company is also authorized to advance monies to officers and
directors to cover expenses incurred in connection with a proceeding,
provided that an officer or director must return any such advances if it is
ultimately determined that such officer or director is not entitled to
indemnification.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
See Exhibit Index.
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THE REGISTRANT HAS DULY CAUSED THIS AMENDMENT TO THE REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF CAMARILLO, STATE OF CALIFORNIA, ON THE 19TH DAY
OF SEPTEMBER, 1996.
INTERLINK ELECTRONICS, INC.
By: /s/ E. MICHAEL THOBEN, III
--------------------------------
E. Michael Thoben, III
Chairman, President, Chief Executive
Officer and Chief Financial Officer
Pursuant to the requirements of the Securities Act, as amended, this
amendment to the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated:
Signature Title Date
- --------- ----- ----
Principal Executive and
Financial Officer:
/s/ E. MICHAEL THOBEN, III Chairman of the Board, September 19, 1996
- -------------------------- President, Chief Executive
E. Michael Thoben, III Officer and Chief Financial
Officer
Principal Accounting Officer:
/s/ PAUL D. MEYER Vice President, Finance September 19, 1996
- --------------------------
Paul D. Meyer
Directors:
/s/ E. MICHAEL THOBEN, III Director September 19, 1996
- --------------------------
E. Michael Thoben, III
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ GEORGE GU* Director September 19, 1996
- --------------------------
George Gu
/s/ CAROLYN MACDOUGALL* Director September 19, 1996
- --------------------------
Carolyn MacDougal
/s/ PETER N. VICARS* Director September 19, 1996
- --------------------------
Peter N. Vicars
/s/ MERRITT M. LUTZ* Director September 19, 1996
- --------------------------
Merritt M. Lutz
/s/ EUGENE F. HOVANEC* Director September 19, 1996
- --------------------------
Eugene F. Hovanec
*By: /s/ E. MICHAEL THOBEN, III
--------------------------
E. Michael Thoben, III
Attorney in Fact
<PAGE>
EXHIBIT INDEX
1.1 Form of Underwriting Agreement**
1.2 Form of Agreement Among Underwriters**
3.1 Amended and Restated Articles of Incorporation of
Interlink Electronics (California)*
3.1a Second Amended and Restated Articles of
Incorporation of Interlink Electronics
(California). Incorporated by reference to Exhibit
4.1 of the Registrant's Quarterly Report on Form
10-Q for the quarterly period ended June 30, 1993.
3.1b Certificate of Incorporation of Interlink
Electronics, Inc. (Delaware) (3)
3.2 Amended and Restated Bylaws of Interlink
Electronics (California)*
3.2a Bylaws of Interlink Electronics, Inc. (Delaware)
(3)
4.1 See Article III of Exhibit 3.1 and Article II of
Exhibit 3.2*
4.2 Stock Purchase Agreement dated as of December 23,
1987, and amendments thereto*
4.3 Stock Purchase Agreement dated as of July 28, 1988,
and amendments thereto*
4.4 Stock Purchase Agreement dated as of March 31,
1989*
4.5 Investment Agreement dated as of November 7, 1989,
and amendments thereto*
4.6 Series E Preferred Stock and Warrant Purchase
Agreement dated as of December 14, 1990, and
amendments thereto*
4.7 Agreement to Issue Warrant dated as of June 22,
1988*
4.8 Form of Series A Preferred Stock Purchase Warrant
dated as of June 22, 1988, and amendments thereto*
- --------------------------
* Filed April 1, 1993
** Filed May 10, 1993
*** Filed May 28, 1993
**** Filed June 4, 1993
***** Filed January 24, 1994
(1) Filed August 1, 1995
(2) Filed June 17, 1996
(3) Filed herewith
+ Confidential treatment for portions of this agreement has been
granted by the Commission.
<PAGE>
4.9 Agreement to Issue Warrant dated as of February 24,
1989*
4.10 Form of Series A Preferred Stock Warrant dated as
of February 24, 1989, and amendments thereto*
4.11 Form of Series F Preferred Stock Purchase Warrant
dated December 14, 1990*
4.12 Form of Series F Preferred Stock Purchase Warrant
dated June 30, 1992*
4.13 Co-Sale Agreement between Franklin Eventoff, the
Registrant and Grace Ventures Partnership II dated
December 23, 1987, and amendments thereto*
4.14 Registration Rights Agreement dated as of February
15, 1989, and amendments thereto*
4.15 Form of Promissory Note and Agreement dated
September 1, 1992*
4.16 Form of Subscription Agreement dated December 11,
1992*
4.17 Form of Convertible Note due June 30, 1993*
4.18 Form of Subscription Agreement related to Private
Placement Memorandum dated February 22, 1993*
4.19 Form of Promissory Note due February 28, 1994*
4.20 Form of Equity Rights Certificate dated February,
1993*
4.21 Form of PortaPoint Product Investment Interest
Purchase Agreement (undated)*
4.22 Form of PortaPoint investment Interest Conversion
Agreement, dated as of March 31, 1993**
4.23 Form of Common Stock Certificate**
4.24 Form of Warrant Agreement**
4.25 Form of Common Stock Purchase Warrant**
4.26 Form of Representative's Warrant to Purchase Common
Stock**
- --------------------------
* Filed April 1, 1993
** Filed May 10, 1993
*** Filed May 28, 1993
**** Filed June 4, 1993
***** Filed January 24, 1994
(1) Filed August 1, 1995
(2) Filed June 17, 1996
(3) Filed herewith
+ Confidential treatment for portions of this agreement has been
granted by the Commission.
<PAGE>
4.27 Form of Representative's Warrant to Purchase
Warrants**
4.28 Form of Representative's Warrant to Purchase
Units***
4.29 Form of Waiver and Exchange Agreement dated as of
February 10, 1993 among the Registrant and the
Preferred Shareholders. Incorporated by reference
to Exhibit 4.2 of the Registrant's Quarterly Report
on Form 10-Q for the quarterly period ended June 30,
1993.
5.1 Opinion of Stoel Rives Boley Jones & Grey*
10.1 1988 Stock Option Plan, as amended and restated*
10.1a 1993 Stock Incentive Plan**
10.2 Form of Nonqualified Stock Option Agreement*
10.3 Voting Agreement among the Registrant, Franklin,
Eventoff, Kenneth Bitticks and Investors dated as
of December 23, 1987*
10.4 Voting Agreement between the Registrant, Grace
Ventures Partnership I and Grace Ventures
Partnership II dated as of November 7, 1989*
10.5 Voting Agreement between the Registrant and
InvestAR s.a.r.l. dated as of November 7, 1989*
10.6 Promissory Note from Stuart Yaniger and Amy
Hielsberg dated November 9, 1988*
10.7 Form of Promissory Note from Stuart Yaniger dated
March, 1998*
10.7a Form of Amendment to Promissory Note from Stuart
Yaniger***
10.8 Letter Agreement between the Registrant and
Business Partners international effective as of
December 15, 1992*
10.9 Technology Transfer Agreement between the
Registrant and Franklin Eventoff dated as of
December 23, 1987, and amendment thereto*
10.10 Consulting Agreement between the Registrant and
Franklin Eventoff dated as of December 23, 1987*
- --------------------------
* Filed April 1, 1993
** Filed May 10, 1993
*** Filed May 28, 1993
**** Filed June 4, 1993
***** Filed January 24, 1994
(1) Filed August 1, 1995
(2) Filed June 17, 1996
(3) Filed herewith
+ Confidential treatment for portions of this agreement has been
granted by the Commission.
<PAGE>
10.11 Letter of Intent to lease premises in Camarillo,
California, dated January 25, 1993*
10.11a Lease Agreement to lease premises in Camarillo,
California dated January 25, 1993**
10.12 Sublease Agreement to lease premises in
Carpinteria, California dated November 29, 1988*
10.13 Bank of Montecito Line of Credit Agreement dated
April 12, 1992*
10.14 License Agreement between the Registrant and
Toshiba Silicone Co., Ltd. dated March 10, 1989*
10.15 Joint Venture Agreement among the Registrant
InvestAR s.a.r.l., Interlink Electronics Europe
s.a.r.l. and IEE Finance s.a.r.l dated November 7,
1989*
10.16 Exclusive License and Distributor Agreement between
the Registrant and Interlink Electronics Europe
s.a.r.l. dated as of November 7, 1989*
10.17 Manufacturing and Supply Agreement between the
Registrant and Interlink Electronics Europe
s.a.r.l. dated as of November 7, 1989*
10.18 Letter Agreement between the Registrant and
InvestAR s.a.r.l. dated November 7, 1989*
10.19 Agreement between the Government of Luxembourg,
Interlink Electronics Europe s.a.r.l., IEE Finance
s.a.r.l., the Registrant and InvestAR s.a.r.l.
dated December 18, 1989*
10.20 Agreement with InvestAR s.a.r.l. and ARBED S.A
(undated)*
10.21 Agreement among the Registrant, Interlink
Electronics Europe s.a.r.l. and InvestAR s.a.r.l.
dated as of December 14, 1990*
- --------------------------
* Filed April 1, 1993
** Filed May 10, 1993
*** Filed May 28, 1993
**** Filed June 4, 1993
***** Filed January 24, 1994
(1) Filed August 1, 1995
(2) Filed June 17, 1996
(3) Filed herewith
+ Confidential treatment for portions of this agreement has been
granted by the Commission.
<PAGE>
10.22 Memorandum of Agreement between Mitsubishi
Petrochemical Company Limited and the Registrant
dated July 1, 1991, and amendment thereto*
10.23 Ink Technology Transfer Agreement between the
Registrant and InvestAR s.a.r.l. dated December 11,
1992**
10.24 Financing Agreement between the Registrant and
InvestAR s.a.r.l. in relation with the Ink
Technology Transfer Agreement dated December 11,
1992**
10.25 Form of Confidentiality and Nondisclosure Agreement
in relation with the Ink Technology Transfer
Agreement (undated)**
10.26 Form of Escrow Agreement for Technology in relation
with Ink Technology Transfer Agreement dated
December 11, 1992**
10.27 Financing Agreement between the Registrant and
InvestAR s.a.r.l. dated June 15, 1992*
10.28 Interlink Europe Financing Agreement between
Registrant and InvestAR s.a.r.l. dated April 7,
1993**
10.29 Form of Security Agreement between the Registrant
and Grace Ventures Partnership II dated May 20,
1993***
10.30 Promissory Note issued by the Registrant to Grace
Ventures Partnership II dated May 21, 1993***
10.31 Form of Corporate Finance Consulting Agreement
between the Registrant and Cohig & Associates,
Inc.***
10.32 Form of Corporate Consulting Agreement between the
Registrant and Cohig & Associates Inc. dated March
11, 1993***
10.33 Agreement between Lexmark International, Inc. and
the Registrant dated August 25, 1993*****+(1)
10.34 Agreement between Zilog, Inc. and the Registrant
dated November 30, 1993*****+(1)
- --------------------------
* Filed April 1, 1993
** Filed May 10, 1993
*** Filed May 28, 1993
**** Filed June 4, 1993
***** Filed January 24, 1994
(1) Filed August 1, 1995
(2) Filed June 17, 1996
(3) Filed herewith
+ Confidential treatment for portions of this agreement has been
granted by the Commission.
<PAGE>
10.35 Agreement between the Registrant and Xtend Micro
Products, Inc. dated December 22, 1993*****+(1)
10.36 Employment Agreement between the Registrant and
Kenneth W. Bitticks effective as of June 1,
1993.*****
10.37 Employment Agreement between the Registrant and E.
Michael Thoben, III effective as of June 1,
1993.*****
10.38 Employment Agreement between the Registrant and
William A. Yates effective as of June 1, 1993.*****
10.39 Employment Agreement between the Registrant and
Stuart I. Yaniger effective as of June 1, 1993*****
10.40 Employment Agreement between the Registrant and
David J. Arthur effective as of June 1, 1993*****
10.41 Distribution Agreement between the Registrant and
Logitech, Inc. dated February 28, 1994.
Incorporated by reference to Exhibit 10.30 of the
Annual Report on Form 10-K for the year ended
December 31, 1993.+
10.42 Agreement between the Registrant and Mr. Tamio Mori
dated March 4, 1994. Incorporated by reference to
Exhibit 10.31 of the Annual Report on Form 10-K for
the year ended December 31, 1993.+
10.43 Exclusive License and Distribution Agreement
between the Registrant and Interlink Electronics
Europe s.a.r.l. dated September 26, 1994.
Incorporated by reference to Exhibit 10.30 of the
Annual Report on Form 10-K for the year ended
December 31, 1994.+
- --------------------------
* Filed April 1, 1993
** Filed May 10, 1993
*** Filed May 28, 1993
**** Filed June 4, 1993
***** Filed January 24, 1994
(1) Filed August 1, 1995
(2) Filed June 17, 1996
(3) Filed herewith
+ Confidential treatment for portions of this agreement has been
granted by the Commission.
<PAGE>
10.44 Restructuring Agreement between the Registrant and
InvestAR s.a.r.l. dated September 26, 1994.
Incorporated by reference to Exhibit 10.31 of the
Annual Report on Form 10-K for the year ended
December 31, 1994.+
10.45 Amended and Restated Agreement between the
Registrant and Lexmark International, Inc. dated
November 13, 1994. Incorporated by reference to
Exhibit 10.32 of the Annual Report on Form 10-K for
the year ended December 31, 1994.+
11.1 Statement Regarding Computation of Loss Per
Share****
14.1 Material foreign patents*
22.1 Subsidiaries of Registrant*
24.1 Consent of Deloitte & Touche LLP(2)
24.2 Consent of Arthur Andersen LLP(2)
24.3 Consent of Stoel Rives Boley Jones & Grey (included
in Exhibit 5.1)*
25.1 Power of Attorney of Kenneth W. Bitticks*
25.2 Power of Attorney of E. Michael Thoben, III*
25.3 Power of Attorney of Merritt M. Lutz(1)
25.4 Power of Attorney of Eugene F. Hovanec(1)
25.5 Power of Attorney of Carolyn MacDougall*
25.6 Power of Attorney of Peter N. Vicars(1)
- --------------------------
* Filed April 1, 1993
** Filed May 10, 1993
*** Filed May 28, 1993
**** Filed June 4, 1993
***** Filed January 24, 1994
(1) Filed August 1, 1995
(2) Filed June 17, 1996
(3) Filed herewith
+ Confidential treatment for portions of this agreement has been
granted by the Commission.
EXHIBIT 3.1b
CERTIFICATE OF INCORPORATION
OF
INTERLINK ELECTRONICS, INC.
The undersigned, in order to form a corporation for the purpose
hereinafter stated, under and pursuant to the General Corporation Law of
Delaware (the "Law"), hereby certifies that:
ARTICLE I
The name of the Corporation is Interlink Electronics, Inc.
ARTICLE II
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Law.
ARTICLE III
A. The Corporation is authorized to issue a total of 15,100,000 shares
of two classes of stock: 15,000,000 shares of Common Stock ($.00001 par
value) and 100,000 shares of Preferred Stock ($5.00 par value).
B. Holders of Common Stock are entitled to one vote per share on any
matter submitted to the stockholders. On dissolution of the Corporation,
after any preferential amount with respect to the Preferred and any other
class or series of Preferred Stock has been paid or set aside, the holders
of Common Stock and the holders of any series of Preferred Stock entitled
to participate in such distribution of assets are entitled to receive the
net assets of the Corporation.
C. The Board of Directors is authorized, subject to limitations
prescribed by the Law, and by the provisions of this Article, to provide
for the issuance of shares of Preferred Stock in series, to establish from
time to time the number of shares to be included in each series and to
determine the designations, relative rights, preferences and limitations of
the shares of each series. The authority of the Board of Directors with
respect to each series includes determination of the following:
(1) The number of shares in and the distinguishing designation of
that series;
(2) Whether shares of that series shall have full, special,
conditional, limited or no voting rights, except to the extent otherwise
provided by the Law;
<PAGE>
(3) Whether shares of that series shall be convertible and the
terms and conditions of the conversion, including provision for adjustment
of the conversion rate in circumstances determined by the Board of
Directors;
(4) Whether shares of that series shall be redeemable and the
terms and conditions of redemption, including the date or dates upon or
after which they shall be redeemable and the amount per share payable in
case of redemption, which amount may vary under different conditions or at
different redemption dates;
(5) The dividend rate, if any, on shares of that series, the
manner of calculating any dividends and the preferences of any dividends;
(6) The rights of shares of that series in the event of voluntary
or involuntary dissolution of the Corporation and the rights of priority of
that series relative to the Common Stock and any other series of Preferred
Stock on the distribution of assets on dissolution; and
(7) Any other rights, preferences and limitations of that series
that are permitted by law.
ARTICLE IV
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for conduct as a
director, provided that this Article shall not eliminate the liability of a
director for any act or omission for which such elimination of liability is
not permitted under the Law. No amendment to the Law that further limits
the acts or omissions for which elimination of liability is permitted shall
affect the liability of a director for any act or omission which occurs
prior to the effective date of the amendment.
ARTICLE V
The Corporation shall indemnify any current or former director or
officer and may indemnify any current or former employee or agent of the
Corporation to the fullest extent not prohibited by law, who is made, or
threatened to be made, a party to an action, suit or proceed ing, whether
civil, criminal, administrative, investigative or other (including an
action, suit or proceeding by or in the right of the Corporation), by
reason of the fact that such person is or was a director, officer, employee
or agent of the Corporation or a fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to any
employee benefit plan of the Corporation, or serves or served at the
request of the Corporation as a director, officer, employee or agent, or as
a fiduciary of an employee benefit plan, of another corporation,
partnership, joint venture, trust or other enterprise. The Corporation
shall pay for or reimburse the reasonable expenses incurred by any such
current or former director or officer and may pay for or reimburse the
reasonable expenses incurred by any such current or former employee or
agent, in any such proceeding in advance of the final disposition of the
proceeding if the person sets forth in writing (i) the person's good faith
belief that the person is entitled to indemnification under this Article
and (ii) the person's agreement to repay all advances if it is ultimately
determined that the person is not entitled to indemnification under this
Article. No
2
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amendment to this Article that limits the Corporation's obligation to
indemnify any person shall have any effect on such obligation for any act
or omission that occurs prior to the later of the effective date of the
amendment or the date notice of the amendment is given to the person. This
Article shall not be deemed exclusive of any other provisions for
indemnification or advancement of expenses of directors, officers,
employees, agents and fiduciaries that may be included in any statute,
bylaw, agreement, general or specific action of the Board of Directors,
vote of shareholders or other document or arrangement.
ARTICLE VI
Pursuant to Section 109 of the Law, the Board of Directors is
authorized to the maximum extent permitted under the Law to adopt, amend or
repeal from time to time any or all of the bylaws of the Corporation.
ARTICLE VII
The directors of the Corporation shall be divided into three classes,
to be known as Class I, Class II and Class III. The number of directorships
of each class shall be as nearly equal as possible. The initial term of
office of each Class III director shall expire at the annual meeting of the
stockholders of the Corporation held in 1997; the initial term of office of
each Class II director shall expire at the annual meeting of the
stockholders of the Corporation held in 1998; the initial term of office of
each Class I director shall expire at the annual meeting of the
stockholders of the Corporation held in 1999. Except as provided above with
respect to the initial terms of directors of the Corporation, and except
that directors appointed to fill any vacancy or newly created directorship
shall hold office until the next election of the class for which such
director has been chosen, directors shall hold office until the annual
meeting of the stockholders of the Corporation for the year three years
after the year of their election and until their successors have been
elected and qualified.
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ARTICLE VIII
The street address and the mailing address of the Corporation's
registered office in the State of Delaware is 15 E North Street, P.O. Box
899, Dover, Kent County, Delaware 19901 and the name of its registered
agent at that address is Incorporating Services, Ltd.
ARTICLE IX
The name and address of the incorporator is John R. Thomas, 900 SW
Fifth Avenue, Suite 2300, Portland, Oregon 97204.
IN WITNESS WHEREOF, the undersigned has signed this Certificate of
Incorporation on April 29, 1996.
JOHN R. THOMAS
---------------------------
John R. Thomas
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EXHIBIT 3.2a
BYLAWS
OF
INTERLINK ELECTRONICS, INC.
ARTICLE I
STOCKHOLDERS
1.1 Annual Meeting. Unless another date is fixed by the directors, the
annual meeting of the stockholders shall be held on the second Tuesday in
June of each year for the purpose of electing directors and transacting
such other business as may come before the meeting. If the day fixed for
the annual meeting is a legal holiday, the meeting shall be held on the
next succeeding business day.
1.2 Failure to Hold Annual Meeting. If the annual meeting is not held
at the designated time, the directors shall cause the meeting to be held as
soon thereafter as convenient. If there is a failure to hold an annual
meeting for a period of 30 days after the date designated, any stockholder
or director may apply to the Court of Chancery to summarily order a meeting
held.
1.3 Special Meetings. Special meetings of the stockholders may be
called by the President or by the Board of Directors or by such other
persons as may be authorized by law to call a special meeting of the
stockholders.
1.4 Place of Meetings. Meetings of the stockholders shall be held at
the principal business office of the corporation or at such other place as
may be determined by the Board of Directors.
1.5 Notice of Meetings. Written or printed notice stating the place,
day and hour of the meeting and, in case of a special meeting, the purpose
or purposes for which the meeting is called, shall be mailed to each
stockholder entitled to vote at the meeting at the stockholder's address as
it appears on the stock transfer records of the corporation, with postage
thereon prepaid, not less than 10 nor more than 60 days before the date of
the meeting, by or at the direction of the President, the Secretary or the
Board of Directors.
1.6 Waiver of Notice. Whenever any notice is required to be given to
any stockholder of the corporation, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such
notice. The attendance of a stockholder at a meeting shall constitute a
waiver of notice of such meeting, except where a stockholder attends a
meeting for the express purpose of
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objecting to the transaction of any business because the meeting is not
lawfully called or convened.
1.7 Fixing of Record Date.
(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 to express consent to corporate action in writing
without a meeting, 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 stock or for the
purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 60 nor less than 10
days before the date of such meeting, nor more than 60 days prior to any
other action.
(b) If no record date is fixed:
(1) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held;
(2) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary. shall be the day on
which the first written consent is expressed;
(3) 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) A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
1.8 Voting Records.
(a) The officer who has charge of the stock ledger of the
corporation shall make, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for
a period of at least 10 days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
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(b) Upon the willful neglect or refusal of the directors to
produce such a list at any meeting for the election of directors they shall
be ineligible for election to any office at such meeting.
(c) The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the stockholder list or
the books of the corporation, or to vote in person or by proxy at any
meeting of stockholders.
1.9 Quorum. A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders. If a quorum is present at a meeting, a
majority may adjourn the meeting from time to time to a different time and
place without further notice if the time and place thereof are announced at
the meeting at which the adjournment is taken. At such adjourned meeting at
which a quorum is present, any business may be transacted which might have
been transacted at the meeting as originally called. If the adjournment is
for more than 30 days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
1.10 Majority Vote; Action Without a Meeting. The vote of the holders
of a majority of the shares present and entitled to vote at any duly
organized meeting shall decide any question unless the vote of a greater
number shall be required by law, the Certificate of Incorporation or these
Bylaws. Any action which the stockholders could take at a meeting may be
taken without a meeting if a consent in writing setting forth the action so
taken is signed by the holders of outstanding stock having not less than
the minimum number of shares that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing and the consent shall
be filed with the minutes of the corporation.
1.11 Proxies. At all meetings of stockholders, a stockholder may vote
by proxy executed in writing by the stockholder or by a duly authorized
attorney in fact. The proxy shall be filed with the Secretary of the
corporation before or at the time of the meeting. No proxy shall be valid
after three years from the date of its execution, unless otherwise provided
in the proxy.
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1.12 Voting of Shares by Certain Holders.
(a) Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. Persons whose stock is pledged shall
be entitled to vote, unless in the transfer by the pledgor on the books of
the corporation he or she has expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or his or her proxy, may represent
such stock and vote thereon.
(b) If shares or other securities having voting power stand of
record in the names of two or more persons, or if two or more persons have
the same fiduciary relationship respecting the same shares, unless the
Secretary is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting
shall have the following effect:
(1) If only one votes, the act of such person binds all;
(2) If more than one vote, the act of the majority so voting
binds all;
(3) If more than one vote and if the vote is evenly split on
any particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if any,
may apply to the Court of Chancery or such other court as may have
jurisdiction to appoint an additional person to act with the person so
voting the shares, which shall then be voted as determined by a majority of
such persons and the person appointed by the court. If the instrument so
filed shows that any such tenancy is held in unequal interests, a majority
or even split for the purpose of this subsection shall be a majority or
even split in interest.
ARTICLE II
BOARD OF DIRECTORS
2.1 General Powers. The business and affairs of the corporation shall
be managed by its Board of Directors.
2.2 Number, Tenure and Qualification. Except as otherwise provided in
this Section 2.2, the number of directors of the corporation shall be six
and shall be divided into three classes, known as Class I, Class II and
Class III, each class consisting of two directors. The terms of office of
each of the directors shall be as provided in Article VII of the
corporation's Certificate of Incorporation. The number of directors
permitted under the Bylaws may be increased or decreased from time to time
by amendment to the Bylaws and may consist of a number of Directors less
than six if, for any reason, the full complement of six Directors is not in
office. In the event of any increase or decrease in the number of directors
by amendment to the Bylaws, the number of directors of each class shall be
adjusted so that the number of directorships of each class shall be as
nearly equal as possible. Directors need not be residents of the State of
Delaware or stockholders of the corporation.
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2.3 Regular Meetings. A regular meeting of the Board of Directors shall
be held without other notice than this Bylaw immediately after, and at the
same place as, the annual meeting of stockholders. The Board of Directors
may provide, by resolution, the time and place, either within or without
the State of Delaware, for the holding of additional regular meetings
without other notice than the resolution.
2.4 Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman or the President or by
one-third of the directors. The person or persons authorized to call
special meetings of the Board of Directors may fix any place, either within
or without the State of Delaware, as the place for holding any special
meeting of the Board of Directors called by them.
2.5 Notice. Written notice of any special meeting of the Board of
Directors shall be given at least two days prior to the meeting by personal
delivery, by mail or by telegram. If mailed, notice shall be deemed to be
given when deposited in the United States mails addressed to the director
at the director's business address, with postage thereon prepaid. If by
telegram, notice shall be deemed to be given when the telegram is delivered
to the telegraph company. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where the director
attends a meeting for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
2.6 Waiver of Notice. Whenever any notice is required to be given to
any director of the corporation, waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
2.7 Quorum; Majority Vote. A majority of the number of directors fixed
by Section 2.2 of this Article II, or such lesser number of directors as
shall then be in office, shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors. The act of the majority
of the directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors, unless a different number is provided by
law, the Certificate of Incorporation or these Bylaws.
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2.8 Meeting by Telephone Conference; Consent in Lieu of Meeting.
(a) Members of the Board of Directors may hold a board meeting by
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation
in such a meeting shall constitute presence in person at the meeting.
(b) Any action which is required or permitted to be taken by the
directors at a meeting may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by all of the directors
entitled to vote on the matter. Such consent, which shall have the same
effect as a unanimous vote of the directors, shall be filed with the
minutes of the corporation.
2.9 Vacancies. Except as otherwise provided by law, and subject to any
agreement among stockholders of the Corporation relating to the composition
of the Board of Directors of the Corporation, vacancies and newly created
directorships resulting from any increase in the authorized number of
directors may be filled by affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors, or by a sole
remaining director. Any such directorship not so filled by the directors
shall be filled by election at the next annual meeting of stockholders or
at a special meeting of stockholders called for that purpose. A director
elected to fill a vacancy shall be designated a member of the class of
directors in which such vacancy has occurred and shall serve until the next
annual meeting of stockholders at which directors of that class are elected
and until a successor shall have been elected and qualified.
2.10 Compensation. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting
of the Board of Directors, and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No
such payment shall preclude any director from serving the corporation in
any other capacity and receiving compensation therefor.
2.11 Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
taken unless the director's dissent to the action is entered in the minutes
of the meeting or unless a written dissent to the action is filed with the
person acting as the secretary of the meeting before the adjournment
thereof or forwarded by certified or registered mail to the Secretary of
the corporation immediately after the adjournment of the meeting. The right
to dissent shall not apply to a director who voted in favor of the action.
2.12 Transactions with Directors.
(a) Any contract or other transaction or determination between
the corporation and one or more of its directors, or between the
corporation and another party in which one or more of its directors are
interested, shall be valid notwithstanding the relationship or interest or
the presence or participation of such director or directors in a meeting of
the Board of Directors or a committee thereof which acts upon or in
reference to such contract, transaction or determination, if:
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(1) The material facts as to such relationship or interest
and as to the contract or transaction are disclosed or are known to the
Board of Directors or committee and it authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors are less than a quorum;
or
(2) The material facts as to such relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof or the stockholders.
(b) None of the provisions of this section shall invalidate any
contract, transaction or determination which would otherwise be valid under
applicable law.
2.13 Removal. All or any number of the directors may, subject to any
agreement among stockholders of the Corporation, be removed, with or
without cause, by a vote of the holders of a majority of the shares then
entitled to vote at an election of directors.
2.14 Resignation. Any director may resign by delivering his or her
resignation, in writing, to the corporation at its principal office or to
the President or Secretary. Such resignation shall be effective on receipt
unless it is specified to be effective at some other time or upon the
happening of some other event.
ARTICLE III
COMMITTEES
3.1 Designation. The Board of Directors may designate from among its
members an executive committee and/or one or more other committees, each
consisting of one or more directors. The designation of a committee, and
the delegation of authority to it, shall not operate to relieve the Board
of Directors, or any member thereof, of any responsibility imposed by law.
No member of any committee shall continue to be a member thereof after
ceasing to be a director of the corporation. The Board of Directors shall
have the power at any time to increase or decrease the number of members of
any committee, to fill vacancies thereon, to change any member thereof and
to change the functions or terminate the existence thereof.
3.2 Powers. Any such committee, to the extent provided by resolution of
the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation
to be affixed to all papers which may require it; but no such committee
shall have the power or authority in reference to amending the Certificate
of Incorporation; adopting an agreement of merger or consolidation;
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets; recommending to
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the stockholders a dissolution Of the corporation or a revocation of a
dissolution; or amending the Bylaws of the corporation; and, unless the
resolution expressly so provides, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock or to
adopt a certificate of ownership and merger with respect to the merger into
the corporation of a subsidiary of which at least 90 percent of the
outstanding shares of each class are owned by the corporation.
3.3 Procedures; Meetings; Quorum.
(a) The Board of Directors shall appoint Chairman and the
committee shall appoint a secretary who may, but need not, be a member of
the committee. The chairman shall preside at all committee meetings and the
secretary of the committee shall keep a record of its acts and proceedings.
(b) Regular meetings of a committee, of which no notice shall be
necessary, shall be held on such days and at such places as shall be fixed
by resolution adopted by the committee. Special meetings of a committee
shall be called at the request of the Chairman or the President or of any
member of the committee, and shall be held upon such notice as is required
by these Bylaws for special meetings of the Board of Directors, provided
that notice by word of mouth or telephone shall be sufficient if received
in the city where the meeting is to be held not later than the day
immediately preceding the day of the meeting. A waiver of notice of a
meeting, signed by the person or persons entitled to such notice, whether
before or after the event stated therein, shall be deemed equivalent to the
giving of such notice.
(c) Attendance of any member of a committee at a meeting shall
constitute a waiver of notice of the meeting. A majority of a committee,
from time to time, shall be necessary to constitute a quorum for the
transaction of any business, and the act of a majority of the members
present at a meeting at which a quorum is present shall be the act of the
committee. Members of a committee may hold a meeting of such committee by
means of conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in person at the
meeting.
(d) Any action which may be taken at a meeting of a committee may
be taken without a meeting if a consent in writing setting forth the
actions so taken shall be signed by all members of the committee entitled
to vote with respect to the subject matter thereof. The consent shall have
the same effect as a unanimous vote of the committee.
(e) The Board of Directors may vote to the members of any
committee a reasonable fee as compensation for attendance at meetings of
the committee.
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ARTICLE IV
OFFICERS
4.1 Number. The officers of the corporation shall be a Chairman, a
President, one or more Vice Presidents, a Secretary and a Treasurer. Such
other officers and assistant officers as may be deemed necessary may be
elected or appointed by the Board of Directors and shall have such powers
and duties as may be prescribed by the Board of Directors. Any two or more
offices may be held by the same person.
4.2 Election and Term of Office. The officers of the corporation shall
be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after the annual meeting of the stockholders. If
the election of officers shall not be held at the meeting, it shall be held
as soon thereafter as is convenient. Each officer shall hold office until a
successor shall have been duly elected and shall have qualified or until
the officer's death, resignation or removal in the manner hereinafter
provided.
4.3 Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment
the best interests of the corporation would be served thereby.
4.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise may be filled by the Board of
Directors for the unexpired portion of the term.
4.5 Chairman. The Chairman shall be the chief executive officer of the
corporation and shall be in general charge of its business and affairs,
subject to the control of the Board of Directors. The Chairman shall, if
present, preside at all meetings of stockholders and of directors. The
Chairman may execute on behalf of the corporation all contracts,
agreements, stock certificates and other instruments. The Chairman shall
from time to time report to the Board of Directors all matters within the
Chairman's knowledge affecting the corporation which should be brought to
the attention of the Board. The Chairman may vote all shares of stock in
other corporations owned by the corporation, and shall be empowered to
execute proxies, waivers of notice, consents and other instruments in the
name of the corporation with respect to such stock. The Chairman shall
perform such other duties as may be required by the Board of Directors.
4.6 President. The President shall be the chief operating officer of
the corporation and shall be in general charge of its operations, subject
to the control of Chairman and the Board of Directors. In the absence of
the Chairman, the President shall preside at all meetings of stockholders
and at all meetings of directors. The President may execute on behalf of
the corporation all contracts, agreements, stock certificates and other
instruments. The President may vote all shares of stock in other
corporations owned by the corporation, and shall be empowered to execute
proxies, waivers of notice, consents and other instruments in the name of
the corporation with respect to such stock. The President shall perform
such other duties as may be required by the Chairman or the Board of
Directors. In the event of the Chairman's death or inability or refusal to
act, the President shall perform the duties of the Chairman and, when so
acting, shall have all the powers of and be subject to all the restrictions
upon the Chairman.
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4.7 Secretary. The Secretary shall keep the minutes of all meetings of
the directors and stockholders, and shall have custody of the minute books
and other records pertaining to the corporate business. The Secretary shall
countersign all stock certificates and other instruments requiring the seal
of the corporation and shall perform such other duties as may be required
by the Board of Directors.
4.8 Vice Presidents. In the event of the death or inability or refusal
to act, of both the Chairman and the President, a Vice President (selected
as provided below) shall perform the duties of the Chairman and the
President and, when so acting, shall have all the powers of and be subject
to all the restrictions upon the Chairman and the President. In the event
the Board of Directors has appointed more than one Vice President, the
duties of the President and Chairman shall be undertaken by the most senior
Vice President able to undertake such duties. Seniority shall be determined
based on any classifications among Vice Presidents established by the Board
of Directors and, within any such classification, based on the date of
appointment to that position. Any Vice President shall perform such other
duties assigned by the Chairman or the President or by the Board of
Directors.
4.9 Treasurer. The Treasurer shall be the chief financial and
accounting officer of the corporation. The Treasurer shall keep correct and
complete records of accounts showing the financial condition of the
corporation. The Treasurer shall be legal custodian of all moneys, notes,
securities and other valuables that may come into the possession of the
corporation. The Treasurer shall deposit all funds of the corporation that
come into the Treasurer's hands in depositories that the Board of Directors
may designate. The Treasurer shall pay the funds out only on the check of
the corporation signed in the manner authorized by the Board of Directors.
The Treasurer shall perform such other duties as assigned by the Board of
Directors may require.
4.10 Salaries. The salaries of the officers shall be fixed from time
to time by the Board of Directors and no officer shall be prevented from
receiving such salary because the officer is also a director of the
corporation.
ARTICLE V
INDEMNITY
5.1 Grant of Indemnity. The Corporation shall indemnify to the fullest
extent then permitted by the law any person who is made, or threatened to
be made, a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administra tive, investigative or
otherwise (including an action, suit or proceeding by or in the right of
the Corporation) by reason of the fact that the person is or was a director
or officer of the Corporation, or serves or served at the request of the
Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, actually
and reasonably incurred in connection therewith. Expenses incurred by an
officer or director in defending a civil or criminal action, suit or
proceeding shall be paid by the Corporation in
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advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he or she is
not entitled to be indemnified by the Corporation as authorized in this
Article. The indemnification provided hereby shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any
statute, bylaw, agreement, vote of stockholders or directors or otherwise,
both as to action in any official capacity and as to action in another
capacity while holding an office, and shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the
heirs, executors and administrators of such person.
Any person other than a director or officer who is or was an employee
or agent of the Corporation, or fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to any
employee benefit plans of the Corporation, or is or was serving at the
request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise may be indemnified to
such extent as the board of directors in its discretion at any time or from
time to time may authorize.
5.2 No Liability of Directors. No director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director; provided that the
liability of a director shall not be eliminated (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law or (iv) for any transaction from which the director
derived an improper personal benefit.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Certificates for Shares.
(a) Certificates representing shares of the corporation shall be
in such form as shall be determined by the Board of Directors. Such
certificates shall be signed by the President or a Vice President and by
the Secretary or an Assistant Secretary and may be sealed with the seal of
the corporation or a facsimile thereof. All certificates for shares shall
be consecutively numbered or otherwise identified.
(b) The name and address of the person to whom the shares
represented by each certificate are issued, with the number of shares and
date of issue, shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation for transfer
shall be canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except that in case of a lost, destroyed or mutilated
certificate a new one may be issued therefor upon such terms and indemnity
to the corporation as the Board of Directors may prescribe.
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6.2 Transfer of Shares. Transfer of shares of the corporation shall be
made only on the stock transfer books of the corporation by the holder of
record thereof or by the holder's legal representative, who shall furnish
proper evidence of authority to transfer, or by the holder's attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the corporation. The person in whose name shares stand on the
books of the corporation shall be deemed by the corporation to be the owner
thereof for all purposes.
6.3 Transfer Agent and Registrar. The Board of Directors may from time
to time appoint one or more transfer agents and one or more registrars for
the shares of the corporation, with such powers and duties as the Board of
Directors shall determine by resolution. The signatures of the President or
Vice President and the Secretary or Assistant Secretary upon a certificate
may be facsimiles if the certificate is manually signed on behalf of such
officers by a transfer agent or a registrar other than the corporation
itself.
6.4 Officer Ceasing to Act. In case any officer who has signed or whose
facsimile signature has been placed upon a stock certificate shall have
ceased to be such officer before such certificate is issued, it may be
issued by the corporation with the same effect as if the signer were such
officer at the date of its issuance.
6.5 Fractional Shares. The corporation shall not issue certificates for
fractional shares.
ARTICLE VII
LOANS, CHECKS AND OTHER INSTRUMENTS
7.1 Contracts. The Board of Directors may authorize any officer or
officers and agent or agents to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances.
7.2 Loans. No loans shall be contracted on behalf of the corporation
and no evidence of indebtedness for money borrowed shall be issued in its
name unless authorized by a resolution of the Board of Directors; provided,
however, that the foregoing prohibitions shall not apply to trade credit in
the ordinary course of business. Such authority may be general or confined
to specific instances.
7.3 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money and notes or other evidences of indebtedness issued in the
name of the corporation shall be signed by such officer or officers and
agent or agents of the corporation and in such manner as shall from time to
time be determined by resolution of the Board of Directors.
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ARTICLE VIII
SEAL
8.1 Seal. The seal of the corporation shall be circular in form and
shall have inscribed thereon the name of the corporation and the state of
incorporation and the words "Corporate Seal."
8.2 Severability. Any determination that any provision of these Bylaws
is for any reason inapplicable, invalid, illegal or otherwise ineffective
shall not affect or invalidate any other provision of these Bylaws.
8.3 Evidence of Authority. A certificate by the Secretary or an
Assistant Secretary as to any action taken by the stockholders, directors,
any committee or any officer or representative of the corporation shall as
to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
ARTICLE IX
AMENDMENTS
These Bylaws may be altered, amended or repealed and new bylaws may be
adopted by the Board of Directors or by the stockholders at any regular or
special meeting.
